Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: It's the most consequential reproductive rights case in thirty years,
Speaker 1: and the Supreme Court's conservatives suggested they're ready to roll
Speaker 1: back abortion rights and uphold Mississippi's ban on abortion after
Speaker 1: fifteen weeks of pregnancy. In an argument that lasted almost
Speaker 1: two hours, all six Republican appointed justices indicated they would
Speaker 1: let states start banning abortion far earlier than the courts
Speaker 1: precedents now allow. Here's Justice Samuel Alito. The fetus has
Speaker 1: an interest in having a life, and that doesn't change,
Speaker 1: does it? From the point before viability to the point
Speaker 1: after viability? Liberal justice has suggested a decision that gutted
Speaker 1: the precedence of Roe versus Wade and planned parent who
Speaker 1: had versus Casey would undermine the courts legitimacy. Here's Justice
Speaker 1: So so to mayor will this institution survive the stench
Speaker 1: that this creates in the public perception that the Constitution
Speaker 1: and it's reading are just political acts. Joining me is
Speaker 1: Bloomberg New Supreme Court reporter Greg Store? How would you
Speaker 1: characterize the questioning by the justices? The tone was it
Speaker 1: even keeled? Contentious tents. There was a certain amount of contentiousness.
Speaker 1: Mostly it was very much in favor of Mississippi. The
Speaker 1: Conservative justices all suggested they were ready to uphold the
Speaker 1: fift week ban, almost no questions from them suggesting any
Speaker 1: skepticism towards it. Justice Clarence Thomas asked right away how
Speaker 1: the Court could uphold the law without overturning the courts
Speaker 1: precedents on abortion. Is there any way for the court
Speaker 1: to do that? There didn't see to be away offered
Speaker 1: by either side that satisfied the justices. Lawyers on both
Speaker 1: sides are casting this case is pretty much in all
Speaker 1: or nothing case. The abortion rights lawyers Julie Rickleman, the
Speaker 1: Slicer General Elizabeth pre Lager, we're both essentially saying, if
Speaker 1: you're going to uphold this law, you are essentially gutting Row.
Speaker 1: And there's no middle ground standard that will be as
Speaker 1: workable as the current one that we have. Was the
Speaker 1: only question for the Conservatives then, whether to overrule Row
Speaker 1: entirely or whether to stop at fifteen weeks of viability.
Speaker 1: That sure seemed to be the case. So you had
Speaker 1: two Justice John Roberts, who was mostly talking about the
Speaker 1: fifteen week band aspect of the law. He wasn't talking
Speaker 1: about overruling Row. And then you had Justices like Amy Coney, Barrett,
Speaker 1: and Brett Kavanaugh who were really pressing on the starry
Speaker 1: decisis issue, the idea that the Court will respect its presidents.
Speaker 1: And then you had the most conservative justice says who
Speaker 1: were pretty clear that overruling Row was what they had
Speaker 1: in mind. So you had on one side of the
Speaker 1: Justice Clarence Thomas, Samuel Alito, and Neil Gorsuch for overruling Row.
Speaker 1: And then you had the liberals Justices Sonya Sotomayor, Stephen
Speaker 1: Bryan and Elena Kagan for keeping Row and overruling this
Speaker 1: Mississippi law. And then you had the other three sort
Speaker 1: of in the middle, or not really in the middle,
Speaker 1: because all the conservatives seemed to be ready to allow
Speaker 1: the Mississippi law. Yeah, not really in the middle. Exactly,
Speaker 1: they were ready to allow the Mississippi law. John Roberts
Speaker 1: was really only talking about the specific law in front
Speaker 1: of them, not about the broader question about overturning Roki,
Speaker 1: Wade and Kavanaugh and Barrett almost all their question We're
Speaker 1: suggesting they were at least thinking very seriously about overturning Row.
Speaker 1: They were both suggesting reasons why the Court didn't need
Speaker 1: to respect the president of rob Wade, while there might
Speaker 1: be good reasons that the Court could overturn it, and
Speaker 1: that the reasons that the Court gave in Row and
Speaker 1: then in Casey for keeping abortion rights intact might not
Speaker 1: be valid once so, remind me what Barrett and Kavanaugh
Speaker 1: said about precedent in their confirmation hearings. Well, both of
Speaker 1: them said they would respect precedent. Both of them acknowledge
Speaker 1: Row and Casey as precedents of the Court, but they
Speaker 1: didn't say that either of them were settled law. They
Speaker 1: did not treat them the way they treated something like
Speaker 1: Brown versus Board of Education, which they portrayed as a
Speaker 1: decision that would never come up to the Court to
Speaker 1: be second guest. They said that because there was a
Speaker 1: chance that they would be asked to overturn Ruby Wade,
Speaker 1: they didn't want to comment on what they thought about that.
Speaker 1: Was any conservative justice agreeable to keeping the viability standard.
Speaker 1: No one seemed to like the viability standard, and John
Speaker 1: Roberts was certainly among them. He said that the viability
Speaker 1: standard put the us UH in league a North Korea
Speaker 1: and China as two other countries that had that standard.
Speaker 1: Julie recommend. The lawyer representing the Jackson, Mississippi clinic a
Speaker 1: shot back that he was incorrect in that assessment, but
Speaker 1: he said that fifteen weeks seems like enough time for
Speaker 1: somebody to make a decision. He seemed very ready to
Speaker 1: jettison that standard. Barrett questioned the contention by the abortion
Speaker 1: right advocates that women would be forced into bearing the
Speaker 1: burden of parenthood if they couldn't have an abortion. Did
Speaker 1: she suggest adoption as a viable alternative. She did, and
Speaker 1: she returned to the subject a couple of times. She
Speaker 1: talked about safe haven laws that she said, we're in
Speaker 1: place in all fifty states that let a woman who
Speaker 1: gives birth leave her baby in a in a safe
Speaker 1: place to be adopted and then she doesn't have to
Speaker 1: bear those burdens of a parenthood. And what Justice Barrett
Speaker 1: was suggesting was that language and growing casey that suggested
Speaker 1: that was a reason why the court needs to let
Speaker 1: a woman and the pregnancy was not a vou reason.
Speaker 1: What was the tone of the liberal justices because Justice
Speaker 1: Sonya Soto Mayor said something that seemed rather shocking. The
Speaker 1: theme among the liberal justices was that if the Court
Speaker 1: overturns Row, it will lose its legitimacy and and justice.
Speaker 1: So to Mayor uses the phrase will this institution survive?
Speaker 1: The stench that this creates in the public perception that
Speaker 1: the Constitution and its reading are just political acts. A
Speaker 1: couple of the justices of liberal justices mentioned the Court's
Speaker 1: change in membership and the perception that the country would
Speaker 1: have that Row was being overturned, not because anything had
Speaker 1: changed over the course of fifty years, just because the
Speaker 1: court's membership had changed. I suppose the justices shouldn't be
Speaker 1: thinking about public opinion, but it is sort of shocking
Speaker 1: that they would seemingly take this turn at this point
Speaker 1: in our history where a majority of the public supports abortion.
Speaker 1: That's interesting and that may ultimately have an effect on
Speaker 1: exactly how this case is resolved, depending on how you
Speaker 1: asked the question. If if you ask folks about do
Speaker 1: they support a fifteen week limit on abortion? Uh, then
Speaker 1: there's more support for that sort of limit. So if
Speaker 1: the Court could somehow limited decision to just the Mississippi law,
Speaker 1: perhaps it wouldn't have the public opinion issue that you
Speaker 1: just described. The problem for the court is that in
Speaker 1: the absence of using viability as a line, it's not
Speaker 1: at all clear, and certainly it's not clear that the
Speaker 1: court has the interest what the other line might be.
Speaker 1: What line might allow a fifteen week band but not
Speaker 1: allow a six week band. And that's why there seemed
Speaker 1: to be a good deal of momentum on the court
Speaker 1: for just going ahead ripping off the band aid in
Speaker 1: the overturning Row. And as you suggest, there could be
Speaker 1: a backlash there. So remind you when the court took
Speaker 1: this case, was there talk about overturning row? There was,
Speaker 1: but not not as much. So what happened was when
Speaker 1: Mississippi file its appeal, Ruth Vader Ginsburg was still alive,
Speaker 1: the appeal did not explicitly ask the court to overturn row.
Speaker 1: After Justice Ginsburg died, just spared joined the court. The
Speaker 1: Court took agreed to take up the case, and then
Speaker 1: when filed it's brief on the merits, that's when it
Speaker 1: directly said, Hey, you should just go ahead and overturn
Speaker 1: rowing casey. So that's why the emphasis here has changed.
Speaker 1: And that's another factor that might matter when I talk
Speaker 1: about how this decision is perceived by the public. As
Speaker 1: we've talked about many times, the Chief Justice is in
Speaker 1: favor of incrementalism, moving slowly. What would be moving slowly
Speaker 1: in this case, moving slowly would be if the Court
Speaker 1: could somehow find a way to uphold this this law.
Speaker 1: And mind you, that would be a sweeping change, because
Speaker 1: that is far earlier than the Supreme Court has ever
Speaker 1: said is okay to the ban abortion. But the Court
Speaker 1: could find a way to uphold this law, and just
Speaker 1: limited to the facts of this case that it's a
Speaker 1: fifteen week ban in Mississippi right now, the only clinic
Speaker 1: there performs abortions only up to sixteen weeks, so that
Speaker 1: the narrow effect of this law in Mississippi is pretty small.
Speaker 1: The problem, of course, would be that almost immediately they
Speaker 1: would be badged with other appeals saying well, then you
Speaker 1: should also allow our twelve week ban or eight week
Speaker 1: ban or our six week band. And it's gonna be
Speaker 1: very hard for the court to find a way to
Speaker 1: draw a line there. And that was something I think
Speaker 1: the Solicitor General talked about also in the case of Mississippi,
Speaker 1: is there a trigger that would completely ban abortions. Mississippi
Speaker 1: is one of about twelve states that also has a
Speaker 1: law that would automatically ban virtually all abortions if the
Speaker 1: Court explicitly over rules Roe v. Wade, and so that
Speaker 1: law we kick in. And there would probably be some
Speaker 1: litigation over some some of those laws whether they actually apply,
Speaker 1: but there would probably be beyond the twelve states and
Speaker 1: other maybe another ten or so, according to abortion rights
Speaker 1: the advocates, maybe even more than that. That would very
Speaker 1: significantly limit abortion rights and and act pre viability bands.
Speaker 1: Did any of the liberal justices make an impassioned plea
Speaker 1: or was their passion on that side? It was mostly
Speaker 1: from Justice so to Mayor, as is typical. Justices Kagan
Speaker 1: and Briar were more focused on issues of the court's legitimacy.
Speaker 1: Justice brier quoted from the Casey decision, and it's it's
Speaker 1: concerns about the impact on the perception of the Court
Speaker 1: if it's overruling its watershed precedents. The absence of Justice
Speaker 1: Ginsburg was certainly felt today she would have been one
Speaker 1: of those justices he would have expected to be very
Speaker 1: passionate about what seems like is about to happen. Justice
Speaker 1: Samuel Lilto was pretty stark in what he was saying
Speaker 1: about getting rid of abortion. Yeah, Justice Lito, it was
Speaker 1: pretty dark and clear. One thing he pressed Elizabeth pre
Speaker 1: Lauger on was the idea that plus e versus ferguson
Speaker 1: the ruling that said that state sponsored racial segregation was
Speaker 1: was okay. He pressed her to conceive that that decision
Speaker 1: was was so bad it should have been overturned immediately. Clearly,
Speaker 1: in his head he is imagining Roevi Wade as as
Speaker 1: being that sort of decision that was so bad that, uh,
Speaker 1: it should be overturned just because of how bad it is.
Speaker 1: And she said that the court had never revoked a
Speaker 1: constitutional right it had extended. This would be the first time. Yeah,
Speaker 1: and that that's an interesting way of casting this case,
Speaker 1: and that's part of the reason why abortion rights supporters
Speaker 1: are are uh so upset by it. But that didn't
Speaker 1: seem to be a distinction that matter to the justices
Speaker 1: when they talked about the court ruling precedents, Brett Kavanaugh
Speaker 1: listed a whole lot of precedents that the Court had overturned,
Speaker 1: and he talked about things like Brown versus Board of
Speaker 1: Education and the Berga fell gave marriage decision as big
Speaker 1: rulings that overturned precedents and uh suggesting that overruling Row
Speaker 1: would would just be another case along those lines. After
Speaker 1: hearing the oral arguments, what's your best guests about how
Speaker 1: this will come out? For starters, it's very clear they're
Speaker 1: going to uphold the Mississippi law. The question is whether
Speaker 1: they will go further and overturn Row on that, it's
Speaker 1: hard to say for sure. Based on what we heard
Speaker 1: in the argument, it sounds like there might well be
Speaker 1: five votes to do that, including Kavanaugh and Barrett. The
Speaker 1: question will be when push comes to shove, if John
Speaker 1: Roberts wants to write a narrower opinion that doesn't go
Speaker 1: that far, will somebody like Brett Kavanaugh decided he's going
Speaker 1: to go along with the Chief and save the bigger
Speaker 1: ruling for later on that it's really too hard to say.
Speaker 1: Thanks for being in the Bloomberg Lawn Show, Greg, that's
Speaker 1: Bloomberg News Supreme Court reporter Greg Store. The best protection.
Speaker 1: I know you're tired of me saying this the best
Speaker 1: protection against this new variant or any of the of
Speaker 1: the various out there. But once we've been dealing with
Speaker 1: already is getting fully vaccinated and getting a booster shot.
Speaker 1: President Biden has been consistent in his message about vaccines,
Speaker 1: but his vaccine mandates are facing problems in the courts.
Speaker 1: About seventeen million healthcare workers are fighting the pandemic from
Speaker 1: the front lines, and the Biden administration has mandated that
Speaker 1: they must be vaccinated by January four, But more than
Speaker 1: half the states are involved in legal challenges to that mandate,
Speaker 1: and in the first victory for opponents of the mandate,
Speaker 1: a federal court and Missouri blocked the administration from enforcing
Speaker 1: it intense states. My guest is Robert Field, a professor
Speaker 1: of law and public health at Drexel University. It's the
Speaker 1: first victory for opponents of the vaccine mandate for health workers.
Speaker 1: So why did a federal court in Missouri block the
Speaker 1: Biden administration from enforcing the mandate. That mandate is issued
Speaker 1: through the Center for Medicare and Medicaid Services, which runs
Speaker 1: Medicare and Medicaid, and the court felt that it overstepped
Speaker 1: its authority in requiring that hospitals that accept those programs
Speaker 1: imposed a vaccine mandate on their workers. It felt that
Speaker 1: this was federal overreach that it goes beyond what Congress
Speaker 1: authorized the agency to do. The court also went into
Speaker 1: some of the policy aspects, which is not really appropriate
Speaker 1: for a legal review, and said it will cause people
Speaker 1: to avoid healthcare jobs and it will cost a large
Speaker 1: amount of money to administer. So now a federal judge
Speaker 1: in Florida declined to block the rule in a separate
Speaker 1: sy So we're in a funny legal world in terms
Speaker 1: of the mandates of whack a mole, where different courts
Speaker 1: are whacking different legal moles as the cases come up.
Speaker 1: Only the Supreme Court is really in a position to
Speaker 1: speak definitively to this issue. Until they do, it's going
Speaker 1: to be different district courts which have limited geographic scope,
Speaker 1: and appeals courts that have limited geographic scope. None of
Speaker 1: them has the final say until the Supreme Court speaks.
Speaker 1: So it's not unusual in a case like this with
Speaker 1: national litigation to see different opinions from different courts. So
Speaker 1: that means that, for example, healthcare workers intense states, according
Speaker 1: to this decision, don't have to abide by the mandate,
Speaker 1: but healthcare workers in other states do For the time being,
Speaker 1: they don't do abide by the mandate until there's been
Speaker 1: a final rule in the case. It's a temporary injunction,
Speaker 1: so it's not as though it will never apply to them,
Speaker 1: But in terms of the Missouri ruling, it could be
Speaker 1: reversed after the court he fully hears all the arguments
Speaker 1: and makes a definitive decision. This is a temporary injunction,
Speaker 1: and given the fast moving and emergency nature of a
Speaker 1: lot of these laws, we're seeing a lot of courts
Speaker 1: issuing temporary injunctions, not waiting the weeks or months that
Speaker 1: it might take to have the case fully argued, to
Speaker 1: have the briefs written and the oral arguments made in
Speaker 1: a full decision written, which is one of the reasons
Speaker 1: we're seeing so many different decisions because courts are acting
Speaker 1: quickly to either strike down mandates or temporarily uphold them.
Speaker 1: In neither of those cases are we seeing fully fleshed out,
Speaker 1: reasoned decisions, which should be the basis of president So,
Speaker 1: in your opinion, which judge is correct? Is it the
Speaker 1: judge in Florida who didn't block it or the judge
Speaker 1: in Missouri who did block it. Well, I can give
Speaker 1: you my opinion, Um, But whether Um Supreme court would
Speaker 1: agree with it. I guess we'll find out at some point.
Speaker 1: I think the mandate for healthcare workers rest on pretty
Speaker 1: solid legal ground. It's tied to Medicare and Medicaid, primarily
Speaker 1: to Medicare, and what it does is it adds a
Speaker 1: condition of participation. If a hospital or another care care
Speaker 1: facility wants to be eligible to receive Medicare reimbursement, it
Speaker 1: has to meet various requirements, and there are hundreds of
Speaker 1: pages of regulations setting forth those requirements. So, for instance,
Speaker 1: it has to have properly licensed staff, it has to
Speaker 1: be properly accredited UH, it has to meet various quality
Speaker 1: control standards under the Affordable Care Act. It has to
Speaker 1: meet standards for reporting safety lapses, readmissions after surgery, mortality,
Speaker 1: morbidity rates for certain procedures. Um. There are, as I said,
Speaker 1: pages and pages of requirements. This is adding to those requirements,
Speaker 1: but there's never been a question up to now about
Speaker 1: CMSs authority to issue them. What is a bit different
Speaker 1: is this is issued on an emergency basis, and while
Speaker 1: the courts are acting quickly to either issue or deny injunctions,
Speaker 1: CMS as well as OSHA for the larger mandate have
Speaker 1: acted very quickly without the usual rulemaking process, which can
Speaker 1: take months or years to publish a proposed rule, solicit
Speaker 1: comments from interested parties, revisit the rule, publish it again,
Speaker 1: publish a preamble that explains all of its thinking and
Speaker 1: analysis UH and then making a final rule. So one
Speaker 1: of the distinctions here that a court could make is
Speaker 1: the speed with which um CMS acted and the lack
Speaker 1: of the full fleshed out procedure. The judge in Missouri
Speaker 1: said that this is not really an emergency and it
Speaker 1: didn't call for their emergency powers and said, well, when
Speaker 1: will we stop treating COVID as emergency? I would say
Speaker 1: when thousands of people stopped dying every day of the disease,
Speaker 1: it will no longer be an emergency. The court didn't
Speaker 1: find that very convincing. Um So, if you accept that
Speaker 1: this is an emergency, and I certainly believe COVID, especially
Speaker 1: with the new variance, as an emergency, then that would
Speaker 1: justify CMSs use of its emergency powers just looking down
Speaker 1: the road. If after trial, this injunction is still in
Speaker 1: place and it's appealed, it would go to the Eighth Circuit,
Speaker 1: which has one active or senior status judge appointed by
Speaker 1: a Democratic president. Out of fourteen, the one in Florida
Speaker 1: would go to the leventh Circuit, which is also very conservative,
Speaker 1: So you could end up with two conservative courts hearing
Speaker 1: this and possibly agreeing. Would the Supreme Court still you
Speaker 1: think take a case. My guess, and it's a guess,
Speaker 1: is that they would because it's such an important issue
Speaker 1: that they would want to resolve it with finality. Typically
Speaker 1: they would take a case when there's a split between
Speaker 1: the circuits, But when there's something this important, where president
Speaker 1: is needed for this pandemic and possibly the next one,
Speaker 1: I would think that the Supreme Court would want to
Speaker 1: step in. With regard to Biden's mandate for large employers,
Speaker 1: we've already resolved that it's going to be the sixth
Speaker 1: Circuit that's going to make the decision for all the
Speaker 1: circuits through the Ping pong ball lottery, So in that case,
Speaker 1: the Supreme Court would not use a split between the
Speaker 1: circuits to step in, but I think there as well,
Speaker 1: it would use its authority to define what the law is,
Speaker 1: so the officials going forward have some sense of what
Speaker 1: they can and can't do, and there will probably be
Speaker 1: splits in the circuits at some point so that the
Speaker 1: Supreme Court will review the issue. Yeah, it's likely there
Speaker 1: will be. I guess the one issue that would be
Speaker 1: concerning in terms of the legal terrain is if the
Speaker 1: Supreme Court uses what's become known as the shadow docket.
Speaker 1: Rather than issuing a full decision, they issue a temporary
Speaker 1: order either striking down or upholding an injunction, and then
Speaker 1: wait months or years before actually considering the merits of
Speaker 1: the case. But I do think this is important enough
Speaker 1: and guidance is so desperately needed that the Court would
Speaker 1: step in. It seemed as if we were looking at,
Speaker 1: you know, light at the end of the tunnel. And
Speaker 1: so maybe these vaccine mandates weren't as important as they
Speaker 1: were six months a year ago. But now that there's
Speaker 1: a new variant, does that add another dimension of urgency
Speaker 1: to this? Yeah, well, in theory it does. But it's
Speaker 1: too new to really know how effective the vaccines are
Speaker 1: um so it will take some time, at least a
Speaker 1: few weeks to have a sense of whether more vaccination
Speaker 1: will help. But clearly the more people who are vaccinated,
Speaker 1: the less chance the virus has to mutate and develop
Speaker 1: new strains. Uh we first noticed this variant in South Africa.
Speaker 1: Africa has a very low vaccination rates, so it's not
Speaker 1: surprising that that would be a wonderful incubator for new
Speaker 1: vaccine strains. Um. I think that the idea that new
Speaker 1: variants can pop up at any time without warning should
Speaker 1: give a greater sense of urgency to getting our vaccine
Speaker 1: rates up as high as possible, possibly high enough to
Speaker 1: achieve her immunity where the virus can't get a toe
Speaker 1: hold in the population. Turning to the Sixth Circuit, which,
Speaker 1: as you said, has all the consolidated cases on the
Speaker 1: mandate for large employers. Several states with Republican attorneys general,
Speaker 1: the Republican National Committee, various companies, and other groups have
Speaker 1: asked that court to have an on bank review before
Speaker 1: a three judge panel. Why would they want that? Is
Speaker 1: that ever done? It's done when you have a decision
Speaker 1: by one judge or by a panel, to have every
Speaker 1: judge on that circuit court decide. I don't know what
Speaker 1: the reasoning is. My guess is that if the entire
Speaker 1: court were to hear the case and rule against the mandate,
Speaker 1: they'd be in a stronger position when it comes to
Speaker 1: the Supreme Court, because the Biden administration has file papers
Speaker 1: saying that they should not. What they would be doing
Speaker 1: is bypassing the three judge panel and going right to
Speaker 1: the full circuit. And that's out of the normal procedure.
Speaker 1: So the Biden administration is arguing against that. Is the
Speaker 1: Biden administration also just looking for time. Well, they may
Speaker 1: be um Also, it's a court this is heavily dominated
Speaker 1: by Republican appointees, so there's a greater chance of getting
Speaker 1: some Democrats on the free judge panel than there is
Speaker 1: of getting a democratic majority on the full em Bank panel.
Speaker 1: They've received petitions to transfer the case to other circuits.
Speaker 1: Is there any reason why a circuit would say, no,
Speaker 1: let this other circuit take this over. We can't handle it.
Speaker 1: Asking a sixth circuit to send it to another circuit
Speaker 1: it seems to me like a fool's Errand there's uh
Speaker 1: strategy often used in litigation of throwing as many arguments
Speaker 1: as you can against the wall and seeing what would stick.
Speaker 1: So there's a fairly minimal cost to throwing those arguments out.
Speaker 1: My guess is that they don't really expect to succeed
Speaker 1: in that. I think the Sixth Circuit of My guess
Speaker 1: as the judges are very happy to have the case
Speaker 1: and to leave their imprint in this area of the law.
Speaker 1: So let's turn to yet another lawsuit over vaccine mandates,
Speaker 1: and there are certainly plenty of them to discuss. So
Speaker 1: New York City's COVID vaccine mandate there's a religious challenge
Speaker 1: by fifteen public school teachers and administrators. So what did
Speaker 1: the arbitrator rule here? So the ruling was that if
Speaker 1: you're gonna claim a religious exemption, it has to be
Speaker 1: through a recognized religion, and if the leader or top
Speaker 1: clergy in that religion have come up in favor of vaccines,
Speaker 1: that your objection could not be sincere and therefore not legitimate.
Speaker 1: That seems like a very radical approach. Well, the sincerity
Speaker 1: of a religious objection is important because we don't want
Speaker 1: allow sham contrived religious beliefs to counteract public policy. But
Speaker 1: it's very difficult to draw that line. Some when is
Speaker 1: someone genuinely expressing a sincerely, deeply held religious belief and
Speaker 1: when are they just trying to do an end run
Speaker 1: around a vaccine mandate. That would be one way of
Speaker 1: doing it, saying you can't just make up your religion
Speaker 1: on the spot. The Supreme Court, the conservative majority there,
Speaker 1: seems more sympathetic to the argument that you can make
Speaker 1: it up on the spot. The Second Circuit in the
Speaker 1: New York City case seemed more sympathetic to that argument
Speaker 1: that you can't challenge someone's belief because another member of
Speaker 1: their religion doesn't accept it, even a leader their religion
Speaker 1: doesn't accept it. You have to take each person on
Speaker 1: their own. But there was one employee who was identified
Speaker 1: as Roman Catholic that was granted an exemption despite the
Speaker 1: fact that the pope has been in support of vaccinations. Well,
Speaker 1: I think that gets to the argument that you can't
Speaker 1: base the sincerity of your belief on what other members
Speaker 1: of the religion belief. Um Now, the divine authority of
Speaker 1: the pope, the belief in the divine authority of the
Speaker 1: Pope is stronger than in the respect given to the
Speaker 1: leaders of many other religions. But it would come under
Speaker 1: that reasoning that your interpretation of your religion is what controls,
Speaker 1: not what a member of the clergy, leader of the clergy,
Speaker 1: or fellow members of the religion belief. So the Second
Speaker 1: Circuit's concerns were with First Amendment issues. Yeah, so that
Speaker 1: would be a matter of freedom of religion. That's been
Speaker 1: authority issue UM all along. The Supreme Court held that
Speaker 1: case was held that religious exemptions to compelling public policy
Speaker 1: need not be granted, and so religious exemptions to vaccine
Speaker 1: mandates are not constitutionally required. So I don't really understand
Speaker 1: what the President is here. It's possible the Spring Court
Speaker 1: will get this case and then decide to overrule that precedent.
Speaker 1: But with regard to school mandates, religious exemptions are not required,
Speaker 1: and there are now five states that don't permit them.
Speaker 1: School children have to be vaccinated to attend school UM. West, Virginia, Mississippi, California, Maine,
Speaker 1: New York, and Connecticut have repealed them. And in another
Speaker 1: case involving a religious exemption, Justice Stephen Bryan turned away
Speaker 1: a request from eight mass General Brigham workers for a
Speaker 1: religious exemption from the Massachusetts Hospital Systems requirement that they
Speaker 1: be vaccinated. Ria rejected that without requesting a response from
Speaker 1: the hospital or referring the matter to the full court.
Speaker 1: It's not unusual, UM, there are cases where a justice
Speaker 1: would um request a fuller examination. But this is an
Speaker 1: emergency order they're asking for. And you know, the way
Speaker 1: the Supreme Court works is each justice is assigned geographic
Speaker 1: territory to handle emergency requests, and they have a fair
Speaker 1: amount of latitude. The plaintiffs could appeal to the full
Speaker 1: Court to review what he has done, but it's not
Speaker 1: unusual for for the justice in charge of a region
Speaker 1: to either accept or deny a request for an emergency
Speaker 1: order on their own. And so so far, the justices
Speaker 1: haven't second guest vaccine requirements, but there were two There
Speaker 1: are two cases before the court Maine in New York, right,
Speaker 1: So in the main case, they have not issued a
Speaker 1: final decision. Uh, it stays in effect pending the the
Speaker 1: full litigation, and it is possible that the conservative justices
Speaker 1: will decide that a religious exemption is required. Um. But
Speaker 1: they did not. Um. I'm trying to remember. I think
Speaker 1: the vote was six to three. They did not require
Speaker 1: that it be put on hold pending the full consideration
Speaker 1: of the lawsuit. I guess you can't blame people for
Speaker 1: being confused about these vaccine mandates because there seemed to
Speaker 1: be different interpretations of the different mandates. I think part
Speaker 1: of the confusion is that we're seeing a skyder shot
Speaker 1: of cases across the country, and we're seeing different decisions,
Speaker 1: some based on the law and some based on politics.
Speaker 1: And so there's um and we're seeing new terrain with
Speaker 1: with these mandates. We've spent well over a hundred years
Speaker 1: UM hashing out school mandates, and that law seemed to
Speaker 1: be pretty settled. But broader mandates for broader swaths of
Speaker 1: the population, that's new. Uh And it does raise greater sensitivities,
Speaker 1: and so it's not surprising we have inconsistent decisions. I
Speaker 1: should add, though, that the school mandates as a political
Speaker 1: and ideological matter, are not resolved. There's still a very
Speaker 1: strong anti vax movement. There are still a lot of
Speaker 1: parents who try to get whatever exemptions they can UM,
Speaker 1: who try to delay the vaccines, who homeschool their children
Speaker 1: so they won't have to comply with the public school
Speaker 1: attendance rules. UH. So that is still a controversial issue.
Speaker 1: And of course we have the anti vax um misinformation,
Speaker 1: for instance, that autism is caused by various vaccines or
Speaker 1: other kinds of neurological injury, for which they really is evidence.
Speaker 1: So if there's no religious exemption from vaccine mandates. What
Speaker 1: exemption from vaccine mandates is there. There will always be
Speaker 1: an exemption for medical reasons. And the basic Supreme Court
Speaker 1: case that upheld mandates dates from nine five uh smallpox
Speaker 1: vaccine mandate in Massachusetts in response to an epidemic. The
Speaker 1: court said that you cannot impose a mandate if it's
Speaker 1: likely to cause medical harm to the person. So that's
Speaker 1: been incorporated into every mandate law sinse. But it did
Speaker 1: not say any other kind of exemption was required. Um
Speaker 1: for the COVID vaccines, there's a very narrow um range
Speaker 1: of conditions that could make you vulnerable. People who have
Speaker 1: had one shot and reacted anaphylactically, or had another kind
Speaker 1: of allergic reaction, um and kinds of autoimmune conditions. So
Speaker 1: if you have one of those, then you can it's
Speaker 1: constitutionally required that you're granted an exemption. But that's not
Speaker 1: going to cover a lot of people. Thanks so much
Speaker 1: for being on the show. That's Robert Field, a professor
Speaker 1: of law and public health at Drexel University. Jacob chans Lee,
Speaker 1: known as the Q and on Shaman, he's appealing his
Speaker 1: sentence of more than three years for his role in
Speaker 1: the January six Capital riot. Joining me is Bloomberg Legal
Speaker 1: reporter David Yaffe Beleny tell us about the charges against
Speaker 1: him and what happened. So, the charges against Jacob Chansley
Speaker 1: are similar to the charges that have been filed against
Speaker 1: many of the rioters. He entered the building in an
Speaker 1: unauthorized way, He obstructed an official of proceeding. He pleaded
Speaker 1: guilty to that. The big difference between him and some
Speaker 1: of the other rioters. It's just been the sort of
Speaker 1: notoriety that he managed to establish in the hours after
Speaker 1: the riot, partly because he showed up shirtless two with
Speaker 1: this horned headdress as he walked into the Senate chamber.
Speaker 1: So in some ways he's not a particularly notable January
Speaker 1: six defendant, but he has this kind of symbolic importance
Speaker 1: that was established very early on. So he was sentenced
Speaker 1: to forty one months. The sentencing earlier months. He got
Speaker 1: forty one months, which is the joint longest sentence that
Speaker 1: a writer has gotten so far. I mean, not many
Speaker 1: of them have been sentenced, but that's currently the sort
Speaker 1: of top tier of sentence that we've seen so far.
Speaker 1: He gave a very long, rambling and unusual address to
Speaker 1: the judge in that case, in which he expressed remorse
Speaker 1: and talked about his admiration for Mahatma Gandhi and other
Speaker 1: historical figures. It was very much in keeping with the
Speaker 1: sort of strange public persona that he's cultivated over the
Speaker 1: past year, and that seems like it was going to
Speaker 1: be the end of it. The judge said, what you
Speaker 1: did here was horrific, and also the prosecutor characterized that
Speaker 1: note that he left for Vice President pens as a threat. So,
Speaker 1: I mean, isn't just him running through the capital. Yes,
Speaker 1: I mean he hasn't been accused of violence, which is
Speaker 1: a major difference between the charges that he's facing him
Speaker 1: what some of the more serious riot cases involved. But yes,
Speaker 1: he left a note on the daist that Mike Pence
Speaker 1: had just deserted that read it's only a matter of time.
Speaker 1: Justice is coming. His lawyer argued that that wasn't actually
Speaker 1: a threat. The prosecutors argued that it was a violent
Speaker 1: threat to tense that was clear because of the context
Speaker 1: of what was going on. So there's been a lot
Speaker 1: of arguments back and forth about that. But yeah, that
Speaker 1: was one of the kind of key accusations against him,
Speaker 1: So is he now trying to take back the guilty play.
Speaker 1: So it's not entirely clear what's happening right now. He's
Speaker 1: been represented since the early days post riot by a
Speaker 1: guy named Albert Watkin, the defense attorney. He's been very
Speaker 1: kind of outspoken in his sort of endorsement of Jacob
Speaker 1: Chansley and arguing that he's not actually a bad person,
Speaker 1: that he's a peace lover, that sort of thing. But
Speaker 1: Watkins essentially fired his chancelly lawyer and replaced by a
Speaker 1: guy named John Pierce, who representing a lot of other
Speaker 1: capital rioters in this kind of sprawling investigation, and earlier
Speaker 1: today Pierce filed a notice of appeal saying that Chadley
Speaker 1: is going to challenge the sentence at the appeals court
Speaker 1: level in Washington. We haven't seen the kind of full
Speaker 1: text yet of what Chandley is saying, what his argument
Speaker 1: is going to be. One potential option would be to
Speaker 1: argue that he was inadequately counseled by Watkins as original lawyer.
Speaker 1: So that's something that we're anticipating, kind of looking out
Speaker 1: for his more filings hit the docut in this case
Speaker 1: that forty one months that was less than the fifty
Speaker 1: one months that the prosecutors had requested, even though it
Speaker 1: was one of the stiffest handed out so far. That's right,
Speaker 1: and that's partly because I think Chandley gave a very
Speaker 1: kind of authentic address to the court. You know, he
Speaker 1: showed that he was remorseful, and I think that resonated
Speaker 1: with the judge as he handed down the sentence. It
Speaker 1: seems like it's a long stretch to think that he's
Speaker 1: going to be able to challenge his sentence when the
Speaker 1: sentence was in the guidelines, was in the framework, was
Speaker 1: less than what the prosecutors wanted, and he was fully
Speaker 1: represented by a lawyer. So it just seems like an
Speaker 1: uphill battle and kind of strange. It is kind of
Speaker 1: strange to enormous long shot. I think that every expert
Speaker 1: who's following this pretty much agrees that it's very unlikely
Speaker 1: that he'll he'll end up with a sentence less than
Speaker 1: the one he's already received. How many other capital riders
Speaker 1: have been charged, how many have been sentenced? About six
Speaker 1: hundred have been have been charged so far, huge investigation.
Speaker 1: We're still seeing, you know, more arrest every few days.
Speaker 1: The man hunt is very much continuing. In terms of sentences,
Speaker 1: moves had maybe a couple dozen so far, Roughly the
Speaker 1: vast majority haven't involved jail time. Writers have been mostly
Speaker 1: sentenced time served and released or given probationary sentences that
Speaker 1: sort of thing. So we've only had a time of
Speaker 1: small number that have carried serious jail times. But that's
Speaker 1: also partly because many of the defendants facing the most
Speaker 1: serious sizations just haven't been sentenced yet. I mean, some
Speaker 1: of them aren't pleading guilty, like in the big kind
Speaker 1: of conspiracy cases that are set to go to trial
Speaker 1: next year. And in some instances, you know, it's just,
Speaker 1: you know, a defendant who was accused of something relatively
Speaker 1: minor who has been sentenced, and it sort of makes
Speaker 1: sense that the jail term hasn't been that long. So
Speaker 1: I'm not sure if you know this or if anyone
Speaker 1: knows this. So the FBI, they're they're looking for the
Speaker 1: people who participated in the riot itself. We're hearing a
Speaker 1: lot from the January six committee about organizers on what
Speaker 1: might have happened behind the scenes. Is the FBI investigating
Speaker 1: that as well? The truth is, we don't really know,
Speaker 1: since obviously those sorts of investigations are totally cloaked in secrecy.
Speaker 1: There were kind of early rumbling in this sort of
Speaker 1: direct aftermath of the riot about the FBI looking at
Speaker 1: people who'd organized it. I mean, obviously there was talk
Speaker 1: even of Trump being indicted for inciting the riot. That
Speaker 1: hasn't happened. There hasn't really been any public indication that
Speaker 1: that's going to happen, and so it certainly seems as
Speaker 1: if the agency's priority at the moment is simply arresting
Speaker 1: the people who were there on the grounds who breached
Speaker 1: the building, some of whom were also involved in planning.
Speaker 1: In these big conspiracy cases involved people who are who
Speaker 1: are helping to plan the riot, But we haven't yet
Speaker 1: seen the Justice Department go after those sort of big
Speaker 1: name associates of Trump, the types of people who are
Speaker 1: being subpoenaed by the Congressional Committee. Thanks David. That's Bloomberg
Speaker 1: Legal reporter David Yaffe Bellini, and that's it for this
Speaker 1: edition of the Bloomberg Law Show. Remember you can always
Speaker 1: get the latest legal news on our Bloomberg Law Podcast.
Speaker 1: You can find them on Apple Podcasts, Spotify, and at
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Speaker 1: week night at ten pm Wall Street Time. I'm June
Speaker 1: Grosso and you're listening to Bloomberg