Speaker 1: Hi, everyone, it's West Kosova. Here's a news update since
Speaker 1: this episode was recorded. The US Fifth Circuit Court of
Speaker 1: Appeals has issued an order saying the abortion pill miffipristone,
Speaker 1: can stay on the market while legal arguments proceed through
Speaker 1: the courts. That overrules a lower federal court ruling in
Speaker 1: Texas that sought to stop sale of the pill. The
Speaker 1: Texas judge had set a Friday deadline that now will
Speaker 1: not go into effect. However, the appeals court did agree
Speaker 1: with one part of the Texas ruling. It left in
Speaker 1: place that lower court's order that blocked changes the FDA
Speaker 1: has made in recent years to make miffipristone more easily available,
Speaker 1: like allowing delivery of the drug by mail. Those restrictions
Speaker 1: on the pill from the Texas ruling may now go
Speaker 1: into effect while the case goes through the courts, so
Speaker 1: it may not become more difficult to get the The
Speaker 1: Biden administration said that it will continue to challenge the
Speaker 1: court's decisions. And we get into all of this in
Speaker 1: this episode from Bloomberg News and iHeartRadio. It's the Big Take.
Speaker 1: I'm Westkasova Today. What's next in the rights push to
Speaker 1: outlaw abortion? The ruling by a federal judge in Texas
Speaker 1: that would invalidate the FDA's decades old approval of the
Speaker 1: abortion pill MITHA pristone is the latest example of how
Speaker 1: conservative activists are now seeking to block abortion, not just
Speaker 1: in individual states but nationwide. Today, my Bloomberg colleagues Kelsey Butler,
Speaker 1: Cynthia Coons, and Madeline Meckelberg, who are covering this story,
Speaker 1: tell us where the case goes from here, and later
Speaker 1: in the show, Bloomberg's Greg Store explains why the Supreme
Speaker 1: Court's conservative majority, which will almost certainly weigh in, might
Speaker 1: actually side against blocking the abortion pill. Madeline, let's start
Speaker 1: with the ruling in Texas. There is this seven day
Speaker 1: hold that the judge put on it, saying that it
Speaker 1: wouldn't be enforced while the appeals process can get started.
Speaker 1: Where are we right now with that? So the judge
Speaker 1: said that this ruling will go into effect on Friday,
Speaker 1: almost immediately afterwards, the first available business day. The Department
Speaker 1: of Justice appealed that decision to the Fifth Circuit Court
Speaker 1: of Appeals in New Orleans, and they asked the judges
Speaker 1: there to issue an order blocking implementation of that ruling.
Speaker 1: Come Friday, and what happens next, Well, what happens next
Speaker 1: is all eyes are on the Fifth Circuit Court of
Speaker 1: Appeals in New Orleans, which is the next stop on
Speaker 1: this legal process us for this lawsuit. We're waiting to
Speaker 1: see what they're going to do, whether they're going to
Speaker 1: issue this stay. If they don't, then on Friday, the
Speaker 1: FDA approval of mythopristone is going to be blocked across
Speaker 1: the country, Cynthia. Immediately after this ruling, we saw quite
Speaker 1: a big response. What are those arguing against this ruling
Speaker 1: doing now? So, basically, for the companies that distribute the pill,
Speaker 1: the pills distributed through online only pharmacies, the FDA has
Speaker 1: had long standing restrictions on the drug in place, so
Speaker 1: you can't get it at like a typical pharmacy on
Speaker 1: the street corner necessarily. But the online pharmacies that distribute
Speaker 1: the drug, basically, their response to this has been continue
Speaker 1: to sell the drug while they wait to figure out
Speaker 1: what's happening next. There really isn't any reason for them
Speaker 1: to do anything differently, because until the FDA decides to
Speaker 1: take action, the FDA themselves have to decide whether or
Speaker 1: not they're going to comply with the judge's order. So
Speaker 1: until the FDA takes action, there's nothing that the companies
Speaker 1: really need to do or change about their businesses while
Speaker 1: they wait for the next steps here. And so, if
Speaker 1: you are a person seeking to buy nfipristone, you're able
Speaker 1: to get it right now, yep. You can either buy
Speaker 1: it go through the typical channel where you might go
Speaker 1: to an abortion clinic and get it through a provider
Speaker 1: that way, or you can use their services that distribute
Speaker 1: it online. Or you might be able to buy it
Speaker 1: in advance of needing it sometime in the future. So
Speaker 1: there has been a surge in demand from people who
Speaker 1: are interested in making sure that they have it if
Speaker 1: they need it, but nothing has actually changed as a
Speaker 1: result of the ruling. It's really actually been, if anything,
Speaker 1: a jolt to sort of pick up business in anticipation
Speaker 1: of something changing. We've seen in recent months since the
Speaker 1: Supreme Court overturn Rov. Wade, patients going to tell ahealth
Speaker 1: more and more in order to get abortion care. In April,
Speaker 1: before the Supreme Court decision, virtual care accounted for about
Speaker 1: four percent of all abortions in the US. By December,
Speaker 1: it was eleven percent. So it's really showing that trend
Speaker 1: upward in the wake of more restrictions and the overturning
Speaker 1: of Roe v. Wade. And also just some context around
Speaker 1: that too. I mean, you couldn't get the pill through telemedicine.
Speaker 1: For much of the pill's life on the market, it
Speaker 1: wasn't so it's almost probably been on the market for
Speaker 1: twenty years before you could get it through telehealth. Legally,
Speaker 1: the FDA themselves have always been very conservative about the
Speaker 1: administration of this drug, even though there's a lot of
Speaker 1: safety data showing that it's quite a safe drug and
Speaker 1: it can be used by someone self ministering an abortion
Speaker 1: at home. And so what happened during the pandemic was
Speaker 1: there actually were other lawsuits that led to the government
Speaker 1: deciding to loosen it up and allow the pill to
Speaker 1: be sent through the mail. It used to be that
Speaker 1: a woman had to actually go to a provider's office,
Speaker 1: and just when you think about that, it's it's so
Speaker 1: unique in the practice of medicine. If you think about
Speaker 1: any medicine you've ever taken, when do you go to
Speaker 1: the doctor's office to pick it up, And particularly for
Speaker 1: a drug that is widely within the medical community known
Speaker 1: to be safe outside of just people in reproductive healthcare,
Speaker 1: the American Medical Association has also come out and talked
Speaker 1: about the safety of this drug. And so this sort
Speaker 1: of pickup is building on some momentum that's been going
Speaker 1: on because of other lawsuits forcing the FDA to say, hey,
Speaker 1: this drug should be more accessible. So that's the sort
Speaker 1: of cross current in the background, and probably what also
Speaker 1: led to the suit and what we're what we're seeing
Speaker 1: today is this sort of liberalization of the pill led
Speaker 1: to this kind of crescendo and this lawsuit. Kelsey States
Speaker 1: had been anticipating this ruling. What did they do while
Speaker 1: they were waiting to see what the court would decide?
Speaker 1: In Texas, what we've seen is states stockpiling mythopristone ahead
Speaker 1: of the ruling or in response to the ruling. Earlier
Speaker 1: this month, Washington's governor said that he had directed for
Speaker 1: the purchase of a three year supply mephapristone. Massachusetts also
Speaker 1: announced that it would be stockpiling fifteen thousand doses of
Speaker 1: the drug. California now among multiple states trying to stockpile
Speaker 1: as much of that abortion medication as it can. The goal,
Speaker 1: according to Governor Gavin Newsom is to purchase as many
Speaker 1: as two million pills. It's really unclear how these stockpiles
Speaker 1: are going to be handled. I've been reaching out to
Speaker 1: advocacy groups to find out if there's any type of
Speaker 1: precedent for what exactly could happen if mefapristone is no
Speaker 1: longer available. It's still kind of up in the air.
Speaker 1: So many things are right now, but there is one
Speaker 1: situation that recently happened that could provide some type of
Speaker 1: roadmap or some type of game plan. Earlier this month,
Speaker 1: the FDA pulled approval of another drug called McKenna, which
Speaker 1: is a preterm birth treatment, and when it did so,
Speaker 1: it did acknowledge that a limited supply of these drugs
Speaker 1: had already been distributed to doctors, offices, pharmacies, and acknowledge
Speaker 1: that some doctors might continue to prescribe or administer that
Speaker 1: remaining supply to patients. So I don't know that that
Speaker 1: will exactly happen, but it provides a possibility, Cynthia. As
Speaker 1: you say, the FDA has been pretty conservative in dispensing
Speaker 1: miffa pristone. It's the judge in Texas, Judge Kasmeric ruled
Speaker 1: the FDA head bowed to political pressure and ignored medical
Speaker 1: evidence that called into question the drug safety, and that
Speaker 1: led to a backlash from doctors and medical researchers who
Speaker 1: say this drug has been proven over many years to
Speaker 1: be safe. What does the science say about Miffa pristone. So,
Speaker 1: Miffi pristone has been on the market for twenty three
Speaker 1: years now. It's widely considered to be safe and effective.
Speaker 1: When used properly in combination with another drug, it works
Speaker 1: ninety seven percent of the time. I believe it is
Speaker 1: to induce an abortion. Like any drug, it has side effects,
Speaker 1: but all drugs do. A large research study looking at
Speaker 1: women who'd taken this drug and tried to ascertain the
Speaker 1: incident's rate of them ending up in the AR showed
Speaker 1: that it was less likely to put a person into
Speaker 1: the AR as a common everyday drug like tylan. All. So,
Speaker 1: it's widely considered to be safe, it's an effective drug,
Speaker 1: and it's really just come down to politics at this point. Cynthia,
Speaker 1: you talked about the other drug that Nifa pristone is
Speaker 1: often paired with, which is mysapro stall. Why have abortion
Speaker 1: opponents not also gone after that drug. So mysapro Stall
Speaker 1: is actually a drug used for other things. It's used
Speaker 1: to prevent stomach ulcers, and it's been on the market
Speaker 1: a lot longer, and its history is actually quite interesting.
Speaker 1: It was an abortion treatment itself. As the story goes,
Speaker 1: women in Brazil had seen on the packet that no
Speaker 1: pregnancy signed and started using it and it actually did
Speaker 1: work for abortions, and so that has been around for
Speaker 1: a while. But it's actually just on the market for
Speaker 1: other things. It can be used for abortions, but it's
Speaker 1: more effective in combination with Miffy pristone, and Miffy pristone's
Speaker 1: the only drug that's approved solely for termination of a pregnancy,
Speaker 1: so that's the one that's in target, and my suppost
Speaker 1: All is going to, you know, stay on the market
Speaker 1: for the other things it's approved for, but women will
Speaker 1: be able to turn to my suppostall and use that
Speaker 1: as an abortion option if Miffy pristone's taken off the market.
Speaker 1: It's just not as effective as a treatment. And so
Speaker 1: if it is taken off the market, do you think
Speaker 1: that we'll continue to see my sapprostall used by itself. Yeah,
Speaker 1: that's already happened. And happening in some parts of the country.
Speaker 1: One of the first online pharmacy providers of Miffy pristone
Speaker 1: started offering the drug. Went through the steps to become
Speaker 1: a provider of Miffy pristone because she had noticed a
Speaker 1: pickup in my suppostall prescriptions in Texas after the ban
Speaker 1: on abortions after six weeks went into effect, and so
Speaker 1: basically what was happening there was she was seeing women
Speaker 1: were already doing this. Doctors were already offering this regiment.
Speaker 1: So there are places where this may already be happening
Speaker 1: their states with much stricter rules around use of the
Speaker 1: pill already that make it much harder to get even
Speaker 1: than what the FDA terms of the drug are at
Speaker 1: this point. And so my supposed to all will be
Speaker 1: an option for women, it's just not as effective as
Speaker 1: an option. After the ruling, several executives at pharmaceutical companies
Speaker 1: wrote an open letter opposing it. What exactly did they say?
Speaker 1: Executives from a lot of drug companies signed onto a
Speaker 1: letter calling out the decision and how dangerous it is
Speaker 1: for politics and lawsuits like this to question the way
Speaker 1: that the FDA operates. What the drug companies want is
Speaker 1: standardized system where things operate and work in a certain way,
Speaker 1: and with the FDA, that's always been the case. They
Speaker 1: have their own negotiations with the FDA, but the way
Speaker 1: that they conduct clinical trials, if it's getting called into
Speaker 1: question on a lawsuit by lawsuit basis, it makes it
Speaker 1: impossible for them to do the work that they do
Speaker 1: because the clinical trials they do cost billions of dollars.
Speaker 1: So I think what they were stepping up and saying
Speaker 1: here out a lot more than just this drug and
Speaker 1: about abortion access. It's really about the idea that they
Speaker 1: don't want to be at the whim of what a
Speaker 1: judge's perspective is on a given treatment instead of the
Speaker 1: practice of science and the way they've been doing things
Speaker 1: for decades. Jumping off that, we know that so much
Speaker 1: about healthcare has become politicized right now, and I know
Speaker 1: that you all have talked on the show in the
Speaker 1: past about healthcare for trans youth has also been part
Speaker 1: of the political and policy conversation going forward. What these
Speaker 1: drug companies are really saying is, let's not open this
Speaker 1: door here to having judges make decisions that the FDA
Speaker 1: should and Obviously there's a real self interest there, but
Speaker 1: it's certainly an interesting take, just given how much about
Speaker 1: healthcare right now has become politicized, especially when we talk
Speaker 1: about underrepresented groups, Madeline, This question about whether federal judges
Speaker 1: can step in and essentially say no, the FDA is
Speaker 1: wrong and invalidate their rulings is something new, isn't it.
Speaker 1: Absolutely this case is completely unprecedented. If that wasn't clear
Speaker 1: already from our conversation, there's a ton of questions about
Speaker 1: what the heck this means, what it means in practice,
Speaker 1: and what the implications are for this decision. This is
Speaker 1: the first time we've seen a federal judge come in
Speaker 1: and overturn FDA approval of a drug that they went
Speaker 1: through their own safety procedures to approve. And this Texas
Speaker 1: ruling was further complicated by a ruling that came almost
Speaker 1: at exactly the same time from Washington State that said
Speaker 1: the opposite of what the judge in Texas said. How
Speaker 1: does that play into what happens next? That's exactly right.
Speaker 1: It's incredibly confusing. I'll be the first one to tell
Speaker 1: you that I think there's a lot of questions here.
Speaker 1: The case in Washington stems off that idea that the
Speaker 1: FDA has been historically conservative when it comes to regulating
Speaker 1: this drug. That case was brought by a group of
Speaker 1: Democratic Attorneys general who said that the FDA has two
Speaker 1: many regulations on this drug, and the judge in Washington
Speaker 1: agreed and said that the federal government should not take
Speaker 1: any steps at this point to limit access to mifipristone
Speaker 1: while he considers the larger arguments behind their case. That
Speaker 1: decision is the prevailing decision right now because the Texas
Speaker 1: ruling does not go into effect until April fourteenth, So
Speaker 1: as of right now, there are not conflicting rulings. But
Speaker 1: should the Fifth Circuit not stay this decision from Texas
Speaker 1: on Friday, both of these rulings will be in effect
Speaker 1: at the same time, and they conflict, and people aren't
Speaker 1: really exactly sure what that's going to look like if
Speaker 1: the Supreme Court does not step in and provide some
Speaker 1: clarity when we come back. Why did the Texas judge
Speaker 1: say it's against the law to send abortion pills through
Speaker 1: the mail? Kelsey, For a long time anti abortion advocates
Speaker 1: said that what they wanted was to allow each state
Speaker 1: to decide whether abortion should be legal. But what we're
Speaker 1: seeing now with this Texas ruling is something different, which
Speaker 1: is a push to make abortion legal at a federal
Speaker 1: level nationwide. I think there's definitely questions right now and
Speaker 1: some conflicts on strategy when it comes to the anti
Speaker 1: abortion side. I've been doing quite a bit of reporting
Speaker 1: on states that are somewhere kind of in the middle.
Speaker 1: We obviously have states in the camp that said we're
Speaker 1: going to become haven states patients can come to us,
Speaker 1: like in New York and California, saying that they will
Speaker 1: make sure that they're shoring up abortion access in their states. Obviously,
Speaker 1: we know that there's states like Texas where there's been
Speaker 1: near total bands, But then there's a lot of states
Speaker 1: in the middle where the political landscape is a little
Speaker 1: bit different. What we're seeing is conservative politicians try to
Speaker 1: find that spot that they feel they can satisfy their
Speaker 1: base while at the same time not generating a lot
Speaker 1: of backlash. We've seen this several times over since the
Speaker 1: Supreme Court overturned Row that voters don't want total abortion bands.
Speaker 1: So now there's this kind of calculus being done about
Speaker 1: how far politicians can go with bands before they get
Speaker 1: that backlash. And it's fifty different states, so there's kind
Speaker 1: of fifty different answers. I think that idea is what
Speaker 1: makes this case so interesting and significant. This ruling will
Speaker 1: have more of an effect nationwide on restricting abortion than
Speaker 1: the Dab's decision will, which was this decision made by
Speaker 1: the Supreme Court that overturned Rovweight and ended federal constitutional
Speaker 1: protections for abortion. It will limit access to a pill
Speaker 1: that's used in every state, even states where abortion is legal.
Speaker 1: This will have the ability and the practical effect of
Speaker 1: restricting abortions in states where it's legal by their laws.
Speaker 1: On the other side of that, when you're talking about
Speaker 1: the legal arguments here, there's a lot of eyes on
Speaker 1: the Supreme Court for if this decision comes to them,
Speaker 1: because in the Dab's decision, they said this is an
Speaker 1: issue that should be decided by the elected representatives, and
Speaker 1: yet here they are again being confronted with a case
Speaker 1: that would create national precedent based off of litigation through
Speaker 1: the courts, not through decisions made by local officials. In
Speaker 1: addition to the question about whether the FDA improperly approved
Speaker 1: MIFA priss Stone, there is another argument in the Texas
Speaker 1: judges ruling that has to do with this old and
Speaker 1: somewhat obscure law called the Comstock Act. Exactly what does
Speaker 1: that say? The Comstock Act is a pretty broad federal
Speaker 1: statute from one hundred and fifty years ago that prohibits
Speaker 1: the mailing of obscene materials through the mail that includes pornography,
Speaker 1: and it also includes articles to furnish an abortion. This
Speaker 1: statute has not been enforced in decades. The Department of
Speaker 1: Justice has said we don't believe that this applies to
Speaker 1: mailing abortion pills, but abortion opponents have turned to this
Speaker 1: Act ever since the federal government said that the pill
Speaker 1: could be distributed through the mail, arguing that it's still
Speaker 1: on the books and it prohibits the drug to be mailed,
Speaker 1: and Judge Casmerican, Texas he agreed. In his order. He
Speaker 1: said that this act does prevent the federal government from
Speaker 1: allowing the drug to be sent through the mail at
Speaker 1: this point. Since his ruling blocks federal approval of mefopristone,
Speaker 1: it's kind of a moot point whether or not it
Speaker 1: can be sent through the mail, but it could have
Speaker 1: larger implications for other groups that are attempting to challenge
Speaker 1: the mail band. This broad ruling, which he includes criticism
Speaker 1: of the way the drug was approved and also invoking
Speaker 1: this law, has brought up criticism that this ruling was
Speaker 1: looking for a reason to outlaw methopristone. That's exactly right,
Speaker 1: and I don't think that the conservative group behind the
Speaker 1: lawsuit is shying away from that fact. This lawsuit not
Speaker 1: only challenged the two thousand approval of mythopristone, but it
Speaker 1: challenged several subsequent decisions made by the Food and Drug
Speaker 1: Administration to expand access to the pill, and it also
Speaker 1: challenged their decision to allow it to be sent through
Speaker 1: the mail. They were trying any avenue they could to
Speaker 1: limit access to this drug because they believed that the
Speaker 1: FDA improperly approved it. This is part of a concerted, organized,
Speaker 1: and long standing anti abortion effort. So we know that
Speaker 1: over the past five decades, US states have passed more
Speaker 1: than a thousand laws that either restricted abortion or made
Speaker 1: it more difficult for clinics to operate. So it is
Speaker 1: part of a larger, organized, concerted effort to get to
Speaker 1: a total ban. And Kelsey because anti abortion activists have
Speaker 1: been pressing in so many different directions what is the
Speaker 1: next thing that you think is going to become part
Speaker 1: of this effort. We can't minimize the seismic impact that
Speaker 1: methopristone going away will have on patients in the US.
Speaker 1: More than half of abortions are done via pill in
Speaker 1: the country at this point, so it's certainly a really,
Speaker 1: really big one. Anytime we have any precedent to chip
Speaker 1: away at healthcare for women and pregnant people, we're talking
Speaker 1: about what comes next. A lot of times the abortion
Speaker 1: pill is used in the same conversation as emergency contraception,
Speaker 1: which is different. So we want to look for if
Speaker 1: there are going to be further attacks on birth control,
Speaker 1: which anti abortion activists have hinted at and potentially started
Speaker 1: to lay the groundwork for. I just wanted to add
Speaker 1: the abortion pill is the next frontier in this fight
Speaker 1: over reproductive access, and this decision thrusts us into that frontier.
Speaker 1: And I think it's important for us to be really
Speaker 1: clear that this decision that we're talking about from Judge Casmic,
Speaker 1: it's the first significant decision in this lawsuit, but it
Speaker 1: is not the final ruling in this case. This is
Speaker 1: a preliminary injunction that he has issued, and that is
Speaker 1: ventially is the guiding rules that will govern the United
Speaker 1: States while he hears the case on the merits and
Speaker 1: makes an actual decision. So this is just the first
Speaker 1: legal step in this case. It will go back to
Speaker 1: Judge Kasmaric before this issue is settled, and it's going
Speaker 1: to probably go back up through the Fifth Circuit and
Speaker 1: to the Supreme Court once again at that point. Cynthia
Speaker 1: Kelsey Madeleine, thanks so much for coming on the show.
Speaker 1: Thanks for having us. After the break, Why the US
Speaker 1: Supreme Court might be skeptical of the Texas ruling? As
Speaker 1: we've heard one way or another, the US Supreme Court
Speaker 1: appears likely to get involved in this case over the
Speaker 1: abortion pill, but it's not at all certain that anti
Speaker 1: abortion activists who brought the case will be pleased with
Speaker 1: what the court's conservative majority will have to say. Greg
Speaker 1: Storr Bloomberg Creame Court correspondent and friend of the Big
Speaker 1: Tag podcast is covering the case. Greg. The Fifth Circuit
Speaker 1: Court of Appeals in New Orleans is the next stop
Speaker 1: for this case, and it's known to be a very
Speaker 1: conservative court. Is it a foregone conclusion that the Court
Speaker 1: will back up the Texas Judge Kasmeric's ruling. I wouldn't
Speaker 1: go quite that far, but certainly the challengers to method
Speaker 1: press Stone start with that very big advantage that the
Speaker 1: Fifth Circuit has. So many of the recent Supreme Court
Speaker 1: cases have come from the Fifth Circuit because conservative groups
Speaker 1: are filing and states are filing cases, they are knowing
Speaker 1: they have a really really good chance of winning there.
Speaker 1: And you know, the fact that they filed in Judge
Speaker 1: Kasmeric's court, the fact that they know what's going to
Speaker 1: be appealed to the Fifth Circuit, you know, suggests they
Speaker 1: kind of have a home field advantage there. If the
Speaker 1: Fifth Circuit does allow the Texas order to stand, then
Speaker 1: presumably the US Justice Department will ask the Supreme Court
Speaker 1: to weigh in. What do you think they would say?
Speaker 1: One would expect there's a pretty good chance the Supreme
Speaker 1: Court will at least issue an administrative stay, which means
Speaker 1: they're buying themselves a few more days to decide whether
Speaker 1: to grant a longer term stay, and that longer term
Speaker 1: stay potentially would last all the way through the appeals
Speaker 1: court process, meaning that this drug would not be effected
Speaker 1: until there's a final decision on the merits and so
Speaker 1: the Court doesn't want to actually decide the case itself
Speaker 1: before it's gone through the lower courts completely. I wouldn't
Speaker 1: think so. It certainly doesn't need you that. The normal
Speaker 1: course is that the Supreme Court wants to see both
Speaker 1: a federal district judge and a federal appeals court decide
Speaker 1: the matter before it even considers curing it. That's the
Speaker 1: normal practice. We've seen the Court deviate from that in
Speaker 1: a few recent cases. That's usually when there's a really
Speaker 1: compelling circumstance where something is happening, like an election for example,
Speaker 1: that requires them to sort of push things along more quickly. Here,
Speaker 1: there's no reason why the Court has to do that,
Speaker 1: all the more so because there's this other case out
Speaker 1: in Washington State is percolating as well. Let that process
Speaker 1: play out. That may clarify exactly what the Supreme Court
Speaker 1: might need to decide. And so if it does end
Speaker 1: up with the Supreme Court, what do you think happens?
Speaker 1: How do they then weigh and measure both the Texas
Speaker 1: case and the Washington State case which concluded exactly the opposite. Yeah, Well, first,
Speaker 1: keep in mind, this is very, very different from a
Speaker 1: legal standpoint from the Dobbs versus Jackson case that overturned
Speaker 1: the constitutional right to a portion. This is a case
Speaker 1: about federal statutes, a case about federal administrative procedure, and
Speaker 1: about some really technical doctrines like standing and whether you
Speaker 1: exhaust your administrative remedies before you go to court. So
Speaker 1: there's a lot of stuff going on there. The other
Speaker 1: thing I would say keep in mind is, you know,
Speaker 1: when the Supreme Court overruled the constitutional right to abortion,
Speaker 1: the Court as a whole, and particularly just As Kavanaugh,
Speaker 1: who's really a key vote here, emphasized that what they
Speaker 1: were trying to do was put this decision about abortion
Speaker 1: back in the hands of the people's representatives. Well, so
Speaker 1: here's a ruling where a judge, an unelected judge, as
Speaker 1: the Supreme Court justices would like to say, is overturning
Speaker 1: something that an agency that answers to the president has
Speaker 1: done and making something illegal even in states where the
Speaker 1: people there say we want legal abortion. So that cross current,
Speaker 1: I think is going to create a very different dynamic
Speaker 1: for the Supreme Court here. And then you add on
Speaker 1: the fact that we're talking about second guessing an expert
Speaker 1: agency on something that a judge, you know, doesn't have
Speaker 1: an any expertise, and that's the kind of thing that
Speaker 1: even the conservative justices have suggested they're not willing to do.
Speaker 1: So it is by no means a sure thing that
Speaker 1: this conservative court is going to back up this conservative judge. Now,
Speaker 1: you also asked about the Washington case. That is an
Speaker 1: additional complication in there no question about that. But the
Speaker 1: answer may still be for the Supreme Court that we
Speaker 1: disagree both with the judge in Texas and with the
Speaker 1: judge in Washington. This is something where judges don't really
Speaker 1: have a role, and so in that case, what would
Speaker 1: they then say if it comes as a stay application.
Speaker 1: You could see them focusing on any of a number
Speaker 1: of issues. I mentioned this whole issue of standing. These
Speaker 1: are anti abortion groups that sued to challenge Mipopress Stone,
Speaker 1: and one key question is how are they hurt by this?
Speaker 1: What right do they have to go to court to
Speaker 1: file suit against this? So you could see the case
Speaker 1: being decided just on that ground that they don't have
Speaker 1: a right to be in court. And then, as I said,
Speaker 1: there's some other very technical administrative law doctrines about whether
Speaker 1: you have to first go to the agency and try
Speaker 1: to get what you want directly through the agency before
Speaker 1: you go to court. There are a lot of different
Speaker 1: ways the court could ultimately reverse this ruling. One of
Speaker 1: the questions that's come up in a lot of the
Speaker 1: discussions since this decision in Texas is the idea that
Speaker 1: if a judge is able to overturn the FDA's decision
Speaker 1: about a drug in this case, that judges all over
Speaker 1: the country could be looking to overturn agency decisions just
Speaker 1: because someone complained to them about it. Yeah, that is
Speaker 1: certainly a concern that will be on the minds of
Speaker 1: I think the conservative justices as well as the more
Speaker 1: liberal ones that how do you draw a line here?
Speaker 1: This is really an area where we all rely on
Speaker 1: expert at the FDA and at the drug companies for
Speaker 1: that matter, and you know, not something where judges have
Speaker 1: a whole lot of ability to say, no, I can
Speaker 1: make a better decision on this stuff. And it's hard
Speaker 1: to know how to stop that. And even some of
Speaker 1: the conservative justices and slightly different contacts have expressed a
Speaker 1: lot of reticence about having judges get involved in this
Speaker 1: sort of thing. There's yet another complicating factor is that
Speaker 1: the Texas decision didn't just say that the FDA had
Speaker 1: concluded wrongly about Mytho Preston, but had actually run afoul
Speaker 1: of another law called the Comstock Act. Can you talk
Speaker 1: about how that works. It's a law that says you
Speaker 1: can't mail certain things, and it lists things that describes
Speaker 1: like obscene things and indecent things, and it does mention
Speaker 1: things that can cause an abortion. But the understanding of
Speaker 1: that law for really a century has been that it
Speaker 1: outlaws things that can cause an illegal abortion. If a
Speaker 1: drug is not being used illegally, it's not covered by
Speaker 1: the Comstock Act. And so you have this dynamic where
Speaker 1: the judge I just looked at the language of the law,
Speaker 1: and there's a, you know, a non laughable argument that
Speaker 1: the language of the law suggested bans the mailing of
Speaker 1: pills that can induce an abortion. But that runs up
Speaker 1: against this long held understanding of the law. And so
Speaker 1: that's the hill that opponents are going to have to
Speaker 1: get over if they're going to win this case. And
Speaker 1: with the Supreme Court have to decide on each of
Speaker 1: these components in figuring out how to come down in
Speaker 1: this case. Now they really only need to decide on
Speaker 1: one of these components. So to go back to that
Speaker 1: concept of standing, anti abortion groups sued to challenge this
Speaker 1: law here, it's not clear how these anti abortion groups
Speaker 1: are injured by the fact that this drug is legal.
Speaker 1: That one of the things they say is, oh, it's
Speaker 1: not safe, and therefore women who take this drug may
Speaker 1: overwhelm the health system and affect us because we you know,
Speaker 1: some of our members are doctors, and it will affect us.
Speaker 1: It's not clear that there's evidence that that has happened
Speaker 1: so far. So that is certainly an area where if
Speaker 1: the court, especially if they don't want to get into
Speaker 1: the substance of whether the FDA has made a good
Speaker 1: decision here, they could take one of those procedural avenues
Speaker 1: to say this case never belonged in court in the
Speaker 1: first place. As someone who covered the court for a
Speaker 1: long time, how do you think this ultimately turns out?
Speaker 1: As I sit here, it's hard for me to imagine
Speaker 1: there are five votes on this court to say it's
Speaker 1: okay for a federal judge to go in and second
Speaker 1: guests and agency's long held opinion that a drug is safe.
Speaker 1: That seems like a really high hurdle, even for this
Speaker 1: conservative court to get over. Do you think this is
Speaker 1: overturned at the abortion pill remains legal. I think that
Speaker 1: is the most likely scenario as we sit here. Whether
Speaker 1: the Supreme Court ends up being the one that has
Speaker 1: to do that, not sure about that. Greg. Oh, it's
Speaker 1: great talking to you. Thanks for being here, my pleasure.
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