1 00:00:00,400 --> 00:00:04,600 Speaker 1: Hi, everyone, it's West Kosova. Here's a news update since 2 00:00:04,640 --> 00:00:09,400 Speaker 1: this episode was recorded. The US Fifth Circuit Court of 3 00:00:09,440 --> 00:00:13,680 Speaker 1: Appeals has issued an order saying the abortion pill miffipristone, 4 00:00:13,800 --> 00:00:17,599 Speaker 1: can stay on the market while legal arguments proceed through 5 00:00:17,600 --> 00:00:21,720 Speaker 1: the courts. That overrules a lower federal court ruling in 6 00:00:21,840 --> 00:00:26,639 Speaker 1: Texas that sought to stop sale of the pill. The 7 00:00:26,680 --> 00:00:30,120 Speaker 1: Texas judge had set a Friday deadline that now will 8 00:00:30,240 --> 00:00:34,800 Speaker 1: not go into effect. However, the appeals court did agree 9 00:00:34,920 --> 00:00:38,120 Speaker 1: with one part of the Texas ruling. It left in 10 00:00:38,240 --> 00:00:42,519 Speaker 1: place that lower court's order that blocked changes the FDA 11 00:00:42,760 --> 00:00:47,120 Speaker 1: has made in recent years to make miffipristone more easily available, 12 00:00:47,600 --> 00:00:52,280 Speaker 1: like allowing delivery of the drug by mail. Those restrictions 13 00:00:52,280 --> 00:00:54,640 Speaker 1: on the pill from the Texas ruling may now go 14 00:00:54,800 --> 00:00:57,480 Speaker 1: into effect while the case goes through the courts, so 15 00:00:57,520 --> 00:01:00,920 Speaker 1: it may not become more difficult to get the The 16 00:01:01,000 --> 00:01:04,480 Speaker 1: Biden administration said that it will continue to challenge the 17 00:01:04,520 --> 00:01:07,640 Speaker 1: court's decisions. And we get into all of this in 18 00:01:07,680 --> 00:01:16,400 Speaker 1: this episode from Bloomberg News and iHeartRadio. It's the Big Take. 19 00:01:16,720 --> 00:01:22,840 Speaker 1: I'm Westkasova Today. What's next in the rights push to 20 00:01:23,120 --> 00:01:36,759 Speaker 1: outlaw abortion? The ruling by a federal judge in Texas 21 00:01:36,800 --> 00:01:40,600 Speaker 1: that would invalidate the FDA's decades old approval of the 22 00:01:40,680 --> 00:01:44,720 Speaker 1: abortion pill MITHA pristone is the latest example of how 23 00:01:44,800 --> 00:01:48,160 Speaker 1: conservative activists are now seeking to block abortion, not just 24 00:01:48,320 --> 00:01:53,840 Speaker 1: in individual states but nationwide. Today, my Bloomberg colleagues Kelsey Butler, 25 00:01:54,040 --> 00:01:58,160 Speaker 1: Cynthia Coons, and Madeline Meckelberg, who are covering this story, 26 00:01:58,360 --> 00:02:01,440 Speaker 1: tell us where the case goes from here, and later 27 00:02:01,440 --> 00:02:05,120 Speaker 1: in the show, Bloomberg's Greg Store explains why the Supreme 28 00:02:05,120 --> 00:02:09,040 Speaker 1: Court's conservative majority, which will almost certainly weigh in, might 29 00:02:09,240 --> 00:02:15,720 Speaker 1: actually side against blocking the abortion pill. Madeline, let's start 30 00:02:15,720 --> 00:02:20,560 Speaker 1: with the ruling in Texas. There is this seven day 31 00:02:21,160 --> 00:02:23,520 Speaker 1: hold that the judge put on it, saying that it 32 00:02:23,560 --> 00:02:27,600 Speaker 1: wouldn't be enforced while the appeals process can get started. 33 00:02:27,720 --> 00:02:30,320 Speaker 1: Where are we right now with that? So the judge 34 00:02:30,360 --> 00:02:33,359 Speaker 1: said that this ruling will go into effect on Friday, 35 00:02:33,600 --> 00:02:37,440 Speaker 1: almost immediately afterwards, the first available business day. The Department 36 00:02:37,480 --> 00:02:41,440 Speaker 1: of Justice appealed that decision to the Fifth Circuit Court 37 00:02:41,480 --> 00:02:44,560 Speaker 1: of Appeals in New Orleans, and they asked the judges 38 00:02:44,600 --> 00:02:48,760 Speaker 1: there to issue an order blocking implementation of that ruling. 39 00:02:48,880 --> 00:02:53,880 Speaker 1: Come Friday, and what happens next, Well, what happens next 40 00:02:53,960 --> 00:02:55,760 Speaker 1: is all eyes are on the Fifth Circuit Court of 41 00:02:55,760 --> 00:02:58,919 Speaker 1: Appeals in New Orleans, which is the next stop on 42 00:02:58,960 --> 00:03:02,240 Speaker 1: this legal process us for this lawsuit. We're waiting to 43 00:03:02,280 --> 00:03:04,480 Speaker 1: see what they're going to do, whether they're going to 44 00:03:04,560 --> 00:03:08,800 Speaker 1: issue this stay. If they don't, then on Friday, the 45 00:03:08,919 --> 00:03:12,519 Speaker 1: FDA approval of mythopristone is going to be blocked across 46 00:03:12,560 --> 00:03:17,640 Speaker 1: the country, Cynthia. Immediately after this ruling, we saw quite 47 00:03:17,639 --> 00:03:22,320 Speaker 1: a big response. What are those arguing against this ruling 48 00:03:22,600 --> 00:03:26,440 Speaker 1: doing now? So, basically, for the companies that distribute the pill, 49 00:03:26,680 --> 00:03:30,720 Speaker 1: the pills distributed through online only pharmacies, the FDA has 50 00:03:30,720 --> 00:03:33,960 Speaker 1: had long standing restrictions on the drug in place, so 51 00:03:34,040 --> 00:03:36,960 Speaker 1: you can't get it at like a typical pharmacy on 52 00:03:37,040 --> 00:03:40,520 Speaker 1: the street corner necessarily. But the online pharmacies that distribute 53 00:03:40,520 --> 00:03:44,160 Speaker 1: the drug, basically, their response to this has been continue 54 00:03:44,200 --> 00:03:46,040 Speaker 1: to sell the drug while they wait to figure out 55 00:03:46,040 --> 00:03:49,200 Speaker 1: what's happening next. There really isn't any reason for them 56 00:03:49,200 --> 00:03:52,320 Speaker 1: to do anything differently, because until the FDA decides to 57 00:03:52,360 --> 00:03:55,720 Speaker 1: take action, the FDA themselves have to decide whether or 58 00:03:55,760 --> 00:03:57,960 Speaker 1: not they're going to comply with the judge's order. So 59 00:03:58,200 --> 00:04:02,000 Speaker 1: until the FDA takes action, there's nothing that the companies 60 00:04:02,040 --> 00:04:05,320 Speaker 1: really need to do or change about their businesses while 61 00:04:05,360 --> 00:04:08,040 Speaker 1: they wait for the next steps here. And so, if 62 00:04:08,080 --> 00:04:12,200 Speaker 1: you are a person seeking to buy nfipristone, you're able 63 00:04:12,200 --> 00:04:14,800 Speaker 1: to get it right now, yep. You can either buy 64 00:04:14,840 --> 00:04:17,960 Speaker 1: it go through the typical channel where you might go 65 00:04:18,200 --> 00:04:21,640 Speaker 1: to an abortion clinic and get it through a provider 66 00:04:21,680 --> 00:04:24,560 Speaker 1: that way, or you can use their services that distribute 67 00:04:24,600 --> 00:04:26,680 Speaker 1: it online. Or you might be able to buy it 68 00:04:26,800 --> 00:04:29,320 Speaker 1: in advance of needing it sometime in the future. So 69 00:04:29,720 --> 00:04:32,280 Speaker 1: there has been a surge in demand from people who 70 00:04:32,320 --> 00:04:34,960 Speaker 1: are interested in making sure that they have it if 71 00:04:34,960 --> 00:04:37,080 Speaker 1: they need it, but nothing has actually changed as a 72 00:04:37,080 --> 00:04:40,719 Speaker 1: result of the ruling. It's really actually been, if anything, 73 00:04:40,760 --> 00:04:43,680 Speaker 1: a jolt to sort of pick up business in anticipation 74 00:04:43,720 --> 00:04:47,359 Speaker 1: of something changing. We've seen in recent months since the 75 00:04:47,400 --> 00:04:51,719 Speaker 1: Supreme Court overturn Rov. Wade, patients going to tell ahealth 76 00:04:52,520 --> 00:04:56,240 Speaker 1: more and more in order to get abortion care. In April, 77 00:04:56,360 --> 00:04:59,800 Speaker 1: before the Supreme Court decision, virtual care accounted for about 78 00:05:00,000 --> 00:05:03,280 Speaker 1: four percent of all abortions in the US. By December, 79 00:05:03,320 --> 00:05:06,679 Speaker 1: it was eleven percent. So it's really showing that trend 80 00:05:06,880 --> 00:05:12,120 Speaker 1: upward in the wake of more restrictions and the overturning 81 00:05:12,120 --> 00:05:15,559 Speaker 1: of Roe v. Wade. And also just some context around 82 00:05:15,560 --> 00:05:18,560 Speaker 1: that too. I mean, you couldn't get the pill through telemedicine. 83 00:05:18,920 --> 00:05:21,960 Speaker 1: For much of the pill's life on the market, it 84 00:05:22,080 --> 00:05:24,440 Speaker 1: wasn't so it's almost probably been on the market for 85 00:05:24,480 --> 00:05:27,240 Speaker 1: twenty years before you could get it through telehealth. Legally, 86 00:05:27,560 --> 00:05:31,240 Speaker 1: the FDA themselves have always been very conservative about the 87 00:05:31,240 --> 00:05:34,039 Speaker 1: administration of this drug, even though there's a lot of 88 00:05:34,080 --> 00:05:36,560 Speaker 1: safety data showing that it's quite a safe drug and 89 00:05:36,600 --> 00:05:39,880 Speaker 1: it can be used by someone self ministering an abortion 90 00:05:39,960 --> 00:05:42,840 Speaker 1: at home. And so what happened during the pandemic was 91 00:05:43,400 --> 00:05:46,600 Speaker 1: there actually were other lawsuits that led to the government 92 00:05:46,640 --> 00:05:48,919 Speaker 1: deciding to loosen it up and allow the pill to 93 00:05:48,960 --> 00:05:51,359 Speaker 1: be sent through the mail. It used to be that 94 00:05:51,440 --> 00:05:54,000 Speaker 1: a woman had to actually go to a provider's office, 95 00:05:54,080 --> 00:05:56,080 Speaker 1: and just when you think about that, it's it's so 96 00:05:56,800 --> 00:05:59,040 Speaker 1: unique in the practice of medicine. If you think about 97 00:05:59,040 --> 00:06:01,039 Speaker 1: any medicine you've ever taken, when do you go to 98 00:06:01,080 --> 00:06:03,560 Speaker 1: the doctor's office to pick it up, And particularly for 99 00:06:03,640 --> 00:06:07,120 Speaker 1: a drug that is widely within the medical community known 100 00:06:07,160 --> 00:06:10,120 Speaker 1: to be safe outside of just people in reproductive healthcare, 101 00:06:10,240 --> 00:06:13,040 Speaker 1: the American Medical Association has also come out and talked 102 00:06:13,080 --> 00:06:15,840 Speaker 1: about the safety of this drug. And so this sort 103 00:06:15,880 --> 00:06:18,200 Speaker 1: of pickup is building on some momentum that's been going 104 00:06:18,240 --> 00:06:21,800 Speaker 1: on because of other lawsuits forcing the FDA to say, hey, 105 00:06:21,839 --> 00:06:24,680 Speaker 1: this drug should be more accessible. So that's the sort 106 00:06:24,720 --> 00:06:27,320 Speaker 1: of cross current in the background, and probably what also 107 00:06:27,400 --> 00:06:29,720 Speaker 1: led to the suit and what we're what we're seeing 108 00:06:29,800 --> 00:06:33,279 Speaker 1: today is this sort of liberalization of the pill led 109 00:06:33,320 --> 00:06:37,440 Speaker 1: to this kind of crescendo and this lawsuit. Kelsey States 110 00:06:37,480 --> 00:06:41,240 Speaker 1: had been anticipating this ruling. What did they do while 111 00:06:41,279 --> 00:06:44,040 Speaker 1: they were waiting to see what the court would decide? 112 00:06:44,080 --> 00:06:48,760 Speaker 1: In Texas, what we've seen is states stockpiling mythopristone ahead 113 00:06:48,960 --> 00:06:53,080 Speaker 1: of the ruling or in response to the ruling. Earlier 114 00:06:53,120 --> 00:06:57,920 Speaker 1: this month, Washington's governor said that he had directed for 115 00:06:58,080 --> 00:07:02,560 Speaker 1: the purchase of a three year supply mephapristone. Massachusetts also 116 00:07:02,560 --> 00:07:05,440 Speaker 1: announced that it would be stockpiling fifteen thousand doses of 117 00:07:05,480 --> 00:07:10,200 Speaker 1: the drug. California now among multiple states trying to stockpile 118 00:07:10,280 --> 00:07:13,640 Speaker 1: as much of that abortion medication as it can. The goal, 119 00:07:13,680 --> 00:07:16,920 Speaker 1: according to Governor Gavin Newsom is to purchase as many 120 00:07:17,000 --> 00:07:23,320 Speaker 1: as two million pills. It's really unclear how these stockpiles 121 00:07:23,320 --> 00:07:25,520 Speaker 1: are going to be handled. I've been reaching out to 122 00:07:25,560 --> 00:07:28,480 Speaker 1: advocacy groups to find out if there's any type of 123 00:07:28,560 --> 00:07:33,080 Speaker 1: precedent for what exactly could happen if mefapristone is no 124 00:07:33,160 --> 00:07:36,560 Speaker 1: longer available. It's still kind of up in the air. 125 00:07:36,760 --> 00:07:39,679 Speaker 1: So many things are right now, but there is one 126 00:07:40,280 --> 00:07:43,440 Speaker 1: situation that recently happened that could provide some type of 127 00:07:43,520 --> 00:07:47,160 Speaker 1: roadmap or some type of game plan. Earlier this month, 128 00:07:47,440 --> 00:07:50,720 Speaker 1: the FDA pulled approval of another drug called McKenna, which 129 00:07:50,760 --> 00:07:53,480 Speaker 1: is a preterm birth treatment, and when it did so, 130 00:07:53,560 --> 00:07:56,360 Speaker 1: it did acknowledge that a limited supply of these drugs 131 00:07:56,360 --> 00:08:01,240 Speaker 1: had already been distributed to doctors, offices, pharmacies, and acknowledge 132 00:08:01,280 --> 00:08:05,400 Speaker 1: that some doctors might continue to prescribe or administer that 133 00:08:05,600 --> 00:08:09,480 Speaker 1: remaining supply to patients. So I don't know that that 134 00:08:09,520 --> 00:08:14,840 Speaker 1: will exactly happen, but it provides a possibility, Cynthia. As 135 00:08:14,880 --> 00:08:18,800 Speaker 1: you say, the FDA has been pretty conservative in dispensing 136 00:08:18,920 --> 00:08:22,800 Speaker 1: miffa pristone. It's the judge in Texas, Judge Kasmeric ruled 137 00:08:22,800 --> 00:08:26,880 Speaker 1: the FDA head bowed to political pressure and ignored medical 138 00:08:26,920 --> 00:08:31,200 Speaker 1: evidence that called into question the drug safety, and that 139 00:08:31,280 --> 00:08:34,840 Speaker 1: led to a backlash from doctors and medical researchers who 140 00:08:34,920 --> 00:08:37,680 Speaker 1: say this drug has been proven over many years to 141 00:08:37,720 --> 00:08:42,679 Speaker 1: be safe. What does the science say about Miffa pristone. So, 142 00:08:42,800 --> 00:08:45,559 Speaker 1: Miffi pristone has been on the market for twenty three 143 00:08:45,640 --> 00:08:48,880 Speaker 1: years now. It's widely considered to be safe and effective. 144 00:08:49,400 --> 00:08:52,720 Speaker 1: When used properly in combination with another drug, it works 145 00:08:52,840 --> 00:08:55,360 Speaker 1: ninety seven percent of the time. I believe it is 146 00:08:55,640 --> 00:08:59,080 Speaker 1: to induce an abortion. Like any drug, it has side effects, 147 00:08:59,120 --> 00:09:02,120 Speaker 1: but all drugs do. A large research study looking at 148 00:09:02,200 --> 00:09:05,199 Speaker 1: women who'd taken this drug and tried to ascertain the 149 00:09:05,320 --> 00:09:07,959 Speaker 1: incident's rate of them ending up in the AR showed 150 00:09:07,960 --> 00:09:10,240 Speaker 1: that it was less likely to put a person into 151 00:09:10,280 --> 00:09:13,719 Speaker 1: the AR as a common everyday drug like tylan. All. So, 152 00:09:14,120 --> 00:09:17,040 Speaker 1: it's widely considered to be safe, it's an effective drug, 153 00:09:17,400 --> 00:09:21,679 Speaker 1: and it's really just come down to politics at this point. Cynthia, 154 00:09:21,720 --> 00:09:25,559 Speaker 1: you talked about the other drug that Nifa pristone is 155 00:09:25,679 --> 00:09:30,000 Speaker 1: often paired with, which is mysapro stall. Why have abortion 156 00:09:30,040 --> 00:09:34,280 Speaker 1: opponents not also gone after that drug. So mysapro Stall 157 00:09:34,480 --> 00:09:38,320 Speaker 1: is actually a drug used for other things. It's used 158 00:09:38,320 --> 00:09:40,880 Speaker 1: to prevent stomach ulcers, and it's been on the market 159 00:09:40,920 --> 00:09:43,439 Speaker 1: a lot longer, and its history is actually quite interesting. 160 00:09:43,480 --> 00:09:46,400 Speaker 1: It was an abortion treatment itself. As the story goes, 161 00:09:46,440 --> 00:09:48,520 Speaker 1: women in Brazil had seen on the packet that no 162 00:09:48,640 --> 00:09:51,959 Speaker 1: pregnancy signed and started using it and it actually did 163 00:09:52,000 --> 00:09:54,720 Speaker 1: work for abortions, and so that has been around for 164 00:09:54,720 --> 00:09:57,000 Speaker 1: a while. But it's actually just on the market for 165 00:09:57,040 --> 00:10:00,120 Speaker 1: other things. It can be used for abortions, but it's 166 00:10:00,120 --> 00:10:02,880 Speaker 1: more effective in combination with Miffy pristone, and Miffy pristone's 167 00:10:02,920 --> 00:10:07,040 Speaker 1: the only drug that's approved solely for termination of a pregnancy, 168 00:10:07,120 --> 00:10:09,280 Speaker 1: so that's the one that's in target, and my suppost 169 00:10:09,320 --> 00:10:12,000 Speaker 1: All is going to, you know, stay on the market 170 00:10:12,040 --> 00:10:15,280 Speaker 1: for the other things it's approved for, but women will 171 00:10:15,320 --> 00:10:17,600 Speaker 1: be able to turn to my suppostall and use that 172 00:10:17,720 --> 00:10:22,120 Speaker 1: as an abortion option if Miffy pristone's taken off the market. 173 00:10:22,160 --> 00:10:24,960 Speaker 1: It's just not as effective as a treatment. And so 174 00:10:25,120 --> 00:10:27,320 Speaker 1: if it is taken off the market, do you think 175 00:10:27,360 --> 00:10:32,480 Speaker 1: that we'll continue to see my sapprostall used by itself. Yeah, 176 00:10:32,520 --> 00:10:35,760 Speaker 1: that's already happened. And happening in some parts of the country. 177 00:10:35,800 --> 00:10:39,840 Speaker 1: One of the first online pharmacy providers of Miffy pristone 178 00:10:40,320 --> 00:10:43,320 Speaker 1: started offering the drug. Went through the steps to become 179 00:10:43,320 --> 00:10:46,480 Speaker 1: a provider of Miffy pristone because she had noticed a 180 00:10:46,520 --> 00:10:51,360 Speaker 1: pickup in my suppostall prescriptions in Texas after the ban 181 00:10:51,520 --> 00:10:54,240 Speaker 1: on abortions after six weeks went into effect, and so 182 00:10:54,320 --> 00:10:57,079 Speaker 1: basically what was happening there was she was seeing women 183 00:10:57,080 --> 00:10:59,600 Speaker 1: were already doing this. Doctors were already offering this regiment. 184 00:10:59,679 --> 00:11:01,920 Speaker 1: So there are places where this may already be happening 185 00:11:01,920 --> 00:11:04,080 Speaker 1: their states with much stricter rules around use of the 186 00:11:04,120 --> 00:11:07,000 Speaker 1: pill already that make it much harder to get even 187 00:11:07,040 --> 00:11:09,520 Speaker 1: than what the FDA terms of the drug are at 188 00:11:09,520 --> 00:11:12,000 Speaker 1: this point. And so my supposed to all will be 189 00:11:12,040 --> 00:11:14,520 Speaker 1: an option for women, it's just not as effective as 190 00:11:14,520 --> 00:11:19,959 Speaker 1: an option. After the ruling, several executives at pharmaceutical companies 191 00:11:20,000 --> 00:11:22,920 Speaker 1: wrote an open letter opposing it. What exactly did they say? 192 00:11:23,360 --> 00:11:26,120 Speaker 1: Executives from a lot of drug companies signed onto a 193 00:11:26,240 --> 00:11:30,080 Speaker 1: letter calling out the decision and how dangerous it is 194 00:11:30,240 --> 00:11:34,360 Speaker 1: for politics and lawsuits like this to question the way 195 00:11:34,360 --> 00:11:38,360 Speaker 1: that the FDA operates. What the drug companies want is 196 00:11:38,720 --> 00:11:42,040 Speaker 1: standardized system where things operate and work in a certain way, 197 00:11:42,080 --> 00:11:43,760 Speaker 1: and with the FDA, that's always been the case. They 198 00:11:43,800 --> 00:11:46,200 Speaker 1: have their own negotiations with the FDA, but the way 199 00:11:46,200 --> 00:11:48,680 Speaker 1: that they conduct clinical trials, if it's getting called into 200 00:11:48,760 --> 00:11:51,680 Speaker 1: question on a lawsuit by lawsuit basis, it makes it 201 00:11:51,720 --> 00:11:54,280 Speaker 1: impossible for them to do the work that they do 202 00:11:54,320 --> 00:11:57,480 Speaker 1: because the clinical trials they do cost billions of dollars. 203 00:11:57,640 --> 00:11:59,319 Speaker 1: So I think what they were stepping up and saying 204 00:11:59,360 --> 00:12:01,960 Speaker 1: here out a lot more than just this drug and 205 00:12:02,000 --> 00:12:04,880 Speaker 1: about abortion access. It's really about the idea that they 206 00:12:04,880 --> 00:12:07,599 Speaker 1: don't want to be at the whim of what a 207 00:12:07,720 --> 00:12:11,840 Speaker 1: judge's perspective is on a given treatment instead of the 208 00:12:11,880 --> 00:12:14,200 Speaker 1: practice of science and the way they've been doing things 209 00:12:14,240 --> 00:12:17,439 Speaker 1: for decades. Jumping off that, we know that so much 210 00:12:17,480 --> 00:12:20,800 Speaker 1: about healthcare has become politicized right now, and I know 211 00:12:20,880 --> 00:12:22,800 Speaker 1: that you all have talked on the show in the 212 00:12:22,840 --> 00:12:27,760 Speaker 1: past about healthcare for trans youth has also been part 213 00:12:27,760 --> 00:12:32,560 Speaker 1: of the political and policy conversation going forward. What these 214 00:12:32,760 --> 00:12:35,280 Speaker 1: drug companies are really saying is, let's not open this 215 00:12:35,360 --> 00:12:39,680 Speaker 1: door here to having judges make decisions that the FDA 216 00:12:39,800 --> 00:12:44,360 Speaker 1: should and Obviously there's a real self interest there, but 217 00:12:44,480 --> 00:12:47,720 Speaker 1: it's certainly an interesting take, just given how much about 218 00:12:47,720 --> 00:12:50,959 Speaker 1: healthcare right now has become politicized, especially when we talk 219 00:12:51,000 --> 00:12:55,920 Speaker 1: about underrepresented groups, Madeline, This question about whether federal judges 220 00:12:55,960 --> 00:12:58,840 Speaker 1: can step in and essentially say no, the FDA is 221 00:12:58,880 --> 00:13:02,920 Speaker 1: wrong and invalidate their rulings is something new, isn't it. 222 00:13:03,360 --> 00:13:08,200 Speaker 1: Absolutely this case is completely unprecedented. If that wasn't clear 223 00:13:08,200 --> 00:13:11,640 Speaker 1: already from our conversation, there's a ton of questions about 224 00:13:11,760 --> 00:13:14,640 Speaker 1: what the heck this means, what it means in practice, 225 00:13:14,679 --> 00:13:17,920 Speaker 1: and what the implications are for this decision. This is 226 00:13:17,960 --> 00:13:20,240 Speaker 1: the first time we've seen a federal judge come in 227 00:13:20,320 --> 00:13:24,320 Speaker 1: and overturn FDA approval of a drug that they went 228 00:13:24,320 --> 00:13:27,760 Speaker 1: through their own safety procedures to approve. And this Texas 229 00:13:27,800 --> 00:13:31,680 Speaker 1: ruling was further complicated by a ruling that came almost 230 00:13:31,720 --> 00:13:35,560 Speaker 1: at exactly the same time from Washington State that said 231 00:13:35,600 --> 00:13:38,720 Speaker 1: the opposite of what the judge in Texas said. How 232 00:13:38,760 --> 00:13:42,720 Speaker 1: does that play into what happens next? That's exactly right. 233 00:13:42,800 --> 00:13:45,520 Speaker 1: It's incredibly confusing. I'll be the first one to tell 234 00:13:45,520 --> 00:13:47,520 Speaker 1: you that I think there's a lot of questions here. 235 00:13:48,000 --> 00:13:50,720 Speaker 1: The case in Washington stems off that idea that the 236 00:13:50,760 --> 00:13:54,200 Speaker 1: FDA has been historically conservative when it comes to regulating 237 00:13:54,200 --> 00:13:56,560 Speaker 1: this drug. That case was brought by a group of 238 00:13:56,559 --> 00:13:59,920 Speaker 1: Democratic Attorneys general who said that the FDA has two 239 00:14:00,200 --> 00:14:03,600 Speaker 1: many regulations on this drug, and the judge in Washington 240 00:14:03,720 --> 00:14:06,760 Speaker 1: agreed and said that the federal government should not take 241 00:14:06,800 --> 00:14:11,480 Speaker 1: any steps at this point to limit access to mifipristone 242 00:14:11,559 --> 00:14:15,480 Speaker 1: while he considers the larger arguments behind their case. That 243 00:14:15,600 --> 00:14:19,040 Speaker 1: decision is the prevailing decision right now because the Texas 244 00:14:19,120 --> 00:14:22,680 Speaker 1: ruling does not go into effect until April fourteenth, So 245 00:14:22,720 --> 00:14:25,880 Speaker 1: as of right now, there are not conflicting rulings. But 246 00:14:26,240 --> 00:14:29,600 Speaker 1: should the Fifth Circuit not stay this decision from Texas 247 00:14:30,200 --> 00:14:33,320 Speaker 1: on Friday, both of these rulings will be in effect 248 00:14:33,320 --> 00:14:36,080 Speaker 1: at the same time, and they conflict, and people aren't 249 00:14:36,120 --> 00:14:38,520 Speaker 1: really exactly sure what that's going to look like if 250 00:14:38,520 --> 00:14:41,320 Speaker 1: the Supreme Court does not step in and provide some 251 00:14:41,360 --> 00:14:45,600 Speaker 1: clarity when we come back. Why did the Texas judge 252 00:14:45,680 --> 00:14:49,800 Speaker 1: say it's against the law to send abortion pills through 253 00:14:49,840 --> 00:15:02,720 Speaker 1: the mail? Kelsey, For a long time anti abortion advocates 254 00:15:03,280 --> 00:15:06,760 Speaker 1: said that what they wanted was to allow each state 255 00:15:06,880 --> 00:15:10,160 Speaker 1: to decide whether abortion should be legal. But what we're 256 00:15:10,160 --> 00:15:13,080 Speaker 1: seeing now with this Texas ruling is something different, which 257 00:15:13,160 --> 00:15:16,760 Speaker 1: is a push to make abortion legal at a federal 258 00:15:16,880 --> 00:15:22,960 Speaker 1: level nationwide. I think there's definitely questions right now and 259 00:15:23,120 --> 00:15:26,120 Speaker 1: some conflicts on strategy when it comes to the anti 260 00:15:26,160 --> 00:15:29,040 Speaker 1: abortion side. I've been doing quite a bit of reporting 261 00:15:29,320 --> 00:15:32,160 Speaker 1: on states that are somewhere kind of in the middle. 262 00:15:32,480 --> 00:15:34,920 Speaker 1: We obviously have states in the camp that said we're 263 00:15:34,920 --> 00:15:37,600 Speaker 1: going to become haven states patients can come to us, 264 00:15:38,040 --> 00:15:41,400 Speaker 1: like in New York and California, saying that they will 265 00:15:41,560 --> 00:15:44,800 Speaker 1: make sure that they're shoring up abortion access in their states. Obviously, 266 00:15:44,840 --> 00:15:47,320 Speaker 1: we know that there's states like Texas where there's been 267 00:15:47,400 --> 00:15:49,560 Speaker 1: near total bands, But then there's a lot of states 268 00:15:49,560 --> 00:15:53,080 Speaker 1: in the middle where the political landscape is a little 269 00:15:53,120 --> 00:15:57,040 Speaker 1: bit different. What we're seeing is conservative politicians try to 270 00:15:57,080 --> 00:16:01,160 Speaker 1: find that spot that they feel they can satisfy their 271 00:16:01,200 --> 00:16:03,880 Speaker 1: base while at the same time not generating a lot 272 00:16:03,920 --> 00:16:08,720 Speaker 1: of backlash. We've seen this several times over since the 273 00:16:08,760 --> 00:16:13,640 Speaker 1: Supreme Court overturned Row that voters don't want total abortion bands. 274 00:16:13,920 --> 00:16:17,240 Speaker 1: So now there's this kind of calculus being done about 275 00:16:17,480 --> 00:16:22,040 Speaker 1: how far politicians can go with bands before they get 276 00:16:22,040 --> 00:16:26,160 Speaker 1: that backlash. And it's fifty different states, so there's kind 277 00:16:26,160 --> 00:16:29,040 Speaker 1: of fifty different answers. I think that idea is what 278 00:16:29,240 --> 00:16:35,240 Speaker 1: makes this case so interesting and significant. This ruling will 279 00:16:35,400 --> 00:16:39,320 Speaker 1: have more of an effect nationwide on restricting abortion than 280 00:16:39,400 --> 00:16:42,080 Speaker 1: the Dab's decision will, which was this decision made by 281 00:16:42,080 --> 00:16:45,960 Speaker 1: the Supreme Court that overturned Rovweight and ended federal constitutional 282 00:16:46,000 --> 00:16:50,320 Speaker 1: protections for abortion. It will limit access to a pill 283 00:16:50,360 --> 00:16:53,720 Speaker 1: that's used in every state, even states where abortion is legal. 284 00:16:54,040 --> 00:16:57,280 Speaker 1: This will have the ability and the practical effect of 285 00:16:57,360 --> 00:17:01,000 Speaker 1: restricting abortions in states where it's legal by their laws. 286 00:17:01,040 --> 00:17:02,960 Speaker 1: On the other side of that, when you're talking about 287 00:17:02,960 --> 00:17:05,080 Speaker 1: the legal arguments here, there's a lot of eyes on 288 00:17:05,119 --> 00:17:07,680 Speaker 1: the Supreme Court for if this decision comes to them, 289 00:17:08,000 --> 00:17:10,959 Speaker 1: because in the Dab's decision, they said this is an 290 00:17:10,960 --> 00:17:13,879 Speaker 1: issue that should be decided by the elected representatives, and 291 00:17:13,960 --> 00:17:16,359 Speaker 1: yet here they are again being confronted with a case 292 00:17:16,400 --> 00:17:19,960 Speaker 1: that would create national precedent based off of litigation through 293 00:17:19,960 --> 00:17:23,879 Speaker 1: the courts, not through decisions made by local officials. In 294 00:17:23,960 --> 00:17:29,600 Speaker 1: addition to the question about whether the FDA improperly approved 295 00:17:30,119 --> 00:17:33,760 Speaker 1: MIFA priss Stone, there is another argument in the Texas 296 00:17:33,960 --> 00:17:36,679 Speaker 1: judges ruling that has to do with this old and 297 00:17:36,760 --> 00:17:41,600 Speaker 1: somewhat obscure law called the Comstock Act. Exactly what does 298 00:17:41,640 --> 00:17:45,000 Speaker 1: that say? The Comstock Act is a pretty broad federal 299 00:17:45,040 --> 00:17:47,840 Speaker 1: statute from one hundred and fifty years ago that prohibits 300 00:17:47,880 --> 00:17:52,080 Speaker 1: the mailing of obscene materials through the mail that includes pornography, 301 00:17:52,119 --> 00:17:55,840 Speaker 1: and it also includes articles to furnish an abortion. This 302 00:17:56,160 --> 00:17:59,920 Speaker 1: statute has not been enforced in decades. The Department of 303 00:18:00,119 --> 00:18:02,639 Speaker 1: Justice has said we don't believe that this applies to 304 00:18:02,720 --> 00:18:06,359 Speaker 1: mailing abortion pills, but abortion opponents have turned to this 305 00:18:06,440 --> 00:18:08,960 Speaker 1: Act ever since the federal government said that the pill 306 00:18:09,000 --> 00:18:12,280 Speaker 1: could be distributed through the mail, arguing that it's still 307 00:18:12,320 --> 00:18:14,840 Speaker 1: on the books and it prohibits the drug to be mailed, 308 00:18:14,920 --> 00:18:18,439 Speaker 1: and Judge Casmerican, Texas he agreed. In his order. He 309 00:18:18,480 --> 00:18:22,520 Speaker 1: said that this act does prevent the federal government from 310 00:18:22,560 --> 00:18:25,000 Speaker 1: allowing the drug to be sent through the mail at 311 00:18:25,000 --> 00:18:28,520 Speaker 1: this point. Since his ruling blocks federal approval of mefopristone, 312 00:18:28,560 --> 00:18:30,320 Speaker 1: it's kind of a moot point whether or not it 313 00:18:30,359 --> 00:18:32,520 Speaker 1: can be sent through the mail, but it could have 314 00:18:32,600 --> 00:18:35,840 Speaker 1: larger implications for other groups that are attempting to challenge 315 00:18:36,119 --> 00:18:40,280 Speaker 1: the mail band. This broad ruling, which he includes criticism 316 00:18:40,320 --> 00:18:43,560 Speaker 1: of the way the drug was approved and also invoking 317 00:18:43,600 --> 00:18:48,479 Speaker 1: this law, has brought up criticism that this ruling was 318 00:18:49,000 --> 00:18:54,200 Speaker 1: looking for a reason to outlaw methopristone. That's exactly right, 319 00:18:54,240 --> 00:18:56,440 Speaker 1: and I don't think that the conservative group behind the 320 00:18:56,520 --> 00:19:00,199 Speaker 1: lawsuit is shying away from that fact. This lawsuit not 321 00:19:00,240 --> 00:19:03,959 Speaker 1: only challenged the two thousand approval of mythopristone, but it 322 00:19:04,040 --> 00:19:07,440 Speaker 1: challenged several subsequent decisions made by the Food and Drug 323 00:19:07,440 --> 00:19:10,960 Speaker 1: Administration to expand access to the pill, and it also 324 00:19:11,040 --> 00:19:13,359 Speaker 1: challenged their decision to allow it to be sent through 325 00:19:13,400 --> 00:19:16,159 Speaker 1: the mail. They were trying any avenue they could to 326 00:19:16,280 --> 00:19:19,399 Speaker 1: limit access to this drug because they believed that the 327 00:19:19,440 --> 00:19:24,480 Speaker 1: FDA improperly approved it. This is part of a concerted, organized, 328 00:19:24,560 --> 00:19:28,000 Speaker 1: and long standing anti abortion effort. So we know that 329 00:19:28,080 --> 00:19:31,200 Speaker 1: over the past five decades, US states have passed more 330 00:19:31,200 --> 00:19:35,240 Speaker 1: than a thousand laws that either restricted abortion or made 331 00:19:35,240 --> 00:19:38,560 Speaker 1: it more difficult for clinics to operate. So it is 332 00:19:38,640 --> 00:19:42,240 Speaker 1: part of a larger, organized, concerted effort to get to 333 00:19:42,480 --> 00:19:48,280 Speaker 1: a total ban. And Kelsey because anti abortion activists have 334 00:19:48,480 --> 00:19:52,160 Speaker 1: been pressing in so many different directions what is the 335 00:19:52,240 --> 00:19:55,800 Speaker 1: next thing that you think is going to become part 336 00:19:55,840 --> 00:19:59,880 Speaker 1: of this effort. We can't minimize the seismic impact that 337 00:20:00,080 --> 00:20:03,800 Speaker 1: methopristone going away will have on patients in the US. 338 00:20:03,960 --> 00:20:06,880 Speaker 1: More than half of abortions are done via pill in 339 00:20:07,160 --> 00:20:09,720 Speaker 1: the country at this point, so it's certainly a really, 340 00:20:09,720 --> 00:20:13,200 Speaker 1: really big one. Anytime we have any precedent to chip 341 00:20:13,240 --> 00:20:16,679 Speaker 1: away at healthcare for women and pregnant people, we're talking 342 00:20:16,720 --> 00:20:19,920 Speaker 1: about what comes next. A lot of times the abortion 343 00:20:19,960 --> 00:20:24,120 Speaker 1: pill is used in the same conversation as emergency contraception, 344 00:20:24,560 --> 00:20:28,040 Speaker 1: which is different. So we want to look for if 345 00:20:28,040 --> 00:20:30,280 Speaker 1: there are going to be further attacks on birth control, 346 00:20:30,520 --> 00:20:35,280 Speaker 1: which anti abortion activists have hinted at and potentially started 347 00:20:35,320 --> 00:20:37,520 Speaker 1: to lay the groundwork for. I just wanted to add 348 00:20:37,680 --> 00:20:40,520 Speaker 1: the abortion pill is the next frontier in this fight 349 00:20:40,560 --> 00:20:45,359 Speaker 1: over reproductive access, and this decision thrusts us into that frontier. 350 00:20:45,600 --> 00:20:47,440 Speaker 1: And I think it's important for us to be really 351 00:20:47,480 --> 00:20:51,040 Speaker 1: clear that this decision that we're talking about from Judge Casmic, 352 00:20:51,480 --> 00:20:54,600 Speaker 1: it's the first significant decision in this lawsuit, but it 353 00:20:54,720 --> 00:20:56,960 Speaker 1: is not the final ruling in this case. This is 354 00:20:56,960 --> 00:20:59,879 Speaker 1: a preliminary injunction that he has issued, and that is 355 00:21:00,040 --> 00:21:03,159 Speaker 1: ventially is the guiding rules that will govern the United 356 00:21:03,200 --> 00:21:06,440 Speaker 1: States while he hears the case on the merits and 357 00:21:06,520 --> 00:21:09,639 Speaker 1: makes an actual decision. So this is just the first 358 00:21:09,840 --> 00:21:12,919 Speaker 1: legal step in this case. It will go back to 359 00:21:13,000 --> 00:21:16,320 Speaker 1: Judge Kasmaric before this issue is settled, and it's going 360 00:21:16,400 --> 00:21:18,240 Speaker 1: to probably go back up through the Fifth Circuit and 361 00:21:18,280 --> 00:21:21,720 Speaker 1: to the Supreme Court once again at that point. Cynthia 362 00:21:21,800 --> 00:21:24,600 Speaker 1: Kelsey Madeleine, thanks so much for coming on the show. 363 00:21:24,840 --> 00:21:28,000 Speaker 1: Thanks for having us. After the break, Why the US 364 00:21:28,080 --> 00:21:41,520 Speaker 1: Supreme Court might be skeptical of the Texas ruling? As 365 00:21:41,520 --> 00:21:44,240 Speaker 1: we've heard one way or another, the US Supreme Court 366 00:21:44,240 --> 00:21:47,600 Speaker 1: appears likely to get involved in this case over the 367 00:21:47,640 --> 00:21:51,040 Speaker 1: abortion pill, but it's not at all certain that anti 368 00:21:51,040 --> 00:21:54,600 Speaker 1: abortion activists who brought the case will be pleased with 369 00:21:54,640 --> 00:21:58,600 Speaker 1: what the court's conservative majority will have to say. Greg 370 00:21:58,680 --> 00:22:02,600 Speaker 1: Storr Bloomberg Creame Court correspondent and friend of the Big 371 00:22:02,640 --> 00:22:06,680 Speaker 1: Tag podcast is covering the case. Greg. The Fifth Circuit 372 00:22:06,880 --> 00:22:10,120 Speaker 1: Court of Appeals in New Orleans is the next stop 373 00:22:10,200 --> 00:22:12,760 Speaker 1: for this case, and it's known to be a very 374 00:22:12,800 --> 00:22:17,280 Speaker 1: conservative court. Is it a foregone conclusion that the Court 375 00:22:17,320 --> 00:22:21,840 Speaker 1: will back up the Texas Judge Kasmeric's ruling. I wouldn't 376 00:22:21,840 --> 00:22:27,119 Speaker 1: go quite that far, but certainly the challengers to method 377 00:22:27,119 --> 00:22:30,480 Speaker 1: press Stone start with that very big advantage that the 378 00:22:30,520 --> 00:22:34,080 Speaker 1: Fifth Circuit has. So many of the recent Supreme Court 379 00:22:34,119 --> 00:22:38,320 Speaker 1: cases have come from the Fifth Circuit because conservative groups 380 00:22:38,359 --> 00:22:41,639 Speaker 1: are filing and states are filing cases, they are knowing 381 00:22:41,680 --> 00:22:44,400 Speaker 1: they have a really really good chance of winning there. 382 00:22:44,440 --> 00:22:48,080 Speaker 1: And you know, the fact that they filed in Judge 383 00:22:48,119 --> 00:22:50,720 Speaker 1: Kasmeric's court, the fact that they know what's going to 384 00:22:50,760 --> 00:22:54,159 Speaker 1: be appealed to the Fifth Circuit, you know, suggests they 385 00:22:54,200 --> 00:22:56,720 Speaker 1: kind of have a home field advantage there. If the 386 00:22:56,720 --> 00:23:00,240 Speaker 1: Fifth Circuit does allow the Texas order to stand, then 387 00:23:00,440 --> 00:23:04,720 Speaker 1: presumably the US Justice Department will ask the Supreme Court 388 00:23:04,760 --> 00:23:07,160 Speaker 1: to weigh in. What do you think they would say? 389 00:23:07,520 --> 00:23:10,119 Speaker 1: One would expect there's a pretty good chance the Supreme 390 00:23:10,160 --> 00:23:14,280 Speaker 1: Court will at least issue an administrative stay, which means 391 00:23:14,359 --> 00:23:18,280 Speaker 1: they're buying themselves a few more days to decide whether 392 00:23:18,320 --> 00:23:21,960 Speaker 1: to grant a longer term stay, and that longer term 393 00:23:22,000 --> 00:23:25,080 Speaker 1: stay potentially would last all the way through the appeals 394 00:23:25,119 --> 00:23:28,840 Speaker 1: court process, meaning that this drug would not be effected 395 00:23:28,920 --> 00:23:31,960 Speaker 1: until there's a final decision on the merits and so 396 00:23:32,000 --> 00:23:36,639 Speaker 1: the Court doesn't want to actually decide the case itself 397 00:23:36,800 --> 00:23:41,600 Speaker 1: before it's gone through the lower courts completely. I wouldn't 398 00:23:41,680 --> 00:23:44,600 Speaker 1: think so. It certainly doesn't need you that. The normal 399 00:23:44,680 --> 00:23:48,520 Speaker 1: course is that the Supreme Court wants to see both 400 00:23:48,520 --> 00:23:51,439 Speaker 1: a federal district judge and a federal appeals court decide 401 00:23:51,480 --> 00:23:54,199 Speaker 1: the matter before it even considers curing it. That's the 402 00:23:54,359 --> 00:23:57,479 Speaker 1: normal practice. We've seen the Court deviate from that in 403 00:23:57,520 --> 00:24:01,400 Speaker 1: a few recent cases. That's usually when there's a really 404 00:24:01,520 --> 00:24:06,040 Speaker 1: compelling circumstance where something is happening, like an election for example, 405 00:24:06,880 --> 00:24:11,960 Speaker 1: that requires them to sort of push things along more quickly. Here, 406 00:24:11,760 --> 00:24:14,639 Speaker 1: there's no reason why the Court has to do that, 407 00:24:14,880 --> 00:24:17,560 Speaker 1: all the more so because there's this other case out 408 00:24:17,560 --> 00:24:22,440 Speaker 1: in Washington State is percolating as well. Let that process 409 00:24:22,520 --> 00:24:25,919 Speaker 1: play out. That may clarify exactly what the Supreme Court 410 00:24:26,240 --> 00:24:30,400 Speaker 1: might need to decide. And so if it does end 411 00:24:30,560 --> 00:24:33,439 Speaker 1: up with the Supreme Court, what do you think happens? 412 00:24:33,480 --> 00:24:38,080 Speaker 1: How do they then weigh and measure both the Texas 413 00:24:38,200 --> 00:24:44,119 Speaker 1: case and the Washington State case which concluded exactly the opposite. Yeah, Well, first, 414 00:24:44,280 --> 00:24:47,159 Speaker 1: keep in mind, this is very, very different from a 415 00:24:47,240 --> 00:24:50,840 Speaker 1: legal standpoint from the Dobbs versus Jackson case that overturned 416 00:24:50,880 --> 00:24:53,280 Speaker 1: the constitutional right to a portion. This is a case 417 00:24:53,280 --> 00:24:57,280 Speaker 1: about federal statutes, a case about federal administrative procedure, and 418 00:24:57,440 --> 00:25:01,119 Speaker 1: about some really technical doctrines like standing and whether you 419 00:25:01,560 --> 00:25:04,639 Speaker 1: exhaust your administrative remedies before you go to court. So 420 00:25:04,680 --> 00:25:07,240 Speaker 1: there's a lot of stuff going on there. The other 421 00:25:07,280 --> 00:25:09,600 Speaker 1: thing I would say keep in mind is, you know, 422 00:25:09,600 --> 00:25:12,960 Speaker 1: when the Supreme Court overruled the constitutional right to abortion, 423 00:25:13,119 --> 00:25:15,280 Speaker 1: the Court as a whole, and particularly just As Kavanaugh, 424 00:25:15,280 --> 00:25:19,520 Speaker 1: who's really a key vote here, emphasized that what they 425 00:25:19,520 --> 00:25:23,200 Speaker 1: were trying to do was put this decision about abortion 426 00:25:23,440 --> 00:25:26,479 Speaker 1: back in the hands of the people's representatives. Well, so 427 00:25:26,520 --> 00:25:30,119 Speaker 1: here's a ruling where a judge, an unelected judge, as 428 00:25:30,160 --> 00:25:33,400 Speaker 1: the Supreme Court justices would like to say, is overturning 429 00:25:33,800 --> 00:25:37,800 Speaker 1: something that an agency that answers to the president has 430 00:25:37,880 --> 00:25:43,840 Speaker 1: done and making something illegal even in states where the 431 00:25:43,840 --> 00:25:48,400 Speaker 1: people there say we want legal abortion. So that cross current, 432 00:25:48,440 --> 00:25:50,800 Speaker 1: I think is going to create a very different dynamic 433 00:25:50,840 --> 00:25:53,240 Speaker 1: for the Supreme Court here. And then you add on 434 00:25:53,280 --> 00:25:56,600 Speaker 1: the fact that we're talking about second guessing an expert 435 00:25:56,640 --> 00:25:59,600 Speaker 1: agency on something that a judge, you know, doesn't have 436 00:25:59,640 --> 00:26:01,760 Speaker 1: an any expertise, and that's the kind of thing that 437 00:26:01,760 --> 00:26:05,720 Speaker 1: even the conservative justices have suggested they're not willing to do. 438 00:26:06,119 --> 00:26:08,840 Speaker 1: So it is by no means a sure thing that 439 00:26:08,880 --> 00:26:12,040 Speaker 1: this conservative court is going to back up this conservative judge. Now, 440 00:26:12,040 --> 00:26:15,200 Speaker 1: you also asked about the Washington case. That is an 441 00:26:15,200 --> 00:26:20,040 Speaker 1: additional complication in there no question about that. But the 442 00:26:20,080 --> 00:26:22,760 Speaker 1: answer may still be for the Supreme Court that we 443 00:26:22,880 --> 00:26:25,320 Speaker 1: disagree both with the judge in Texas and with the 444 00:26:25,359 --> 00:26:28,280 Speaker 1: judge in Washington. This is something where judges don't really 445 00:26:28,280 --> 00:26:31,760 Speaker 1: have a role, and so in that case, what would 446 00:26:31,800 --> 00:26:34,919 Speaker 1: they then say if it comes as a stay application. 447 00:26:35,280 --> 00:26:37,560 Speaker 1: You could see them focusing on any of a number 448 00:26:37,600 --> 00:26:40,720 Speaker 1: of issues. I mentioned this whole issue of standing. These 449 00:26:40,760 --> 00:26:44,320 Speaker 1: are anti abortion groups that sued to challenge Mipopress Stone, 450 00:26:44,440 --> 00:26:47,919 Speaker 1: and one key question is how are they hurt by this? 451 00:26:48,240 --> 00:26:50,159 Speaker 1: What right do they have to go to court to 452 00:26:50,560 --> 00:26:52,560 Speaker 1: file suit against this? So you could see the case 453 00:26:52,600 --> 00:26:54,800 Speaker 1: being decided just on that ground that they don't have 454 00:26:54,880 --> 00:26:56,760 Speaker 1: a right to be in court. And then, as I said, 455 00:26:56,800 --> 00:27:00,400 Speaker 1: there's some other very technical administrative law doctrines about whether 456 00:27:00,440 --> 00:27:02,880 Speaker 1: you have to first go to the agency and try 457 00:27:02,920 --> 00:27:05,600 Speaker 1: to get what you want directly through the agency before 458 00:27:05,600 --> 00:27:07,480 Speaker 1: you go to court. There are a lot of different 459 00:27:07,520 --> 00:27:11,439 Speaker 1: ways the court could ultimately reverse this ruling. One of 460 00:27:11,520 --> 00:27:13,639 Speaker 1: the questions that's come up in a lot of the 461 00:27:13,720 --> 00:27:17,800 Speaker 1: discussions since this decision in Texas is the idea that 462 00:27:18,200 --> 00:27:21,919 Speaker 1: if a judge is able to overturn the FDA's decision 463 00:27:22,000 --> 00:27:25,680 Speaker 1: about a drug in this case, that judges all over 464 00:27:25,720 --> 00:27:30,760 Speaker 1: the country could be looking to overturn agency decisions just 465 00:27:30,840 --> 00:27:34,600 Speaker 1: because someone complained to them about it. Yeah, that is 466 00:27:34,640 --> 00:27:36,840 Speaker 1: certainly a concern that will be on the minds of 467 00:27:37,240 --> 00:27:39,600 Speaker 1: I think the conservative justices as well as the more 468 00:27:39,680 --> 00:27:43,040 Speaker 1: liberal ones that how do you draw a line here? 469 00:27:43,640 --> 00:27:46,440 Speaker 1: This is really an area where we all rely on 470 00:27:46,640 --> 00:27:49,840 Speaker 1: expert at the FDA and at the drug companies for 471 00:27:49,880 --> 00:27:53,760 Speaker 1: that matter, and you know, not something where judges have 472 00:27:53,800 --> 00:27:56,359 Speaker 1: a whole lot of ability to say, no, I can 473 00:27:56,800 --> 00:28:00,320 Speaker 1: make a better decision on this stuff. And it's hard 474 00:28:00,359 --> 00:28:03,080 Speaker 1: to know how to stop that. And even some of 475 00:28:03,119 --> 00:28:07,840 Speaker 1: the conservative justices and slightly different contacts have expressed a 476 00:28:07,840 --> 00:28:10,639 Speaker 1: lot of reticence about having judges get involved in this 477 00:28:10,680 --> 00:28:14,239 Speaker 1: sort of thing. There's yet another complicating factor is that 478 00:28:14,240 --> 00:28:17,760 Speaker 1: the Texas decision didn't just say that the FDA had 479 00:28:17,800 --> 00:28:24,000 Speaker 1: concluded wrongly about Mytho Preston, but had actually run afoul 480 00:28:24,119 --> 00:28:27,680 Speaker 1: of another law called the Comstock Act. Can you talk 481 00:28:27,720 --> 00:28:31,399 Speaker 1: about how that works. It's a law that says you 482 00:28:31,440 --> 00:28:34,840 Speaker 1: can't mail certain things, and it lists things that describes 483 00:28:35,280 --> 00:28:39,160 Speaker 1: like obscene things and indecent things, and it does mention 484 00:28:39,480 --> 00:28:43,080 Speaker 1: things that can cause an abortion. But the understanding of 485 00:28:43,120 --> 00:28:47,920 Speaker 1: that law for really a century has been that it 486 00:28:47,960 --> 00:28:51,840 Speaker 1: outlaws things that can cause an illegal abortion. If a 487 00:28:51,960 --> 00:28:55,920 Speaker 1: drug is not being used illegally, it's not covered by 488 00:28:55,960 --> 00:28:59,640 Speaker 1: the Comstock Act. And so you have this dynamic where 489 00:28:59,640 --> 00:29:01,880 Speaker 1: the judge I just looked at the language of the law, 490 00:29:02,240 --> 00:29:04,960 Speaker 1: and there's a, you know, a non laughable argument that 491 00:29:05,000 --> 00:29:07,600 Speaker 1: the language of the law suggested bans the mailing of 492 00:29:07,760 --> 00:29:10,600 Speaker 1: pills that can induce an abortion. But that runs up 493 00:29:10,640 --> 00:29:14,080 Speaker 1: against this long held understanding of the law. And so 494 00:29:14,120 --> 00:29:16,120 Speaker 1: that's the hill that opponents are going to have to 495 00:29:16,160 --> 00:29:19,800 Speaker 1: get over if they're going to win this case. And 496 00:29:19,840 --> 00:29:22,719 Speaker 1: with the Supreme Court have to decide on each of 497 00:29:22,760 --> 00:29:26,480 Speaker 1: these components in figuring out how to come down in 498 00:29:26,520 --> 00:29:29,440 Speaker 1: this case. Now they really only need to decide on 499 00:29:29,440 --> 00:29:31,840 Speaker 1: one of these components. So to go back to that 500 00:29:31,920 --> 00:29:36,560 Speaker 1: concept of standing, anti abortion groups sued to challenge this 501 00:29:36,640 --> 00:29:40,719 Speaker 1: law here, it's not clear how these anti abortion groups 502 00:29:40,760 --> 00:29:44,120 Speaker 1: are injured by the fact that this drug is legal. 503 00:29:44,240 --> 00:29:46,640 Speaker 1: That one of the things they say is, oh, it's 504 00:29:46,720 --> 00:29:51,600 Speaker 1: not safe, and therefore women who take this drug may 505 00:29:51,840 --> 00:29:55,920 Speaker 1: overwhelm the health system and affect us because we you know, 506 00:29:55,960 --> 00:29:58,680 Speaker 1: some of our members are doctors, and it will affect us. 507 00:29:58,880 --> 00:30:00,960 Speaker 1: It's not clear that there's evidence that that has happened 508 00:30:01,000 --> 00:30:04,360 Speaker 1: so far. So that is certainly an area where if 509 00:30:04,400 --> 00:30:06,240 Speaker 1: the court, especially if they don't want to get into 510 00:30:06,280 --> 00:30:09,480 Speaker 1: the substance of whether the FDA has made a good 511 00:30:09,480 --> 00:30:12,960 Speaker 1: decision here, they could take one of those procedural avenues 512 00:30:13,000 --> 00:30:15,560 Speaker 1: to say this case never belonged in court in the 513 00:30:15,560 --> 00:30:18,720 Speaker 1: first place. As someone who covered the court for a 514 00:30:18,760 --> 00:30:21,800 Speaker 1: long time, how do you think this ultimately turns out? 515 00:30:22,360 --> 00:30:25,200 Speaker 1: As I sit here, it's hard for me to imagine 516 00:30:25,240 --> 00:30:28,280 Speaker 1: there are five votes on this court to say it's 517 00:30:28,320 --> 00:30:31,560 Speaker 1: okay for a federal judge to go in and second 518 00:30:31,560 --> 00:30:36,640 Speaker 1: guests and agency's long held opinion that a drug is safe. 519 00:30:36,680 --> 00:30:39,960 Speaker 1: That seems like a really high hurdle, even for this 520 00:30:40,000 --> 00:30:42,720 Speaker 1: conservative court to get over. Do you think this is 521 00:30:42,720 --> 00:30:46,200 Speaker 1: overturned at the abortion pill remains legal. I think that 522 00:30:46,320 --> 00:30:48,840 Speaker 1: is the most likely scenario as we sit here. Whether 523 00:30:48,920 --> 00:30:50,600 Speaker 1: the Supreme Court ends up being the one that has 524 00:30:50,640 --> 00:30:53,480 Speaker 1: to do that, not sure about that. Greg. Oh, it's 525 00:30:53,480 --> 00:30:56,200 Speaker 1: great talking to you. Thanks for being here, my pleasure. 526 00:30:57,320 --> 00:30:59,400 Speaker 1: Thanks for listening to us here at The Big Take. 527 00:30:59,440 --> 00:31:02,920 Speaker 1: It's a daily podcast from Bloomberg and iHeartRadio. For more 528 00:31:02,920 --> 00:31:06,800 Speaker 1: shows from my Heart Radio, visit the iHeartRadio app, Apple Podcast, 529 00:31:07,000 --> 00:31:09,640 Speaker 1: or wherever you listen, and we'd love to hear from you. 530 00:31:10,080 --> 00:31:13,640 Speaker 1: Email us questions or comments to Big Take at Bloomberg 531 00:31:13,720 --> 00:31:17,040 Speaker 1: dot net. The supervising producer of The Big Take is 532 00:31:17,200 --> 00:31:22,560 Speaker 1: Vicki Virgolina. Our senior producer is Katherine Fink. Our producers 533 00:31:22,680 --> 00:31:27,120 Speaker 1: are Moe Barrow and Michael Filero. Phil de Garcia is 534 00:31:27,120 --> 00:31:31,240 Speaker 1: our engineer. Our original music was composed by Leo Sidrin. 535 00:31:31,560 --> 00:31:34,960 Speaker 1: I'm West Kasova. We'll be back tomorrow with another Big Take.