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Missouri Can't Use GOP Maps & Attack on Abortion Pill · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 2: Today, for the second time this week, the Supreme Court
0:12
Speaker 2: blocked Missouri from using a congressional map designed by Republican
0:17
Speaker 2: legislators to give the party control of seven of the
0:21
Speaker 2: state's eight congressional districts. It's a defining moment in the
0:25
Speaker 2: legal fight over the state's map that has spanned more
0:28
Speaker 2: than a year and spawned confusion for voters. The decision
0:33
Speaker 2: means that the state will have to use its congressional
0:36
Speaker 2: map from 2022, which will likely produce six Republican districts
0:41
Speaker 2: and two Democratic districts, a loss for Republicans trying to
0:45
Speaker 2: maintain control of the House in the midterm elections. No
0:49
Speaker 2: Supreme Court justice publicly dissented from the brief order, which
0:53
Speaker 2: didn't detail the court's legal reasoning, which is typical in
0:57
Speaker 2: emergency appeals. My guest is Jonathan Diaz, Director of Voting
1:02
Speaker 2: Advocacy and Partnerships at the Campaign Legal Center. Jonathan, the
1:07
Speaker 2: legal fight over Missouri's congressional map has been going on
1:10
Speaker 2: for about a year. It reached the Supreme Court twice.
1:14
Speaker 2: Tell us about the sort of tortuous litigation.
1:18
Speaker 1: So, I mean, I think this is a perfect example
1:21
Speaker 1: of why mid-decade redistricting, especially during an election year, is.
1:27
Speaker 1: Such a problem and create such a huge headache for
1:30
Speaker 1: voters and for election administrators, because we are now less
1:34
Speaker 1: than 60 days out from election day. And until this morning,
1:37
Speaker 1: it was not clear what district map Missouri was going
1:40
Speaker 1: to use for their congressional elections. So there's been a
1:44
Speaker 1: lot of court maneuvering over the last few days, including
1:47
Speaker 1: multiple attempts to go up to the Supreme Court. But
1:50
Speaker 1: the bottom line is that Missouri's state Supreme Court ruled
1:55
Speaker 1: that the gerrymander that was imposed by the legislature earlier
2:00
Speaker 1: this year that shifted Missouri from a map with six
2:04
Speaker 1: Republican-leaning districts and two Democratic-leaning districts to a new map
2:08
Speaker 1: that was seven Republican-leaning districts and one Democratic-leaning district, that
2:12
Speaker 1: that map was unlawful, that it violates the Missouri Constitution.
2:15
Speaker 1: And therefore, the Missouri Supreme Court ordered the state election
2:19
Speaker 1: officials to revert to the previous map, the 6-2 map.
2:23
Speaker 1: Secretary of State didn't like that. You know, it is
2:25
Speaker 1: very last minute. He tried to go to federal court to,
2:28
Speaker 1: you know, reverse that decision. And the Supreme Court today
2:32
Speaker 1: said basically, you know, enough is enough. The state Supreme
2:35
Speaker 1: Court issued an order based on state law that you
2:37
Speaker 1: have to use the previous map. And the U.S. Supreme
2:40
Speaker 1: Court said we're not going to disturb that order and
2:43
Speaker 1: we're not going to allow lower federal courts to intervene
2:45
Speaker 1: at this point. So Missouri will use their previous congressional
2:50
Speaker 1: map this November. It'll go back to that kind of
2:53
Speaker 1: 6-2 split. That's where we are now, you know, 54
2:57
Speaker 1: days out from Election Day.
2:59
Speaker 2: What map did they use for the primaries?
3:01
Speaker 1: So the primary was conducted using the 7-1 map, the
3:04
Speaker 1: new map. And so now the general will be held
3:07
Speaker 1: using the previous map.
3:09
Speaker 2: Is it going to cause a problem or at least
3:11
Speaker 2: a lot of confusion? Because the districts of candidates who
3:15
Speaker 2: won the primary could change shape now.
3:18
Speaker 1: I mean, I think the primary winners will remain on
3:22
Speaker 1: the ballot. It's just the district lines are different. So
3:25
Speaker 1: it will be all the same candidates who are elected
3:26
Speaker 1: in the primaries just, you know, using their old maps.
3:29
Speaker 1: And what they did with the new gerrymander was functionally
3:31
Speaker 1: eliminate a majority black district that's currently held by Congressman
3:35
Speaker 1: Emanuel Cleaver. And so, you know, he was still running
3:38
Speaker 1: for reelection just on a much less favorable map. My
3:41
Speaker 1: understanding is that it is all the same candidates who
3:43
Speaker 1: won the primaries. They're just, you know, using the old
3:45
Speaker 1: district lines now.
3:46
Speaker 2: And this is it, the final from the Supreme Court.
3:49
Speaker 2: They can't go back to the Supreme Court anymore.
3:51
Speaker 1: Well, there's nowhere else for them to go. So this
3:54
Speaker 1: is it. They've gone up to the Supreme Court twice.
3:56
Speaker 1: The first time, Justice Kavanaugh, who is the circuit justice
3:59
Speaker 1: for the circuit that covers Missouri, on his own, denied
4:02
Speaker 1: the secretary's request to stay the Missouri Supreme Court's decision.
4:07
Speaker 1: And then this time, the full Supreme Court, with no
4:10
Speaker 1: noted dissents, did stay the federal court decision that tried
4:13
Speaker 1: to bring us back to the new map again. So
4:16
Speaker 1: it's been a real seesaw, back and forth, between the
4:19
Speaker 1: old map, the new map, the old map, the new map.
4:21
Speaker 1: But at least for Missouri, this has been settled for
4:24
Speaker 1: these midterm elections.
4:26
Speaker 2: Let's turn now to the confusion over mail ballots, where
4:30
Speaker 2: there's litigation in several different federal courts. And we're waiting
4:35
Speaker 2: for a Supreme Court decision on whether the post office
4:40
Speaker 2: can enforce new rules for mail-in ballots?
4:43
Speaker 1: That is right.
4:44
Speaker 2: What's the state of play right now?
4:46
Speaker 1: Well, it has been a long and rather complicated saga
4:51
Speaker 1: around these new USPS regulations that the Postal Service formally
4:57
Speaker 1: published only a few weeks ago, but that have been
5:00
Speaker 1: kind of percolating since March. So to take us all
5:02
Speaker 1: the way back, You know, in March 2026, President Trump
5:06
Speaker 1: issued an executive order that focused primarily on mail voting.
5:10
Speaker 1: That order directed the U.S. Postal Service to issue regulations that,
5:16
Speaker 1: you know, would mandate certain envelope requirements, certain barcode requirements,
5:21
Speaker 1: and new procedures that state and local election officials would
5:24
Speaker 1: have to follow in order for USPS to deliver ballots
5:27
Speaker 1: to voters in those states. There is no statutory authorization
5:31
Speaker 1: for any of this. The postal service is not, they're
5:34
Speaker 1: not election administrators. They deliver ballot mail, just like they
5:38
Speaker 1: deliver all the other mail. And so this executive order
5:41
Speaker 1: and the regulations that USPS created to enforce it, you know,
5:45
Speaker 1: represent a huge shift in the way that mail voting
5:49
Speaker 1: would work in this country and would give USPS the
5:52
Speaker 1: authority to decline to deliver ballots to voters if the
5:56
Speaker 1: states or the counties who are sending those ballots don't
6:00
Speaker 1: meet every single new technical specification in these USPS regulations.
6:06
Speaker 1: There's been a flurry of litigation challenging both the executive
6:09
Speaker 1: order and the USPS regulations. Earlier this year, a district
6:14
Speaker 1: court in Massachusetts issued an injunction that found that the
6:18
Speaker 1: executive order was unconstitutional and enjoined USPS from issuing regulations
6:24
Speaker 1: to give effect to that order. That injunction was appealed.
6:28
Speaker 1: And a couple of months ago, the Supreme Court said
6:30
Speaker 1: that the injunction was issued too soon. They said that
6:33
Speaker 1: the issues were not yet ripe because the Postal Service
6:35
Speaker 1: hadn't actually issued any regulations. And so there was nothing
6:38
Speaker 1: really to challenge. And the district court acted too soon
6:41
Speaker 1: when it granted relief to the plaintiffs. But in that order,
6:44
Speaker 1: the Supreme Court said, if and when there is a
6:46
Speaker 1: final regulation that's in place, that might change things. So
6:50
Speaker 1: about two days after that Supreme Court order came down,
6:52
Speaker 1: USPS published their final regulation. And we all rushed back
6:55
Speaker 1: to court and started the process all over again. Judge
6:58
Speaker 1: Talwani in Massachusetts again issued an injunction blocking the USPS
7:02
Speaker 1: regulations from taking effect. She found that the regulations themselves
7:07
Speaker 1: are unlawful. They exceed the post office's statutory authority. They
7:11
Speaker 1: derive from an unconstitutional executive order. And critically, there is
7:16
Speaker 1: just no time to make these kind of huge changes again.
7:21
Speaker 1: before the midterm elections without disenfranchising millions of voters. And that,
7:25
Speaker 1: I think, is the really critical piece here. State and
7:30
Speaker 1: local election officials from across the country, from red and
7:33
Speaker 1: blue and purple jurisdictions, have all told the courts, we
7:36
Speaker 1: cannot do this. Ballot envelopes have already been purchased. Barcodes
7:41
Speaker 1: have been placed on them. There is no time to
7:44
Speaker 1: redesign ballot mail in all of the 10,000 election jurisdictions
7:49
Speaker 1: across the country. And there's no money to do it.
7:51
Speaker 1: The vendors can't work fast enough. The counties have no
7:54
Speaker 1: more budget left. They've already spent the money that was
7:56
Speaker 1: appropriated to them to buy ballot mail and ballot paper
7:59
Speaker 1: and all of that. In a state like Arizona, where 80%
8:04
Speaker 1: of voters voted by mail in 2024, if they don't
8:07
Speaker 1: get their ballots, that's a huge logistical and operational problem
8:11
Speaker 1: for election officials across the state and across the country
8:15
Speaker 1: who are in very similar situations. So the government has
8:19
Speaker 1: sought a stay of this injunction from the District Court
8:22
Speaker 1: of Massachusetts. Kind of unusually, they simultaneously asked both the
8:26
Speaker 1: First Circuit Court of Appeals and the Supreme Court to
8:29
Speaker 1: stay the district court order. Normally, you would go to
8:32
Speaker 1: the circuit court first, and then if they say no,
8:34
Speaker 1: then go to SCOTUS. But DOJ decided not to wait.
8:37
Speaker 1: Just mere minutes ago, as we're recording this, the First
8:40
Speaker 1: Circuit denied the government's request for a stay, leaving that
8:43
Speaker 1: injunction in place. And so now we await a decision
8:47
Speaker 1: from the U.S. Supreme Court. They stayed the previous injunction
8:50
Speaker 1: on that jurisdictional ground, on ripeness, but now they're faced
8:53
Speaker 1: with a very different question. You know, they have to
8:55
Speaker 1: address the merits of the government's position. The government says
8:59
Speaker 1: that these regulations are lawful, that they do have the
9:02
Speaker 1: authority to do this. The lower courts have disagreed so far.
9:06
Speaker 1: But I think that the Supreme Court really also has
9:07
Speaker 1: to consider the equities of the situation right now and
9:11
Speaker 1: how disruptive... an attempt to implement these new regulations 54
9:17
Speaker 1: days out from Election Day would be in a situation
9:20
Speaker 1: where mail ballots have already gone out in some states.
9:23
Speaker 1: North Carolina, Wisconsin, Alabama have all already started sending ballots
9:27
Speaker 1: to voters. Every state has to send mail ballots at
9:30
Speaker 1: least to military and overseas voters by September 19th. And
9:34
Speaker 1: throughout all of this, USPS and the federal government have
9:37
Speaker 1: been unable to clearly say whether even they are ready
9:42
Speaker 1: to implement these rules, whether the portal that they're building
9:45
Speaker 1: is complete, whether they have the staff and the time
9:49
Speaker 1: and the functionality to do all the things that the
9:51
Speaker 1: regulations require them to do. So at this stage of
9:55
Speaker 1: the election cycle, to even be contemplating a change on
9:58
Speaker 1: this scale is... crazy, which is, I think, why we
10:03
Speaker 1: have seen kind of an unusually broad coalition of election officials,
10:09
Speaker 1: Democrats and Republicans, secretaries of state, county clerks, all going
10:13
Speaker 1: to the court and saying, even if they don't address
10:16
Speaker 1: the legality of the issue, practically speaking, the implementation of
10:21
Speaker 1: a rule like this in September of an election year
10:25
Speaker 1: would be just unbelievably disruptive to the process of elections
10:29
Speaker 1: and would almost certainly result in voters not getting their ballots.
10:34
Speaker 2: So you would expect that the Supreme Court would listen
10:38
Speaker 2: to what the election officials are telling them. They don't
10:41
Speaker 2: have to make a decision on the merits, right? They
10:43
Speaker 2: can just rely on the fact that it's too late
10:46
Speaker 2: to make these changes.
10:48
Speaker 4: Right.
10:49
Speaker 1: This is an emergency stay request. So we're in a
10:52
Speaker 1: kind of emergency posture on the shadow docket. There won't be,
10:56
Speaker 1: you know, oral argument. They don't have to do, you know,
10:58
Speaker 1: a full kind of opinion and everything. All they have
11:01
Speaker 1: to do is either grant or deny this government's stay request.
11:06
Speaker 1: And how much reasoning they want to give us is
11:09
Speaker 1: unfortunately kind of up to them. I hope that they
11:12
Speaker 1: do some explanation of the decision to kind of, you know,
11:14
Speaker 1: give some guidance to the lower courts on these questions.
11:17
Speaker 1: But listeners may be familiar with the Purcell principle, which
11:21
Speaker 1: comes up in election litigation a lot. You know, this
11:23
Speaker 1: kind of judicial doctrine that federal courts should be mindful
11:28
Speaker 1: of the administrative chaos that their decisions can have late
11:33
Speaker 1: in an election cycle, and that they should be cautious
11:35
Speaker 1: when issuing orders to do so in a way that
11:37
Speaker 1: minimizes voter confusion and And if ever there were a
11:43
Speaker 1: case where the Purcell Doctrine should apply, it's this one,
11:47
Speaker 1: where the federal government is trying to impose new regulations
11:51
Speaker 1: and new procedures on election processes nationwide at the 11th hour,
11:58
Speaker 1: and the states are saying, we simply can't do it.
12:00
Speaker 1: And so, you know, I am hopeful, I'm fairly confident
12:03
Speaker 1: that the court will see both the legal and practical
12:06
Speaker 1: realities here and not toss a bomb into election administration
12:11
Speaker 1: less than two months out. But we won't know until they,
12:14
Speaker 1: you know, until they tell us.
12:16
Speaker 2: As you discussed, the Supreme Court took an off-ramp, relying
12:21
Speaker 2: on procedure, on standing, so they wouldn't have to make
12:25
Speaker 2: a decision on the merits the last time this mail-in
12:28
Speaker 2: ballot question came to them. They must have known that
12:31
Speaker 2: this was coming right back to them. So all this
12:35
Speaker 2: litigation and confusion since then is because they avoided making
12:40
Speaker 2: a decision on the merits in a case where the
12:43
Speaker 2: law seems pretty clear. And it's going to end up
12:46
Speaker 2: right there.
12:56
Speaker 1: And so, you know, this is a crisis, I think,
12:59
Speaker 1: in part of their own making because they knew it
13:00
Speaker 1: was going to come back. But, you know, I imagine
13:04
Speaker 1: this time around they will move more quickly given, you know,
13:06
Speaker 1: where we are in the calendar. At least I hope so.
13:09
Speaker 1: But the legal issues are, I think, pretty straightforward here.
13:12
Speaker 1: You know, the Constitution very clearly assigns the responsibility to
13:19
Speaker 1: legislate the time, place, and manner of federal elections to
13:22
Speaker 1: the states, subject only to preemption by Congress. And it
13:26
Speaker 1: does not give the executive branch any authority, whether it's
13:30
Speaker 1: coming from the White House or the U.S. Postal Service,
13:33
Speaker 1: to regulate elections absent clear authorization from Congress, which they
13:38
Speaker 1: don't have here. Congress has never passed a statute giving
13:41
Speaker 1: the Postal Service the power to reject mail ballots if
13:47
Speaker 1: they don't meet their own internal technical requirements. Congress has
13:51
Speaker 1: very specifically identified a handful of categories of non-mailable materials
13:56
Speaker 1: that USPS can reject. And ballots are not one of them.
14:00
Speaker 2: I've been talking to Jonathan Diaz of the Campaign Legal Center.
14:03
Speaker 2: So let's turn to what may happen during the elections,
14:07
Speaker 2: because the Justice Department has been deploying election monitors in
14:12
Speaker 2: the primary season. Trump told The Times that he regretted
14:17
Speaker 2: not seizing voting machines after the 2020 election. His administration
14:23
Speaker 2: is exploring criminal charges against election officials for different reasons.
14:29
Speaker 2: And Safeguarding Democracy Project at UCLA has issued what it
14:33
Speaker 2: calls guidance for judges on potential requests for subpoenas to
14:39
Speaker 2: seize election materials like ballots and voting machines. What could happen?
14:44
Speaker 2: Could we have intimidation at the polls, seizing of voting
14:48
Speaker 2: machines afterwards, seizing of ballots afterwards?
14:51
Speaker 1: There's a whole range of things that could happen. It
14:54
Speaker 1: is true, and I think not particularly controversial, to say
14:59
Speaker 1: that the federal government's posture in this election cycle is
15:03
Speaker 1: unlike anything we have seen, certainly for decades, maybe in
15:08
Speaker 1: any of our lifetimes, where the entire federal government apparatus
15:14
Speaker 1: has seemingly been reoriented around the president's views of on
15:19
Speaker 1: how elections should run and the president's grievances for his
15:23
Speaker 1: past election losses. We have people who are now in
15:27
Speaker 1: charge at the Department of Justice and the Department of
15:30
Speaker 1: Homeland Security who are fully bought in to the conspiracies
15:35
Speaker 1: and falsehoods around the 2020 election and who have weaponized
15:40
Speaker 1: the federal government's law enforcement authorities in pursuit of those theories.
15:45
Speaker 1: You know, there are some things that they are doing
15:47
Speaker 1: that under a different administration would be totally normal. Like
15:50
Speaker 1: DOJ has sent election monitors out into the states to
15:54
Speaker 1: check for compliance with certain federal laws for decades. And
15:57
Speaker 1: that is, you know, under most circumstances, a totally normal
16:00
Speaker 1: thing that shouldn't cause any alarm. But when you have
16:03
Speaker 1: that program being run by somebody like Hermie Dillon, who
16:06
Speaker 1: is at the same time sending threats of criminal prosecution
16:10
Speaker 1: to election officials and, you know, demanding that election officials
16:15
Speaker 1: turn over their unredacted voter files to the federal government,
16:18
Speaker 1: which is something that the federal government just doesn't do.
16:20
Speaker 1: They don't do voter registration. It does create an atmosphere
16:24
Speaker 1: that I think is designed to cause confusion, to generate fear,
16:29
Speaker 1: and to reduce the public's trust in the election system.
16:33
Speaker 1: There are still many federal laws that prohibit a lot
16:39
Speaker 1: of the things that people are worried about. It is
16:42
Speaker 1: unlawful for armed federal agents to be deployed to the polls.
16:46
Speaker 1: It is unlawful for the military or the National Guard
16:49
Speaker 1: to be deployed to the polls. Voter intimidation laws exist
16:52
Speaker 1: in all 50 states and DC and Puerto Rico, and
16:54
Speaker 1: there is a federal voter intimidation law that is, you know,
16:58
Speaker 1: privately enforceable. And so, you know, a lot of these
17:00
Speaker 1: things I think are unlikely to succeed, but they don't
17:04
Speaker 1: have to succeed if they scare people out of voting.
17:09
Speaker 1: you know, that is just as much a problem as
17:12
Speaker 1: if they, you know, actually go in and physically disrupt
17:14
Speaker 1: the conduct of elections. And so, you know, our message
17:17
Speaker 1: to voters has been, don't let the federal government or
17:22
Speaker 1: anyone else scare you out of exercising your right to vote.
17:26
Speaker 1: And there is a robust national nonpartisan election protection infrastructure
17:32
Speaker 1: that is designed to make sure that every eligible American
17:36
Speaker 1: is able to cast a ballot and that those ballots
17:38
Speaker 1: are counted. We may see attempts by DOJ or DHS
17:43
Speaker 1: to skirt those legal lines, to try and station their
17:46
Speaker 1: agents near the polls, if not at the polls, to
17:49
Speaker 1: scare people. Or we may see subpoenas from DOJ seeking
17:54
Speaker 1: to take custody of ballots or election materials, which is
17:57
Speaker 1: why I think the UCLA Safeguarding Democracy Project is sending
18:01
Speaker 1: guidance out for judges to, you know, about what they
18:03
Speaker 1: should be considering, because there are different equities involved when
18:06
Speaker 1: you're thinking about a live election and chain of custody
18:08
Speaker 1: of ballots that, you know, the kinds of things that
18:11
Speaker 1: wouldn't normally factor in when you're considering, you know, a
18:13
Speaker 1: search warrant or a criminal subpoena or something like that. But,
18:16
Speaker 1: you know, I think fortunately or unfortunately, I don't know,
18:19
Speaker 1: the government has not been particularly quiet about their views
18:22
Speaker 1: on elections or what they, you know, are considering doing.
18:25
Speaker 1: And so I don't think it will come as a
18:27
Speaker 1: surprise if they do try and disrupt the conduct of
18:29
Speaker 1: the But I am confident that they will fail because
18:34
Speaker 1: they have no, no basis for any of this. And,
18:37
Speaker 1: you know, the last time that Donald Trump led an
18:40
Speaker 1: effort to overturn election results in 2020, it was a
18:43
Speaker 1: spectacular failure because there is simply no evidence to back
18:46
Speaker 1: up any of the false claims that they're making about
18:47
Speaker 1: how our elections work. And, you know, our elections are
18:51
Speaker 1: run by dedicated civil servants of, you You have Democrats
19:00
Speaker 1: and Republicans, secretary of states, county clerks who are just
19:03
Speaker 1: trying to do their jobs. And I understand why people
19:07
Speaker 1: might be anxious about the federal government's attempts to enlarge
19:10
Speaker 1: its role in the conduct of our elections. But so far,
19:14
Speaker 1: they have been entirely unable to do that. And the
19:16
Speaker 1: courts have continued to check their efforts to insert themselves
19:20
Speaker 1: into the election process.
19:21
Speaker 2: There are election deniers in some state and county election offices.
19:28
Speaker 2: Is there a fear that there may be election interference
19:32
Speaker 2: on a state or county level?
19:34
Speaker 1: I mean, that is an issue that we have unfortunately
19:37
Speaker 1: faced for the last several election cycles. You know, in 2024,
19:41
Speaker 1: in 2022, we had county officials who tried to refuse
19:47
Speaker 1: to certify election results if they didn't like them or,
19:49
Speaker 1: you know, who have, you know, attempted to unlawfully purge
19:53
Speaker 1: voters from the rolls at the last minute. But, you know,
19:56
Speaker 1: we have legal tools to respond to those things, to
20:00
Speaker 1: compel certification of election results, to, you know, ensure that
20:04
Speaker 1: voters are not unlawfully removed from the rolls if they're eligible.
20:07
Speaker 1: So I'm less concerned about kind of state and local
20:11
Speaker 1: level interference because we have a well-documented kind of judicial
20:15
Speaker 1: and legal playbook for those kinds of things. We've never
20:19
Speaker 1: really faced this kind of direct interference attempt from the
20:23
Speaker 1: federal government before. That is new. And although the federal
20:27
Speaker 1: government has no explicit legal authority when it comes to
20:30
Speaker 1: elections other than what is specifically granted to them by
20:33
Speaker 1: certain federal statutes, They have a lot of general law
20:36
Speaker 1: enforcement authority and police powers that I think this administration
20:40
Speaker 1: has shown a willingness to abuse and go beyond. And so,
20:44
Speaker 1: you know, there are legal remedies for those kinds of things, too.
20:47
Speaker 1: But if we are in the middle of a live
20:49
Speaker 1: election and, you know, ballots are still being counted, you know,
20:53
Speaker 1: disruption of that process could be really serious. And so
20:57
Speaker 1: that's why, you know, I think it is incumbent on
20:59
Speaker 1: state and local officials who have a role in the
21:01
Speaker 1: election process to be prepared for, you know, attempts at
21:05
Speaker 1: at potential federal interference and to know how to respond.
21:07
Speaker 1: I think it's partially in the hands of voters to
21:10
Speaker 1: make sure that they have a plan for getting to
21:13
Speaker 1: the polls and a backup plan if something doesn't work out,
21:16
Speaker 1: to make sure that they get their ballot in and
21:18
Speaker 1: have their voice counted. And that's why we have civil
21:21
Speaker 1: society groups like Campaign Legal Center and our many partners
21:26
Speaker 1: across the country who have been preparing for these midterm
21:29
Speaker 1: elections for years at this point to make sure that
21:33
Speaker 1: we do everything in our power to have a safe
21:35
Speaker 1: and secure election where the results match the votes.
21:40
Speaker 2: And we'll wait to see what the Supreme Court decides
21:42
Speaker 2: on mail ballots. Thanks so much, Jonathan. A pleasure having
21:45
Speaker 2: you on. That's Jonathan Diaz, Director of Voting Advocacy and
21:49
Speaker 2: Partnerships at the Campaign Legal Center. Coming up next on
21:54
Speaker 2: the Bloomberg Law Show, Louisiana is one of the red
21:57
Speaker 2: states trying to stop the abortion pill from being available
22:02
Speaker 2: by mail, even in states where abortion is legal. I'm
22:06
Speaker 2: June Grosso, and you're listening to Bloomberg. Louisiana is one
22:11
Speaker 2: of at least five red states trying to restrict abortion
22:15
Speaker 2: access outside its borders, in blue states where abortion is legal.
22:21
Speaker 2: Just four years after the Supreme Court ruled that individual
22:25
Speaker 2: states should decide whether to allow abortion. Medication abortion with
22:30
Speaker 2: the drug Mifeprestone now accounts for a majority of abortions
22:34
Speaker 2: in the U.S., and nearly 30 percent of those are
22:37
Speaker 2: conducted by telehealth. Louisiana, which has banned most abortions since 2022,
22:43
Speaker 2: is trying to block providers in states where abortion is
22:47
Speaker 2: legal from sending drugs for medication abortions, challenging a 2023
22:51
Speaker 2: FDA policy that that permanently loosen requirements on in-person dispensing
22:59
Speaker 2: of the drug. In a case before the Fifth Circuit
23:02
Speaker 2: Court of Appeals, Louisiana is seeking a stay to prevent
23:06
Speaker 2: the FDA from allowing online and mail availability of the
23:10
Speaker 2: abortion drug mifepristone nationwide, even where it's legal. Joining me
23:15
Speaker 2: is Mary Ziegler, a professor at UC Davis Law School
23:19
Speaker 2: and an expert in reproductive rights. Mary, what's Louisiana asking
23:23
Speaker 2: the Fifth Circuit to do?
23:25
Speaker 3: Louisiana already has reason to think that this case will
23:28
Speaker 3: work out in their favor because the district court earlier
23:31
Speaker 3: had ruled that eventually it seems pretty likely that Louisiana
23:36
Speaker 3: will get the relief it's seeking. But the district court
23:39
Speaker 3: was going to give the Trump administration a chance to
23:42
Speaker 3: do its review of Mifepristone first.
23:45
Speaker 4: And the U.S. Supreme Court last spring.
23:47
Speaker 3: Allowed current access to Mifepristone to remain in place while
23:51
Speaker 3: that process continues. So what Louisiana is looking for here
23:55
Speaker 3: is an immediate change in access to Mifepristone while all
23:59
Speaker 3: these procedures continue. What's interesting is Louisiana acknowledges that it's
24:03
Speaker 3: already in a pretty good position and yet is still
24:05
Speaker 3: impatient for its demands to be met.
24:08
Speaker 2: During the oral arguments, did they discuss the merits or
24:12
Speaker 2: was it mostly about procedural matters like standing?
24:16
Speaker 3: It was largely about standing. There were lots of questions
24:20
Speaker 3: to the lawyer representing the FDA about whether and how
24:24
Speaker 3: the FDA had reviewed adverse event data.
24:27
Speaker 4: And the attorney.
24:29
Speaker 3: Representing the FDA consistently refused to take a position on
24:32
Speaker 3: those issues. So There was certainly some sign that the
24:37
Speaker 3: members of the Fifth Circuit were concerned about adverse event data,
24:41
Speaker 3: which makes sense given that their ruling last spring turned
24:44
Speaker 3: pretty heavily on that. But there also seemed to be
24:47
Speaker 3: a lot of skepticism among the panel members about standing
24:51
Speaker 3: and also concern about the timing of this, given that
24:54
Speaker 3: the Supreme Court had preserved existing access to Mifepristone in
24:59
Speaker 3: the present and whether that had any effect on or
25:03
Speaker 3: limit on what the Fifth Circuit could do now.
25:06
Speaker 2: Well, I mean, Judge Higginson said, there are two questions.
25:10
Speaker 2: Do we have authority to reimpose the stay? The Supreme
25:14
Speaker 2: Court has already said we can't. And second of all,
25:17
Speaker 2: if we can, is that self-defeating with your claim of
25:20
Speaker 2: irreparable harm? So, I mean, he's basically saying that they
25:23
Speaker 2: can't reimpose the stay.
25:25
Speaker 1: Exactly.
25:26
Speaker 3: And Louisiana's answer in some ways was that what the
25:29
Speaker 3: Supreme Court did before was a shadow docket ruling. So
25:33
Speaker 3: it's not really clear how the Supreme Court was thinking
25:36
Speaker 3: about these issues and the equities and standing. And while
25:39
Speaker 3: that's true, I think the panel was aware that whatever
25:44
Speaker 3: the Supreme Court concluded, it was not ultimately in Louisiana's favor.
25:48
Speaker 3: And so I think that the panel was judges at
25:51
Speaker 3: least signal that they might not be able to give
25:54
Speaker 3: Louisiana their relief it wants because of the Supreme Court's order.
25:57
Speaker 2: And in that Supreme Court case, it was based on
26:02
Speaker 2: standing that anti-abortion doctors didn't have standing?
26:07
Speaker 3: Yeah, so there are actually two things that the panel discussed.
26:10
Speaker 3: There was both a 2024 Supreme Court decision that involving
26:16
Speaker 3: another challenge to Mifepristone filed by a group of anti-abortion
26:18
Speaker 3: doctors called the Alliance for Hippocratic Medicine. And then there
26:22
Speaker 3: was an order, a shadow docket order issued by the
26:25
Speaker 3: Supreme Court last year.
26:27
Speaker 4: So one question.
26:28
Speaker 3: Was whether the standing arguments made by Louisiana were pretty
26:34
Speaker 3: much an exact match for standing arguments the court had
26:37
Speaker 3: already rejected in that 2024 case, Alliance for Hippocratic Medicine.
26:41
Speaker 3: Another question was, given that the Supreme Court had frozen
26:46
Speaker 3: in place access to mifepristone in response to a request
26:50
Speaker 3: by the drugs manufacturer, Danko, last spring, did the Fifth
26:54
Speaker 3: Circuit actually have the ability to ignore that and still
26:58
Speaker 3: give Louisiana an order immediately blocking access to mifepristone?
27:02
Speaker 4: So there's two different questions.
27:05
Speaker 3: And Louisiana tried to argue that it had a better
27:08
Speaker 3: argument for standing than the Doctors for Alliance and Hippocratic
27:11
Speaker 3: Medicine had. And they tried to argue that independently that
27:16
Speaker 3: the Supreme Court's order last spring was simply just too
27:20
Speaker 3: vague to have that binding effect on the Fifth Circuit
27:24
Speaker 3: because no one knows exactly who voted or what they
27:26
Speaker 3: were thinking or what their reasoning was. But the panel
27:29
Speaker 3: seemed leery of both of those arguments.
27:32
Speaker 2: And I mean, Louisiana is claiming that it's being harmed
27:36
Speaker 2: through Medicaid costs for treating complications? Are there Medicaid costs?
27:41
Speaker 4: Exactly.
27:42
Speaker 3: So Louisiana has a couple of different standing arguments. One
27:45
Speaker 3: of them is essentially that it's being harmed because patients
27:49
Speaker 3: suffering complications from mifepristone are going to hospitals and some
27:53
Speaker 3: of those patients are relying on state Medicaid programs. They're
27:56
Speaker 3: arguing that mifepristone is rules impede Louisiana's power as a
28:03
Speaker 3: sovereign and its ability to enforce its criminal abortion laws.
28:06
Speaker 3: And they also argue in a kind of novel claim
28:10
Speaker 3: that the FDA was targeting Louisiana by permitting telehealth access
28:16
Speaker 3: to abortion, essentially seeking deliberately to undermine Louisiana's abortion laws.
28:22
Speaker 4: So those are some of the.
28:23
Speaker 3: Theories of standing that the Fifth Circuit was considering.
28:26
Speaker 2: Has a court ever second-guessed the FDA's approval of drugs.
28:31
Speaker 3: Judges had not second-guessed the approval of other drugs. There has,
28:35
Speaker 3: I mean, obviously prior to the final resolution of the
28:39
Speaker 3: Alliance for Hippocratic Medicine case, there has been a previous
28:43
Speaker 3: effort to regulate FDA's approval and regulation of mifepristone. That's
28:51
Speaker 3: really been an outlier. And I think that was something
28:55
Speaker 3: that emerged in the The merits and adverse event reporting,
29:02
Speaker 3: an attorney for Danko made the point that the concerns
29:06
Speaker 3: that were raised about adverse event reporting and mifepristone could easily.
29:10
Speaker 4: Be applied to the approval of a lot of other drugs.
29:12
Speaker 3: So one of the other things lurking in the background
29:14
Speaker 3: here is whether the courts in general or the Fifth
29:18
Speaker 3: Circuit in particular will be setting a precedent for challenging
29:22
Speaker 3: all kinds of drug approvals if it goes down the
29:24
Speaker 3: road of allowing Louisiana to challenge mifepristone.
29:27
Speaker 4: In this way.
29:28
Speaker 2: And the Justice Department was in a strange posture. They
29:32
Speaker 2: were trying to oppose this on procedural grounds without really
29:36
Speaker 2: giving the court enough information about what was happening at
29:39
Speaker 2: the time.
29:40
Speaker 4: FDA? That's right.
29:42
Speaker 3: So the FDA's attorney was clearly in a very awkward
29:46
Speaker 3: spot and had been instructed to not say anything about
29:50
Speaker 3: the merits, no matter what the judges on the Fifth
29:52
Speaker 3: Circuit asked, and would pretty much just repeat arguments that
29:56
Speaker 3: about standing and ask the court to allow the FDA
30:00
Speaker 3: to continue its review of mifepristone without judicial intervention. This
30:05
Speaker 3: did lead to some kind of weird and awkward moments where,
30:08
Speaker 3: you know, the attorney for the FDA was refusing to
30:11
Speaker 3: answer questions about the FDA's statutory authority and other things that,
30:15
Speaker 3: you know, would easily come within the expertise of the FDA.
30:19
Speaker 3: So it was another, I think, reminder that the Trump
30:22
Speaker 3: administration has been in a kind of political bind when
30:26
Speaker 3: it comes to Mifepristone, because clearly the administration doesn't want
30:30
Speaker 3: anything changing with respect to Mifepristone before the midterm, because
30:34
Speaker 3: that could cause political backlash, but also doesn't want to
30:37
Speaker 3: take any position defending the current rules on Mifepristone either.
30:43
Speaker 3: So that kind of rock in a hard place reality
30:46
Speaker 3: was on full display at the argument.
30:49
Speaker 2: I mean, is there a danger that the FDA might
30:52
Speaker 2: reverse itself during the Trump administration?
30:55
Speaker 4: Absolutely.
30:56
Speaker 3: I don't think there's much of a danger of that
30:58
Speaker 3: happening prior to the midterm. The Trump administration has actually
31:02
Speaker 3: said as much. But I think there's a danger both
31:06
Speaker 3: because the Trump administration has been under pressure from abortion
31:09
Speaker 3: opponents to change the rules on Mipperstone for some time,
31:13
Speaker 3: and also because, frankly, the courts are putting a lot
31:15
Speaker 3: of pressure on the Trump administration.
31:17
Speaker 4: So the district court in.
31:20
Speaker 3: That as litigation in this case continues, that court is
31:24
Speaker 3: leaning toward granting Louisiana the relief it seeks if the
31:27
Speaker 3: Trump administration doesn't give Louisiana what it wants. So the
31:31
Speaker 3: Trump administration is facing both political pressure and judicial pressure.
31:36
Speaker 3: So while I don't think it's likely we're going to
31:39
Speaker 3: see anything change before November, after the midterm, I think,
31:44
Speaker 3: is a very different story.
31:46
Speaker 2: Let's say this appellate panel, which leans— moderate at least,
31:51
Speaker 2: a Biden appointee, an Obama appointee, and a George W.
31:55
Speaker 2: Bush appointee. Say they deny the stay to Louisiana. What
31:59
Speaker 2: happens then?
32:00
Speaker 3: Well, so my understanding is that this is still seeking
32:04
Speaker 3: a stay, right? More like temporary relief as the litigation continues.
32:11
Speaker 3: So the district court independently has given the Trump administration
32:15
Speaker 3: an October deadline to report on its progress in in
32:19
Speaker 3: this study. And while this is a merits panel for
32:24
Speaker 3: the Fifth Circuit, what the Fifth Circuit is deciding is
32:26
Speaker 3: just whether to block access to Mifepristone during the litigation.
32:30
Speaker 3: This isn't the only question that'll be before the courts.
32:34
Speaker 3: So there's still ongoing action in the district court as
32:37
Speaker 3: the Fifth Circuit is confronting this question. So one way
32:41
Speaker 3: or another, this case will end up back at the U.S.
32:44
Speaker 3: Supreme Court on the merits eventually. If Louisiana doesn't get
32:48
Speaker 3: the relief it wants from the Fifth Circuit, it could
32:50
Speaker 3: appeal that to the U.S.
32:52
Speaker 4: Supreme Court.
32:53
Speaker 3: But there's the independent question of what the district court
32:56
Speaker 3: is going to do as the case moves forward. So,
32:59
Speaker 3: and that's one of the reasons this is sort of
33:01
Speaker 3: a weird case. And what the Fifth Circuit was asking is,
33:04
Speaker 3: you know, you're asking us to temporarily block access to Mifepristone,
33:10
Speaker 3: while the case continues.
33:11
Speaker 4: And the Supreme Court already seems to have said no
33:14
Speaker 4: to that.
33:15
Speaker 3: So it's kind of a strange case in the sense
33:17
Speaker 3: that Louisiana seems to be back asking the Fifth Circuit
33:21
Speaker 3: for something the Supreme Court already refused, as opposed to
33:24
Speaker 3: the case just continuing in its logical order toward a conclusion.
33:27
Speaker 2: This is a little confusing. Has the district court held
33:30
Speaker 2: a trial yet?
33:31
Speaker 3: What had happened was that the FDA had asked for
33:35
Speaker 3: a pause to review safety data for involving Mifepristone. And
33:42
Speaker 3: the judge granted that request and asked the Trump administration
33:47
Speaker 3: for an update in October about how the, you know,
33:50
Speaker 3: the study was going and said, essentially, if there weren't
33:53
Speaker 3: enough signs of progress for the judge's satisfaction, that they
33:57
Speaker 3: may then grant Louisiana's request to immediately.
34:00
Speaker 4: Ban telehealth prescriptions.
34:02
Speaker 3: So what is coming next is that we're expecting some
34:05
Speaker 3: kind of update from the FDA in October pursuant to
34:10
Speaker 3: that Judge David Joseph's request. And then we'll see what
34:14
Speaker 3: the district court does with that and what.
34:16
Speaker 4: The FDA actually says.
34:18
Speaker 3: So there would eventually be a trial unless the Trump
34:22
Speaker 3: administration makes one unnecessary. But where we are at the
34:25
Speaker 3: district court at the moment is that the district court
34:27
Speaker 3: is giving the Trump administration that time to complete the study.
34:31
Speaker 2: What do you think will happen if or when this
34:34
Speaker 2: goes back to the Supreme Court, you know, on the merits?
34:37
Speaker 3: It depends on what comes back to the Supreme Court.
34:39
Speaker 3: I mean, I think if if the exact same questions
34:42
Speaker 3: the Supreme Court ruled on last spring were pretty close
34:45
Speaker 3: to the exact same questions come to the court again,
34:48
Speaker 3: we're likely to see the same result.
34:50
Speaker 1: Right.
34:50
Speaker 3: Which is the court is going to let access to
34:52
Speaker 3: it for Stone stay in place while the case continues.
34:55
Speaker 3: What happens when the case comes back to the court
34:57
Speaker 3: again later in the litigation is anybody's guess, right?
35:00
Speaker 4: We have no idea what motivated.
35:02
Speaker 3: The court's decision last spring because it was a shadow
35:05
Speaker 3: docket ruling. And we don't know if the court would
35:08
Speaker 3: rule differently if the FDA study, for example, was actually completed.
35:13
Speaker 3: One possibility is that the court agreed with the district
35:17
Speaker 3: judge and thought it would be better to let the
35:19
Speaker 3: FDA process play out before intervening. So it's not clear
35:25
Speaker 3: what the Supreme Court will do. I think it's unlikely
35:28
Speaker 3: that either the Fifth Circuit or the Supreme Court would
35:30
Speaker 3: grant Louisiana what it wants right now. But that doesn't
35:34
Speaker 3: mean Louisiana won't have better odds later. I think they
35:38
Speaker 3: have very good chance in the district court if the
35:41
Speaker 3: Trump administration doesn't put limits on it for pristine telehealth access.
35:45
Speaker 3: I think that's probably true depending on the panel in
35:47
Speaker 3: the Fifth Circuit.
35:48
Speaker 4: It may be true in the U.S. Supreme Court, too.
35:50
Speaker 3: So I think At the moment, Louisiana is probably not
35:53
Speaker 3: going to get anywhere, but that's not forever in this case.
35:56
Speaker 3: That's just because Louisiana is kind of asking for a
36:00
Speaker 3: do-over in terms of immediately blocking Mifepristone as opposed to
36:04
Speaker 3: down the line.
36:06
Speaker 2: And it's your guess that the Trump administration will do
36:08
Speaker 2: something to change the rules on Mifepristone.
36:12
Speaker 3: There's not really, I think, in my mind, that much
36:15
Speaker 3: of a question that the Trump administration will eventually do
36:17
Speaker 3: something on Mifepristone. I think the question, they may not
36:21
Speaker 3: have a choice because of the courts. And I think
36:23
Speaker 3: the question just is what and how much they actually
36:25
Speaker 3: put effort into enforcing new limits.
36:28
Speaker 2: And do you see a way for the blue states
36:30
Speaker 2: to get around this practically?
36:31
Speaker 3: Well, I think blue states are going to, if the
36:35
Speaker 3: Trump administration does this, try to make political hay out
36:40
Speaker 3: of it.
36:40
Speaker 4: This would be a deeply unpopular move.
36:44
Speaker 3: And of course, as we've already seen from the Trump administration,
36:47
Speaker 3: it would make abortion into a major election issue in 2028,
36:50
Speaker 3: because whoever is in the White House would reshape what
36:53
Speaker 3: the FDA is doing. It seems pretty clear that what
36:56
Speaker 3: the FDA is doing here is politically motivated. The Trump
36:59
Speaker 3: administration has been responding to a pretty steady drumbeat of
37:03
Speaker 3: pressure from you know, pro-life groups, Republican lawmakers and the like.
37:07
Speaker 3: So I think most likely you would not see an
37:10
Speaker 3: immediate change, although there would be a lot of pressure
37:13
Speaker 3: on the Trump FDA not to put a lot.
37:15
Speaker 4: Of resources into enforcing new limits on Mifepristone.
37:18
Speaker 3: I think there would also be a pretty big effort
37:20
Speaker 3: from blue state lawmakers and Democratic presidential candidates to make
37:26
Speaker 3: abortion into a major election issue in 2028. And I
37:29
Speaker 3: think that would probably work in a way it hadn't
37:30
Speaker 3: in 2024.
37:32
Speaker 4: Because if the Trump administration does this.
37:34
Speaker 3: There would be a new national limit on abortion that
37:37
Speaker 3: would be the responsibility of Republicans, right? Which was not
37:41
Speaker 3: true in 2024.
37:42
Speaker 2: It's an issue that never seems to be resolved. Thanks
37:46
Speaker 2: so much for the discussion, Mary. That's Professor Mary Ziegler
37:49
Speaker 2: of UC Davis Law School. And that's it for this
37:52
Speaker 2: edition of the Bloomberg Law Show. Remember, you can always
37:55
Speaker 2: get the latest legal news on our Bloomberg Law Podcast.
37:58
Speaker 2: You can find them on Apple Podcasts, Spotify, and at
38:01
Speaker 2: www.bloomberg.com slash podcast slash law. And remember to tune into
38:07
Speaker 2: the Bloomberg Law Show every weeknight at 10 p.m. Wall
38:11
Speaker 2: Street time. I'm June Grosso, and you're listening to Bloomberg.