Latest / Bloomberg Law / Weekend Law: Trump and SCOTUS, Facebook Suit & Abortion Access

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Weekend Law: Trump and SCOTUS, Facebook Suit & Abortion Access · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: Well, I don't want to dwell on things that fall
0:12
Speaker 2: out of the sky, but what about the situation where
0:14
Speaker 2: the fire is caused by something that's utterly freakish, Something
0:19
Speaker 2: fell a media meteorite fell out of the sky, or
0:23
Speaker 2: some crazy person who was hearing voices decided that that
0:27
Speaker 2: person was going to go throw a Molotov cocktail in
0:30
Speaker 2: the window of this plant.
0:32
Speaker 3: But the justices did dwell on some unusual hypotheticals involving
0:37
Speaker 3: meteor strikes, molotov cocktails, and space trash. You might not guess.
0:42
Speaker 3: The issue before the Supreme Court was what information companies
0:46
Speaker 3: have to disclose about past events when warning investors about
0:51
Speaker 3: future risks. Meta's Facebook is trying to get out of
0:54
Speaker 3: a multi billion dollar securities fraud lawsuit accusing it of
0:58
Speaker 3: painting the risk of the authorized use of user data
1:02
Speaker 3: as hypothetical in twenty sixteen SEC filings, when in fact,
1:06
Speaker 3: the company knew that political consulting firm Cambridge Analytica had
1:11
Speaker 3: already accessed information on thirty million users in twenty fifteen,
1:17
Speaker 3: Justice Neil Gorsk suggested that reasonable investors know about the
1:21
Speaker 3: risk of data breaches at large companies. I think China
1:25
Speaker 3: probably has all of our FBI files, you know.
1:28
Speaker 2: I mean, data breaches are part of our lives these days.
1:32
Speaker 3: But some of the liberal justices, particularly Elena Kagan, indicated
1:37
Speaker 3: that investors need to know about misleading statements. There are
1:41
Speaker 3: a range of ways in which these forward looking statements
1:46
Speaker 3: can be misleading as to things that have occurred in
1:49
Speaker 3: the past. Joining me is securities law expert James Park,
1:52
Speaker 3: a professor at UCLI Law School. Jim tell us about
1:56
Speaker 3: this suit against Facebook.
1:57
Speaker 4: So this is a lawsuit class action brought on behalf
2:00
Speaker 4: of investors of Facebook. Now it's meta for Facebook, as
2:05
Speaker 4: with other public companies, issues periodic disclosures the form ten
2:11
Speaker 4: K on a yearly basis, the ten ques, and these
2:14
Speaker 4: typically have a lot of disclosures about risk which are
2:18
Speaker 4: required by the SEC. And so the idea behind these
2:21
Speaker 4: risk disclosures is that you're warning investors this is the
2:25
Speaker 4: risk of investing in Facebook stock. And one of those
2:29
Speaker 4: risk disclosures basically said that there could be a risk
2:35
Speaker 4: of unauthorized access to user data that could damage Facebook.
2:40
Speaker 4: And the reason why the planifs are saying this is
2:43
Speaker 4: maturely misleading. Is that at the time Facebook made this statement,
2:48
Speaker 4: it knew about a fairly large breach by a political
2:54
Speaker 4: consulting firm called Cambridge Analytica of user data. And so
2:59
Speaker 4: what the plantiffs are arguing is that you said that
3:02
Speaker 4: unauthorized access could be a risk when you knew there
3:07
Speaker 4: was a very significant unauthorized access at the time you
3:12
Speaker 4: issued that risk disclosure. That's essentially what the securities class
3:16
Speaker 4: action is dependent on.
3:18
Speaker 3: So let's talk about the argument. And there were a
3:21
Speaker 3: lot of strange hypotheticals thrown around. What were the concerns
3:25
Speaker 3: of the justices.
3:26
Speaker 4: I think one concern is that companies issue a lot
3:30
Speaker 4: of risk disclosures about many different things. And you know,
3:34
Speaker 4: one of the concerns that the justices are grappling with
3:38
Speaker 4: is that if we say there's liability in this case,
3:42
Speaker 4: so that mean that for almost every type of risk
3:45
Speaker 4: disclosure that is being issued, that a lawsuit could come
3:50
Speaker 4: up if you phrase things in the wrong way, if
3:53
Speaker 4: you know there's something that happens relating to that risk,
3:56
Speaker 4: and so there may be too much liability there, and
3:59
Speaker 4: you know the effect that that may be that companies
4:01
Speaker 4: will just issue very vague risk disclosures that don't say anything.
4:06
Speaker 4: They may not issue risk disclosures at all. Right, if
4:08
Speaker 4: I make you liable for a misleading risk disclosure, then
4:13
Speaker 4: maybe I won't issue that risk disclosure at all in
4:16
Speaker 4: the future. I think that's a concern, and I think
4:19
Speaker 4: they're also just concerned that the rule seems to be
4:21
Speaker 4: unclear here and it's tough for companies to navigate. You know,
4:26
Speaker 4: what you have to disclose and when you have to
4:28
Speaker 4: disclose it, And you know, there's a concern here that
4:31
Speaker 4: we don't want to create a general duty to update
4:34
Speaker 4: everything in these disclosures, because there's so much in any
4:39
Speaker 4: SEC disclosure that it may be impossible to constantly update
4:44
Speaker 4: every single aspect of it.
4:46
Speaker 3: Is the question how much to disclose of the past
4:51
Speaker 3: in the present, You know, if you don't think the
4:53
Speaker 3: past is going to affect the future, I mean, what's
4:56
Speaker 3: the exact issue.
4:57
Speaker 4: I think what Facebook would say is the are primarily
5:01
Speaker 4: forwardlooking statement. They are predictions, and so they're not really
5:05
Speaker 4: meant to guarantee every single thing about past event. I
5:09
Speaker 4: think that they're saying that we're making no guarantee that
5:13
Speaker 4: there has been no unauthorized access to user accounts, And
5:18
Speaker 4: in fact, I think they would say, of course, of
5:20
Speaker 4: course there have been some abuses of Facebook privacy policies,
5:24
Speaker 4: and everyone would know that at the time the risk
5:27
Speaker 4: disclosure had been made. And I think Facebook is making
5:30
Speaker 4: a fairly subtle argument here, which was to say that
5:33
Speaker 4: it's true that we knew that there was an unauthorized
5:37
Speaker 4: access by Cambridge Analytica. What we didn't know is that
5:41
Speaker 4: it would affect our business so much. We had no
5:44
Speaker 4: way of knowing that, and essentially we have no way
5:48
Speaker 4: of predicting the future. We just didn't know that there
5:50
Speaker 4: was an event that would eventually cause significant economic damage
5:55
Speaker 4: to Facebook. We made no implicit representation about the past
6:00
Speaker 4: in this particular disclosure. It's more of a forward looking disclosure.
6:03
Speaker 3: In this case a hypothetical from Justice Kagan. A lot
6:07
Speaker 3: of the justices kept coming back to it. A company
6:10
Speaker 3: discloses a risk of fire, but doesn't disclose that there
6:14
Speaker 3: had recently been a fire that destroyed fifty percent of
6:17
Speaker 3: the plant.
6:18
Speaker 4: Yes, that's a great hypothetical, and I think it pushes
6:22
Speaker 4: back upon sort of Facebook statement that these statements do
6:26
Speaker 4: not make implicit representations about past events, because implicit in
6:31
Speaker 4: the risk of a fire in a building is that
6:34
Speaker 4: the building is still there. I think that's one implicit recognition,
6:37
Speaker 4: and I think there's also a recognition that there's not
6:40
Speaker 4: a known high risk of the building burning down. And
6:44
Speaker 4: I think that investors will want to know if there's
6:46
Speaker 4: a very very high risk that the building is so
6:50
Speaker 4: unsafe that we know it's very likely that it would
6:54
Speaker 4: burn down. What she's arguing here is that, you know,
6:58
Speaker 4: we should be required companies when they make these risk
7:01
Speaker 4: disclosures to also speak completely and disclose risks that they
7:07
Speaker 4: know about that they can calculate with some reasonable assurance.
7:11
Speaker 4: And that's where Justice Keigan may come out.
7:15
Speaker 3: At the end of the day, Justice Brett Cavanaugh asked,
7:18
Speaker 3: why can't the SEC just write a regulation?
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Speaker 5: I mean, why is the judiciary have to walk the
7:23
Speaker 5: plank on this and answer that question when the SEC
7:28
Speaker 5: could do it with all the uncertainty and all the
7:30
Speaker 5: hypotheticals that have arisen, which, in turn, at least as
7:33
Speaker 5: I see it, just speaking for myself, raises a lot
7:36
Speaker 5: of questions for companies about what they have to disclose
7:38
Speaker 5: and what they don't.
7:39
Speaker 3: And the Chief Justice and Justice Amy Coney Barrett seem
7:43
Speaker 3: to agree with that. I mean, why can't the SEC
7:46
Speaker 3: write a regulation?
7:47
Speaker 4: They could, but it's difficult to write good regulations, and
7:52
Speaker 4: I think that the more general the regulation is, the
7:55
Speaker 4: easier it is for the SEC. That's one reason the
7:59
Speaker 4: SEC is not adding more specificity. It's also easier though,
8:03
Speaker 4: I think for public companies, right, the more specific you
8:07
Speaker 4: write the regulations, then you know the company is going
8:10
Speaker 4: to have to dig out all of this specific information
8:13
Speaker 4: and that could be overly burdensome. And so sometimes corporations
8:16
Speaker 4: want fairly vague disclosure requirements that they have some discretion
8:22
Speaker 4: to comply with. And that's the whole idea behind principle
8:25
Speaker 4: based regulation, which a lot of you know, what you
8:28
Speaker 4: might think of as conservatives, have advocated for SEC regulation.
8:32
Speaker 4: But I think Justice Kavanaugh has a good point, which
8:35
Speaker 4: is that you know, if you are leaving this to
8:38
Speaker 4: lawsuits to define, then you know courts, which are not
8:42
Speaker 4: experts in these matters, have to make these very difficult,
8:45
Speaker 4: complicated determinations of what should be disclosed. It also gives
8:49
Speaker 4: a sense of regulation by enforcement, where lawsuits are being
8:54
Speaker 4: used to regulate companies after the fact, and that's a
8:58
Speaker 4: running theme of out both lawsuits by private litigants as
9:03
Speaker 4: well as lawsuits by the Securities and Exchange Commissions. So
9:07
Speaker 4: he asked a very good question. But I think that
9:11
Speaker 4: there are some pressures that make it difficult for the
9:14
Speaker 4: SEC to specify completely what the disclosures do look like.
9:20
Speaker 4: And so what we have is a very imperfect system
9:22
Speaker 4: where you know, these issues get fleshed out in lawsuits,
9:26
Speaker 4: and often the lawsuits are settled, so we never even
9:29
Speaker 4: actually resolved what was required. So, you know, the requirements
9:34
Speaker 4: of disclosure for public companies, there's not clear didaces. It's
9:38
Speaker 4: a lot of discretion, it's a lot of judgment that
9:42
Speaker 4: is required in order to craft good disclosures. And I
9:46
Speaker 4: think there's you know, some resentment by public corporations that
9:50
Speaker 4: you have private enforcers who have a monetary incentive to
9:54
Speaker 4: sue whenever they find something wrong in a company's disclosures.
9:58
Speaker 4: And you know, you have to pay a lot of
10:00
Speaker 4: money sometimes to settle these lawsuits because you don't want
10:03
Speaker 4: to risk them going to trial. Now, you know. One
10:06
Speaker 4: point I would add, though, is that in addition to
10:08
Speaker 4: this private class action, the SEC brought a case against
10:11
Speaker 4: Facebook for I believe essentially the same disclosure, and they
10:16
Speaker 4: alleged that they were materially misleading. And Facebook actually settled
10:20
Speaker 4: that case for one hundred million dollars. So the SEC
10:23
Speaker 4: also has been asserting and pushing this particular theory as well.
10:28
Speaker 3: Do you have any feel from the oral arguments about
10:31
Speaker 3: how they might rule.
10:32
Speaker 4: I think it'll be a very sacked specific decision. I
10:36
Speaker 4: think that the court understands that this is a really
10:42
Speaker 4: really hard issue and the Supreme Court is not qualified
10:46
Speaker 4: to write very detailed disclosure rules, and so I think
10:50
Speaker 4: they will try to limit the case to its fact.
10:54
Speaker 4: It's a tough one. It's really tough to predict which
10:57
Speaker 4: way they're going to go. I suspect maybe a majority
11:00
Speaker 4: party will side with Facebook. You know that this is
11:03
Speaker 4: a case where sure they knew there was a breach,
11:06
Speaker 4: but they didn't know it would impact the company's business
11:10
Speaker 4: as much as it did, and therefore the risk disclosure
11:14
Speaker 4: was not materially misleading. Now it's possible though some of
11:17
Speaker 4: the justices will buy the Plane's response. Basically, their response
11:20
Speaker 4: is that, Okay, you must have known that, given the
11:23
Speaker 4: size of the breach, that it was going to really
11:25
Speaker 4: affect your reputation at the time you made that statement,
11:29
Speaker 4: and therefore the risk disclosure was misleading. What you should
11:32
Speaker 4: have done when you wrote the disclosure was acknowledged, Hey,
11:36
Speaker 4: we have this very, very unprecedented significant reach of millions
11:40
Speaker 4: and millions of users data. That's disclosure you should have written.
11:44
Speaker 4: But I think it's going to be a close one,
11:46
Speaker 4: and I think there could be some disagreement, But what
11:48
Speaker 4: I am confident of is it's going to be a
11:50
Speaker 4: fairly backed specific decision.
11:52
Speaker 3: Did you see a split between the conservatives and the liberals.
11:56
Speaker 4: Somewhat, although some of the conservatives I wasn't quite sure
12:00
Speaker 4: or which way they were going. You know, Justice Thomas
12:03
Speaker 4: starts out and ask some questions that I thought were
12:05
Speaker 4: leaning a little bit towards the plaintiffs. You know, Justice
12:09
Speaker 4: Tavanaugh's question is more just about why are we even
12:11
Speaker 4: deciding this in the first place. You know, I do
12:14
Speaker 4: think the liberal justices probably seem to be mostly sympathetic
12:18
Speaker 4: to the question. And you know, Justice Alito has thought
12:21
Speaker 4: a lot about these issues. He decided a few cases
12:24
Speaker 4: when he was on the Third Circuit. I tend to
12:26
Speaker 4: believe Alito, based on the Burlington Cope Factory's decision would
12:30
Speaker 4: be less inclined to say that those disclosures were misleading.
12:34
Speaker 4: But I could be wrong on that. It's hard for
12:37
Speaker 4: me to say, but I think you could see some
12:40
Speaker 4: coalescing that might break down under conservative and liberal.
12:44
Speaker 6: Sort of life.
12:44
Speaker 3: Thanks for joining me, Jim. That's Professor James Park of
12:48
Speaker 3: UCLA Law School. There's been a lot of speculation that
12:51
Speaker 3: in a second term, Donald Trump could create a High
12:54
Speaker 3: Court with a Trump appointed conservative majority that could serve
12:59
Speaker 3: for decades. After all, Trump appointed three Supreme Court justices
13:03
Speaker 3: in his first term who've made up a super majority
13:06
Speaker 3: that moved the Court for to the right. But it
13:09
Speaker 3: was the deaths of Justices Antonin Scalia and Ruth Bader
13:13
Speaker 3: Ginsburg and the retirement of Justice Anthony Kennedy that opened
13:17
Speaker 3: those vacancies. Of course, with the help of then Senate
13:21
Speaker 3: Majority Leader Mitch McConnell, who blocked President Barack Obama's nominee
13:26
Speaker 3: Merrick Garland and pushed Amy Coney Barrett's confirmation through in
13:30
Speaker 3: record time. It would take two justices leaving the bench
13:34
Speaker 3: for Trump to be able to claim having nominated a
13:37
Speaker 3: majority of justices on the Court matching the record of
13:41
Speaker 3: President Dwight D. Eisenhower joining me his constitutional law expert
13:45
Speaker 3: David Super, a professor at Georgetown Law. David, there's a
13:48
Speaker 3: lot of speculation that one or two of the oldest justices,
13:55
Speaker 3: the super Conservatives actually seventy six year old Clarence Thomas
13:59
Speaker 3: and seventy five four year old Samuel Alito, could retire
14:03
Speaker 3: and give Trump a chance to put younger conservatives on
14:07
Speaker 3: the court. Do you think that's likely.
14:09
Speaker 7: I'm not sure that it is. They both show every
14:12
Speaker 7: sign of enjoying their jobs. Progressives don't like how they're
14:16
Speaker 7: doing their jobs, but their opinions remain sharp. When they
14:20
Speaker 7: choose to speak from the bench, they make sense, so
14:24
Speaker 7: I can certainly imagine them feeling like they want to
14:27
Speaker 7: keep doing this well.
14:28
Speaker 3: Thomas, The New York Times reported that he once told
14:32
Speaker 3: a former clerk that he intended to stay on the
14:34
Speaker 3: bench until twenty thirty four. The Liberals made my life
14:38
Speaker 3: miserable for forty three years, and I'm going to make
14:40
Speaker 3: their lives miserable for forty three years. So we have
14:43
Speaker 3: some time yet before he considers retirement. I suppose. On
14:47
Speaker 3: the liberal side, there have also been renewed calls for
14:51
Speaker 3: seventy year old Justice Sonia Soto Majord to retire before January,
14:56
Speaker 3: so President Biden and the Democratic controlled Senate can quickly
15:01
Speaker 3: confirm a successor. I don't know about quickly, but that
15:05
Speaker 3: whole scenario seems unlikely to me.
15:07
Speaker 7: Yeah, I can't imagine that she would do that, and
15:10
Speaker 7: I think it would be a foolish move to try.
15:12
Speaker 7: There was talk about their good Marshal retiring after Jimmy
15:17
Speaker 7: Carter lost for reelection, and I think cooler heads prevailed
15:21
Speaker 7: there and recognized that that couldn't be done in a snap.
15:25
Speaker 6: Now.
15:26
Speaker 7: I can't imagine that Senator Mansion or Senator Cinema would
15:30
Speaker 7: be okay with this sort of a process at this point,
15:33
Speaker 7: and without them you can't do anything.
15:35
Speaker 3: As far as future judicial appointments, there have been reports
15:40
Speaker 3: that Trump complained about his first term appointees being too
15:44
Speaker 3: independent and not being loyal enough to him, and you know,
15:49
Speaker 3: reportedly has fallen out with the Federalist Society, which basically
15:53
Speaker 3: chose his judicial appointments during his first term. So what
15:57
Speaker 3: do you expect from Trump as far as future judicial appointments.
16:02
Speaker 7: I think he's not especially focused personally on the courts.
16:07
Speaker 7: He's not a lawyer. He's never shown a lot of
16:09
Speaker 7: interest in it. So my suspicion is that he will
16:13
Speaker 7: go back to the federal of society. Perhaps not gives
16:16
Speaker 7: them as celebrated and formal a role in the process,
16:20
Speaker 7: but we will basically be getting more said sock.
16:23
Speaker 3: Judges and more ideologues. It seems like even the judges
16:27
Speaker 3: that he did appoint were ideologues more than respected jurists.
16:33
Speaker 7: He appointed a arrange. Some of his appointments are splendid judges,
16:37
Speaker 7: some of them are skilled ideologs, and some of them
16:41
Speaker 7: are rather lost. I'm guessing the new round rule will
16:44
Speaker 7: include some in each of those piles.
16:47
Speaker 3: Now, the Biden administration has taken positions in certain cases
16:51
Speaker 3: before the Supreme Court, and we can anticipate that the
16:55
Speaker 3: Trump administration has opposing views and will want to back
16:59
Speaker 3: out of those positions. How often does it happen that
17:02
Speaker 3: new administration changes positions in cases before the Court.
17:08
Speaker 7: It's become more and more frequent over time. Once upon
17:13
Speaker 7: a time, it was considered shocking enough that the Supreme
17:17
Speaker 7: Court would appoint a lawyer to argue the case as
17:21
Speaker 7: friend of the Court, representing the position of the prior administration.
17:26
Speaker 7: These days there's less of that. I think it is
17:29
Speaker 7: understood by the justices that this is what happens in
17:33
Speaker 7: a society where views on law have become very polarized.
17:37
Speaker 3: Actually, in twenty eighteen, Justice so To Mayor seemed to
17:39
Speaker 3: criticize Drum Solicitor General No Francisco for urging the Court
17:44
Speaker 3: to overturn a precedent that allowed public sector unions to
17:49
Speaker 3: collect fees from non union members, when the Obama administration
17:53
Speaker 3: had argued in a prior case that it should be upheld.
17:57
Speaker 4: This is such a radical new position.
17:59
Speaker 6: On your court.
18:00
Speaker 5: I don't think mister General, By the way, how many
18:03
Speaker 5: times this term already have you flipped positions from prior administration?
18:08
Speaker 5: Your honor may be, how many, your honor?
18:13
Speaker 6: I think that we have revised the position in so
18:16
Speaker 6: far three cases, but.
18:17
Speaker 3: The Court ended up siding with the Trump administration and
18:20
Speaker 3: overturning the forty year old president. Transgender rights is one
18:24
Speaker 3: area where it seems likely that a Trump administration will
18:29
Speaker 3: want to change positions. The Biden administration is fighting a
18:33
Speaker 3: Tennessee law that bans medical treatments for adolescence with gender dysphoria.
18:39
Speaker 3: Arguments are scheduled for December fourth, well before inauguration day.
18:44
Speaker 7: What might happen in that case, Well, the Trump administration
18:48
Speaker 7: has a couple of options. One is that they can
18:52
Speaker 7: ask the court to reopen it to allow supplemental briefing.
18:57
Speaker 7: Whether the Court would be inclined to slow itself down
19:00
Speaker 7: to allow that is debatable. Second, they can simply declare
19:04
Speaker 7: that their allegiance are on the other side and rely
19:07
Speaker 7: on the briefs that we're opposing what the Biden administration advocated.
19:11
Speaker 7: They can also express the intent to take executive action
19:15
Speaker 7: to reverse federal regulations, but that can't be done instantly.
19:22
Speaker 7: The court could decide the case and let them take
19:25
Speaker 7: their own action through due course, or the court could
19:28
Speaker 7: suspend the case to give them time to act. Or
19:31
Speaker 7: the court could decide not to issue a ruling because
19:35
Speaker 7: it expects the issue to go away.
19:37
Speaker 3: The federal government already argued a case over ghost guns
19:42
Speaker 3: to keep regulations for ghost guns on the books, so
19:46
Speaker 3: that's already been fully briefed and argued. Now it's anticipated
19:50
Speaker 3: that the Trump administration might oppose those regulations. What happens there?
19:55
Speaker 3: Do they just pull the regulations?
19:57
Speaker 7: Well, you can't just pull the regulation. The Administrative Procedure
20:01
Speaker 7: Act and the Supreme Court have been very clear that
20:04
Speaker 7: you have to go through the same procedure to remove
20:07
Speaker 7: regulations that you did to create them. So it would
20:12
Speaker 7: take a certain amount of time, probably a year, even
20:15
Speaker 7: if they move very quickly to get rid of those regulations.
20:20
Speaker 7: This is a case where the conservative le legenda has
20:23
Speaker 7: a somewhat ironic impact in that a year ago, the
20:27
Speaker 7: administration changing its views on how the statute should be
20:31
Speaker 7: interpreted would be entitled a considerable weight. But today, because
20:36
Speaker 7: the Supreme Court got rid of Chevron, the administration is
20:39
Speaker 7: not entiled to any deference anyway. So one can well
20:42
Speaker 7: imagine the Court saying, we really don't care if you've
20:45
Speaker 7: changed your position, really.
20:46
Speaker 3: Just ignoring the Trump administration.
20:49
Speaker 7: Well, we're very early in the post Chevron world. There
20:53
Speaker 7: always was deference. The administration's position mattered a great deal.
20:58
Speaker 7: But the Court went at great lengths last spring to
21:01
Speaker 7: tell us that Congress did not intend administration views to
21:06
Speaker 7: get any special weight in interpreting laws. And on that basis,
21:11
Speaker 7: one could well imagine the Court simply going ahead and
21:14
Speaker 7: deciding the case and saying that the administration wants to
21:17
Speaker 7: go through the procedures to remove the regulations, they're free
21:21
Speaker 7: to do so. But what the administration might or might
21:24
Speaker 7: not try to do or succeed in doing in the
21:26
Speaker 7: future doesn't stop the Court from deciding the case.
21:29
Speaker 3: In front of it, And the Court's conservatives have been
21:32
Speaker 3: basically reining in federal agencies. Do you think that we'll
21:37
Speaker 3: still see that kind of aggressive attack on regulatory agencies
21:41
Speaker 3: by the Court in a Trump administration, which may be
21:45
Speaker 3: using agencies to affect some of these broad changes.
21:50
Speaker 7: I think different justices will have a different view. Chief
21:53
Speaker 7: Justice Roberts has very little patients for sloppy in coombe
21:57
Speaker 7: and agency work, whichever ideology the agency has, and when
22:03
Speaker 7: presented with dishonest or incompetent agency actions in the first
22:09
Speaker 7: Trump administration, did not hesitate to strike it down, so
22:13
Speaker 7: I would expect he would be continued inclined to look
22:16
Speaker 7: closely at agencies and whether they're dotting their eyes and
22:20
Speaker 7: crossing their t's. Some of the other justices probably will
22:24
Speaker 7: feel that a lower level of scrutiny should be applied
22:28
Speaker 7: to deregulatory actions and was applied to regulatory actions.
22:32
Speaker 3: Some disputes coming up involve the EPA, whether fights over
22:36
Speaker 3: certain clean air regulations can be heard by circuit courts.
22:40
Speaker 3: How might the Trump administration handle that case.
22:44
Speaker 7: That's harder to know because that's an issue of process
22:49
Speaker 7: that has implications that go far beyond the current or
22:53
Speaker 7: next administrations. So one could imagine that the Trump administration,
23:00
Speaker 7: although it's view on the ultimate merits may be different,
23:04
Speaker 7: might not feel that that's a high priority to expend
23:08
Speaker 7: its credibility with the court by switching positions, and may
23:12
Speaker 7: see some benefit to staying out of it or not
23:16
Speaker 7: disrupting what the Biden administration did.
23:19
Speaker 3: Have you heard any rumors about who might be the
23:21
Speaker 3: solicitor General?
23:23
Speaker 7: I have not.
23:24
Speaker 3: I have not either, and I can't believe that because
23:26
Speaker 3: I've heard rumors about many other high level positions that
23:30
Speaker 3: will have to be filled.
23:32
Speaker 7: I think that the new administration is going to want
23:35
Speaker 7: someone competent and credible, and so what you hear, at
23:40
Speaker 7: least what I hear about various other positions are people
23:44
Speaker 7: who may not be especially skilled or especially respected, but
23:49
Speaker 7: are very close with Trump circles and with the former president.
23:54
Speaker 7: I would expect the new solicitor general would be an
23:57
Speaker 7: extremely conservative lawyer, but not necessarily someone who Trump knows.
24:02
Speaker 3: There's going to be a lot to watch at the
24:04
Speaker 3: Supreme Court next year. It's always a pleasure to talk
24:06
Speaker 3: to you, David. That's Professor David super of Georgetown Law.
24:10
Speaker 3: Coming up next on the Bloomberg Law Show. How ballot
24:13
Speaker 3: measures will change access to abortion in seven states. I'm
24:17
Speaker 3: June Grosso and this is Bloomberg.
24:20
Speaker 1: We've done something on abortion that nobody thought was possible.
24:24
Speaker 1: And I give those three brilliant if you think about it,
24:28
Speaker 1: and it's six but the three that we put in,
24:30
Speaker 1: but six brilliant justices of the United States Supreme Court
24:36
Speaker 1: a tremendous hand for their intelligence but also for their courage.
24:41
Speaker 3: Donald Trump has taken credit for the Supreme Court ending
24:45
Speaker 3: the constitutional right to abortion in twenty twenty two, which
24:49
Speaker 3: cleared the way for twenty one states to ban or
24:52
Speaker 3: restrict access to abortion, but in the last two years,
24:55
Speaker 3: nearly a third of the states have put abortion rights
24:58
Speaker 3: on the ballot. Constitutional amendments to protect or expand abortion
25:03
Speaker 3: rights passed in seven of the ten states where they
25:06
Speaker 3: appeared on the twenty twenty four ballot, including in four
25:09
Speaker 3: states that voted for Trump. Joining me is healthcare attorney
25:13
Speaker 3: Harry Nelson, a partner at Leech Tishman Nelson Hardiman Harry.
25:17
Speaker 3: Abortion rights ballot measures passed in four states that voted
25:21
Speaker 3: for Trump, Arizona, Missouri, Montana, and Nevada. How do you
25:26
Speaker 3: reconcile that, considering his having bragged about getting Roe v.
25:31
Speaker 3: Wade reversed.
25:33
Speaker 6: It's clear that abortion rights and reproductive health access have
25:37
Speaker 6: a majority of support in pretty much every corner of America,
25:41
Speaker 6: except that the issue is not the driver in this
25:45
Speaker 6: election that it was in the twenty twenty two mid terms,
25:48
Speaker 6: for example, and that clearly voters who supported Trump were
25:53
Speaker 6: willing to see his abortion policy and politics as distinct
25:59
Speaker 6: from the water anti abortion movement. So it does seem
26:03
Speaker 6: like abortion was not the powerful issue that it was
26:07
Speaker 6: in the previous election cycles since the repeal of rov Wade,
26:10
Speaker 6: even though it bill clearly garnered significant support in most
26:13
Speaker 6: of the places where it was before.
26:14
Speaker 3: The voters In Missouri, nearly fifty two percent of voters
26:18
Speaker 3: cleared the way to undo one of the nation's strictest
26:22
Speaker 3: abortion laws. Will nearly fifty nine percent voted for Trump.
26:26
Speaker 6: Yeah, Missouri had a near total ban on abortion, and
26:30
Speaker 6: so this is a significant decision. One of the things
26:33
Speaker 6: we can certainly take away is that there was a
26:34
Speaker 6: huge gender gap in the selection, but many men who
26:37
Speaker 6: sort of propelled Trump to victory in the presidential race
26:40
Speaker 6: also supported abortion rights and voted, And so I don't
26:44
Speaker 6: find that result surprising. It's clear that, you know, President
26:48
Speaker 6: Trump opened up some space between himself and the anti
26:51
Speaker 6: abortion movement. And it's also apparent that the driving factors
26:56
Speaker 6: that propelled his victory had less to do with reproductive
27:00
Speaker 6: of rights than other issues. When you see this kind
27:02
Speaker 6: of a splay result.
27:03
Speaker 3: Now, Arizona, which had the longest ballot in state history.
27:06
Speaker 3: It took up like two pages, and apparently, you know,
27:09
Speaker 3: momentum was gained there because the state Supreme Court ruling
27:13
Speaker 3: in April found that the state could enforce this strict
27:16
Speaker 3: abortion ban from eighteen sixty four.
27:20
Speaker 6: Yeah, the court decision earlier in Arizona obviously shocked voters there.
27:24
Speaker 6: And so, yeah, Proposition one thirty nine protects the right
27:27
Speaker 6: to abortion in the state constitution itself, which is really
27:31
Speaker 6: significant up to the point of fetal liability, which replaces
27:35
Speaker 6: and gives a longer period than the fifteen week ban
27:37
Speaker 6: that had been there. So that's a significant move on
27:39
Speaker 6: the part of Arizona, and again, you know, not that surprising.
27:43
Speaker 6: In general, the victories that the anti abortion movement has
27:47
Speaker 6: had have come from court for the most part.
27:49
Speaker 3: Abortion rights measures also passed in three states that voted
27:53
Speaker 3: for Harris, Colorado, Maryland, and New York. So Colorado's measure,
27:59
Speaker 3: beside sides enshrining access to abortion, also undoes an earlier
28:05
Speaker 3: amendment that barred using state and local government funding for abortion.
28:10
Speaker 3: So what does that mean?
28:11
Speaker 6: So that's significant in that it really opens up not
28:16
Speaker 6: just access itself, but funding reimbursement for providers to keep
28:20
Speaker 6: professionals who are working this area, facilities open, and ensuring
28:24
Speaker 6: access to the state portion of Medicaid funds. So one
28:27
Speaker 6: of the issues that we may see come up now
28:30
Speaker 6: that it looks like we're going to have Republican control
28:32
Speaker 6: over both parts of Congress and the presidency is potentially
28:36
Speaker 6: more restrictions on federal funding. So Colorado seems to be
28:40
Speaker 6: the first state to ensure that there's going to be
28:42
Speaker 6: state funding and we're talking here mostly Medicaid funding and
28:46
Speaker 6: other facilities working on special grant programs in this area.
28:50
Speaker 6: So I think that's a harbinger of a trend that
28:52
Speaker 6: we're likely to see in other states, particularly as we
28:55
Speaker 6: see a likelihood of more federal restriction.
28:58
Speaker 3: New York's measure was a little different. It didn't even
29:01
Speaker 3: mention the word abortion New York.
29:04
Speaker 6: It was a proposal that prohibited discrimination based on pregnancy outcome,
29:09
Speaker 6: So it was not a direct abortion rights New York
29:12
Speaker 6: already has an abortion rights laws. But it's interesting New
29:15
Speaker 6: York kind of went a step further in a different direction, right,
29:17
Speaker 6: Colorado went further on public funding, but New York went
29:20
Speaker 6: further on identifying a possible risk of discrimination that an
29:24
Speaker 6: employer could, for example, make an adverse decision based on,
29:29
Speaker 6: you know, pregnancy outcome. So it sort of identified and
29:32
Speaker 6: broadened the scope of protected rights beyond the right to
29:35
Speaker 6: the abortion itself, which was already in place.
29:38
Speaker 3: In Maryland, abortion is already legal until viability. But explain
29:43
Speaker 3: the importance of putting abortion rights into the constitution in Maryland.
29:47
Speaker 6: It was a constitutional amendment, which is significant because it
29:52
Speaker 6: establishes a much more permanent right than a mere ballot measure.
29:56
Speaker 6: You know, obviously, when something is placed into the constitution itself,
30:00
Speaker 6: it establishes it as a fundamental, more fundamental right, and
30:03
Speaker 6: it forces courts to sort of put a privacy on
30:06
Speaker 6: that right. So recognizing a right to abortion as part
30:09
Speaker 6: of a broader right to privacy really sets the direction
30:13
Speaker 6: and state policy that's going to reverberate much further in
30:16
Speaker 6: the future, and not only in court review, but with
30:19
Speaker 6: regard to future ballot measures. It's sort of just sets
30:22
Speaker 6: a higher order of magnitude of priority on the question,
30:25
Speaker 6: and so it's obviously it's a better place to be right.
30:28
Speaker 6: We see some states that have moved to pass ballian
30:31
Speaker 6: initiatives because those are the quickest way to get things
30:33
Speaker 6: done just to present a measure to the voters where
30:36
Speaker 6: state law allows. But actually amending the state constitution really
30:40
Speaker 6: is a fundamental way to give more security to the
30:42
Speaker 6: principle of a constitutional right to reproductive freedom.
30:45
Speaker 3: Just because they pass these amendments, that doesn't mean that
30:49
Speaker 3: the abortion bands in these states are suddenly off the books.
30:53
Speaker 3: It requires some court action, doesn't it.
30:56
Speaker 6: Like we've seen with abortion going back for the last
30:59
Speaker 6: fifty years, a lot of times these laws stay on
31:02
Speaker 6: the books, and we're actually going to need test cases
31:04
Speaker 6: to come up and have courts formally rule, you know,
31:08
Speaker 6: on the status of some of these old laws. So
31:10
Speaker 6: there are a couple of places where these laws are
31:13
Speaker 6: going to change things, but we're still going to have
31:14
Speaker 6: to see cases filed, a little bit of anxiety and
31:18
Speaker 6: stress for the providers and the patients who are in
31:21
Speaker 6: those cases, But for better or worse, that's just the
31:23
Speaker 6: process that we're going to see go forward here.
31:25
Speaker 3: I mean, can we assume that judges are going to
31:28
Speaker 3: follow the amendments and not put their own sort of
31:33
Speaker 3: stamp on it.
31:34
Speaker 6: I think the guarantee of abortion rights is something that
31:38
Speaker 6: should give security here. I do think that while we
31:40
Speaker 6: do see some opportunism from judges who feel strongly on
31:44
Speaker 6: the anti abortion side, they can't do very much given
31:48
Speaker 6: the appeal structure, and obviously appelic courts put the issue
31:50
Speaker 6: before multiple judges and hopefully ensure that the law actually
31:54
Speaker 6: gets followed. So I don't think anyone should worry that
31:56
Speaker 6: these laws are not going to actually be implemented and
31:59
Speaker 6: in form It's just we're going to have to go
32:01
Speaker 6: through a process to actually make that happen.
32:04
Speaker 3: And abortion amendments did not pass in Florida, Nebraska, and
32:08
Speaker 3: South Dakota, Florida. What's unusual is that most voters supported
32:14
Speaker 3: the Florida measure fifty seven percent, but it fell short
32:17
Speaker 3: of the sixty percent required. So what's happening is a
32:21
Speaker 3: minority of voters are able to keep the abortion ban
32:25
Speaker 3: in place.
32:26
Speaker 6: Yeah, that's a very surprising result. You know, obviously it
32:30
Speaker 6: came very close. It's good news that fifty seven percent
32:33
Speaker 6: of the voters support abortion rights, but obviously this sixty
32:37
Speaker 6: percent threshold that Florida law requires to amend the constitution
32:41
Speaker 6: was a barrier, and so we're stuck with the current
32:44
Speaker 6: Florida abortion ban, which is a six week abortion ban,
32:47
Speaker 6: very early, and that's a problem. So Florida has more
32:50
Speaker 6: work to do, and we're going to see the fight continue.
32:53
Speaker 6: The fact that it was fifty seven percent, that it
32:55
Speaker 6: came so close makes me suspect that we're going to
32:58
Speaker 6: see this issue return on the bowl in midterms, an
33:01
Speaker 6: election cycle that is likely to draw out a different
33:05
Speaker 6: voting pool in midterms. That's pretty close. So while it
33:08
Speaker 6: is a victory that the anti abortion activist can claim,
33:12
Speaker 6: it's a pretty narrow victory and I don't think it's
33:15
Speaker 6: one that will hold up and Also.
33:16
Speaker 3: The governor there Ron DeSantis pulled out all the stops
33:20
Speaker 3: against the amendment, having election police go to voters front
33:24
Speaker 3: doors to question them about signing a petition to add
33:28
Speaker 3: the abortion referendum. He had a website. I mean, he
33:32
Speaker 3: really went out of his way to try to get
33:35
Speaker 3: that defeated.
33:36
Speaker 6: Yeah, it's a little bit surprising that the Santis went
33:39
Speaker 6: to such extreme measures. But you know who knows what
33:42
Speaker 6: his plan is. You know, he came away from the
33:45
Speaker 6: presidential election speeded, and obviously someone is advising him that
33:49
Speaker 6: this is a winning place for him to be tough.
33:51
Speaker 6: I think the fact that it's still got fifty seven
33:53
Speaker 6: percent of voter support should hopefully raise question and give
33:57
Speaker 6: him pause. But very surprising that he made such a.
34:00
Speaker 3: On this issue in Nevada. It was the first time
34:03
Speaker 3: in state history that competing initiatives appeared on the same ballot,
34:08
Speaker 3: and I'm wondering if that had anything to do with
34:11
Speaker 3: the defeat of the abortion measure.
34:14
Speaker 6: I think there's an issue of confusing the voters with
34:18
Speaker 6: competing ballot measures here. Right. The one that was approved
34:21
Speaker 6: was the one that enshrines the current twelve week ban
34:24
Speaker 6: with an exception for a rape for incests into the
34:26
Speaker 6: life of the mother, but the broader measure that would
34:29
Speaker 6: have added the right to abortion access to the state
34:32
Speaker 6: constitution failed. I do think there was an element of
34:36
Speaker 6: voters going for a more modif choice when presented with
34:39
Speaker 6: two alternatives. And I also think that here too, this
34:43
Speaker 6: election drove out a different voter base than we're likely
34:47
Speaker 6: to see in the midterm elections. And I think that
34:50
Speaker 6: this is not the last word in Nebraska, so that
34:53
Speaker 6: while this is a setback, certainly for the reproductive health
34:57
Speaker 6: access advocates, it was an unfortunate of competition and one
35:01
Speaker 6: that has flowed things down in Nebraska.
35:04
Speaker 3: What kind of an impact can Trump as president have
35:09
Speaker 3: on abortion rights in the country.
35:11
Speaker 6: Well, so we've heard a lot about whether there's going
35:14
Speaker 6: to be some kind of national position created to coordinate
35:18
Speaker 6: abortion restriction. Obviously, you know, we have enormous amounts of
35:23
Speaker 6: federal healthcare dollars at stake through not only you know,
35:27
Speaker 6: Medicare Medicaid, but through all the various federal funding programs.
35:31
Speaker 6: So I think there is room if Trump is inclined
35:34
Speaker 6: to be you know, supportive of anti abortion activists. Those
35:38
Speaker 6: are certainly two major ways the thing I'm watching most
35:41
Speaker 6: closely is that we avoided a problem with the FDA
35:45
Speaker 6: pill that was challenged mifipristo and the abortion pill that
35:48
Speaker 6: activists in Texas got a federal judge to ban, and
35:52
Speaker 6: we saw a whole drama there that the Supreme Court
35:55
Speaker 6: put to rest. But now the biggest question to me
35:57
Speaker 6: is whether you know Trump or Trump's people are going
36:01
Speaker 6: to try to make the FDA a site of more
36:05
Speaker 6: problems for telemedicine abortion. We already know telemedicine abortion is
36:09
Speaker 6: with mithipristone is now something like sixty percent or more
36:12
Speaker 6: of all abortion, you know, which has really transformed it
36:16
Speaker 6: to a much more private matter, you know, where women
36:18
Speaker 6: don't have to come to clinics to have a procedure.
36:20
Speaker 6: They can choose the time and place where they take
36:22
Speaker 6: the medication and have much more privacy in the process itself.
36:26
Speaker 6: So to me, the sort of scariest possibility is the
36:29
Speaker 6: politicization of the FDA. It's going to be very interesting
36:32
Speaker 6: to see what happens with health policy under Trump. When
36:35
Speaker 6: he was elected in twenty sixteen, I co authored a
36:37
Speaker 6: book making a lot of predictions, and I learned my lesson.
36:40
Speaker 6: It's always dangerous to get ahead of what's going to
36:42
Speaker 6: happen here, but I'm definitely watching with data breakfast see
36:45
Speaker 6: how much the FDA gets politicized or hopefully, whether you know,
36:50
Speaker 6: will allow the experts who are policing the safety of
36:53
Speaker 6: our drugs and other medical devices applies do their workout interruptions,
36:58
Speaker 6: so that remains.
36:58
Speaker 3: To be soon. Thanks Harry. That's Harry Nelson of Leech
37:01
Speaker 3: Tishman Hardeman Nelson. And that's it for this edition of
37:04
Speaker 3: the Bloomberg Law Podcast. Remember you can always get the
37:07
Speaker 3: latest legal news by subscribing and listening to the show
37:10
Speaker 3: on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast,
37:15
Speaker 3: Slash Law. I'm June Grosso and this is Bloomberg