1 00:00:02,160 --> 00:00:05,800 Speaker 1: You're listening to the Bloomberg Law Podcast. Catch us weekdays 2 00:00:05,840 --> 00:00:09,680 Speaker 1: at ten pm Easter on Bloomberg dot Com, the iHeartRadio app, 3 00:00:09,720 --> 00:00:12,639 Speaker 1: and the Bloomberg Business App, or listen on demand wherever 4 00:00:12,680 --> 00:00:13,760 Speaker 1: you get your podcast. 5 00:00:16,120 --> 00:00:19,360 Speaker 2: Welcome to the Bloomberg Law Show. I'm Kimberly Robinson alongside 6 00:00:19,440 --> 00:00:21,360 Speaker 2: Lydia Wheeler. Jin Grasso is out. 7 00:00:21,239 --> 00:00:22,360 Speaker 3: This week ahead. 8 00:00:22,400 --> 00:00:24,680 Speaker 4: In this hour, we'll discuss the latest in the saga 9 00:00:24,720 --> 00:00:27,320 Speaker 4: to remove the oldest active federal judge from the bench. 10 00:00:27,720 --> 00:00:30,720 Speaker 2: But first we'll discuss the battle over the abortion miph 11 00:00:30,760 --> 00:00:32,800 Speaker 2: of pristone, which has worked its way up to the 12 00:00:32,880 --> 00:00:36,440 Speaker 2: US Supreme Court again. Joining us now to explain is 13 00:00:36,479 --> 00:00:39,640 Speaker 2: Laurie Chaydon, a senior staff attorney at the ACLU's Reproductive 14 00:00:39,680 --> 00:00:42,000 Speaker 2: Freedom Project. Lauri, thanks for joining. 15 00:00:41,760 --> 00:00:44,000 Speaker 5: Us, Thanks so much for having me. 16 00:00:44,960 --> 00:00:47,440 Speaker 2: So I wonder if you could remind listeners about how 17 00:00:47,479 --> 00:00:50,760 Speaker 2: this case got started, what does the drug do, who 18 00:00:50,840 --> 00:00:54,120 Speaker 2: is challenging it, and briefly, what's the gist of their claims. 19 00:00:55,480 --> 00:00:59,440 Speaker 5: So this medication is known as mithapristone, and it is 20 00:00:59,480 --> 00:01:04,960 Speaker 5: a drug has been safely and effectively used for more 21 00:01:05,040 --> 00:01:08,320 Speaker 5: than two decades by five million people in the United 22 00:01:08,360 --> 00:01:12,720 Speaker 5: States through five presidential administrations after it was initially approved 23 00:01:13,400 --> 00:01:17,520 Speaker 5: in two thousand. It is used for abortion care and 24 00:01:17,560 --> 00:01:21,360 Speaker 5: it is used in the treatment of miscarriage, and this 25 00:01:21,560 --> 00:01:24,400 Speaker 5: it has been on the shelves for decades. It is 26 00:01:24,440 --> 00:01:28,840 Speaker 5: an essential medication and again has been approved for a 27 00:01:28,920 --> 00:01:32,679 Speaker 5: quarter of a century. The lawsuit is being brought by 28 00:01:32,800 --> 00:01:38,680 Speaker 5: a group of anti abortion physicians and groups that brought 29 00:01:38,680 --> 00:01:43,280 Speaker 5: a lawsuit in Amarillo, Texas, apparently seeking to put this 30 00:01:43,520 --> 00:01:47,440 Speaker 5: case before Judge Matthew Kesmeric who has a history and 31 00:01:47,480 --> 00:01:52,760 Speaker 5: a record of anti abortion, ANTILGBT, anti civil rights rulings. 32 00:01:53,160 --> 00:01:56,920 Speaker 5: They filed the lawsuit about a year ago, and they 33 00:01:57,080 --> 00:01:59,440 Speaker 5: tried to make the arguments that going all the way 34 00:01:59,480 --> 00:02:03,320 Speaker 5: back to the initial approval of mifropristone in two thousand, 35 00:02:04,080 --> 00:02:07,520 Speaker 5: that the drug should be lifted from the market, claiming 36 00:02:08,200 --> 00:02:12,280 Speaker 5: based on nothing, based on no facts, based on a 37 00:02:12,320 --> 00:02:15,960 Speaker 5: distortion of the law and a distortion of science, that 38 00:02:16,040 --> 00:02:20,480 Speaker 5: the FDA had failed to adequately assess the safety of 39 00:02:20,560 --> 00:02:23,480 Speaker 5: the drugs. Again, keep in mind, this is a medication 40 00:02:23,840 --> 00:02:27,960 Speaker 5: that has been used safely and effectively for more than 41 00:02:28,000 --> 00:02:31,839 Speaker 5: two decades by five million people, and it is its 42 00:02:31,919 --> 00:02:36,799 Speaker 5: efficacy rate is more than ninety five percent, So. 43 00:02:36,840 --> 00:02:39,840 Speaker 4: Laurie, one question I have is a technical one that 44 00:02:39,960 --> 00:02:43,320 Speaker 4: concerns standing. You know this idea that the court can 45 00:02:43,360 --> 00:02:47,280 Speaker 4: only hear certain kinds of claims by injured parties. How 46 00:02:47,360 --> 00:02:51,160 Speaker 4: are the doctors in this lawsuit claiming they've been injured. 47 00:02:52,560 --> 00:02:55,920 Speaker 5: Well, that's a really good question because in fact, they 48 00:02:55,960 --> 00:03:00,200 Speaker 5: have really pluged no injury at all. They don't prescribe 49 00:03:00,200 --> 00:03:05,799 Speaker 5: this medication, they don't treat patients or abortion care, they 50 00:03:05,800 --> 00:03:10,760 Speaker 5: don't use this medication in treating patients. They've effectively taken 51 00:03:10,800 --> 00:03:15,080 Speaker 5: the position that they may know someone who at some 52 00:03:15,400 --> 00:03:20,040 Speaker 5: point had to treat a patient based on a complication 53 00:03:21,440 --> 00:03:24,840 Speaker 5: after the patient had taken michel pristone. Now keep in 54 00:03:24,840 --> 00:03:27,600 Speaker 5: mind that no drug is risk free, but this is 55 00:03:27,639 --> 00:03:31,400 Speaker 5: a drug with a record of safety that is exceedingly 56 00:03:31,480 --> 00:03:35,720 Speaker 5: safe based on these scientific studies that are before the FDA. 57 00:03:36,280 --> 00:03:41,560 Speaker 5: This drug has serious complications almost never, and I mean 58 00:03:41,600 --> 00:03:44,960 Speaker 5: it's safer than pilon all safer than viagra. But these 59 00:03:45,080 --> 00:03:47,800 Speaker 5: doctors have come to the court and they said, well, 60 00:03:48,360 --> 00:03:51,000 Speaker 5: if we had to see a patient who maybe came 61 00:03:51,040 --> 00:03:53,880 Speaker 5: to our emergency room because maybe they took this drug, 62 00:03:54,560 --> 00:03:57,080 Speaker 5: we might have to treat them, that that would injure us. 63 00:03:57,120 --> 00:04:00,680 Speaker 5: It would injure our conscience. It would injure us because 64 00:04:00,720 --> 00:04:03,840 Speaker 5: it would take away our ability to treat other patients. Now, 65 00:04:03,920 --> 00:04:06,920 Speaker 5: keep in mind, when you're talking about an emergency room, 66 00:04:07,160 --> 00:04:09,600 Speaker 5: they treat all comers, right, This is not you don't 67 00:04:09,760 --> 00:04:12,280 Speaker 5: just doctors. You and I don't rely on a doctor 68 00:04:12,280 --> 00:04:16,440 Speaker 5: in the emergency room when we get there and they say, oh, sorry, 69 00:04:16,880 --> 00:04:19,080 Speaker 5: I don't approve of you because you smoke, or you 70 00:04:19,160 --> 00:04:22,200 Speaker 5: weigh too much or whatever. These doctors are basically saying 71 00:04:22,240 --> 00:04:26,039 Speaker 5: that if they were forced to treat somebody in the 72 00:04:26,160 --> 00:04:29,000 Speaker 5: very rare instance where this drug, where there was a 73 00:04:29,000 --> 00:04:33,080 Speaker 5: complication based on this drug, that they would somehow be injured. 74 00:04:33,440 --> 00:04:36,880 Speaker 5: That's not standing. And that is to be very clear, 75 00:04:38,160 --> 00:04:42,920 Speaker 5: both the procedural the standing arguments in this case as 76 00:04:43,000 --> 00:04:47,960 Speaker 5: well as the merits have been roundly criticized across the 77 00:04:48,000 --> 00:04:52,240 Speaker 5: ideological spectrum. You can go to the most conservative jurists 78 00:04:52,240 --> 00:04:55,440 Speaker 5: and finds that they are critical of this effort to 79 00:04:55,640 --> 00:04:59,400 Speaker 5: claim that they're standing an injury under Article three of 80 00:04:59,440 --> 00:05:01,279 Speaker 5: the Constance to bring this case. 81 00:05:02,080 --> 00:05:03,880 Speaker 2: Well, Laurie, let's talk a little bit about the merits, 82 00:05:03,880 --> 00:05:05,479 Speaker 2: because there are a lot of moving parts here, and 83 00:05:05,520 --> 00:05:07,840 Speaker 2: I was wondering if you could sort of walk us 84 00:05:07,839 --> 00:05:10,560 Speaker 2: through the different challenges to the law and how much 85 00:05:10,600 --> 00:05:13,279 Speaker 2: they really change things on the ground. So it's hoping 86 00:05:13,279 --> 00:05:17,280 Speaker 2: to start with the original two thousand approval of mithipristone. 87 00:05:17,400 --> 00:05:20,880 Speaker 2: What are the challenges to it, and if the court 88 00:05:20,880 --> 00:05:24,279 Speaker 2: were to side with those challengers here, what would the 89 00:05:24,279 --> 00:05:25,560 Speaker 2: effects be on the ground. 90 00:05:27,000 --> 00:05:31,480 Speaker 5: So thank you, that's a really important question. So the 91 00:05:31,520 --> 00:05:35,680 Speaker 5: bottom line is is that the challengers claim that the 92 00:05:35,960 --> 00:05:42,200 Speaker 5: FDA rushed the approval of this and didn't rely on science. 93 00:05:42,240 --> 00:05:43,880 Speaker 6: Which is utterly false. 94 00:05:44,200 --> 00:05:46,240 Speaker 5: This was a drug that had been used being in 95 00:05:46,400 --> 00:05:52,279 Speaker 5: use overseas for years with again an extremely safe record 96 00:05:52,320 --> 00:05:55,400 Speaker 5: of use, and then in the United States it took 97 00:05:55,920 --> 00:06:00,160 Speaker 5: four years of review and consideration of the science or 98 00:06:00,560 --> 00:06:04,359 Speaker 5: the FDA approved the drug in two thousands, and what 99 00:06:04,560 --> 00:06:07,919 Speaker 5: these plaintiffs in this case are trying to argue is 100 00:06:07,960 --> 00:06:12,800 Speaker 5: that that wasn't adequate and that FDA didn't appropriately rely 101 00:06:12,920 --> 00:06:17,640 Speaker 5: on science, didn't appropriately approve this drug. And therefore, now 102 00:06:17,839 --> 00:06:20,880 Speaker 5: keep in mind the approval was in two thousand, now 103 00:06:20,960 --> 00:06:24,560 Speaker 5: in almost twenty twenty four, that drug should be removed 104 00:06:24,560 --> 00:06:29,200 Speaker 5: from the market. So This is unprecedented. Never before has 105 00:06:29,200 --> 00:06:32,719 Speaker 5: a federal court ordered the Food and Drug Administration to 106 00:06:32,920 --> 00:06:36,599 Speaker 5: remove approval of a drug, particularly not one with this 107 00:06:36,760 --> 00:06:40,440 Speaker 5: kind of record of use and that has been on 108 00:06:40,520 --> 00:06:43,080 Speaker 5: the market and used by so many for so long. 109 00:06:44,040 --> 00:06:47,640 Speaker 5: If the plaintiffs were to prevail on that request again, 110 00:06:47,800 --> 00:06:51,080 Speaker 5: it means that mithipristone would go off the market. This 111 00:06:51,160 --> 00:06:54,000 Speaker 5: is a drug that is used in most of the 112 00:06:54,040 --> 00:06:57,000 Speaker 5: abortions in this country. The majority of abortions here in 113 00:06:57,040 --> 00:07:00,320 Speaker 5: this country relies on the use of mitha pristone. And 114 00:07:00,520 --> 00:07:03,760 Speaker 5: what these plaintiffs are asking is that the court order 115 00:07:04,000 --> 00:07:09,000 Speaker 5: FDA to withdraw approval to take this drug off the market. 116 00:07:09,480 --> 00:07:12,760 Speaker 4: Weren't there some amendments to the regulations around mithipristone in 117 00:07:12,800 --> 00:07:15,040 Speaker 4: twenty sixteen and can you walk us through what those were? 118 00:07:16,120 --> 00:07:19,880 Speaker 5: Sure? So, I mean, as with any drug, obviously, science 119 00:07:20,000 --> 00:07:25,480 Speaker 5: changes involves pharmaceutical companies invest in innovation and development and 120 00:07:25,520 --> 00:07:28,800 Speaker 5: they find ways to make drugs more effective and safer. 121 00:07:29,160 --> 00:07:32,360 Speaker 5: And that is exactly what happened with Michel Priystone. So 122 00:07:32,840 --> 00:07:35,640 Speaker 5: in twenty sixteen, after the drug had already been on 123 00:07:35,680 --> 00:07:38,120 Speaker 5: the market for sixteen years and had been safely used 124 00:07:38,120 --> 00:07:42,920 Speaker 5: by so many there were some updates to the conditions 125 00:07:42,920 --> 00:07:48,280 Speaker 5: for use of this drug. So, for example, there had 126 00:07:48,320 --> 00:07:53,480 Speaker 5: been a restriction that said that it had to be 127 00:07:53,520 --> 00:07:56,800 Speaker 5: prescribed in a healthcare setting. It had to be prescribed 128 00:07:56,840 --> 00:08:01,120 Speaker 5: in a medical office or a hot at all, or 129 00:08:01,120 --> 00:08:04,000 Speaker 5: another kind of healthcare facility. So that meant that patients 130 00:08:04,000 --> 00:08:06,400 Speaker 5: had to come in person in order to pick up 131 00:08:06,440 --> 00:08:11,280 Speaker 5: their mythipriss down and in twenty twenty, so for many years, 132 00:08:11,600 --> 00:08:16,040 Speaker 5: medical organizations had been pushing the FDA to lift that requirement. 133 00:08:16,080 --> 00:08:20,080 Speaker 5: It was medically unnecessary patients or essentially having to travel 134 00:08:20,160 --> 00:08:23,600 Speaker 5: long distances just for the sole purpose of coming in 135 00:08:23,720 --> 00:08:28,000 Speaker 5: essentially to pick up their pill. And during the height 136 00:08:28,000 --> 00:08:31,240 Speaker 5: of the pandemic in twenty twenty, the acl YOU brought 137 00:08:31,280 --> 00:08:35,120 Speaker 5: a lawsuit on behalf of the American College of Obstetricians 138 00:08:35,160 --> 00:08:40,440 Speaker 5: and Gynecologists and other healthcare providers to get the FDA 139 00:08:40,640 --> 00:08:44,200 Speaker 5: to lift that restriction so that patients wouldn't have to 140 00:08:44,200 --> 00:08:48,040 Speaker 5: put themselves in their families at risk of compressing a 141 00:08:48,120 --> 00:08:51,840 Speaker 5: deadly virus during the pandemic for the sole purpose of 142 00:08:51,960 --> 00:08:55,360 Speaker 5: traveling to a healthcare facility to pick up the medications. 143 00:08:55,720 --> 00:08:58,800 Speaker 5: And when that happened, we got that injunction of court 144 00:08:58,880 --> 00:09:02,199 Speaker 5: said that was okay. We ended up with lots of data, 145 00:09:02,280 --> 00:09:06,600 Speaker 5: lots of experience to show and demonstrate the safety of 146 00:09:06,679 --> 00:09:10,520 Speaker 5: patients being able to have this medication mailed to them 147 00:09:10,960 --> 00:09:13,240 Speaker 5: in their homes so that they could take it wherever 148 00:09:13,400 --> 00:09:16,360 Speaker 5: was safest and best for them. And as a result 149 00:09:16,520 --> 00:09:19,840 Speaker 5: of that and other data that was collected and presented 150 00:09:20,320 --> 00:09:25,640 Speaker 5: in abundance to the FDA, the FDA initially in twenty 151 00:09:25,720 --> 00:09:29,360 Speaker 5: twenty one lifted that in person dispensing requirement for the 152 00:09:29,400 --> 00:09:33,720 Speaker 5: remainder of the pandemic, and then ultimately lifted it permanently 153 00:09:33,840 --> 00:09:38,360 Speaker 5: in January of twenty twenty three. Again, the plaintiffs in 154 00:09:38,440 --> 00:09:42,280 Speaker 5: this case are making an argument that somehow that is 155 00:09:42,320 --> 00:09:47,800 Speaker 5: not safe, that somehow the FDA overlooked some kind of 156 00:09:48,240 --> 00:09:52,559 Speaker 5: study which it did not, and that therefore that restriction 157 00:09:52,640 --> 00:09:56,040 Speaker 5: should be reimposed, that patients should no longer be permitted 158 00:09:56,360 --> 00:10:00,520 Speaker 5: to receive the drugs at home by mail from their 159 00:10:00,520 --> 00:10:05,280 Speaker 5: healthcare provider or from a certified mail order pharmacy. What 160 00:10:05,320 --> 00:10:08,200 Speaker 5: that means for many patients is that they will be 161 00:10:08,360 --> 00:10:12,640 Speaker 5: forced to travel hundreds of miles, but in some cases, 162 00:10:13,040 --> 00:10:15,880 Speaker 5: again for the sole purpose of picking up their pill. 163 00:10:16,120 --> 00:10:19,680 Speaker 5: They can still have a telehoalth visit with their provider. 164 00:10:19,800 --> 00:10:25,920 Speaker 5: They can still be assessed where eligible, where appropriate by 165 00:10:25,960 --> 00:10:29,600 Speaker 5: the healthcare provider, not in in person setting, but they 166 00:10:29,679 --> 00:10:32,640 Speaker 5: might still have to travel hundreds of miles again for 167 00:10:32,720 --> 00:10:35,560 Speaker 5: the sole purpose of picking up a pill and taking 168 00:10:35,559 --> 00:10:38,880 Speaker 5: it home and taking it there. There is absolutely no 169 00:10:39,080 --> 00:10:43,440 Speaker 5: scientific basis for reimposing these old restrictions that were in 170 00:10:43,480 --> 00:10:47,600 Speaker 5: place again prior to twenty sixteen and prior to twenty 171 00:10:47,679 --> 00:10:48,280 Speaker 5: twenty one. 172 00:10:49,280 --> 00:10:50,960 Speaker 2: So it sounds like there are a lot of options 173 00:10:50,960 --> 00:10:53,440 Speaker 2: for the Supreme Court, and coming up on the program, 174 00:10:53,520 --> 00:10:56,360 Speaker 2: we'll talk more about that and the challenge to the 175 00:10:56,360 --> 00:10:59,480 Speaker 2: abortion drugmath for pristone with Laurie Shaydon, a senior staff 176 00:10:59,480 --> 00:11:03,560 Speaker 2: attorney at the ACLU's Reproductive Freedom Project. Remember you can 177 00:11:03,559 --> 00:11:05,720 Speaker 2: always get the latest legal news by listening to our 178 00:11:05,760 --> 00:11:09,360 Speaker 2: Bloomberg Law podcast on Apple, Spotify, or wherever you get 179 00:11:09,400 --> 00:11:10,240 Speaker 2: your podcasts. 180 00:11:10,440 --> 00:11:12,160 Speaker 3: I'm Kimberly Robinson. 181 00:11:12,000 --> 00:11:14,640 Speaker 4: And I'm Lydio Wheeler. This is Bloomberg. 182 00:11:21,200 --> 00:11:24,640 Speaker 1: You're listening to the Bloomberg Law Podcast. Catch the program 183 00:11:24,640 --> 00:11:28,040 Speaker 1: weekdays at ten pm Eastern on Bloomberg Radio, the tune 184 00:11:28,080 --> 00:11:31,040 Speaker 1: in app, Bloomberg dot Com and the Bloomberg Business App. 185 00:11:31,040 --> 00:11:33,880 Speaker 1: You can also listen live on Amazon Alexa from our 186 00:11:33,880 --> 00:11:38,320 Speaker 1: flagship New York station, Just say Alexa, play Bloomberg eleven thirty. 187 00:11:40,400 --> 00:11:43,720 Speaker 4: I'm Kimberly Robinson and I'm Lydio Wheeler. We've been speaking 188 00:11:43,720 --> 00:11:46,480 Speaker 4: with the aslu's Lori Chaton. How about the court battle 189 00:11:46,480 --> 00:11:49,480 Speaker 4: over the abortion drug mifipristone, Laurie. I wanted to step 190 00:11:49,520 --> 00:11:52,600 Speaker 4: back and take stock of what the landscape is following 191 00:11:52,640 --> 00:11:56,199 Speaker 4: the Court's twenty twenty two decision in the Dobbs case. 192 00:11:56,320 --> 00:11:59,880 Speaker 4: You know, where the Supreme Court undid federal abortion rights 193 00:12:00,080 --> 00:12:03,800 Speaker 4: rolling back Row versus Wade. How have the states responded 194 00:12:03,800 --> 00:12:04,520 Speaker 4: to that decision? 195 00:12:05,280 --> 00:12:08,080 Speaker 5: Well, I think that it's fair to say that quite 196 00:12:08,120 --> 00:12:10,520 Speaker 5: a number of them have responded quite badly and in 197 00:12:10,559 --> 00:12:14,160 Speaker 5: a way that is incredibly harmful for their residents. We 198 00:12:14,320 --> 00:12:18,200 Speaker 5: have seen more than twenty states either ban or heavily 199 00:12:18,320 --> 00:12:22,720 Speaker 5: restrict abortion since the Dab's decision, and that just means 200 00:12:22,760 --> 00:12:26,600 Speaker 5: that for patients in those states, again, in order to 201 00:12:26,640 --> 00:12:31,440 Speaker 5: access abortion care, they'll be required to travel long, long 202 00:12:31,480 --> 00:12:35,600 Speaker 5: distances in order to access the critical healthcare that they need. 203 00:12:35,720 --> 00:12:38,480 Speaker 5: And for many that means that they won't get this 204 00:12:38,600 --> 00:12:40,240 Speaker 5: care at all, that to be forced to carry a 205 00:12:40,320 --> 00:12:44,640 Speaker 5: pregnancy to term against their will because they simply cannot 206 00:12:44,760 --> 00:12:49,479 Speaker 5: arrange the logistical make the logistical arrangements and the financial 207 00:12:49,600 --> 00:12:52,920 Speaker 5: arrangements and the personal life arrangements that are needed in 208 00:12:53,000 --> 00:12:56,640 Speaker 5: order to travel out of state and sometimes through multiple 209 00:12:56,720 --> 00:13:00,800 Speaker 5: states in order to access care. The other the other 210 00:13:01,360 --> 00:13:03,960 Speaker 5: thing that we're seeing is that quite a number of 211 00:13:04,000 --> 00:13:08,240 Speaker 5: states are passing laws to shore up and to bolster 212 00:13:08,800 --> 00:13:12,920 Speaker 5: protections for reproductive healthcare, protections for abortion care, to try 213 00:13:12,920 --> 00:13:16,160 Speaker 5: to help providers in their states ensure that they can 214 00:13:16,200 --> 00:13:20,000 Speaker 5: try to meet the demand for abortion care. But the demand, 215 00:13:20,240 --> 00:13:23,199 Speaker 5: make no mistakes, the demand is mighty, and there's been 216 00:13:23,360 --> 00:13:27,280 Speaker 5: just this huge influx of patients coming from banned states 217 00:13:27,520 --> 00:13:31,559 Speaker 5: to access care. What that means is that for patients, 218 00:13:31,640 --> 00:13:34,400 Speaker 5: even in states that do support abortion rights and that 219 00:13:35,240 --> 00:13:39,600 Speaker 5: do take steps to try to ensure access to abortion, 220 00:13:40,360 --> 00:13:44,520 Speaker 5: there are long delays in some cases for people seeking 221 00:13:44,559 --> 00:13:48,120 Speaker 5: abortion care. And in many cases we've seen actually since Dubbs, 222 00:13:48,600 --> 00:13:52,600 Speaker 5: pregnancy complications are increasing because patients aren't able to get 223 00:13:52,600 --> 00:13:55,440 Speaker 5: the care that they need. The other thing I want 224 00:13:55,480 --> 00:13:58,800 Speaker 5: to mention is that in some of these states that 225 00:13:58,880 --> 00:14:02,800 Speaker 5: are banning abortion, they are going to such extreme lengths 226 00:14:02,920 --> 00:14:06,960 Speaker 5: that patients aren't able to actually get basic obgan care 227 00:14:06,960 --> 00:14:10,760 Speaker 5: that they need. Patients who are pregnant and are facing 228 00:14:11,200 --> 00:14:15,280 Speaker 5: health threatening and life threatening complications aren't often being denied 229 00:14:15,320 --> 00:14:18,520 Speaker 5: that care, and they're being denied that care because their 230 00:14:18,520 --> 00:14:23,360 Speaker 5: healthcare providers are facing the risks of criminal prosecution if 231 00:14:23,400 --> 00:14:27,280 Speaker 5: they somehow draw the line wrong, if they somehow say, yes, 232 00:14:27,400 --> 00:14:30,040 Speaker 5: my patience is sick enough, and therefore I'm going to 233 00:14:30,080 --> 00:14:32,960 Speaker 5: treat them, and then they are facing the threat that 234 00:14:33,000 --> 00:14:37,040 Speaker 5: they'll be prosecuted. And the other impact that is really 235 00:14:37,080 --> 00:14:40,080 Speaker 5: has been really sad is seeing that in some of 236 00:14:40,120 --> 00:14:44,240 Speaker 5: these states. Idaho is a perfect example, maternity care is 237 00:14:44,280 --> 00:14:48,880 Speaker 5: just shutting down. Obgians are leaving the state. They're not 238 00:14:48,960 --> 00:14:53,120 Speaker 5: willing to practice under those circumstances, and frankly, hospitals are 239 00:14:53,200 --> 00:14:56,320 Speaker 5: shutting down their maternity practices, and so again we have 240 00:14:56,400 --> 00:15:01,000 Speaker 5: maternity deserts in places like Idaho, in places like Labama. 241 00:15:01,040 --> 00:15:04,960 Speaker 5: All of this is phenomenally harmful to pregnant people, and 242 00:15:05,000 --> 00:15:09,640 Speaker 5: it particularly impacts in a negative way those who are 243 00:15:09,680 --> 00:15:16,200 Speaker 5: already facing serious risks because of structual racism in our 244 00:15:16,240 --> 00:15:19,800 Speaker 5: healthcare systems already being denied access to healthcare, people who 245 00:15:19,880 --> 00:15:22,320 Speaker 5: are people of color, people who live with low income 246 00:15:22,640 --> 00:15:26,280 Speaker 5: people in rural communities. Frankly, even in some of the 247 00:15:26,360 --> 00:15:30,320 Speaker 5: rural communities in states that are more supportive Right teamique 248 00:15:31,080 --> 00:15:32,239 Speaker 5: access problems. 249 00:15:32,440 --> 00:15:32,600 Speaker 6: Right. 250 00:15:32,680 --> 00:15:33,280 Speaker 3: I wonder too. 251 00:15:33,320 --> 00:15:35,920 Speaker 2: One of the outcomes from the courts twenty twenty two 252 00:15:35,960 --> 00:15:39,560 Speaker 2: decisions in Dobbs, at least n's anticipated by the justices 253 00:15:39,640 --> 00:15:43,080 Speaker 2: in the majority, was that they were going to return 254 00:15:43,120 --> 00:15:47,040 Speaker 2: this issue of abortion back over to elected officials instead 255 00:15:47,040 --> 00:15:50,200 Speaker 2: of to you know, unelected judges. But this methh of 256 00:15:50,200 --> 00:15:52,720 Speaker 2: pristone case that we've been talking about seems to sort 257 00:15:52,720 --> 00:15:53,800 Speaker 2: of fly in the face of that. 258 00:15:53,920 --> 00:15:54,120 Speaker 3: Right. 259 00:15:54,160 --> 00:15:56,800 Speaker 2: I mean, the courts here are being asked to second 260 00:15:56,840 --> 00:16:01,000 Speaker 2: guests the decisions of you know, executive branch officials. So 261 00:16:01,400 --> 00:16:03,560 Speaker 2: what did the Supreme Court mean when it said the 262 00:16:03,600 --> 00:16:06,240 Speaker 2: issue was being turned back over to elected officials. 263 00:16:07,400 --> 00:16:10,240 Speaker 5: Well, that's a good question, because, as you note, the 264 00:16:10,400 --> 00:16:16,880 Speaker 5: myth ofpristone case is intended to try to remove from 265 00:16:16,920 --> 00:16:19,400 Speaker 5: the market this drug that's used in most abortions in 266 00:16:19,400 --> 00:16:23,520 Speaker 5: the country. That means remove it from the market in 267 00:16:23,640 --> 00:16:26,720 Speaker 5: Illinois and in New York and in California, and those 268 00:16:26,760 --> 00:16:29,520 Speaker 5: are all states, and there are many others that are 269 00:16:29,600 --> 00:16:33,720 Speaker 5: taking great steps to try to protect access. And yet 270 00:16:34,120 --> 00:16:38,160 Speaker 5: we have this lawsuit where these anti abortion doctors have 271 00:16:38,240 --> 00:16:43,040 Speaker 5: gone to an anti abortion judge to try to impose 272 00:16:43,240 --> 00:16:47,880 Speaker 5: a ruling that would affect quite negatively abortion care throughout 273 00:16:47,920 --> 00:16:50,360 Speaker 5: the entire country. And make the mistakes. This is about 274 00:16:50,440 --> 00:16:55,720 Speaker 5: anti abortion opponents trying to be an abortion nationwide. This 275 00:16:55,840 --> 00:16:59,880 Speaker 5: is just one step in their campaign to deny people 276 00:17:00,040 --> 00:17:03,720 Speaker 5: throughout this country abortion care, to deny people the ability 277 00:17:04,000 --> 00:17:07,280 Speaker 5: to make the medical decisions that are best for them 278 00:17:07,720 --> 00:17:08,720 Speaker 5: and their families. 279 00:17:09,240 --> 00:17:11,359 Speaker 4: So, Laurie, this case has already been up to the 280 00:17:11,359 --> 00:17:14,480 Speaker 4: Supreme Court once this year on an emergency request, and 281 00:17:14,520 --> 00:17:16,560 Speaker 4: the Justice has sort of put everything on hold while 282 00:17:16,560 --> 00:17:19,320 Speaker 4: the case makes its way through the judicial system. So 283 00:17:19,960 --> 00:17:23,520 Speaker 4: what's the status of these drugs and their availability right now? 284 00:17:24,320 --> 00:17:26,840 Speaker 5: Well, as a result of the stay that the Supreme 285 00:17:26,920 --> 00:17:30,760 Speaker 5: Court entered, nothing has changed in terms of the available 286 00:17:30,920 --> 00:17:33,119 Speaker 5: these the medication. So today, and I want to be 287 00:17:33,160 --> 00:17:36,679 Speaker 5: clear about this for the listeners, people can access the 288 00:17:36,720 --> 00:17:40,520 Speaker 5: medication abortion using methropristo today. There are no limits as 289 00:17:40,520 --> 00:17:44,840 Speaker 5: a result of this case. Having said, that the Fifth 290 00:17:44,840 --> 00:17:48,440 Speaker 5: Circuit Court of Appeals, which is the most conservative court 291 00:17:48,480 --> 00:17:52,240 Speaker 5: in the country, has entered in order that would impose 292 00:17:52,680 --> 00:17:57,359 Speaker 5: some of these quite severe old restrictions that the FDA 293 00:17:57,520 --> 00:18:02,719 Speaker 5: long ago concluded were not necessary, and that decision is 294 00:18:02,840 --> 00:18:05,920 Speaker 5: now before the Supreme Court. The Supreme Court is deciding 295 00:18:06,359 --> 00:18:11,240 Speaker 5: as we sit here, whether it will review that decision 296 00:18:11,240 --> 00:18:13,800 Speaker 5: from the Fifth Circuit Court of Appeals, whether it will 297 00:18:13,840 --> 00:18:18,320 Speaker 5: review the decision from the District Court and re examine 298 00:18:18,359 --> 00:18:22,480 Speaker 5: the FDA's approval of mitropristown. So there is a lot 299 00:18:22,560 --> 00:18:25,399 Speaker 5: at stake here. We are waiting to hear from the 300 00:18:25,400 --> 00:18:27,359 Speaker 5: Court to see whether it is going to take this 301 00:18:27,560 --> 00:18:30,960 Speaker 5: case and leave it stay in place, whether it's going 302 00:18:31,040 --> 00:18:34,560 Speaker 5: to deny review of this case and lift its stake, 303 00:18:34,880 --> 00:18:36,760 Speaker 5: or whether it will take some other kind of action. 304 00:18:38,000 --> 00:18:40,160 Speaker 2: You know, I wonder if you get the sense that 305 00:18:40,200 --> 00:18:43,359 Speaker 2: some of the justices are eager to hear another abortion 306 00:18:43,560 --> 00:18:47,000 Speaker 2: case so close to the Dabbs decision, or if you 307 00:18:47,000 --> 00:18:49,119 Speaker 2: think they would have been happy to let the issues 308 00:18:49,160 --> 00:18:52,000 Speaker 2: sort of percolate in the States for a bit longer, 309 00:18:53,000 --> 00:18:56,399 Speaker 2: but the Fifth Circuit's opinions may sort of force their hand. 310 00:18:57,760 --> 00:19:00,280 Speaker 5: Well, I think that that's probably right. I don't can't 311 00:19:00,280 --> 00:19:03,359 Speaker 5: obviously speak for what they want and what they feel, 312 00:19:03,920 --> 00:19:06,640 Speaker 5: but I would imagine that they aren't excited about ticking 313 00:19:06,720 --> 00:19:09,879 Speaker 5: up another abortion cases soon. But having said that, the 314 00:19:09,880 --> 00:19:12,919 Speaker 5: Fifth Circuit's opinion is just so extreme and it's so 315 00:19:13,080 --> 00:19:15,960 Speaker 5: beyond the pale that we know that at least five 316 00:19:16,280 --> 00:19:19,920 Speaker 5: justices voted to have this stay put in place, meaning 317 00:19:20,280 --> 00:19:23,840 Speaker 5: that it's holding the Fifth Circuit's decision in abeyance through 318 00:19:23,920 --> 00:19:26,280 Speaker 5: any type of review from the Supreme Court. 319 00:19:26,960 --> 00:19:29,399 Speaker 4: So, Lorie, what are the next steps and what do 320 00:19:29,440 --> 00:19:32,000 Speaker 4: you see happening with this case of the Supreme Court? 321 00:19:32,359 --> 00:19:35,040 Speaker 5: We, as I said, are waiting to hear whether the 322 00:19:35,040 --> 00:19:39,159 Speaker 5: Court is granting a writ of cercuai. If it does that, 323 00:19:39,920 --> 00:19:43,359 Speaker 5: it could go two ways. One is that it could 324 00:19:43,440 --> 00:19:47,439 Speaker 5: grant review of part of the case or to grant 325 00:19:47,480 --> 00:19:49,560 Speaker 5: review of the whole case. Because there are actually a 326 00:19:49,680 --> 00:19:54,479 Speaker 5: number of petitions that are pending. We would expect, based 327 00:19:54,560 --> 00:19:56,879 Speaker 5: on the stay that it entered last spring, that it 328 00:19:56,920 --> 00:19:59,720 Speaker 5: will keep that stay in place, that basically, unless it 329 00:19:59,760 --> 00:20:02,480 Speaker 5: says something different that day will remain in place, which 330 00:20:02,480 --> 00:20:05,520 Speaker 5: means there will be no change to the provision of 331 00:20:05,680 --> 00:20:10,200 Speaker 5: medication abortion and other care using mifropristone while the case 332 00:20:10,280 --> 00:20:13,520 Speaker 5: continues to make its way through briefing, and if they 333 00:20:13,720 --> 00:20:17,399 Speaker 5: grant her soon, that case should be able to be 334 00:20:17,440 --> 00:20:22,119 Speaker 5: briefed and fully argued and decided this term. But the 335 00:20:22,200 --> 00:20:25,560 Speaker 5: court doesn't have to. It's not there's no deadline for 336 00:20:25,720 --> 00:20:28,199 Speaker 5: it to decide whether to take a case, and it 337 00:20:28,200 --> 00:20:31,359 Speaker 5: can do something called relisting. It can keep deciding, It 338 00:20:31,400 --> 00:20:34,280 Speaker 5: can keep putting it back from conference to conference to 339 00:20:34,320 --> 00:20:37,000 Speaker 5: decide whether it will take the case. And if it 340 00:20:37,160 --> 00:20:40,840 Speaker 5: waits too much longer, then the case would not be 341 00:20:40,880 --> 00:20:42,400 Speaker 5: able to be decided this term. 342 00:20:42,520 --> 00:20:45,280 Speaker 2: All right, well, thanks to Laurie Chayton of the ACLUS 343 00:20:45,320 --> 00:20:46,680 Speaker 2: Reproductive Freedom Project. 344 00:20:46,800 --> 00:20:48,800 Speaker 3: Coming up next on the Bloomberg Law. 345 00:20:48,600 --> 00:20:51,439 Speaker 2: Show, we'll talk about the ongoing efforts to oust the 346 00:20:51,440 --> 00:20:53,840 Speaker 2: Federal Judiciary's oldest active judge. 347 00:20:54,040 --> 00:20:57,840 Speaker 3: I'm Kimberly Robinson and I'm Lydia Wheeler. This is Bloomberg. 348 00:21:05,080 --> 00:21:08,720 Speaker 1: You're listening to the Bloomberg Law Podcast. Catch us weekdays 349 00:21:08,760 --> 00:21:12,600 Speaker 1: at ten pm Easter on Bloomberg dot Com, the iHeartRadio app, 350 00:21:12,640 --> 00:21:15,560 Speaker 1: and the Bloomberg Business App, or listen on demand wherever 351 00:21:15,600 --> 00:21:16,639 Speaker 1: you get your podcast. 352 00:21:19,119 --> 00:21:22,880 Speaker 4: I'm Kimberly Robinson, and I'm Lydia Wheeler in for June Grasso. 353 00:21:23,600 --> 00:21:25,879 Speaker 4: Let's get now to that ongoing saga to remove the 354 00:21:25,880 --> 00:21:29,520 Speaker 4: Federal Judiciary's oldest active judge from the bench. Joining us 355 00:21:29,520 --> 00:21:32,080 Speaker 4: to discuss it all is Michael Shapiro, a senior reporter 356 00:21:32,160 --> 00:21:35,520 Speaker 4: at Bloomberg Law who writes about intellectual property litigation and 357 00:21:35,560 --> 00:21:38,280 Speaker 4: covers the Federal Circuit. So, Michael, thanks so much for 358 00:21:38,359 --> 00:21:38,840 Speaker 4: joining us. 359 00:21:39,119 --> 00:21:40,120 Speaker 6: Yeah, thanks for having me. 360 00:21:40,640 --> 00:21:42,800 Speaker 4: So can you start off by telling us why the 361 00:21:42,800 --> 00:21:46,639 Speaker 4: Federal Circuit Judge Pauline Newman has been suspended from taking 362 00:21:46,680 --> 00:21:50,440 Speaker 4: new cases. How was that decision made, and what exactly 363 00:21:50,440 --> 00:21:51,000 Speaker 4: happened there? 364 00:21:51,680 --> 00:21:55,440 Speaker 6: Sure, so you're both aware that Judge Newman was suspended, 365 00:21:56,440 --> 00:21:59,320 Speaker 6: but some people might fail to appreciate if they're not 366 00:21:59,359 --> 00:22:04,080 Speaker 6: following this really closely. She has been suspended a number 367 00:22:04,080 --> 00:22:08,240 Speaker 6: of different times under different legal authority. Some of those 368 00:22:08,280 --> 00:22:11,000 Speaker 6: suspensions have run concurrently, and I can get back to 369 00:22:11,000 --> 00:22:15,000 Speaker 6: that in a bit. But apparently kicked everything off were 370 00:22:15,000 --> 00:22:19,080 Speaker 6: two health related events. According to the chief Judge for 371 00:22:19,119 --> 00:22:22,800 Speaker 6: the Federal Circuit, Kimberly more Newman suffered some kind of 372 00:22:22,840 --> 00:22:27,639 Speaker 6: a cardiac event back in twenty one this summer that 373 00:22:28,160 --> 00:22:31,000 Speaker 6: was followed by an alleged fainting spell that she had 374 00:22:31,080 --> 00:22:34,120 Speaker 6: after an horror argument session that was held in twenty 375 00:22:34,160 --> 00:22:37,919 Speaker 6: twenty two. Newman has denied both of those things, at 376 00:22:38,000 --> 00:22:42,080 Speaker 6: least in the way that they're described by Moore. So 377 00:22:42,760 --> 00:22:45,200 Speaker 6: exactly what happened there is still a little bit hazy. 378 00:22:45,320 --> 00:22:49,200 Speaker 6: But by March of twenty twenty three, Judge Moore has 379 00:22:49,240 --> 00:22:55,000 Speaker 6: started an investigation into Judge Newman. She's apparently heard from 380 00:22:55,080 --> 00:22:59,760 Speaker 6: court staff judges some combination of the two. At this point, 381 00:23:00,040 --> 00:23:04,840 Speaker 6: Newman might be suffering from quote, impairment of cognitive abilities unquote, 382 00:23:05,680 --> 00:23:09,399 Speaker 6: and that sort of goes to things like attention, focus, 383 00:23:09,440 --> 00:23:14,000 Speaker 6: and memory. More says at this point that Newman was 384 00:23:14,200 --> 00:23:18,560 Speaker 6: routinely making statements in open court and during deliberative proceedings 385 00:23:18,680 --> 00:23:22,280 Speaker 6: demonstrated a lack of awareness over the issues in her cases. 386 00:23:23,880 --> 00:23:26,880 Speaker 2: So we know that Judge Newman is challenging the suspension 387 00:23:27,200 --> 00:23:30,200 Speaker 2: or some of the suspensions wherever we are in that process. 388 00:23:31,240 --> 00:23:33,600 Speaker 3: Who did she sue and what is she arguing in 389 00:23:33,600 --> 00:23:34,200 Speaker 3: the lawsuit? 390 00:23:34,920 --> 00:23:39,520 Speaker 6: Sure? Well, yeah, just to be clear, she has disputed 391 00:23:39,560 --> 00:23:42,440 Speaker 6: a lot of the facts of this case. She's done 392 00:23:42,440 --> 00:23:46,200 Speaker 6: that there's kind of an administrative process that's going on. 393 00:23:46,320 --> 00:23:48,879 Speaker 6: And at the same time she followed this lawsuit against 394 00:23:48,920 --> 00:23:51,840 Speaker 6: her colleagues, she has said, you know, I'm one hundred 395 00:23:51,880 --> 00:23:55,119 Speaker 6: percent fit to be a judge. I can do this 396 00:23:55,240 --> 00:23:58,560 Speaker 6: job for a few more years. And she thinks her 397 00:23:58,600 --> 00:24:02,359 Speaker 6: colleagues are motivated not by concerns about her fitness, but 398 00:24:02,960 --> 00:24:05,800 Speaker 6: that she's independent and she's a dissenter on the court. 399 00:24:06,359 --> 00:24:11,120 Speaker 6: So there is this kind of administrative court process. What's 400 00:24:11,200 --> 00:24:14,560 Speaker 6: much rarer is for a judge who is being investigated 401 00:24:14,720 --> 00:24:18,640 Speaker 6: for some kind of misconduct or disability to go outside 402 00:24:18,680 --> 00:24:21,760 Speaker 6: of that system and sue. But that's exactly what Newman 403 00:24:22,080 --> 00:24:27,560 Speaker 6: has done here. She is, if nothing else, kind of 404 00:24:28,080 --> 00:24:31,879 Speaker 6: fierce and independent, and so perhaps it's in keeping with 405 00:24:32,359 --> 00:24:37,560 Speaker 6: that character that she is really taking an aggressive approach. 406 00:24:38,760 --> 00:24:42,280 Speaker 6: But she went ahead and she sued judges that were 407 00:24:42,359 --> 00:24:46,360 Speaker 6: on a special investigative committee that looked into the complaint 408 00:24:46,440 --> 00:24:50,480 Speaker 6: of dislleged disability. She did that in the district of 409 00:24:50,520 --> 00:24:56,160 Speaker 6: the DC. And so she is suing her colleagues basically 410 00:24:56,200 --> 00:25:01,679 Speaker 6: trying to get reinstated and making arguments about the statute 411 00:25:01,760 --> 00:25:04,280 Speaker 6: under which she is being investigated, as well as the 412 00:25:04,320 --> 00:25:06,720 Speaker 6: manner in which that investigation was carried out. 413 00:25:07,240 --> 00:25:08,720 Speaker 4: So, Michael, can you back up a little bit and 414 00:25:08,800 --> 00:25:11,399 Speaker 4: give us some background both on Judge Newman and the 415 00:25:11,400 --> 00:25:13,960 Speaker 4: Federal Circuit Court. Just remind our listeners, what are the 416 00:25:14,040 --> 00:25:16,000 Speaker 4: types of cases at this court? Here is most often? 417 00:25:16,760 --> 00:25:20,080 Speaker 6: Yeah, I can, and sort of the story of Judge 418 00:25:20,119 --> 00:25:23,320 Speaker 6: Newman's time as a judge and the Federal Circuit start 419 00:25:23,560 --> 00:25:27,000 Speaker 6: around the same time. She was the first presidential appointment 420 00:25:27,119 --> 00:25:31,119 Speaker 6: to this court called the Federal Circuit. The Federal Circuit 421 00:25:31,200 --> 00:25:35,040 Speaker 6: is a specialized appellate court and it has exclusive jurisdiction. 422 00:25:35,160 --> 00:25:38,600 Speaker 6: There were several real niche categories of law, and those 423 00:25:38,640 --> 00:25:44,639 Speaker 6: included government contract disputes, veterans benefits cases, and importantly to 424 00:25:44,760 --> 00:25:49,119 Speaker 6: Judge Newman, patents. The court was formed back in nineteen 425 00:25:49,160 --> 00:25:53,440 Speaker 6: eighty two. Back then, Newman, she's a chemist. She became 426 00:25:53,480 --> 00:25:56,119 Speaker 6: a lawyer. She became a big patent lawyer at a 427 00:25:56,119 --> 00:26:01,640 Speaker 6: company called FMC, which made pesticides, among other things. And 428 00:26:01,880 --> 00:26:04,520 Speaker 6: she was on an advisory board that said, you know, 429 00:26:04,680 --> 00:26:09,080 Speaker 6: there should be a specialized patent appeals court. That court 430 00:26:09,200 --> 00:26:12,000 Speaker 6: was created in nineteen eighty two as the Federal Circuit, 431 00:26:12,040 --> 00:26:14,919 Speaker 6: and two years later she was appointed by Ronald Reagan 432 00:26:15,160 --> 00:26:15,919 Speaker 6: to that court. 433 00:26:17,320 --> 00:26:19,080 Speaker 2: So it seems to me that it's got to be 434 00:26:19,119 --> 00:26:22,400 Speaker 2: pretty awkward for these colleagues on the bench to be fighting. 435 00:26:23,160 --> 00:26:27,479 Speaker 2: How have Judge Newman's colleagues responded to the lawsuit and 436 00:26:27,640 --> 00:26:30,280 Speaker 2: how does Judge Newman feel about the case? 437 00:26:30,960 --> 00:26:33,119 Speaker 3: I mean, has it created any tension on the bench? 438 00:26:33,640 --> 00:26:36,359 Speaker 6: Well, let me yeah, let me start with our colleagues. 439 00:26:37,160 --> 00:26:42,120 Speaker 6: They're all members of this judicial council. Every appellate every 440 00:26:42,160 --> 00:26:45,520 Speaker 6: circuit court and the district courts within it have what 441 00:26:45,600 --> 00:26:50,520 Speaker 6: are called judicial councils and they get tasked, among other things, 442 00:26:50,560 --> 00:26:56,000 Speaker 6: with disability and misconduct investigations. So for the Federal Circuit, 443 00:26:56,080 --> 00:27:00,399 Speaker 6: this specialized appellate court, the active members are the judicial council. 444 00:27:00,680 --> 00:27:06,000 Speaker 6: And so she is suing them and they suspended her, 445 00:27:06,200 --> 00:27:10,359 Speaker 6: so she's also and they did that because she's not 446 00:27:10,520 --> 00:27:13,600 Speaker 6: cooperating with the investigation. They want her to sit for 447 00:27:13,640 --> 00:27:17,520 Speaker 6: neurological testing with their choice of a doctor, and she 448 00:27:17,560 --> 00:27:20,760 Speaker 6: hasn't done that. But we don't really know what individual 449 00:27:20,880 --> 00:27:23,439 Speaker 6: judges on that court we're also kind of members of 450 00:27:23,480 --> 00:27:30,960 Speaker 6: this council have said, except through these formal filings. They're 451 00:27:31,000 --> 00:27:34,879 Speaker 6: represented by the Department of Justice and her lawsuit challenging 452 00:27:35,160 --> 00:27:39,919 Speaker 6: the suspension and investigation. So we get to see those briefs, 453 00:27:40,080 --> 00:27:43,960 Speaker 6: but as far as would have, individual judges said they 454 00:27:44,520 --> 00:27:51,680 Speaker 6: haven't spoken publicly. Newman, however, has spoken publicly many times. 455 00:27:51,720 --> 00:27:55,840 Speaker 6: When these investigations happen. They happened informally and quietly, but 456 00:27:56,760 --> 00:27:59,680 Speaker 6: she felt like there was an injustice here, and her 457 00:27:59,720 --> 00:28:03,040 Speaker 6: and her lawyers filed a public lawsuit for one thing, 458 00:28:03,160 --> 00:28:07,920 Speaker 6: but also talked about their dispute of what's being alleged 459 00:28:07,960 --> 00:28:08,560 Speaker 6: against her. 460 00:28:09,400 --> 00:28:13,160 Speaker 4: Michael, didn't the federal try to resolve this issue informally 461 00:28:13,440 --> 00:28:16,280 Speaker 4: and what did that look like and how did it 462 00:28:16,400 --> 00:28:17,800 Speaker 4: escalate to where we are now? 463 00:28:18,720 --> 00:28:21,359 Speaker 6: Yeah, well, I can say that, like many of these 464 00:28:21,520 --> 00:28:26,280 Speaker 6: disability investigations, you don't hear about them, even if they're disputed. 465 00:28:26,440 --> 00:28:30,040 Speaker 6: That that happens sort of in this internal process through 466 00:28:30,040 --> 00:28:33,159 Speaker 6: the courts, and maybe at the end of that you 467 00:28:33,280 --> 00:28:36,920 Speaker 6: see sort of a document with people's initials that talk 468 00:28:36,960 --> 00:28:41,880 Speaker 6: about what was alleged, but you don't even know the judge. 469 00:28:42,520 --> 00:28:46,360 Speaker 6: That sort of internal process had started, and at a 470 00:28:46,360 --> 00:28:50,800 Speaker 6: certain point the press started hearing from supporters of the 471 00:28:50,920 --> 00:28:57,160 Speaker 6: judge that she was being targeted an investigation, a lawsuit 472 00:28:57,160 --> 00:29:00,840 Speaker 6: has then filed by Judge Newman, and she did some interviews, 473 00:29:02,560 --> 00:29:08,160 Speaker 6: so it became public. Whether it would have been carried 474 00:29:08,160 --> 00:29:11,640 Speaker 6: out behind the scenes, that I don't know, but ultimately 475 00:29:11,760 --> 00:29:14,680 Speaker 6: the court may have felt like they kind of had 476 00:29:14,680 --> 00:29:18,520 Speaker 6: to tell their side publicly since the counter arguments were 477 00:29:18,520 --> 00:29:21,400 Speaker 6: being aired publicly, and they posted a fair bit of 478 00:29:21,440 --> 00:29:25,520 Speaker 6: information from the investigation and the internal case on the 479 00:29:25,520 --> 00:29:28,760 Speaker 6: court's website, which I'm told is kind of unheard of. 480 00:29:28,840 --> 00:29:32,400 Speaker 2: And so, Michael, a couple of times you've hinted at 481 00:29:32,400 --> 00:29:35,600 Speaker 2: this sort of internal process that can go on. Is 482 00:29:35,600 --> 00:29:38,440 Speaker 2: there are there a set of rules or process that 483 00:29:38,800 --> 00:29:42,200 Speaker 2: goes on when there's a situation for whatever regent reason, 484 00:29:42,280 --> 00:29:45,000 Speaker 2: that a judge can no longer perform their duties. 485 00:29:45,960 --> 00:29:49,160 Speaker 6: Yeah, there absolutely is a set of rules. There was 486 00:29:49,200 --> 00:29:52,200 Speaker 6: a statute passed in nineteen eighty called the Judicial Conduct 487 00:29:52,200 --> 00:29:54,520 Speaker 6: and Disability Act, and it sort of steps out its 488 00:29:54,600 --> 00:29:59,640 Speaker 6: framework and courts can investigate complaints against judges that can 489 00:29:59,640 --> 00:30:06,280 Speaker 6: be for misconducts like the name of the statute suggests, bribery, 490 00:30:06,640 --> 00:30:11,240 Speaker 6: conflicts of interests, judges abusing their staff, or something along 491 00:30:11,320 --> 00:30:15,960 Speaker 6: those lines. But it also has a disability component to it. 492 00:30:16,120 --> 00:30:20,040 Speaker 6: So if there's allegations that somebody's not well but as 493 00:30:20,040 --> 00:30:25,360 Speaker 6: serving as a judge, that can be investigated too. Those 494 00:30:25,600 --> 00:30:31,240 Speaker 6: investigations get carried out by these regional circuit courts themselves 495 00:30:31,360 --> 00:30:35,600 Speaker 6: or by the Federal Circuit in DC, and there's an 496 00:30:35,600 --> 00:30:39,480 Speaker 6: appeals process, but that's not a traditional court. It's to 497 00:30:39,600 --> 00:30:43,560 Speaker 6: the Judicial Conference and that's sort of the policy making 498 00:30:43,600 --> 00:30:47,760 Speaker 6: board for the federal court system. By John Just Chief 499 00:30:47,880 --> 00:30:49,600 Speaker 6: Justice John Roberts. 500 00:30:49,440 --> 00:30:52,880 Speaker 2: Michael, have you ever heard of anything playing out like 501 00:30:52,960 --> 00:30:56,120 Speaker 2: this so publicly? I mean, or is this just really 502 00:30:56,240 --> 00:30:57,640 Speaker 2: unprecedented at this point? 503 00:30:59,160 --> 00:31:03,600 Speaker 6: You know, there are experts in the Juditial Conduct and 504 00:31:03,640 --> 00:31:08,800 Speaker 6: Disability Act and they say, really, it's unusual to have 505 00:31:09,200 --> 00:31:13,480 Speaker 6: such a public dispute. There's not a lot of case 506 00:31:13,560 --> 00:31:17,360 Speaker 6: law over how the Judicial Conduct and Disability Act works 507 00:31:17,400 --> 00:31:20,800 Speaker 6: for that reason. So it's sort of interesting and in 508 00:31:20,840 --> 00:31:25,600 Speaker 6: an academic way that there's a lawsuit and there's all 509 00:31:25,600 --> 00:31:29,040 Speaker 6: this public discussion about it. But yeah, the word you 510 00:31:29,120 --> 00:31:33,280 Speaker 6: just hear how acceptually rare it is have it playing 511 00:31:33,280 --> 00:31:37,760 Speaker 6: out publicly, especially on a disability matter, where you know 512 00:31:37,920 --> 00:31:41,719 Speaker 6: that gets into somewhat sensitive questions about health and for 513 00:31:41,760 --> 00:31:44,360 Speaker 6: the most part, you know, we think about those things 514 00:31:44,400 --> 00:31:45,320 Speaker 6: being somewhat private. 515 00:31:46,000 --> 00:31:48,760 Speaker 4: So where does this case stand now? Is Judge Newman 516 00:31:48,880 --> 00:31:50,360 Speaker 4: hearing cases on the bench? 517 00:31:50,440 --> 00:31:50,840 Speaker 3: Still? 518 00:31:51,000 --> 00:31:52,560 Speaker 4: Is she is? 519 00:31:52,640 --> 00:31:52,720 Speaker 6: She? 520 00:31:53,080 --> 00:31:55,280 Speaker 3: Is she being reinstated? Can you kind of give us 521 00:31:55,280 --> 00:31:55,960 Speaker 3: the way of the land? 522 00:31:56,920 --> 00:32:03,280 Speaker 6: Sure? Against Judge Newman's will, she does not have cases anymore. 523 00:32:03,400 --> 00:32:07,160 Speaker 6: She was allowed to continue on in the cases that 524 00:32:07,240 --> 00:32:11,360 Speaker 6: she had, but at a certain point in the investigation 525 00:32:11,800 --> 00:32:15,200 Speaker 6: she was suspended from getting new cases. That's what she's 526 00:32:15,720 --> 00:32:20,239 Speaker 6: been challenging in her lawsuit. And then in September she 527 00:32:20,440 --> 00:32:24,720 Speaker 6: was suspended for a year for her alleged refusal to 528 00:32:24,760 --> 00:32:30,320 Speaker 6: cooperate with the investigation itself. So she doesn't have cases. 529 00:32:31,800 --> 00:32:36,800 Speaker 6: She has been going to patent law events and she's 530 00:32:37,080 --> 00:32:39,600 Speaker 6: really has this celebrated career and a lot of a 531 00:32:39,680 --> 00:32:43,160 Speaker 6: lot of very public backers who are fond of her. 532 00:32:44,800 --> 00:32:47,640 Speaker 6: But at this point she hasn't had a new case 533 00:32:47,680 --> 00:32:49,040 Speaker 6: in a while, and. 534 00:32:48,920 --> 00:32:52,560 Speaker 2: So wonder sort of what's next in this saga? I mean, 535 00:32:52,600 --> 00:32:55,560 Speaker 2: what do you expect to happen, you know, either publicly 536 00:32:55,760 --> 00:32:57,760 Speaker 2: or privately after this? 537 00:32:58,560 --> 00:33:03,240 Speaker 6: Yeah, well, most of the briefing is done to the 538 00:33:03,280 --> 00:33:07,680 Speaker 6: District Court Judge Christopher Cooper in DC. They have briefed 539 00:33:08,720 --> 00:33:11,920 Speaker 6: of this motion to intervene and emotion to dismiss or 540 00:33:11,960 --> 00:33:14,959 Speaker 6: excuse me that emotion to intervene, but an injunction that 541 00:33:15,280 --> 00:33:18,760 Speaker 6: Judge Newman is seeking as well as her colleagues effort 542 00:33:18,800 --> 00:33:23,240 Speaker 6: to dismiss her case. There is one more case deadline 543 00:33:23,280 --> 00:33:26,920 Speaker 6: this week, and then that will be ripe for Judge 544 00:33:26,920 --> 00:33:29,640 Speaker 6: to either decide whether the lawsuit could go forward or 545 00:33:29,680 --> 00:33:33,640 Speaker 6: whether something has to be done to somehow give her 546 00:33:33,960 --> 00:33:38,560 Speaker 6: some kind of duties back as a judge. Parallel to that, 547 00:33:38,640 --> 00:33:42,280 Speaker 6: there's this kind of more internal process at the Judicial 548 00:33:42,320 --> 00:33:47,160 Speaker 6: Conference where Judge Newman is also fighting the suspension, the 549 00:33:47,200 --> 00:33:51,280 Speaker 6: ultimate suspension that was issued in her case. They meet, 550 00:33:51,680 --> 00:33:54,720 Speaker 6: they convene like twice a year, the judges who sit 551 00:33:54,760 --> 00:33:59,440 Speaker 6: on this special committee of the Judicial Conference, and they 552 00:33:59,560 --> 00:34:03,960 Speaker 6: don't to do much publicly except they eventually will issue 553 00:34:04,480 --> 00:34:07,160 Speaker 6: decisions at the very end of their process. So that's 554 00:34:07,480 --> 00:34:10,480 Speaker 6: that's tough to predict the timing of. But those two 555 00:34:10,480 --> 00:34:14,000 Speaker 6: things are still both sitting out there, Michael. 556 00:34:13,719 --> 00:34:16,359 Speaker 4: Judge Newman is correct me if I'm wrong ninety six 557 00:34:16,440 --> 00:34:18,880 Speaker 4: years old. You know, some people might look at that 558 00:34:18,920 --> 00:34:21,799 Speaker 4: and say, why not just you know, call it a day, 559 00:34:21,880 --> 00:34:24,879 Speaker 4: and you had a good career and be done with it. 560 00:34:25,080 --> 00:34:27,719 Speaker 4: What does Judge Newman say too, I'm sure what she's 561 00:34:27,719 --> 00:34:29,200 Speaker 4: hearing are some of those criticisms. 562 00:34:29,880 --> 00:34:32,719 Speaker 6: She says that she is in good shape and she 563 00:34:33,040 --> 00:34:35,560 Speaker 6: thinks that what this court does, what she does is 564 00:34:35,600 --> 00:34:38,360 Speaker 6: a judge, is really important. She is She has a 565 00:34:38,440 --> 00:34:41,839 Speaker 6: voice and a voice that you know should be part 566 00:34:41,880 --> 00:34:47,040 Speaker 6: of the process. She is not the only older judge 567 00:34:47,040 --> 00:34:50,839 Speaker 6: on this court. And I think she probably would say, 568 00:34:50,920 --> 00:34:54,000 Speaker 6: although I don't want to speculate that if she really 569 00:34:54,120 --> 00:34:55,960 Speaker 6: didn't think she was well, she wouldn't do it. But 570 00:34:56,920 --> 00:35:00,480 Speaker 6: she doesn't. She thinks that it's it's kind of a 571 00:35:00,560 --> 00:35:04,080 Speaker 6: concocted case and that she's judging just like she was. 572 00:35:04,640 --> 00:35:07,719 Speaker 2: Well, that's Bloomberg Laws Menkel Shapiro, and that does it 573 00:35:07,800 --> 00:35:09,680 Speaker 2: for this edition of The Bloomberg Law Show. 574 00:35:10,120 --> 00:35:11,719 Speaker 3: I'm Kimberly Robinson and. 575 00:35:11,719 --> 00:35:12,680 Speaker 4: I'm Lydia Wheeler. 576 00:35:13,040 --> 00:35:13,680 Speaker 3: Stay with us. 577 00:35:13,840 --> 00:35:18,200 Speaker 4: Top stories and global business headlines are coming up right now.