WEBVTT - Justices Suggest Sweeping Rollback on Abortion 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:10.000 --> 0:00:13.800 It's the most consequential reproductive rights case in thirty years, 0:00:14.200 --> 0:00:17.919 and the Supreme Court's conservatives suggested they're ready to roll 0:00:18.000 --> 0:00:22.040 back abortion rights and uphold Mississippi's ban on abortion after 0:00:22.120 --> 0:00:26.000 fifteen weeks of pregnancy. In an argument that lasted almost 0:00:26.000 --> 0:00:30.760 two hours, all six Republican appointed justices indicated they would 0:00:30.840 --> 0:00:34.680 let states start banning abortion far earlier than the courts 0:00:34.760 --> 0:00:40.240 precedents now allow. Here's Justice Samuel Alito. The fetus has 0:00:40.280 --> 0:00:44.280 an interest in having a life, and that doesn't change, 0:00:44.360 --> 0:00:47.880 does it? From the point before viability to the point 0:00:47.920 --> 0:00:52.040 after viability? Liberal justice has suggested a decision that gutted 0:00:52.080 --> 0:00:55.080 the precedence of Roe versus Wade and planned parent who 0:00:55.080 --> 0:00:59.800 had versus Casey would undermine the courts legitimacy. Here's Justice 0:00:59.800 --> 0:01:05.320 So so to mayor will this institution survive the stench 0:01:06.560 --> 0:01:14.400 that this creates in the public perception that the Constitution 0:01:15.520 --> 0:01:20.160 and it's reading are just political acts. Joining me is 0:01:20.160 --> 0:01:23.880 Bloomberg New Supreme Court reporter Greg Store? How would you 0:01:24.040 --> 0:01:28.280 characterize the questioning by the justices? The tone was it 0:01:28.480 --> 0:01:33.800 even keeled? Contentious tents. There was a certain amount of contentiousness. 0:01:34.040 --> 0:01:36.720 Mostly it was very much in favor of Mississippi. The 0:01:36.720 --> 0:01:40.960 Conservative justices all suggested they were ready to uphold the 0:01:41.360 --> 0:01:45.080 fift week ban, almost no questions from them suggesting any 0:01:45.080 --> 0:01:50.040 skepticism towards it. Justice Clarence Thomas asked right away how 0:01:50.080 --> 0:01:53.680 the Court could uphold the law without overturning the courts 0:01:53.760 --> 0:01:58.000 precedents on abortion. Is there any way for the court 0:01:58.080 --> 0:02:01.080 to do that? There didn't see to be away offered 0:02:01.080 --> 0:02:04.440 by either side that satisfied the justices. Lawyers on both 0:02:04.480 --> 0:02:07.240 sides are casting this case is pretty much in all 0:02:07.320 --> 0:02:11.519 or nothing case. The abortion rights lawyers Julie Rickleman, the 0:02:11.680 --> 0:02:16.320 Slicer General Elizabeth pre Lager, we're both essentially saying, if 0:02:16.360 --> 0:02:20.400 you're going to uphold this law, you are essentially gutting Row. 0:02:20.680 --> 0:02:24.440 And there's no middle ground standard that will be as 0:02:24.720 --> 0:02:28.120 workable as the current one that we have. Was the 0:02:28.200 --> 0:02:32.760 only question for the Conservatives then, whether to overrule Row 0:02:33.120 --> 0:02:37.679 entirely or whether to stop at fifteen weeks of viability. 0:02:37.880 --> 0:02:39.760 That sure seemed to be the case. So you had 0:02:39.800 --> 0:02:43.160 two Justice John Roberts, who was mostly talking about the 0:02:43.200 --> 0:02:46.560 fifteen week band aspect of the law. He wasn't talking 0:02:46.560 --> 0:02:51.079 about overruling Row. And then you had Justices like Amy Coney, Barrett, 0:02:51.120 --> 0:02:55.000 and Brett Kavanaugh who were really pressing on the starry 0:02:55.080 --> 0:02:58.200 decisis issue, the idea that the Court will respect its presidents. 0:02:58.480 --> 0:03:00.639 And then you had the most conservative justice says who 0:03:00.680 --> 0:03:03.200 were pretty clear that overruling Row was what they had 0:03:03.240 --> 0:03:06.160 in mind. So you had on one side of the 0:03:06.240 --> 0:03:12.399 Justice Clarence Thomas, Samuel Alito, and Neil Gorsuch for overruling Row. 0:03:12.680 --> 0:03:17.000 And then you had the liberals Justices Sonya Sotomayor, Stephen 0:03:17.040 --> 0:03:21.520 Bryan and Elena Kagan for keeping Row and overruling this 0:03:21.600 --> 0:03:24.440 Mississippi law. And then you had the other three sort 0:03:24.480 --> 0:03:27.079 of in the middle, or not really in the middle, 0:03:27.120 --> 0:03:30.000 because all the conservatives seemed to be ready to allow 0:03:30.040 --> 0:03:33.359 the Mississippi law. Yeah, not really in the middle. Exactly, 0:03:33.360 --> 0:03:36.360 they were ready to allow the Mississippi law. John Roberts 0:03:36.400 --> 0:03:38.920 was really only talking about the specific law in front 0:03:38.960 --> 0:03:41.800 of them, not about the broader question about overturning Roki, 0:03:41.880 --> 0:03:46.640 Wade and Kavanaugh and Barrett almost all their question We're 0:03:46.760 --> 0:03:51.840 suggesting they were at least thinking very seriously about overturning Row. 0:03:51.960 --> 0:03:55.960 They were both suggesting reasons why the Court didn't need 0:03:56.000 --> 0:03:58.480 to respect the president of rob Wade, while there might 0:03:58.520 --> 0:04:01.080 be good reasons that the Court could overturn it, and 0:04:01.120 --> 0:04:03.600 that the reasons that the Court gave in Row and 0:04:03.640 --> 0:04:07.160 then in Casey for keeping abortion rights intact might not 0:04:07.200 --> 0:04:10.960 be valid once so, remind me what Barrett and Kavanaugh 0:04:11.120 --> 0:04:15.600 said about precedent in their confirmation hearings. Well, both of 0:04:15.600 --> 0:04:19.040 them said they would respect precedent. Both of them acknowledge 0:04:19.120 --> 0:04:22.560 Row and Casey as precedents of the Court, but they 0:04:22.640 --> 0:04:25.880 didn't say that either of them were settled law. They 0:04:26.279 --> 0:04:29.400 did not treat them the way they treated something like 0:04:29.480 --> 0:04:32.800 Brown versus Board of Education, which they portrayed as a 0:04:32.839 --> 0:04:34.919 decision that would never come up to the Court to 0:04:35.000 --> 0:04:38.120 be second guest. They said that because there was a 0:04:38.240 --> 0:04:40.520 chance that they would be asked to overturn Ruby Wade, 0:04:40.920 --> 0:04:43.320 they didn't want to comment on what they thought about that. 0:04:43.960 --> 0:04:49.640 Was any conservative justice agreeable to keeping the viability standard. 0:04:50.240 --> 0:04:52.760 No one seemed to like the viability standard, and John 0:04:52.880 --> 0:04:57.360 Roberts was certainly among them. He said that the viability 0:04:57.400 --> 0:05:00.880 standard put the us UH in league a North Korea 0:05:00.920 --> 0:05:04.160 and China as two other countries that had that standard. 0:05:04.400 --> 0:05:07.839 Julie recommend. The lawyer representing the Jackson, Mississippi clinic a 0:05:07.880 --> 0:05:11.640 shot back that he was incorrect in that assessment, but 0:05:11.960 --> 0:05:14.160 he said that fifteen weeks seems like enough time for 0:05:14.160 --> 0:05:16.800 somebody to make a decision. He seemed very ready to 0:05:16.880 --> 0:05:22.839 jettison that standard. Barrett questioned the contention by the abortion 0:05:22.920 --> 0:05:26.200 right advocates that women would be forced into bearing the 0:05:26.279 --> 0:05:29.839 burden of parenthood if they couldn't have an abortion. Did 0:05:29.920 --> 0:05:34.279 she suggest adoption as a viable alternative. She did, and 0:05:34.360 --> 0:05:36.720 she returned to the subject a couple of times. She 0:05:36.800 --> 0:05:39.240 talked about safe haven laws that she said, we're in 0:05:39.279 --> 0:05:41.760 place in all fifty states that let a woman who 0:05:41.800 --> 0:05:44.559 gives birth leave her baby in a in a safe 0:05:44.560 --> 0:05:47.200 place to be adopted and then she doesn't have to 0:05:47.240 --> 0:05:50.160 bear those burdens of a parenthood. And what Justice Barrett 0:05:50.200 --> 0:05:54.039 was suggesting was that language and growing casey that suggested 0:05:54.279 --> 0:05:57.200 that was a reason why the court needs to let 0:05:57.200 --> 0:06:00.359 a woman and the pregnancy was not a vou reason. 0:06:01.160 --> 0:06:05.440 What was the tone of the liberal justices because Justice 0:06:05.440 --> 0:06:10.120 Sonya Soto Mayor said something that seemed rather shocking. The 0:06:10.120 --> 0:06:13.280 theme among the liberal justices was that if the Court 0:06:13.320 --> 0:06:18.479 overturns Row, it will lose its legitimacy and and justice. 0:06:18.480 --> 0:06:22.480 So to Mayor uses the phrase will this institution survive? 0:06:22.600 --> 0:06:25.520 The stench that this creates in the public perception that 0:06:25.600 --> 0:06:29.120 the Constitution and its reading are just political acts. A 0:06:29.160 --> 0:06:32.200 couple of the justices of liberal justices mentioned the Court's 0:06:32.320 --> 0:06:37.080 change in membership and the perception that the country would 0:06:37.120 --> 0:06:40.800 have that Row was being overturned, not because anything had 0:06:40.880 --> 0:06:44.279 changed over the course of fifty years, just because the 0:06:44.360 --> 0:06:49.000 court's membership had changed. I suppose the justices shouldn't be 0:06:49.560 --> 0:06:52.719 thinking about public opinion, but it is sort of shocking 0:06:52.720 --> 0:06:56.479 that they would seemingly take this turn at this point 0:06:56.480 --> 0:07:01.200 in our history where a majority of the public supports abortion. 0:07:02.080 --> 0:07:05.320 That's interesting and that may ultimately have an effect on 0:07:05.440 --> 0:07:08.400 exactly how this case is resolved, depending on how you 0:07:08.440 --> 0:07:11.920 asked the question. If if you ask folks about do 0:07:12.000 --> 0:07:15.480 they support a fifteen week limit on abortion? Uh, then 0:07:15.520 --> 0:07:18.240 there's more support for that sort of limit. So if 0:07:18.240 --> 0:07:22.640 the Court could somehow limited decision to just the Mississippi law, 0:07:23.240 --> 0:07:26.560 perhaps it wouldn't have the public opinion issue that you 0:07:26.720 --> 0:07:29.480 just described. The problem for the court is that in 0:07:29.520 --> 0:07:32.160 the absence of using viability as a line, it's not 0:07:32.240 --> 0:07:34.200 at all clear, and certainly it's not clear that the 0:07:34.240 --> 0:07:38.440 court has the interest what the other line might be. 0:07:38.680 --> 0:07:41.520 What line might allow a fifteen week band but not 0:07:41.640 --> 0:07:44.119 allow a six week band. And that's why there seemed 0:07:44.160 --> 0:07:46.160 to be a good deal of momentum on the court 0:07:46.200 --> 0:07:48.680 for just going ahead ripping off the band aid in 0:07:48.720 --> 0:07:51.720 the overturning Row. And as you suggest, there could be 0:07:51.760 --> 0:07:54.880 a backlash there. So remind you when the court took 0:07:54.960 --> 0:07:59.840 this case, was there talk about overturning row? There was, 0:08:00.280 --> 0:08:03.080 but not not as much. So what happened was when 0:08:03.080 --> 0:08:06.480 Mississippi file its appeal, Ruth Vader Ginsburg was still alive, 0:08:06.880 --> 0:08:10.440 the appeal did not explicitly ask the court to overturn row. 0:08:11.240 --> 0:08:15.040 After Justice Ginsburg died, just spared joined the court. The 0:08:15.120 --> 0:08:18.600 Court took agreed to take up the case, and then 0:08:18.640 --> 0:08:21.320 when filed it's brief on the merits, that's when it 0:08:21.360 --> 0:08:24.160 directly said, Hey, you should just go ahead and overturn 0:08:24.800 --> 0:08:28.920 rowing casey. So that's why the emphasis here has changed. 0:08:29.160 --> 0:08:31.880 And that's another factor that might matter when I talk 0:08:31.960 --> 0:08:35.880 about how this decision is perceived by the public. As 0:08:35.920 --> 0:08:39.680 we've talked about many times, the Chief Justice is in 0:08:39.800 --> 0:08:45.960 favor of incrementalism, moving slowly. What would be moving slowly 0:08:46.320 --> 0:08:50.000 in this case, moving slowly would be if the Court 0:08:50.080 --> 0:08:53.560 could somehow find a way to uphold this this law. 0:08:53.600 --> 0:08:55.959 And mind you, that would be a sweeping change, because 0:08:56.000 --> 0:08:58.360 that is far earlier than the Supreme Court has ever 0:08:58.400 --> 0:09:01.520 said is okay to the ban abortion. But the Court 0:09:01.559 --> 0:09:04.160 could find a way to uphold this law, and just 0:09:04.520 --> 0:09:07.320 limited to the facts of this case that it's a 0:09:07.320 --> 0:09:11.440 fifteen week ban in Mississippi right now, the only clinic 0:09:11.520 --> 0:09:15.000 there performs abortions only up to sixteen weeks, so that 0:09:15.120 --> 0:09:19.199 the narrow effect of this law in Mississippi is pretty small. 0:09:19.840 --> 0:09:23.240 The problem, of course, would be that almost immediately they 0:09:23.280 --> 0:09:27.040 would be badged with other appeals saying well, then you 0:09:27.040 --> 0:09:30.360 should also allow our twelve week ban or eight week 0:09:30.440 --> 0:09:32.880 ban or our six week band. And it's gonna be 0:09:33.000 --> 0:09:35.160 very hard for the court to find a way to 0:09:35.600 --> 0:09:37.439 draw a line there. And that was something I think 0:09:37.480 --> 0:09:42.040 the Solicitor General talked about also in the case of Mississippi, 0:09:42.520 --> 0:09:47.319 is there a trigger that would completely ban abortions. Mississippi 0:09:47.360 --> 0:09:50.000 is one of about twelve states that also has a 0:09:50.160 --> 0:09:54.920 law that would automatically ban virtually all abortions if the 0:09:54.960 --> 0:09:58.280 Court explicitly over rules Roe v. Wade, and so that 0:09:58.400 --> 0:10:00.120 law we kick in. And there would probably be some 0:10:00.200 --> 0:10:03.800 litigation over some some of those laws whether they actually apply, 0:10:04.440 --> 0:10:07.800 but there would probably be beyond the twelve states and 0:10:07.920 --> 0:10:10.880 other maybe another ten or so, according to abortion rights 0:10:10.880 --> 0:10:13.840 the advocates, maybe even more than that. That would very 0:10:13.880 --> 0:10:18.520 significantly limit abortion rights and and act pre viability bands. 0:10:19.400 --> 0:10:22.960 Did any of the liberal justices make an impassioned plea 0:10:23.600 --> 0:10:27.079 or was their passion on that side? It was mostly 0:10:27.080 --> 0:10:31.280 from Justice so to Mayor, as is typical. Justices Kagan 0:10:31.320 --> 0:10:35.319 and Briar were more focused on issues of the court's legitimacy. 0:10:35.400 --> 0:10:39.040 Justice brier quoted from the Casey decision, and it's it's 0:10:39.080 --> 0:10:43.400 concerns about the impact on the perception of the Court 0:10:43.840 --> 0:10:48.920 if it's overruling its watershed precedents. The absence of Justice 0:10:48.920 --> 0:10:51.839 Ginsburg was certainly felt today she would have been one 0:10:51.840 --> 0:10:54.920 of those justices he would have expected to be very 0:10:54.960 --> 0:10:59.400 passionate about what seems like is about to happen. Justice 0:10:59.440 --> 0:11:03.280 Samuel Lilto was pretty stark in what he was saying 0:11:03.320 --> 0:11:07.520 about getting rid of abortion. Yeah, Justice Lito, it was 0:11:07.559 --> 0:11:10.840 pretty dark and clear. One thing he pressed Elizabeth pre 0:11:11.000 --> 0:11:14.720 Lauger on was the idea that plus e versus ferguson 0:11:14.800 --> 0:11:19.920 the ruling that said that state sponsored racial segregation was 0:11:19.920 --> 0:11:24.360 was okay. He pressed her to conceive that that decision 0:11:24.480 --> 0:11:28.520 was was so bad it should have been overturned immediately. Clearly, 0:11:28.559 --> 0:11:31.640 in his head he is imagining Roevi Wade as as 0:11:31.679 --> 0:11:34.560 being that sort of decision that was so bad that, uh, 0:11:34.760 --> 0:11:37.720 it should be overturned just because of how bad it is. 0:11:37.880 --> 0:11:40.000 And she said that the court had never revoked a 0:11:40.120 --> 0:11:44.480 constitutional right it had extended. This would be the first time. Yeah, 0:11:45.000 --> 0:11:47.839 and that that's an interesting way of casting this case, 0:11:47.880 --> 0:11:49.920 and that's part of the reason why abortion rights supporters 0:11:49.920 --> 0:11:53.679 are are uh so upset by it. But that didn't 0:11:53.720 --> 0:11:58.319 seem to be a distinction that matter to the justices 0:11:58.640 --> 0:12:02.640 when they talked about the court ruling precedents, Brett Kavanaugh 0:12:03.040 --> 0:12:06.800 listed a whole lot of precedents that the Court had overturned, 0:12:06.840 --> 0:12:09.280 and he talked about things like Brown versus Board of 0:12:09.400 --> 0:12:13.240 Education and the Berga fell gave marriage decision as big 0:12:13.400 --> 0:12:19.160 rulings that overturned precedents and uh suggesting that overruling Row 0:12:19.240 --> 0:12:22.320 would would just be another case along those lines. After 0:12:22.400 --> 0:12:26.400 hearing the oral arguments, what's your best guests about how 0:12:26.440 --> 0:12:29.760 this will come out? For starters, it's very clear they're 0:12:29.760 --> 0:12:32.880 going to uphold the Mississippi law. The question is whether 0:12:32.920 --> 0:12:36.400 they will go further and overturn Row on that, it's 0:12:36.440 --> 0:12:38.640 hard to say for sure. Based on what we heard 0:12:38.640 --> 0:12:41.000 in the argument, it sounds like there might well be 0:12:41.080 --> 0:12:44.400 five votes to do that, including Kavanaugh and Barrett. The 0:12:44.480 --> 0:12:47.240 question will be when push comes to shove, if John 0:12:47.320 --> 0:12:50.240 Roberts wants to write a narrower opinion that doesn't go 0:12:50.400 --> 0:12:53.840 that far, will somebody like Brett Kavanaugh decided he's going 0:12:53.880 --> 0:12:56.640 to go along with the Chief and save the bigger 0:12:56.720 --> 0:12:59.600 ruling for later on that it's really too hard to say. 0:13:00.000 --> 0:13:02.480 Thanks for being in the Bloomberg Lawn Show, Greg, that's 0:13:02.480 --> 0:13:08.800 Bloomberg News Supreme Court reporter Greg Store. The best protection. 0:13:08.840 --> 0:13:11.199 I know you're tired of me saying this the best 0:13:11.200 --> 0:13:14.400 protection against this new variant or any of the of 0:13:14.480 --> 0:13:17.040 the various out there. But once we've been dealing with 0:13:17.080 --> 0:13:22.360 already is getting fully vaccinated and getting a booster shot. 0:13:23.160 --> 0:13:27.479 President Biden has been consistent in his message about vaccines, 0:13:27.960 --> 0:13:31.520 but his vaccine mandates are facing problems in the courts. 0:13:32.000 --> 0:13:36.200 About seventeen million healthcare workers are fighting the pandemic from 0:13:36.240 --> 0:13:40.120 the front lines, and the Biden administration has mandated that 0:13:40.160 --> 0:13:44.040 they must be vaccinated by January four, But more than 0:13:44.080 --> 0:13:47.880 half the states are involved in legal challenges to that mandate, 0:13:48.240 --> 0:13:51.000 and in the first victory for opponents of the mandate, 0:13:51.320 --> 0:13:55.240 a federal court and Missouri blocked the administration from enforcing 0:13:55.280 --> 0:13:59.200 it intense states. My guest is Robert Field, a professor 0:13:59.240 --> 0:14:02.680 of law and public health at Drexel University. It's the 0:14:02.760 --> 0:14:08.120 first victory for opponents of the vaccine mandate for health workers. 0:14:08.160 --> 0:14:11.080 So why did a federal court in Missouri block the 0:14:11.160 --> 0:14:16.360 Biden administration from enforcing the mandate. That mandate is issued 0:14:16.400 --> 0:14:20.200 through the Center for Medicare and Medicaid Services, which runs 0:14:20.360 --> 0:14:24.520 Medicare and Medicaid, and the court felt that it overstepped 0:14:24.600 --> 0:14:29.119 its authority in requiring that hospitals that accept those programs 0:14:29.320 --> 0:14:32.640 imposed a vaccine mandate on their workers. It felt that 0:14:32.680 --> 0:14:37.400 this was federal overreach that it goes beyond what Congress 0:14:37.480 --> 0:14:40.640 authorized the agency to do. The court also went into 0:14:40.680 --> 0:14:44.880 some of the policy aspects, which is not really appropriate 0:14:44.960 --> 0:14:48.280 for a legal review, and said it will cause people 0:14:48.320 --> 0:14:51.320 to avoid healthcare jobs and it will cost a large 0:14:51.320 --> 0:14:55.600 amount of money to administer. So now a federal judge 0:14:55.600 --> 0:14:59.720 in Florida declined to block the rule in a separate 0:14:59.760 --> 0:15:04.360 sy So we're in a funny legal world in terms 0:15:04.440 --> 0:15:09.000 of the mandates of whack a mole, where different courts 0:15:09.000 --> 0:15:12.840 are whacking different legal moles as the cases come up. 0:15:13.400 --> 0:15:17.320 Only the Supreme Court is really in a position to 0:15:17.400 --> 0:15:21.520 speak definitively to this issue. Until they do, it's going 0:15:21.560 --> 0:15:26.240 to be different district courts which have limited geographic scope, 0:15:26.360 --> 0:15:30.880 and appeals courts that have limited geographic scope. None of 0:15:30.920 --> 0:15:34.920 them has the final say until the Supreme Court speaks. 0:15:35.000 --> 0:15:38.440 So it's not unusual in a case like this with 0:15:38.680 --> 0:15:43.560 national litigation to see different opinions from different courts. So 0:15:43.640 --> 0:15:48.120 that means that, for example, healthcare workers intense states, according 0:15:48.160 --> 0:15:52.120 to this decision, don't have to abide by the mandate, 0:15:52.280 --> 0:15:56.080 but healthcare workers in other states do For the time being, 0:15:56.400 --> 0:15:59.240 they don't do abide by the mandate until there's been 0:15:59.280 --> 0:16:02.760 a final rule in the case. It's a temporary injunction, 0:16:03.080 --> 0:16:06.480 so it's not as though it will never apply to them, 0:16:06.520 --> 0:16:08.960 But in terms of the Missouri ruling, it could be 0:16:09.080 --> 0:16:12.960 reversed after the court he fully hears all the arguments 0:16:13.080 --> 0:16:16.800 and makes a definitive decision. This is a temporary injunction, 0:16:17.280 --> 0:16:21.720 and given the fast moving and emergency nature of a 0:16:21.760 --> 0:16:25.120 lot of these laws, we're seeing a lot of courts 0:16:25.160 --> 0:16:29.560 issuing temporary injunctions, not waiting the weeks or months that 0:16:29.640 --> 0:16:32.920 it might take to have the case fully argued, to 0:16:32.960 --> 0:16:35.360 have the briefs written and the oral arguments made in 0:16:35.600 --> 0:16:38.320 a full decision written, which is one of the reasons 0:16:38.400 --> 0:16:41.680 we're seeing so many different decisions because courts are acting 0:16:41.760 --> 0:16:46.800 quickly to either strike down mandates or temporarily uphold them. 0:16:46.840 --> 0:16:51.680 In neither of those cases are we seeing fully fleshed out, 0:16:51.800 --> 0:16:56.240 reasoned decisions, which should be the basis of president So, 0:16:56.600 --> 0:17:00.800 in your opinion, which judge is correct? Is it the 0:17:00.880 --> 0:17:03.520 judge in Florida who didn't block it or the judge 0:17:03.520 --> 0:17:06.119 in Missouri who did block it. Well, I can give 0:17:06.160 --> 0:17:10.280 you my opinion, Um, But whether Um Supreme court would 0:17:10.320 --> 0:17:12.800 agree with it. I guess we'll find out at some point. 0:17:13.320 --> 0:17:17.000 I think the mandate for healthcare workers rest on pretty 0:17:17.000 --> 0:17:21.680 solid legal ground. It's tied to Medicare and Medicaid, primarily 0:17:21.720 --> 0:17:24.720 to Medicare, and what it does is it adds a 0:17:24.760 --> 0:17:28.280 condition of participation. If a hospital or another care care 0:17:28.359 --> 0:17:32.880 facility wants to be eligible to receive Medicare reimbursement, it 0:17:32.920 --> 0:17:35.800 has to meet various requirements, and there are hundreds of 0:17:35.800 --> 0:17:39.800 pages of regulations setting forth those requirements. So, for instance, 0:17:39.840 --> 0:17:43.639 it has to have properly licensed staff, it has to 0:17:43.680 --> 0:17:47.800 be properly accredited UH, it has to meet various quality 0:17:47.880 --> 0:17:52.040 control standards under the Affordable Care Act. It has to 0:17:52.080 --> 0:18:00.520 meet standards for reporting safety lapses, readmissions after surgery, mortality, 0:18:00.600 --> 0:18:06.399 morbidity rates for certain procedures. Um. There are, as I said, 0:18:06.480 --> 0:18:11.280 pages and pages of requirements. This is adding to those requirements, 0:18:11.320 --> 0:18:14.040 but there's never been a question up to now about 0:18:14.280 --> 0:18:18.840 CMSs authority to issue them. What is a bit different 0:18:19.160 --> 0:18:22.440 is this is issued on an emergency basis, and while 0:18:22.920 --> 0:18:26.880 the courts are acting quickly to either issue or deny injunctions, 0:18:27.119 --> 0:18:30.639 CMS as well as OSHA for the larger mandate have 0:18:30.760 --> 0:18:35.080 acted very quickly without the usual rulemaking process, which can 0:18:35.119 --> 0:18:39.000 take months or years to publish a proposed rule, solicit 0:18:39.040 --> 0:18:43.280 comments from interested parties, revisit the rule, publish it again, 0:18:44.000 --> 0:18:48.159 publish a preamble that explains all of its thinking and 0:18:48.240 --> 0:18:52.960 analysis UH and then making a final rule. So one 0:18:52.960 --> 0:18:56.520 of the distinctions here that a court could make is 0:18:56.640 --> 0:19:00.639 the speed with which um CMS acted and the lack 0:19:00.760 --> 0:19:05.000 of the full fleshed out procedure. The judge in Missouri 0:19:05.280 --> 0:19:08.159 said that this is not really an emergency and it 0:19:08.200 --> 0:19:11.600 didn't call for their emergency powers and said, well, when 0:19:11.640 --> 0:19:15.159 will we stop treating COVID as emergency? I would say 0:19:15.240 --> 0:19:18.680 when thousands of people stopped dying every day of the disease, 0:19:18.760 --> 0:19:22.359 it will no longer be an emergency. The court didn't 0:19:22.440 --> 0:19:27.600 find that very convincing. Um So, if you accept that 0:19:27.640 --> 0:19:31.520 this is an emergency, and I certainly believe COVID, especially 0:19:31.560 --> 0:19:34.879 with the new variance, as an emergency, then that would 0:19:34.960 --> 0:19:40.320 justify CMSs use of its emergency powers just looking down 0:19:40.400 --> 0:19:45.199 the road. If after trial, this injunction is still in 0:19:45.280 --> 0:19:48.400 place and it's appealed, it would go to the Eighth Circuit, 0:19:48.840 --> 0:19:53.760 which has one active or senior status judge appointed by 0:19:53.880 --> 0:19:58.120 a Democratic president. Out of fourteen, the one in Florida 0:19:58.200 --> 0:20:02.720 would go to the leventh Circuit, which is also very conservative, 0:20:03.320 --> 0:20:07.080 So you could end up with two conservative courts hearing 0:20:07.119 --> 0:20:11.439 this and possibly agreeing. Would the Supreme Court still you 0:20:11.520 --> 0:20:15.399 think take a case. My guess, and it's a guess, 0:20:15.480 --> 0:20:18.639 is that they would because it's such an important issue 0:20:18.680 --> 0:20:21.920 that they would want to resolve it with finality. Typically 0:20:21.960 --> 0:20:24.119 they would take a case when there's a split between 0:20:24.160 --> 0:20:29.240 the circuits, But when there's something this important, where president 0:20:29.440 --> 0:20:32.680 is needed for this pandemic and possibly the next one, 0:20:33.240 --> 0:20:35.639 I would think that the Supreme Court would want to 0:20:35.680 --> 0:20:39.840 step in. With regard to Biden's mandate for large employers, 0:20:40.440 --> 0:20:42.680 we've already resolved that it's going to be the sixth 0:20:42.720 --> 0:20:44.919 Circuit that's going to make the decision for all the 0:20:44.960 --> 0:20:48.520 circuits through the Ping pong ball lottery, So in that case, 0:20:48.560 --> 0:20:51.879 the Supreme Court would not use a split between the 0:20:51.880 --> 0:20:54.960 circuits to step in, but I think there as well, 0:20:55.400 --> 0:20:59.440 it would use its authority to define what the law is, 0:20:59.520 --> 0:21:03.320 so the officials going forward have some sense of what 0:21:03.359 --> 0:21:05.760 they can and can't do, and there will probably be 0:21:05.960 --> 0:21:08.879 splits in the circuits at some point so that the 0:21:08.920 --> 0:21:13.160 Supreme Court will review the issue. Yeah, it's likely there 0:21:13.200 --> 0:21:16.399 will be. I guess the one issue that would be 0:21:16.440 --> 0:21:20.000 concerning in terms of the legal terrain is if the 0:21:20.000 --> 0:21:22.800 Supreme Court uses what's become known as the shadow docket. 0:21:23.359 --> 0:21:26.320 Rather than issuing a full decision, they issue a temporary 0:21:26.440 --> 0:21:30.520 order either striking down or upholding an injunction, and then 0:21:30.840 --> 0:21:34.840 wait months or years before actually considering the merits of 0:21:34.840 --> 0:21:38.080 the case. But I do think this is important enough 0:21:38.160 --> 0:21:42.399 and guidance is so desperately needed that the Court would 0:21:42.400 --> 0:21:44.800 step in. It seemed as if we were looking at, 0:21:44.880 --> 0:21:47.159 you know, light at the end of the tunnel. And 0:21:47.240 --> 0:21:52.000 so maybe these vaccine mandates weren't as important as they 0:21:52.040 --> 0:21:54.600 were six months a year ago. But now that there's 0:21:54.600 --> 0:21:59.000 a new variant, does that add another dimension of urgency 0:21:59.440 --> 0:22:04.040 to this? Yeah, well, in theory it does. But it's 0:22:04.080 --> 0:22:07.400 too new to really know how effective the vaccines are 0:22:08.000 --> 0:22:11.840 um so it will take some time, at least a 0:22:11.880 --> 0:22:15.800 few weeks to have a sense of whether more vaccination 0:22:15.960 --> 0:22:19.880 will help. But clearly the more people who are vaccinated, 0:22:19.920 --> 0:22:23.960 the less chance the virus has to mutate and develop 0:22:24.040 --> 0:22:28.360 new strains. Uh we first noticed this variant in South Africa. 0:22:28.960 --> 0:22:32.479 Africa has a very low vaccination rates, so it's not 0:22:32.560 --> 0:22:36.360 surprising that that would be a wonderful incubator for new 0:22:36.480 --> 0:22:41.560 vaccine strains. Um. I think that the idea that new 0:22:41.640 --> 0:22:46.280 variants can pop up at any time without warning should 0:22:46.320 --> 0:22:49.480 give a greater sense of urgency to getting our vaccine 0:22:49.560 --> 0:22:53.639 rates up as high as possible, possibly high enough to 0:22:53.760 --> 0:22:57.720 achieve her immunity where the virus can't get a toe 0:22:57.720 --> 0:23:02.040 hold in the population. Turning to the Sixth Circuit, which, 0:23:02.160 --> 0:23:06.000 as you said, has all the consolidated cases on the 0:23:06.040 --> 0:23:11.280 mandate for large employers. Several states with Republican attorneys general, 0:23:11.440 --> 0:23:15.720 the Republican National Committee, various companies, and other groups have 0:23:16.000 --> 0:23:20.640 asked that court to have an on bank review before 0:23:21.280 --> 0:23:24.840 a three judge panel. Why would they want that? Is 0:23:24.880 --> 0:23:29.520 that ever done? It's done when you have a decision 0:23:29.760 --> 0:23:33.480 by one judge or by a panel, to have every 0:23:33.600 --> 0:23:37.320 judge on that circuit court decide. I don't know what 0:23:37.359 --> 0:23:41.000 the reasoning is. My guess is that if the entire 0:23:41.160 --> 0:23:44.760 court were to hear the case and rule against the mandate, 0:23:44.920 --> 0:23:46.800 they'd be in a stronger position when it comes to 0:23:46.840 --> 0:23:51.600 the Supreme Court, because the Biden administration has file papers 0:23:51.640 --> 0:23:54.840 saying that they should not. What they would be doing 0:23:54.920 --> 0:23:57.800 is bypassing the three judge panel and going right to 0:23:57.880 --> 0:24:02.080 the full circuit. And that's out of the normal procedure. 0:24:02.160 --> 0:24:06.040 So the Biden administration is arguing against that. Is the 0:24:06.040 --> 0:24:09.680 Biden administration also just looking for time. Well, they may 0:24:09.680 --> 0:24:13.040 be um Also, it's a court this is heavily dominated 0:24:13.040 --> 0:24:17.119 by Republican appointees, so there's a greater chance of getting 0:24:17.119 --> 0:24:20.199 some Democrats on the free judge panel than there is 0:24:20.240 --> 0:24:24.320 of getting a democratic majority on the full em Bank panel. 0:24:25.080 --> 0:24:29.640 They've received petitions to transfer the case to other circuits. 0:24:30.160 --> 0:24:33.760 Is there any reason why a circuit would say, no, 0:24:34.040 --> 0:24:37.359 let this other circuit take this over. We can't handle it. 0:24:37.520 --> 0:24:40.080 Asking a sixth circuit to send it to another circuit 0:24:40.640 --> 0:24:44.400 it seems to me like a fool's Errand there's uh 0:24:44.600 --> 0:24:49.159 strategy often used in litigation of throwing as many arguments 0:24:49.200 --> 0:24:51.359 as you can against the wall and seeing what would stick. 0:24:52.200 --> 0:24:56.320 So there's a fairly minimal cost to throwing those arguments out. 0:24:57.280 --> 0:25:01.040 My guess is that they don't really expect to succeed 0:25:01.080 --> 0:25:04.440 in that. I think the Sixth Circuit of My guess 0:25:04.440 --> 0:25:06.439 as the judges are very happy to have the case 0:25:06.880 --> 0:25:09.120 and to leave their imprint in this area of the law. 0:25:09.520 --> 0:25:14.600 So let's turn to yet another lawsuit over vaccine mandates, 0:25:14.680 --> 0:25:17.560 and there are certainly plenty of them to discuss. So 0:25:17.680 --> 0:25:21.800 New York City's COVID vaccine mandate there's a religious challenge 0:25:21.880 --> 0:25:26.120 by fifteen public school teachers and administrators. So what did 0:25:26.119 --> 0:25:30.920 the arbitrator rule here? So the ruling was that if 0:25:30.920 --> 0:25:34.960