Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: Abortion rights advocates say the Supreme Court effectively blessed Texas's
Speaker 1: ban on abortion, the strictest in the nation, with a
Speaker 1: narrow ruling that left the law in force. The decision
Speaker 1: said clinics and doctors could press claims in a federal
Speaker 1: trial court against a handful of state officials, but not
Speaker 1: others named in the lawsuit. The ruling could be a
Speaker 1: bad sign for abortion rights advocates as they wait word
Speaker 1: on the fate of Roe v. Wade, the landmark ruling
Speaker 1: that legalized abortion in this country. My guest is Elizabeth Stepper,
Speaker 1: a professor at the University of Texas Law School, tell
Speaker 1: us what the Supreme Court decided. The Supreme Court issued
Speaker 1: a very narrow win for abortion providers. That's really more
Speaker 1: of a loss in practice. So the Supreme Court held
Speaker 1: that the abortion provide riders could proceed in their lawsuits
Speaker 1: only against state licensing authorities, so the sort of medical boards,
Speaker 1: nursing boards that discipline doctors and nurses. But the court
Speaker 1: said that the abortion providers can't pursue their lawsuit against
Speaker 1: court clerks or state court judges or the Attorney General
Speaker 1: of the State of Texas. In practice, what this means
Speaker 1: is that the abortion providers will go back to federal
Speaker 1: district Court in the state of Texas to litigate against
Speaker 1: the licensing authorities. It means though that sp eight remains
Speaker 1: an effect, it also means that the abortion providers are
Speaker 1: going to have a hard time getting the relief that
Speaker 1: they really need to resume their procedures because even if
Speaker 1: they win in junctions against the licensing authorities and the
Speaker 1: district court concludes that sp A is unconstitutional, that injunction
Speaker 1: isn't going to apply against the court clerks, and the
Speaker 1: court clerks are really essential because the argument us they
Speaker 1: could stop SBA lawsuits from going forward, they would just
Speaker 1: be enjoined blocked, that is, from docketing complaints by private
Speaker 1: citizens that can be filed under the Texas law. So
Speaker 1: because they don't have that, abortion providers really are facing
Speaker 1: a laws they can't start up serving patients again, at
Speaker 1: least at this point. Do you think the court was
Speaker 1: just trying to find a way to allow the case
Speaker 1: to continue to try to quiet the public fewer around it.
Speaker 1: If so, it was very strange, right, Um, It's sort
Speaker 1: of baffling what happened at the Court over the past months,
Speaker 1: because the Supreme Court had SBA before it at the
Speaker 1: end of August, had the opportunity to stop SB eight
Speaker 1: from going into effect, when it failed to do so,
Speaker 1: and frankly surprised a lot of people and failing to
Speaker 1: block the law before it went into effect, given that
Speaker 1: it's straightforwardly uncons institutional to have a six week ban
Speaker 1: under the Court's presidents, that was shocking. So when the
Speaker 1: Court then took up the issue of SPID again, that
Speaker 1: seemed to suggest that the Court was responding to public
Speaker 1: pressure and was going to act differently, if only to
Speaker 1: preserve the authority of federal courts to decide constitutional questions.
Speaker 1: But that's not really what happened. Then last week when
Speaker 1: we got a ruling again from the Court, because the
Speaker 1: Court didn't say that federal courts have the power to
Speaker 1: substantively block these state court clerks from docketing the petition,
Speaker 1: and it's sort of weak relief for the abortion providers
Speaker 1: that they might get an injunction against the licensing authorities,
Speaker 1: because really the licensing authority power is a power to
Speaker 1: discipline after the providers have been sued and after a
Speaker 1: judgment has been issued under spiate in favor of private plaintiffs.
Speaker 1: So it's not super helpful to the providers. It doesn't
Speaker 1: lift the status in Texas, which is that abortion is
Speaker 1: effectively blocked and we don't have our constitutional right to
Speaker 1: abortion in place. Justice Neil Gorst wrote the majority opinion,
Speaker 1: explain his reasoning. So it was an eight one decision,
Speaker 1: but it doesn't really reflect unanimity of the court justice course,
Speaker 1: which had to go through a number of the defendants
Speaker 1: named by the abortion providers. So he said that the
Speaker 1: judges and court clerks have sovereign immunity, so they're immunized
Speaker 1: due to concerns about federalism. So federal courts are limited
Speaker 1: in their ability to tell state actor, especially state court systems,
Speaker 1: what to do, how to approach litigation, and so his
Speaker 1: argument was that these actors have immunity under a doctor
Speaker 1: known as ex parte young. He also said there wasn't
Speaker 1: a real case in controversy because the judges and the
Speaker 1: court clerks are not oppositional to the abortion providers the
Speaker 1: way your average defendant would be. He then said that
Speaker 1: Attorney General Paxton was not a proper defendant. Here, the
Speaker 1: abortion providers had argued that essentially the Attorney General had
Speaker 1: delegated authority, had empowered private citizens around the country to
Speaker 1: act as his agents in the enforcement of this statute.
Speaker 1: But here too, Justice Corsets said the abortion providers had
Speaker 1: not identified a proper defendant, that the Attorney General doesn't
Speaker 1: have the power to force sp A to all that
Speaker 1: was left where the licensing authorities, and they're Justice Gorsuch said,
Speaker 1: you know what, there is evidence in the way that
Speaker 1: the statutory structure worked that the licensing authorities could ultimately
Speaker 1: enforce sp A. The problem with that reason in thing
Speaker 1: is that we could see the State of Texas go
Speaker 1: back to the drawing board, make clear that the licensing
Speaker 1: authorities don't have any power to enforce SB eight, and
Speaker 1: then there's no defendant left at all, no one for
Speaker 1: the abortion providers to sue. And I expect we will
Speaker 1: see that model in other states that are thinking about
Speaker 1: copycat SBA abortion laws. It was an eight to one vote,
Speaker 1: but there is a blistering descent by the liberals. Justice
Speaker 1: Sonia Sotomayor wrote the court should have put an end
Speaker 1: to this madness months ago, before s b A first
Speaker 1: went into effect. So Justice Spread of Mayor on the
Speaker 1: issue of state immunity pointed to the fact that ex
Speaker 1: per Day Young contains an important principle, and that principle
Speaker 1: is that states can't create an end run around the Constitution.
Speaker 1: They can't create a system that doesn't allow federal court
Speaker 1: oversight of federal rights. So even though there's a language
Speaker 1: and export a Young that suggests that normally state court
Speaker 1: judges can't be sued, um that the Supreme Court here
Speaker 1: should have allowed state court clerk to be sued and
Speaker 1: should have done so on the basis that otherwise Texas
Speaker 1: has purposely created a statute that avoids the federal courts
Speaker 1: and allows end run around individuals constitutional rights. What happens
Speaker 1: now in Texas courts, So there's still so much going on.
Speaker 1: So the abortion providers returned to federal courts, and in
Speaker 1: the district court there is litigation in Texas involving fourteen
Speaker 1: cases that were consolidated and where the Texas Judge judge
Speaker 1: people just last week did conclude that a number of
Speaker 1: the provisions were unconstitutional as a matter of the Texas constitutions.
Speaker 1: This was a decision, as he said, was about civil procedure,
Speaker 1: not abortion. So he made a number of rulings in
Speaker 1: those fourteen cases on the issue of standing and the
Speaker 1: statutory damages award, and also where the proceedings can be filed.
Speaker 1: He did not issue an injunction, but we can expect
Speaker 1: that when the providers go back to the various courts
Speaker 1: in which these fourteen cases have been filed, that some
Speaker 1: injunctions will issue again. The problem is that sp eight
Speaker 1: has constructed a regime that doesn't really allow for finality.
Speaker 1: And finality is an important due process rule of law
Speaker 1: value that means you can't keep being food you don't
Speaker 1: have the specter of a future lawsuit hanging over you
Speaker 1: after you win. But SPA creates that exact system, so
Speaker 1: it says things like that there's not going to be
Speaker 1: issue our claim preclusion, so once he's litigated a claim,
Speaker 1: me litigated an issue, it's then not final for later lawsuits.
Speaker 1: It also says that even if you win, if your
Speaker 1: win is ultimately overturned on appeal, you're going to be
Speaker 1: held liable for the abortions provided in the interim. So
Speaker 1: it is possible that we will see some abortion providers
Speaker 1: based on judge People's decision in the Texas courts, and
Speaker 1: the and the subsequent decisions in Texas Court begin to
Speaker 1: perform abortions again, but they will only do so with
Speaker 1: a real cloud of possible potential future litigation hanging over them.
Speaker 1: Everyone is looking towards the Mississippi case. Does this in
Speaker 1: any way indicate what the Court will do in the
Speaker 1: Mississippi case that it will overturn Roe v. Wade. I
Speaker 1: would read the Mississippi case uh one where the outcome
Speaker 1: is fairly predictable, um that Mississippi is going to win.
Speaker 1: I'm not sure the degree to which the SB eight
Speaker 1: opinion tells us anything we didn't already know. Maybe what
Speaker 1: it suggests is that the Conservatives are going to act
Speaker 1: as a block. And I think you know, after the
Speaker 1: oral argument in the Mississippi case, there continued to be
Speaker 1: a lot of discussion over whether Chief Justice Roberts could
Speaker 1: convince other conservative justices to adopt something that looks slightly
Speaker 1: more moderate. It would not be moderate, but slightly more
Speaker 1: moderate or sneaky than saying the words we overrule Roe v.
Speaker 1: Waves I would say that s the eight opinion maybe
Speaker 1: suggests that he has really lost controls of the court,
Speaker 1: that it's no longer the Roberts Court, it might be
Speaker 1: the Barratt Court, it might be the kavanaughh Court, it
Speaker 1: might be the Gorsage Court. And it doesn't look like
Speaker 1: he's going to be able to push conservative justices to
Speaker 1: at least, through a sleight of hand, pretend that they're
Speaker 1: less conservative than they've seen. And without any explanation, the
Speaker 1: Supreme Court turned away the Justice departments bid to block
Speaker 1: the Texas law. What do you make of that? Right? So,
Speaker 1: the Justice Apartment Department had actually um sued and received
Speaker 1: relief on the merits, but district court had ruled that
Speaker 1: s P eight was unconstitutional under Supreme Court doctrine UM.
Speaker 1: And then the Keiths went up to the Fifth Circuit,
Speaker 1: which lifted UH, stayed the injunction um, and blocked abortions
Speaker 1: yet again. They briefly were being performed for about a
Speaker 1: thirty six hour period UM, and the Justice Department went
Speaker 1: to the Supreme Court, which is now UH dismissed the
Speaker 1: petition as improvidently granted, which is a Supreme Court way
Speaker 1: of saying, oops, we should not have granted this petition.
Speaker 1: Let's send it back to the Fifth ar gut for
Speaker 1: oral argument and decision on the merits. So the Justice
Speaker 1: Department is now in the fifth circuit um and we'll
Speaker 1: see when the Court is willing to hear arguments in
Speaker 1: that matter. I would suspect sometime early in the new year.
Speaker 1: Was it was that just a Supreme Court kicking the
Speaker 1: can down the road for a bit. So it was,
Speaker 1: you know, after oral argument on s B A, folks
Speaker 1: predicted that the abortion providers would win. And because the
Speaker 1: abortion providers won and would be able to speak full relief,
Speaker 1: it made less sense for the Department of Justice to
Speaker 1: pursue a lawsuit because there were individuals who could assert
Speaker 1: the Constitution against this law. But the Supreme Court didn't
Speaker 1: really give abortion providers a win. Right. There's still no
Speaker 1: person who can globally challenge s B eight in the
Speaker 1: federal all courts. So that actually should have put more
Speaker 1: pressure on siding with the United States at the Supreme Court.
Speaker 1: But it's exactly the opposite of what the Court did.
Speaker 1: It really did kick the can down the road, maybe
Speaker 1: with the idea that by the time the Justice Department
Speaker 1: suit comes back to it, it will have a viscerated
Speaker 1: the right to abortion in the Mississippi Gay Indscent Justice
Speaker 1: Sonia Soto Mayor said the ruling could reach beyond abortion
Speaker 1: to enact laws that nullify constitutional rights from abortion to guns,
Speaker 1: to religion. And that's exactly what the governor is trying
Speaker 1: to do in California with regard to guns. Yes and no, um,
Speaker 1: you know, to some extent, it's a political stunt. Um,
Speaker 1: it's a political stunt because the California law that the
Speaker 1: governor may or may not propose is one that doesn't
Speaker 1: actually infringe on constitutional rights. Right. So the idea is that, um,
Speaker 1: the law would allow one s fellow citizens to sue
Speaker 1: one for you know, providing ghost guns, providing assault weapons
Speaker 1: and manufacturing them, um, and so on owning them. But
Speaker 1: none if those are rights protected by the U. S.
Speaker 1: Constitution or any interpretation of the Supreme Court. The Supreme
Speaker 1: Court relatively recently determined that the Second Amendment, which creates
Speaker 1: a right to form militias, extends to gun ownership in
Speaker 1: one's home. But they were talking about handguns, and they
Speaker 1: were talking about in one's home. And courts of appeals
Speaker 1: that have dealt with issues of assault weapons or ghost
Speaker 1: guns have actually sided with the government held that there
Speaker 1: was no violation of constitutional rights. So in that sense,
Speaker 1: it's the dis analogy. We would have to see something
Speaker 1: um that got it with core of constitutional rights, which
Speaker 1: is possible. The Supreme Court has really handed both blue
Speaker 1: and red states a template for designing an espiate that
Speaker 1: applies the speech or guns or the takings clause. Thanks
Speaker 1: for being on the Bloomberg Last Show, Liz. That's Professor
Speaker 1: Elizabeth Supper of the University of Texas Law School. The
Speaker 1: House has voted to whole former White House Chief of
Speaker 1: Staff Mark Meadows in contempt of Congress after he stopped
Speaker 1: cooperating with the January six committee investigating the Capital Insurrection.
Speaker 1: Meadows is the first former White House Chief of Staff
Speaker 1: nearly fifty years to face prosecution. Here's Committee Chair Benny
Speaker 1: Thompson and Committee Vice Chair Liz Cheney. And when a
Speaker 1: witness defies the law, that amounts to more than obstruction
Speaker 1: our investigation. It's an attack on the rule of law.
Speaker 1: We wish that we did not have to meet today
Speaker 1: to urge our colleagues to vote vote criminal contempt for
Speaker 1: one of our former colleagues and the former chief of
Speaker 1: staff to President Trump. We don't take this step lightly,
Speaker 1: but Republicans denounced what they called overreached by the Democrats.
Speaker 1: Here's Representative Jim Banks. MR. Meadows agreed to sit for
Speaker 1: a deposition if it was limited to areas not protected
Speaker 1: by executive privilege. He tried to cooperate, but the Select
Speaker 1: Committee didn't care. The near party line two two to
Speaker 1: two hundred eight vote on Tuesday is the second time
Speaker 1: the Special Committee has sought to punish a witness for
Speaker 1: defying a subpoena. Former Trump adviser Steve Bannon has already
Speaker 1: been indicted for criminal contempt for refusing to testify to
Speaker 1: the panel, and he awaits trial in July. The question
Speaker 1: now is whether the Justice Department will decide to prosecute
Speaker 1: Meadows as it's prosecuting Bannon. Joining me is William Banks,
Speaker 1: a profess or at Syracuse University Law School. What's the
Speaker 1: import of the House voting to hold Meadows in contempt
Speaker 1: of Congress? Well, I think the Meadows case is similar
Speaker 1: to the Bannon matter and others that may be coming
Speaker 1: down the pike. With the continuing investigation. They authorized the
Speaker 1: Justice Department to proceed with prosecution. It's a referral, it's
Speaker 1: not a prosecution itself, and it is certainly not the
Speaker 1: end of the road. So, just as they did in
Speaker 1: the Bannon matter, the Department is going to have to
Speaker 1: consider whether to convene a grand jury to indict Meadows.
Speaker 1: The questions are a bit different with Meadows than they
Speaker 1: were with Bannon, because the Meadows, of course, with Chief
Speaker 1: of Staff, he had a close relationship with the President
Speaker 1: as an official matter. Bannon did not certainly did not
Speaker 1: at that time. So the questions about executive privilege will
Speaker 1: be a little more delicate and nuanced, I suppose in
Speaker 1: deciding to what extent Meadows might be privileged in the
Speaker 1: material that he wishes to withhold from the committees. As
Speaker 1: we know, he was cooperating up to a point, and
Speaker 1: some of the stuff that he turned over seemingly is
Speaker 1: of value in the January sixth investigation. So I would
Speaker 1: think that there's more there that the committees would very
Speaker 1: much like to have, and Justice will have to figure
Speaker 1: out whether they can reasonably request it in light of
Speaker 1: claims of privilege that he might make. His claims of
Speaker 1: privilege would have been stronger if he hadn't turned over
Speaker 1: those documents, and if he hadn't written a book on
Speaker 1: his time in the White House. Will justice consider that
Speaker 1: as well? I think they will, And you know, I
Speaker 1: think there's lots of room to navigate the area of
Speaker 1: executive privilege. And you know, underlying all of this is
Speaker 1: the fact now that the president that he was trying
Speaker 1: to protect is no longer the president, and that the
Speaker 1: current president has authorized the investigations, so that colors what
Speaker 1: the courts might say about arguments of privilege at this
Speaker 1: stage of the game. Turning to another subject, the District
Speaker 1: of Columbia has sued the Proud Boys and the Oathkeepers
Speaker 1: to right wing groups for allegedly conspiring to terrorize the
Speaker 1: US capital on January six. Tell us more about the lawsuit. Well,
Speaker 1: this is a very interesting development. The government of the
Speaker 1: District of Columbia is suing in civil court the Proud
Speaker 1: Boys and the Oathkeepers and many of the individual members
Speaker 1: of those organizations for damages as a result of their
Speaker 1: attack on the Capitol on January the six. As we
Speaker 1: all know, there there is ongoing criminal investigations of January
Speaker 1: six by the federal government, and many of the Proud
Speaker 1: Boys and Oathkeepers have been implicated in those criminal investigations.
Speaker 1: Some of them have than charged, a few of them
Speaker 1: have even taken Please most of them are defending against
Speaker 1: those actions, but the civil suit is something different. D C.
Speaker 1: Of course, the DC police in particular, we're a hard
Speaker 1: hit on January six and the many injuries two officers.
Speaker 1: Tremendous amount of resource was committed to defending the District
Speaker 1: Columbia on that day and the days after, So the
Speaker 1: DC is trying to recoup some of what they lost.
Speaker 1: The Proud Boys dissolved their national leadership after January six.
Speaker 1: That is being run by local chapters. So where is
Speaker 1: the money for damages going to come from? If DC wins. Yeah,
Speaker 1: well that's a very good question. There may not be
Speaker 1: much money for damages except to the scent any of
Speaker 1: these individuals have have means, and probably not many of
Speaker 1: them do. It is true that they've dissolved their national
Speaker 1: leadership and their strategy seems to have changed to try
Speaker 1: to influence local communities, school boards, local governments, and the like.
Speaker 1: That certainly doesn't insulate them from from the reach of
Speaker 1: federal law and litigation, but they may be judgment proof,
Speaker 1: so that you know if there is a judgment. I
Speaker 1: think the law lines up very strongly in favor of
Speaker 1: the government here. If they do get a judgment in court,
Speaker 1: it may be relatively unenforceable, but still would send an
Speaker 1: important symbolic message. The d C Attorney General said, this
Speaker 1: act was not a protest or a rally. It was
Speaker 1: a coordinated act of domestic terrorism. So why aren't they
Speaker 1: being prosecuted for that by the Justice Department Domestic terrorism? Yeah, well,
Speaker 1: there are a couple of issues here. The basic issue
Speaker 1: is that there is not a discrete crime of domestic terrorism.
Speaker 1: There are a series of times that can be charged
Speaker 1: related to the acts that we would call domestic terrorism,
Speaker 1: but because of concerns about the First Amendment, and because
Speaker 1: of concerns based on our history of protecting expressive conduct,
Speaker 1: we've been very careful not to define something called domestic terrorism.
Speaker 1: The other point, though, is that you know the law
Speaker 1: is an historical irony here. The law into which these
Speaker 1: individuals are being sued was was passed after the Civil War,
Speaker 1: and it's known euphemistically as the Ku Klux Klan Act
Speaker 1: because it was put into place in eighteen seventy one
Speaker 1: to allow the government to stand in the way of
Speaker 1: the clan that was trying to disrupt the newly reconstituted
Speaker 1: states in the South, and they were doing essentially with
Speaker 1: the Proud Boys and the Oathkeepers did on January six,
Speaker 1: trying to interfere with the conduct of government affairs and
Speaker 1: government business by getting in the way of government officials.
Speaker 1: So I want you to listen to what a lawyer
Speaker 1: for two of the defendants named in the suit, Jonathan Moseley, said, quote,
Speaker 1: neither the Proud Boys nor the Oath Keepers were remotely
Speaker 1: interested in obstructing the Joint Session of Congress on January six,
Speaker 1: because that would leave no one as president, elevating Nancy
Speaker 1: Pelosi to the presidency. So I'm wondering how you take that,
Speaker 1: whether it's just sort of tongue in cheek. It's not
Speaker 1: a real defense. It's not a defense. I mean. So,
Speaker 1: of course, the charges in the indictment or in the
Speaker 1: civil action here today. The complaint by the way, runs
Speaker 1: at pages I read through it this morning and and
Speaker 1: I was cursing you under my breath. I'm sorry, I'm joking.
Speaker 1: Is quite an interesting complaint. So that the charges under
Speaker 1: the federal law of the so called ku Klux Klan
Speaker 1: actor is going to require that the development who that
Speaker 1: the individuals conspired to intend to intimidate, to coerce, to
Speaker 1: disrupt UH these officials from going about their business. I
Speaker 1: think from what we've learned in the criminal investigation so
Speaker 1: far and what we could see from video and still
Speaker 1: images of that day, that's exactly what was going on.
Speaker 1: Whether it was to leave Nancy Pelosi as as putative
Speaker 1: president or not. They were attempting to disrupt the affairs
Speaker 1: of Congress as they tried to certify the results of
Speaker 1: the election. So it's going to require proof. But the proof,
Speaker 1: you know, is essentially been developed by the Justice Department
Speaker 1: on the criminal side and and the civil court. The
Speaker 1: dc UH officials who are prosecuting the case bringing the
Speaker 1: case concertainly suit use that material to approve their case
Speaker 1: against these individual Proud Boys and Keepers and against the
Speaker 1: organizations themselves. This isn't the first civil lawsuit that's been
Speaker 1: fine held against the members of the extremist groups who
Speaker 1: stormed the capital, because several members of Congress have sued
Speaker 1: leaders of the two organizations, former President Donald Trump and
Speaker 1: his former attorney Rudy Giuliani for conspiring to incite the insurrection.
Speaker 1: Seven Capital police officers have also filed a similar lawsuit,
Speaker 1: so the cases would seem to have the same witnesses.
Speaker 1: Could the cases be consolidated and tried together? That seems
Speaker 1: unlikely given the disperate nature of the plaintiffs here. You know,
Speaker 1: members of Congress and the DC government aren't going to
Speaker 1: be co plaintiffs in a lawsuit. There would be an
Speaker 1: interest in consolidating at least for the purposes of proof,
Speaker 1: and maybe the the federal district court judges in DC
Speaker 1: can figure out a way to get that done if
Speaker 1: it goes that far. You know. The other the other
Speaker 1: important action here that serves as a president, of course,
Speaker 1: is the Charlotteville judgment against some of the same groups
Speaker 1: and individuals. It was recently determined by a federal court
Speaker 1: in Charlottesville with massive assessment of damages. As you question
Speaker 1: you raised before about whereas that money going to come
Speaker 1: from to pay the damages? No one knows, but you know,
Speaker 1: a significant million, multimillion dollar damages award was given for
Speaker 1: the actions undertaken in seventeen in the Charlottesville riot. Thanks
Speaker 1: for being in the show, Bill. That's William Banks, a
Speaker 1: professor at Syracuse University Law School, a divine. US Supreme
Speaker 1: Court left in force New York's mandate that healthcare workers
Speaker 1: be vaccinated against COVID nineteen, refusing to order exemptions for
Speaker 1: twenty providers who say they object to the shot on
Speaker 1: religious grounds. There was no explanation from the majority, but
Speaker 1: this case follows a similar rejection in a main case
Speaker 1: in October, Justice says Neil Gorsuch, Clarence Thomas, and Samuel
Speaker 1: Alito dissented, with gore Such suggesting that New York Governor
Speaker 1: Kathy Hokel had acted out of anti religious animals, among
Speaker 1: other remarks. Hopel had said in September that people with
Speaker 1: religious objections to vaccine mandates quote, aren't listening to God
Speaker 1: and what God wants. Joining me is Dorrit Rees, a
Speaker 1: professor at UC Hastings College of Law who specializes in
Speaker 1: vaccine policy. There was no opinion from the majority, but
Speaker 1: was this expected? Yes and no. So on one hand,
Speaker 1: we already have one taste on related stat the main
Speaker 1: case in which the majority super courts refused to stay
Speaker 1: similar mandates. On the other hand, the New York factor
Speaker 1: were a little treatiers on two grounds. First, New York
Speaker 1: initially proposed to have a really dious exemption and then
Speaker 1: took it out. And that is the issue for the
Speaker 1: disrecord judge that's insually stayed their mandates in one of
Speaker 1: the three cases. And second Justice sus quoted statements from
Speaker 1: the current acting Governor of New York could be used
Speaker 1: to suggest those hostivities religions here. So Justices Neil Gorse,
Speaker 1: Clarence Thomas, and Samuel Alito dissented. Justice Gorsage, as you say,
Speaker 1: criticized the New York Governor Kathy Hokel, But he also
Speaker 1: suggested that she had acted out of anti religious animus.
Speaker 1: Did that seem like it was going a little too far? No,
Speaker 1: And here's right the Justice is building on. First of all,
Speaker 1: I think it's unjustified that this is building on the
Speaker 1: decision from two sousand and eighteen by the Supreme Court
Speaker 1: in Masterpiece Take Shop. In that case, the Supreme Court
Speaker 1: majority found that the Colorado Commission of the Rights acted
Speaker 1: after hostility to religion when it's penalized the baker that
Speaker 1: refused to say he cake for a same sex couple,
Speaker 1: and the Supreme Court you stay meant by commission members
Speaker 1: to show stility to religion. So in this use. The
Speaker 1: Justice was following that earlier precedent. He was not targeting
Speaker 1: the governor out of the blue. He was following a
Speaker 1: previous Supreme Court decision that did look at artificial states.
Speaker 1: The problem with that is in that previous case you
Speaker 1: had a limited commission, and the statements by members could
Speaker 1: be used to suggest how the commissioned in entirety view.
Speaker 1: Even then, it was problematic because Latin on specific statement
Speaker 1: is treating. Here. The statements in question were the governor
Speaker 1: and statement outside the amandaged the Health Department man that
Speaker 1: did not include this statement, and the governor wasn't the
Speaker 1: one that issued the decision, So using the statement, it's
Speaker 1: somewhat out of context. But the question of hostility to
Speaker 1: religion is now part of our laws. So let me
Speaker 1: ask you this about the vaccine itself and about the
Speaker 1: religious objections to the vaccine. The petitioners said that they
Speaker 1: objected to the vaccine's origin from abortion derived fetal cell
Speaker 1: lines and testing development or production. But New York said
Speaker 1: first of all that none of the vaccines contain aborted cells,
Speaker 1: but the use of fetal cell lines for testing is common,
Speaker 1: including for the rebel of vaccination, and that healthcare workers
Speaker 1: are already required to take. So what is the religious objection?
Speaker 1: So first of all, we're now it's really tricky ground.
Speaker 1: We can't when we examine religious objection assess whether it's logical.
Speaker 1: The question is and the argument you're raising kind of
Speaker 1: show how tricky is to a type of it's really
Speaker 1: hard to say when do we move from the belief valid.
Speaker 1: The city is well placed to assess whether the objections here.
Speaker 1: For example, it can say, if you've taken mm R
Speaker 1: but in which the rubella vaccine has been grown on
Speaker 1: cell lines descendants from abortion from the ninety six feet
Speaker 1: if you've taken that and you're now exchuses to take
Speaker 1: a copage. But since that has a much more tenuous
Speaker 1: connection to those things that old Ler's cell lines, you
Speaker 1: need to explain to us why and why we should
Speaker 1: believe you that this really is the reason for your objections.
Speaker 1: That's totally sad, because you can say, if if you
Speaker 1: don't have a problem with the closer connection, we don't
Speaker 1: believe you that now you have this problem. On the
Speaker 1: other hand, if a person makes a valid distinction here,
Speaker 1: then you can't disfuse them because you think their position
Speaker 1: doesn't make sense. The question is not that their position
Speaker 1: makes sense, the question does they see I know this
Speaker 1: is a really hard line to draw. It's one of
Speaker 1: the problems with it is existed, and one of the
Speaker 1: reasons I think it makes sense not to give a
Speaker 1: really dessition in these cases because at the end of
Speaker 1: the day, we can't really assess whinc who was not
Speaker 1: without the kind of close politics policy of people's belief
Speaker 1: is that can lead to the state they rect trying
Speaker 1: to step into people's conscious It's really hard to do.
Speaker 1: And further, the reality is that we have a lot
Speaker 1: of the things that for most of these people, the
Speaker 1: concern is more about the safety of the vaccine than
Speaker 1: about any religious issue. If that's the reality, the concern
Speaker 1: really is more about safety. We're going on is that
Speaker 1: a lot of people are making untrue praise about religions,
Speaker 1: and applying a religious exemption would probably reward the people
Speaker 1: that are better applying about this rather than the people
Speaker 1: who might really be re feered. There are some people
Speaker 1: that probably have some religious objectives to the vaccines. For example,
Speaker 1: is there maybe people who for years have rejected modern
Speaker 1: medicine and religious grounds. Some of these people may really
Speaker 1: believe that the connection to the NINETI abortion is a
Speaker 1: strong reason not to use this vaccine. But there's a
Speaker 1: lot of reasons to think that many of these people
Speaker 1: are are looking to get out of vaccines because they're
Speaker 1: concerned about safety and are last enought of this because
Speaker 1: they've found this arguments online policy. This is frankly not
Speaker 1: very easy to do. So do you think this is
Speaker 1: the last case that we'll see involving the vaccine and
Speaker 1: religious objections at the Supreme Court? Or they'll try again? Oh,
Speaker 1: there are going There's going to be a lot more cases.
Speaker 1: Remember that these cases haven't been fully decided by the
Speaker 1: Supreme Court either. Right now, the only decision is not
Speaker 1: to give an emergency to stay for the mandates. We
Speaker 1: don't even know how the FO Court will decide when
Speaker 1: the food cases before them and in the previous case,
Speaker 1: and I think that we can assume that that's there
Speaker 1: still the reasoning. In the main case, Justices Cavano and
Speaker 1: Justice Connie Barette and signed onto a concurrence but said
Speaker 1: we're not giving a stay because we think this shouldn't
Speaker 1: be done during their emergency basis. We shouldn't change the
Speaker 1: law during an emergency procedure, we should wait for the
Speaker 1: school case. They didn't say how they think they're going
Speaker 1: to decide the folcase. So then why see case is
Speaker 1: the second case on exactly the same issue. In this
Speaker 1: previous case Mills versus though the Supreme Court was asked
Speaker 1: to give a stake for main healthcare worker mandates, which
Speaker 1: also didn't give a reached exemption. So this is kind
Speaker 1: of the second romp in that's the case. Justices a
Speaker 1: conny Bread and Cavano is signed onto a concurrency said,
Speaker 1: we don't want to do this on an emergency basis.
Speaker 1: So let's discuss where the other vaccine mandate lawsuits stand.
Speaker 1: President Biden mandated that employers with more than a hundred
Speaker 1: employees ensure that their employees are fully vaccinated or undergo
Speaker 1: regular testing and where a face covering at work. It
Speaker 1: was set to take effect January fourth, but it's already
Speaker 1: been challenged. How many lawsuits are there challenging the mandate.
Speaker 1: I think right now there's twelve lasses, all consolidated in
Speaker 1: the sixth circuits. So they've been consolidated, agree to be
Speaker 1: addressed together. Do they have a similar reason for objecting
Speaker 1: to the mandate. The case has it's basically a vaccinated
Speaker 1: or test requirements for employers, so there's no question anyone
Speaker 1: with religious object to get tested. So it's not about
Speaker 1: religious freedom. The argument things the Oceans are focusing on
Speaker 1: two things. First schedual versus state parers and second the
Speaker 1: power of Osha. The car of Sha is to act
Speaker 1: without specific assolization from Congress, and the car of ocean
Speaker 1: more generally ends applying it. Here is this within what
Speaker 1: can do using the requirements? Do you take anything from
Speaker 1: the fact that through a lottery the cases before the
Speaker 1: Sixth Circuit, which is conservative leaning. So right now we're
Speaker 1: waiting for a decision on whether this is being to
Speaker 1: be heard on banks or by a panel. The conservative
Speaker 1: leaning is great to have a lot more implications if
Speaker 1: it's heard on banks than if it's on a panel.
Speaker 1: Then we're great to after yourself with the panel, and
Speaker 1: you can have different pannel in practically every course. It's
Speaker 1: probably is a question the conservative conservative justices may be
Speaker 1: more inclined to more carefully scrutinized administrative action and tampered
Speaker 1: down on them. And we've seen several decisions from conservatives
Speaker 1: court which seens more aggressive in reviewing the administrative states.
Speaker 1: So it does matter, but it's also really descends on
Speaker 1: the city judge and how they seek. For example, is
Speaker 1: the Seventh Circuit in a decision by one of the
Speaker 1: leading conservative justices of thea in the US Justice instruments
Speaker 1: upheld Indiana University's seen them, so it's MATTERSS. It makes
Speaker 1: a difference, but it's also masters specific justice judges artist
Speaker 1: who beside the case and which arguments. Well, thanks for
Speaker 1: being on the Bloomberg Law Show. Dort that storet Reese
Speaker 1: a professor at you see Hastings College of Law. And
Speaker 1: that's it for this edition of the Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news, honor
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Speaker 1: Grossow and you're listening to Bloomberg o