Latest / Bloomberg Law / Weekend Law: GOP Map Loss, Abortion Pill Fight & Contaminated Drinking Water

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Weekend Law: GOP Map Loss, Abortion Pill Fight & Contaminated Drinking Water · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:08
Speaker 2: Twice this past week, the Supreme Court blocked Missouri from
0:12
Speaker 2: using a congressional map designed by Republican legislators to give
0:17
Speaker 2: the party control of seven of the state's eight congressional districts.
0:22
Speaker 2: It's a defining moment in the legal battle over the
0:25
Speaker 2: state's maps that has spanned almost a year and spawned
0:29
Speaker 2: confusion among voters. The decision means the state will use
0:33
Speaker 2: its congressional map from 2022, which is likely to produce
0:37
Speaker 2: six Republican districts and two Democratic districts. A loss for
0:42
Speaker 2: Republicans trying to maintain control of the House in the
0:45
Speaker 2: midterm elections. And no Supreme Court justice dissented from Thursday's order.
0:51
Speaker 2: Joining me is Jonathan Diaz, Director of Voting Advocacy and
0:55
Speaker 2: Partnerships at the Campaign Legal Center. Jonathan, this long-running dispute
1:00
Speaker 2: over Missouri's map reached the Supreme Court twice. Tell us
1:05
Speaker 2: about the sort of tortuous litigation.
1:07
Speaker 3: I mean, I think this is a perfect example of
1:10
Speaker 3: why mid-decade redistricting, especially during an election year, is... such
1:17
Speaker 3: a problem and create such a huge headache for voters
1:19
Speaker 3: and for election administrators, because we are now, you know,
1:23
Speaker 3: less than 60 days out from election day. And until
1:25
Speaker 3: the last few days, it was not clear what district
1:29
Speaker 3: map Missouri was going to use for their congressional elections.
1:31
Speaker 3: So there's been a lot of court maneuvering, including multiple
1:34
Speaker 3: attempts to go up to the Supreme Court. But the
1:37
Speaker 3: bottom line is that Missouri's state Supreme Court ruled that
1:42
Speaker 3: the gerrymander that was imposed by the legislature earlier this
1:46
Speaker 3: year that shifted Missouri from a map with six Republican-leaning
1:51
Speaker 3: districts and two Democratic-leaning districts– to a new map that
1:54
Speaker 3: was seven Republican-leaning districts and one Democratic-leaning district, that that
1:58
Speaker 3: map was unlawful, that it violates the Missouri Constitution. And therefore,
2:01
Speaker 3: the Missouri Supreme Court ordered the state election officials to
2:05
Speaker 3: revert to the previous map, the 6-2 map. Secretary of
2:08
Speaker 3: State didn't like that. You know, it is very last minute.
2:10
Speaker 3: He tried to go to federal court to reverse that decision.
2:14
Speaker 3: And the Supreme Court said basically, you know, enough is enough.
2:17
Speaker 3: The state Supreme Court issued an order based on state
2:19
Speaker 3: law that you have to use the previous map. And
2:22
Speaker 3: the U.S. Supreme Court said we're not going to disturb
2:24
Speaker 3: that order and we're not going to allow lower federal
2:26
Speaker 3: courts to intervene at this point. So Missouri will use
2:30
Speaker 3: their previous congressional map this November. It'll go back to
2:33
Speaker 3: that kind of 6-2 split. That's where we are.
2:36
Speaker 2: Missouri used the new map for the primaries, but it
2:39
Speaker 2: will be using the old map for the midterms. Is
2:43
Speaker 2: that going to cause problems or confusion?
2:47
Speaker 3: The primary winners will remain on the ballot. It's just
2:50
Speaker 3: the district lines are different. So it will be all
2:52
Speaker 3: the same candidates who are elected in the primaries just,
2:54
Speaker 3: you know, using their old maps, using the old district
2:57
Speaker 3: lines now. And what they did with the new gerrymander
2:59
Speaker 3: was functionally eliminate a majority Black district that's currently held
3:03
Speaker 3: by Congressman Emanuel Cleaver. And so he was still running
3:06
Speaker 3: for reelection, just on a much less favorable map.
3:09
Speaker 1: And this is it.
3:10
Speaker 2: No more litigation.
3:11
Speaker 3: Well, there's nowhere else for them to go. So this
3:14
Speaker 3: is it. They've gone up to the Supreme Court twice.
3:16
Speaker 3: The first time, Justice Kavanaugh, who is the circuit justice
3:19
Speaker 3: for the circuit that covers Missouri. on his own, denied
3:22
Speaker 3: the secretary's request to stay the Missouri Supreme Court's decision.
3:26
Speaker 3: And then this time, the full Supreme Court, with no
3:29
Speaker 3: noted dissents, did stay the federal court decision that tried
3:33
Speaker 3: to bring us back to the new map again. So
3:35
Speaker 3: it's been a real seesaw back and forth between, you know,
3:38
Speaker 3: the old map, the new map, the old map, the
3:39
Speaker 3: new map. But at least for Missouri, this has been
3:42
Speaker 3: settled for these midterm elections.
3:44
Speaker 2: Let's turn now to the confusion, some might say chaos,
3:48
Speaker 2: over mail ballots, where there is litigation in several different courts,
3:54
Speaker 2: and we're waiting for the Supreme Court to decide whether
3:56
Speaker 2: the post office can impose new rules for the midterms.
4:01
Speaker 2: What's the state of play right now?
4:03
Speaker 3: Well, it has been a long and rather complicated saga
4:07
Speaker 3: around these new USPS regulations that the Postal Service has
4:13
Speaker 3: formally published only a few weeks ago, but that have
4:15
Speaker 3: been kind of percolating since March. So to take us
4:18
Speaker 3: all the way back, in March 2026, President Trump issued
4:22
Speaker 3: an executive order that focused primarily on mail voting. That
4:26
Speaker 3: order directed the U.S. Postal Service to issue regulations that
4:30
Speaker 3: would mandate certain envelope requirements, certain barcode requirements to and
4:35
Speaker 3: new procedures that state and local election officials would have
4:38
Speaker 3: to follow in order for USPS to deliver ballots to
4:41
Speaker 3: voters in those states. There is no statutory authorization for
4:46
Speaker 3: any of this. the Postal Service is not, they're not
4:48
Speaker 3: election administrators. They deliver ballot mail just like they deliver
4:52
Speaker 3: all the other mail. And so this executive order and
4:55
Speaker 3: the regulations that USPS created to enforce it, you know,
4:59
Speaker 3: represent a huge shift in the way that mail voting
5:02
Speaker 3: would work in this country and would give USPS the
5:05
Speaker 3: authority to decline to deliver ballots to voters if the
5:09
Speaker 3: states or the don't meet every single new technical specification
5:16
Speaker 3: in these USPS regulations. There's been a flurry of litigation
5:20
Speaker 3: challenging both the executive order and the USPS regulations. Earlier
5:24
Speaker 3: this year, a district court in Massachusetts issued an injunction
5:29
Speaker 3: that found that the executive order was unconstitutional and enjoined
5:33
Speaker 3: USPS from issuing regulations to give effect to that order.
5:37
Speaker 3: That injunction was appealed. And a couple of months ago,
5:40
Speaker 3: the Supreme Court said that the injunction was issued too soon.
5:43
Speaker 3: They said that the issues were not yet ripe because
5:46
Speaker 3: the Postal Service hadn't actually issued any regulations. And so
5:48
Speaker 3: there was nothing really to challenge. And the district court
5:51
Speaker 3: acted too soon when it granted relief to the plaintiffs.
5:53
Speaker 3: But in that order, the Supreme Court said, if and
5:56
Speaker 3: when there is a final regulation that's in place, that
5:59
Speaker 3: might change things. So about two days after that Supreme
6:02
Speaker 3: Court order came down, USPS published their final regulation. And
6:05
Speaker 3: we all rushed back to court and started the process
6:07
Speaker 3: all over again. Judge Talwani in Massachusetts again issued an
6:11
Speaker 3: injunction blocking the USPS regulations from taking effect. She found
6:15
Speaker 3: that the regulations themselves are unlawful. They exceed the post
6:19
Speaker 3: office's statutory authority. They derive from an unconstitutional executive order.
6:24
Speaker 3: And critically, there is just no time to make these
6:28
Speaker 3: kind of huge changes before the midterm elections without disenfranchising
6:33
Speaker 3: millions of voters.
6:34
Speaker 2: And mail ballots have already been sent out in some states.
6:37
Speaker 2: So it seems like it would be almost impossible to
6:40
Speaker 2: comply with new rules.
6:43
Speaker 3: You know, state and local election officials from across the country,
6:46
Speaker 3: from red and blue and purple jurisdictions, have all told
6:50
Speaker 3: the courts, we cannot do this. Ballot envelopes have already
6:53
Speaker 3: been purchased. Barcodes have been placed on them. There is
6:57
Speaker 3: no time to redesign ballot mail in all of the
7:01
Speaker 3: 10,000 election jurisdictions across the country. And there's no money
7:04
Speaker 3: to do it. The vendors can't work fast enough. The
7:07
Speaker 3: counties have no more budget left. They've already spent the
7:09
Speaker 3: money that was appropriated to them to buy ballot mail
7:12
Speaker 3: and ballot paper and all of that. In a state
7:14
Speaker 3: like Arizona, where 80% of voters voted by mail in 2024,
7:19
Speaker 3: if they don't get their ballots, that's a huge logistical
7:23
Speaker 3: and operational problem for election officials across the state and
7:27
Speaker 3: across the country who are in very similar situations.
7:29
Speaker 2: Yet the Trump administration is trying to get a stay
7:33
Speaker 2: of Judge Talwani's injunction with a little twist on the
7:38
Speaker 2: normal practice.
7:40
Speaker 3: Kind of unusually, they simultaneously asked both the First Circuit
7:44
Speaker 3: Court of Appeals and the Supreme Court to stay the
7:46
Speaker 3: district court order. Normally, you would go to the circuit
7:49
Speaker 3: court first, and then if they say no, then go
7:51
Speaker 3: to SCOTUS. But DOJ decided not to wait. The First
7:54
Speaker 3: Circuit denied the government's request for a stay, leaving that
7:56
Speaker 3: injunction in place. And so now we await a decision
8:00
Speaker 3: from the U.S. Supreme Court. They stayed the previous injunction
8:04
Speaker 3: on that jurisdictional ground, on ripeness. But now they're faced
8:06
Speaker 3: with a very different question. You know, they have to
8:09
Speaker 3: address the merits of the government's position. The government says
8:12
Speaker 3: that these regulations are lawful, that they do have the
8:15
Speaker 3: authority to do this. The lower courts have disagreed so far.
8:18
Speaker 3: But I think the Supreme Court really also has to
8:20
Speaker 3: consider the equities of the situation right now and how
8:23
Speaker 3: disruptive an attempt to implement these new regulations would be
8:29
Speaker 3: in a situation where North Carolina, Wisconsin, Alabama have all
8:32
Speaker 3: already started sending ballots to voters. Every state has to
8:35
Speaker 3: send mail ballots at least to military and overseas voters
8:39
Speaker 3: by September 19th. And throughout all of this, USPS and
8:43
Speaker 3: the federal government have been unable to clearly say whether
8:46
Speaker 3: even they are ready to implement these rules, whether the
8:50
Speaker 3: portal that they're building is complete, whether they have the
8:53
Speaker 3: staff and the time and the functionality to do all
8:56
Speaker 3: the things that the regulations require them to do. So
8:59
Speaker 3: at this stage of the election cycle, to even be
9:02
Speaker 3: contemplating a change on this scale is crazy. which is,
9:07
Speaker 3: I think, why we have seen an unusually broad coalition
9:12
Speaker 3: of election officials, Democrats and Republicans, secretaries of state, county clerks,
9:17
Speaker 3: all going to the court and saying, you know, practically speaking,
9:21
Speaker 3: the implementation of a rule like this in September of
9:24
Speaker 3: an election year would be just unbelievably disruptive to the
9:29
Speaker 3: process of elections and would almost certainly result in voters
9:33
Speaker 3: not getting their ballots.
9:35
Speaker 2: So you'd expect that the Supreme Court would listen to
9:39
Speaker 2: the practicalities here, and they don't have to make a
9:42
Speaker 2: decision on the merits, right?
9:44
Speaker 4: Right.
9:44
Speaker 3: This is an emergency stay request. So we're in a
9:48
Speaker 3: kind of emergency posture on the shadow docket. They don't
9:50
Speaker 3: have to do a full opinion and everything. All they
9:53
Speaker 3: have to do is either grant or deny this government's
9:57
Speaker 3: stay request and how much reasoning they want to give
10:00
Speaker 3: us is unfortunately kind of up to them. Listeners may
10:03
Speaker 3: be familiar with the Purcell principle, this judicial doctrine that
10:07
Speaker 3: federal courts should be mindful of the administrative chaos that
10:12
Speaker 3: their decisions can have late in an election cycle. And
10:16
Speaker 3: if ever there were a case where the It's this one,
10:21
Speaker 3: where the federal government is trying to impose new regulations
10:25
Speaker 3: and new procedures on election processes nationwide at the 11th hour.
10:31
Speaker 3: And so I'm fairly confident that the court will see
10:34
Speaker 3: both the legal and practical realities here and not toss
10:38
Speaker 3: a bomb into election administration less than two months out.
10:41
Speaker 3: But we won't know until they tell us.
10:43
Speaker 2: And I will note that If the Supreme Court had
10:47
Speaker 2: made a decision the first time this came to them,
10:51
Speaker 2: instead of taking a procedural off-ramp, there wouldn't have been
10:55
Speaker 2: all this litigation, and they had to know the case
10:58
Speaker 2: was coming back to them.
11:00
Speaker 3: This is a crisis, I think, in part of their
11:02
Speaker 3: own making, because they knew it was going to come back.
11:04
Speaker 3: But I imagine this time around they will move more quickly,
11:07
Speaker 3: given where we are in the calendar. The legal issues are,
11:10
Speaker 3: I think, pretty straightforward here. The Constitution very clearly... assigns
11:16
Speaker 3: the responsibility to legislate the time, place, and manner of
11:21
Speaker 3: federal elections to the states subject only to preemption by Congress.
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Speaker 3: And it does not give the executive branch any authority,
11:29
Speaker 3: whether it's coming from the White House or the U.S.
11:31
Speaker 3: Postal Service, to regulate elections absent clear authorization from Congress,
11:37
Speaker 3: which they don't have here.
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Speaker 2: So we should get an answer from the Supreme Court
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Speaker 2: next week. Thanks so much, Jonathan. That's Jonathan Diaz of
11:44
Speaker 2: the Campaign Legal Center. Coming up next, the Fifth Circuit
11:48
Speaker 2: says there's no constitutional right to clean drinking water. I'm
11:52
Speaker 2: June Grosso, and this is Bloomberg. Residents of Jackson, Mississippi,
11:58
Speaker 2: say it was more than just inept government when the
12:01
Speaker 2: city allowed their drinking water to become contaminated by lead
12:05
Speaker 2: and then falsely claimed the water was safe to drink.
12:09
Speaker 5: They caused the lead to be in the water. Over
12:12
Speaker 5: the course of months and years, they knew what.
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Speaker 6: They were doing.
12:16
Speaker 5: And they continued to choose to do it. They piped
12:19
Speaker 5: it into people's homes, then they lied to them about it.
12:22
Speaker 5: And people drank the water and were harmed. I think
12:25
Speaker 5: that's qualitatively different from the situation where there's just an
12:30
Speaker 5: inept government.
12:31
Speaker 2: The residents sued the city for violating their constitutional rights.
12:36
Speaker 2: But at the Fifth Circuit, the city argued that the
12:39
Speaker 2: residents hadn't established a violation of their due process rights.
12:44
Speaker 6: The Supreme Court.
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Speaker 7: Has been clear that intermediate courts should be very hesitant
12:49
Speaker 7: to expand the limits.
12:50
Speaker 4: Of substantive due process. Here.
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Speaker 7: What plaintiffs are asking this court to do is second-guess
13:00
Speaker 7: decisions of state officials and whether those decisions were.
13:05
Speaker 1: Rational or not.
13:07
Speaker 2: And the Fifth Circuit sided with the city in a
13:10
Speaker 2: 10-to-5 decision, ruling that the Constitution doesn't provide a right
13:15
Speaker 2: to clean drinking water or to accurate information from public officials.
13:20
Speaker 2: Judge Kurt Engelhardt, a Trump appointee, wrote that while the
13:24
Speaker 2: deprivation of clean water was grievous, it did not infringe
13:28
Speaker 2: upon any deeply rooted constitutional right. Joining me is environmental
13:33
Speaker 2: lawyer Jennifer Novak. Jennifer, tell us about the underlying dispute here.
13:38
Speaker 8: In the Sterling case, the city of Jackson, Mississippi was
13:43
Speaker 8: providing drinking water to its citizens. And by 2013, knew
13:48
Speaker 8: they had a real problem with the quality of water.
13:51
Speaker 8: And the combination of aging infrastructure using lead pipes, along
13:57
Speaker 8: with a high acidity level from where they were taking
14:00
Speaker 8: the water meant that instead of just passing through the pipes,
14:04
Speaker 8: the water was picking up lead along the way. And
14:07
Speaker 8: by the time 2013 rolled around, the city was well
14:10
Speaker 8: aware that the levels of lead were at least two
14:13
Speaker 8: times too high for public health and safety. And yet
14:17
Speaker 8: it didn't tell the public that there was a problem.
14:19
Speaker 8: It continued to serve them the same water. And when
14:23
Speaker 8: questioned about the water quality, the city lied effectively, saying
14:28
Speaker 8: that the water was safe. So the citizens continued to
14:31
Speaker 8: drink it. And what ended up happening is once this
14:34
Speaker 8: was discovered, a number of citizens brought a lawsuit against
14:38
Speaker 8: city officials citing our federal civil rights laws. Their 14th
14:43
Speaker 8: Amendment right to life and liberty and property had been
14:47
Speaker 8: violated because of these two different actions by the city officials.
14:51
Speaker 2: Tell us about the residents' argument that the contaminated water
14:56
Speaker 2: was a violation of their constitutional rights under the 14th Amendment.
15:02
Speaker 8: I mean, if we look at the literal text of
15:03
Speaker 8: the Constitution itself, obviously there is no right to clean water.
15:09
Speaker 8: But both the Fifth Amendment at the federal level and
15:11
Speaker 8: the 14th Amendment at the state level have been read
15:15
Speaker 8: to mean that we do have certain levels of bodily
15:19
Speaker 8: autonomy and integrity and that a state cannot, for example,
15:24
Speaker 8: allow an officer to assault you. They can't force you
15:27
Speaker 8: to have a surgery if you don't want it. And
15:30
Speaker 8: so it's along the lines of this bodily integrity that
15:33
Speaker 8: the plaintiffs were saying they had been violated because they
15:37
Speaker 8: were led to believe they could ingest this water safely.
15:41
Speaker 8: And yet it was not safe to do so. And
15:43
Speaker 8: presumably that meant they weren't really consenting to drink this
15:47
Speaker 8: contaminated water. And that was the equivalent of forcing them
15:51
Speaker 8: to take a medicine or ingest a poison or something
15:54
Speaker 8: along those lines.
15:55
Speaker 2: The court here relied on history and tradition to make
15:59
Speaker 2: its decision and said there was no historical basis to
16:03
Speaker 2: find such due process rights here. Quote, the Constitution does
16:08
Speaker 2: not provide redress for every governmental wrongdoing. Tell us more
16:12
Speaker 2: about how the majority came to its decision.
16:15
Speaker 8: Here in the Fifth Circuit, what they really held on
16:17
Speaker 8: to is perhaps not unsurprising given the Dobbs decision by
16:21
Speaker 8: the Supreme Court.
16:23
Speaker 3: Which is a look at history.
16:26
Speaker 8: And if we don't see that in history, courts were
16:28
Speaker 8: ruling a certain way, then we're not going to be
16:31
Speaker 8: the first court to do so and saying, look, you
16:34
Speaker 8: have no right to government services. You don't even have
16:37
Speaker 8: a right to having the government give you services well.
16:41
Speaker 8: So you've been harmed. We recognize that we feel bad
16:45
Speaker 8: for you. But that doesn't make it a constitutional right.
16:48
Speaker 8: And you need to pursue other remedies. That's really where
16:51
Speaker 8: the Fifth Circuit came out. And it does create a
16:53
Speaker 8: bit of an interesting situation. If you're a prisoner, you
16:56
Speaker 8: can't be forced to ingest something that you don't want to.
17:01
Speaker 8: And yet, if you're one of many people living in
17:03
Speaker 8: a city who presumably think you are drinking clean water
17:07
Speaker 8: and wouldn't drink it if you knew it was going
17:09
Speaker 8: to be harmful... Perhaps you don't have that same right,
17:12
Speaker 8: even though it's the same constitution that we're talking about.
17:15
Speaker 2: This was a decision by the full Fifth Circuit, so
17:19
Speaker 2: en banc. The majority of 10 was composed of all
17:24
Speaker 2: Republican appointees. The dissent was composed of one George W.
17:29
Speaker 2: Bush appointee and the four liberals on the court. Does
17:33
Speaker 2: this issue break down along conservative liberal lines?
17:37
Speaker 1: It can be.
17:38
Speaker 8: What the dissenters noted was that this is a little
17:43
Speaker 8: bit different from saying that you have a right to
17:46
Speaker 8: have the state or a municipality give you clean water.
17:49
Speaker 8: This is a situation where the city has affirmatively taken
17:53
Speaker 8: on the obligation to serve its citizens drinking water. And
17:56
Speaker 8: we're not just talking about a situation where maybe they
17:59
Speaker 8: were incompetent, but once they knew, they still failed to
18:03
Speaker 8: act in the citizens' best interest. So the minority judges
18:08
Speaker 8: felt that this argument of there being a state-created danger
18:12
Speaker 8: was one worth looking at, and not necessarily that the
18:15
Speaker 8: plaintiffs would win, but that they had the right to
18:18
Speaker 8: pursue this a little further to see if maybe there
18:21
Speaker 8: was some traction there. Maybe they would uncover something that
18:25
Speaker 8: would allow them to keep going.
18:27
Speaker 2: During the oral arguments, there were a lot of questions
18:30
Speaker 2: about how other circuits could have ruled in this kind
18:34
Speaker 2: of case. Is there now a split in the circuits?
18:37
Speaker 2: And might this be something the Supreme Court would take up?
18:41
Speaker 8: So there is a conflict. Most courts in the United
18:45
Speaker 8: States have not addressed this exact same situation. But we
18:49
Speaker 8: do have the Sixth Circuit, which heard all the Flint,
18:51
Speaker 8: Michigan cases on the Sixth Circuit. came out differently saying, no,
18:56
Speaker 8: we think that the government did have a requirement to
18:58
Speaker 8: tell you the truth and you have the right to
19:00
Speaker 8: at least discover the true facts before we shut you down.
19:04
Speaker 8: And there's enough case law from other circuits. For example,
19:09
Speaker 8: in the Second Circuit, after 9-11, the EPA was found
19:13
Speaker 8: to have mischaracterized, misrepresented air quality, and the courts did
19:17
Speaker 8: not allow those lawsuits to go forward. So it's more
19:20
Speaker 8: aligned with the Fifth Circuit. So there is a bit
19:23
Speaker 8: of a contradiction as far as what the courts are finding,
19:27
Speaker 8: how they're applying those rights. And there's a tendency within
19:31
Speaker 8: the courts right now to say, we don't want to
19:35
Speaker 8: extend the Constitution to create new rights. We're going to
19:38
Speaker 8: interpret it more as a check on government power and
19:42
Speaker 8: just talk about what the government can't do to you, right?
19:45
Speaker 8: It could be something that the United States Supreme Court
19:48
Speaker 8: would want to take up because there is now a split.
19:51
Speaker 8: The question is whether if you are the Jackson City plaintiffs,
19:56
Speaker 8: that's where you want to go as opposed to trying
19:58
Speaker 8: a different tact.
19:59
Speaker 2: Some of the other options the majority suggested for the
20:03
Speaker 2: residents were to pursue tort claims... to elect officials who'll
20:08
Speaker 2: better manage the water system, and to petition representatives for
20:12
Speaker 2: other solutions.
20:14
Speaker 8: I saw that, and one of them is always, well,
20:17
Speaker 8: you could elect somebody better. They do note that if
20:20
Speaker 8: you want damages, then tort claims are your only avenue,
20:24
Speaker 8: and you can give it a shot. That doesn't mean
20:27
Speaker 8: it's going to be easy. It doesn't mean you're going
20:29
Speaker 8: to get everything that you believe you are entitled to.
20:32
Speaker 8: They coupled it also with you can work within the
20:35
Speaker 8: system perhaps your local officials will create some sort of
20:40
Speaker 8: fund or system of redress. And while the court doesn't
20:42
Speaker 8: get that specific, I think that's what they were alluding to,
20:45
Speaker 8: that there could be some reparations at that level, in
20:50
Speaker 8: addition to electing better officials who will pay better attention
20:54
Speaker 8: to you, won't lie to you, etc. I'll note that
20:57
Speaker 8: if the issue is fixing the problem, you do have
21:00
Speaker 8: federal laws like the Clean Water Act, the Safe Drinking
21:03
Speaker 8: Water Act, But those are to fix the problem and
21:06
Speaker 8: maybe penalize the actors. That doesn't give you money for
21:11
Speaker 8: the damages that you may have suffered.
21:12
Speaker 2: The majority also found that you don't have the right
21:16
Speaker 2: to have officials tell you the truth. Am I putting
21:19
Speaker 2: that too simply or is that what they said?
21:21
Speaker 1: That's what they said.
21:24
Speaker 8: The Fifth Circuit said, of course, we want our public
21:27
Speaker 8: officials to be truthful and honest with us. But we
21:31
Speaker 8: just don't think that rises to the level of a
21:33
Speaker 8: constitutional right.
21:36
Speaker 1: And I agree with them.
21:38
Speaker 8: Again, it's a slippery slope if every not entirely truthful
21:42
Speaker 8: press release that a government issues suddenly becomes, you know,
21:45
Speaker 8: my constitutional right has been violated.
21:47
Speaker 1: In some way.
21:48
Speaker 8: I do think at some point in time, you can
21:50
Speaker 8: probably go down that slope and find situations where that
21:53
Speaker 8: might rise to that type of infringement. But for the
21:57
Speaker 8: most part, I think it also has the danger of
21:59
Speaker 8: confusing situations where the government is acting on the best
22:04
Speaker 8: information it has at the time, learns something else and
22:07
Speaker 8: has to change direction or change opinion, change a policy.
22:11
Speaker 8: And at what point in time do we call that
22:13
Speaker 8: misrepresentation versus that's just the scientific process at work?
22:18
Speaker 2: Finally, Jennifer, what's your take on whether the Constitution covers
22:22
Speaker 2: the right to clean drinking water?
22:25
Speaker 8: I find it a little hard to square some of
22:28
Speaker 8: the cases where we have said, okay, that is a
22:31
Speaker 8: bodily integrity situation, but this one is not. And I
22:36
Speaker 8: don't know if at the end of the day, it
22:37
Speaker 8: becomes a constitutional question so much as a real fear.
22:41
Speaker 8: And maybe the best way I could put it is
22:44
Speaker 8: a no good deed going unpunished. If you're a city that,
22:48
Speaker 8: And you're providing drinking water or municipal waste services or
22:52
Speaker 8: something to the community to be helpful, you know, because
22:56
Speaker 8: that's what people think government should do. then you really
22:59
Speaker 8: might be opening yourself up to a whole slew of
23:02
Speaker 8: lawsuits and complaints over everything you might do wrong, every
23:06
Speaker 8: bad decision you make. So to that extent, I understand
23:09
Speaker 8: from a policy standpoint, we don't want this to rise
23:12
Speaker 8: to the level of a constitutional problem. And I think
23:16
Speaker 8: my real problem is when we have those contradictory interpretations.
23:20
Speaker 1: Well, we'll say it's fine if you're a.
23:27
Speaker 8: But if you're one of thousands, if not millions of
23:29
Speaker 8: people consuming lead in your water, oops, you know, I'm
23:33
Speaker 8: not going to say that we automatically have a right
23:37
Speaker 8: in the Constitution to everything. But I probably do trend
23:40
Speaker 8: more toward looking at this as it's a little bit
23:43
Speaker 8: of a catch-22, right? We're going to say that historically speaking,
23:47
Speaker 8: we didn't recognize this as a right. Therefore, we won't now.
23:51
Speaker 8: I think our expectations of what the government is and
23:54
Speaker 8: its role and just our society have changed. And I'm
23:58
Speaker 8: not going to hew to the exact words of the
24:01
Speaker 8: Constitution and say that that's the only thing it could
24:03
Speaker 8: ever mean. People didn't have municipal drinking water at the
24:07
Speaker 8: time that the Constitution was written. They were primarily relying
24:10
Speaker 8: on well water and other things. And we have drastically
24:13
Speaker 8: changed where we are as a society.
24:15
Speaker 2: And that's the problem with originalism, that the Constitution is
24:18
Speaker 2: supposed to mean today exactly what it meant when it
24:22
Speaker 2: was enacted. even though our world is so different from
24:26
Speaker 2: that of the founders. Thanks for a great conversation, Jennifer.
24:30
Speaker 2: That's environmental lawyer Jennifer Novak. Coming up next, Louisiana's case
24:35
Speaker 2: over the abortion pill could wipe out access in blue states.
24:40
Speaker 2: I'm June Grosso, and this is Bloomberg. Louisiana is one
24:45
Speaker 2: of at least six red states trying to restrict access
24:49
Speaker 2: to abortions in blue states. Four years ago, the Supreme
24:53
Speaker 2: Court ruled that individual states have the power to regulate abortion.
24:58
Speaker 2: But Louisiana is trying to stop the Food and Drug
25:01
Speaker 2: Administration from allowing online and mail availability of the abortion pill, mifepristone,
25:08
Speaker 2: even in states where abortion is legal. It claims the
25:11
Speaker 2: FDA relied on inaccurate data when forming its policy, loosening
25:16
Speaker 2: requirements on the in-person dispensing of the drug.
25:20
Speaker 4: They say in their briefs the risk went from 4%
25:23
Speaker 4: to 11% once the in-person requirement was lifted, that the
25:28
Speaker 4: women who took this would end up in the emergency room.
25:31
Speaker 2: And at oral arguments at the Fifth Circuit this week,
25:34
Speaker 2: Judge Steven Higginson questioned their authority to act in light
25:39
Speaker 2: of the Supreme Court order in May, allowing Mifepristone to
25:42
Speaker 2: remain fully available while the legal fight goes forward and
25:46
Speaker 2: putting on hold a Fifth Circuit decision.
25:49
Speaker 6: Do you have any other circuit that has ever been
25:52
Speaker 6: as bold as to say, Supreme Court, we see you
25:55
Speaker 6: denied a preliminary injunction, but we're going to go ahead
25:59
Speaker 6: and do it again, and we can because then we'll
26:01
Speaker 6: stay the state.
26:03
Speaker 2: And Judge Priscilla Richmond questioned the FDA's connection to the
26:07
Speaker 2: mailing of mifepristone to states where it's classified as illegal.
26:11
Speaker 4: I'm having trouble finding anywhere in the records that the
26:15
Speaker 4: FDA has approved mifepristone the mailing of this drug into
26:18
Speaker 4: states where it's unlawful to do that.
26:20
Speaker 2: My guest is Mary Ziegler, a professor at UC Davis
26:23
Speaker 2: Law School and an expert in reproductive rights. Mary, the
26:27
Speaker 2: procedural history here is very confusing because there are proceedings
26:31
Speaker 2: at the district court, the Fifth Circuit, and the Supreme Court.
26:34
Speaker 2: So start by explaining why the district court judge put
26:38
Speaker 2: the state's lawsuit on hold.
26:40
Speaker 9: The FDA had asked for a pause to review safety
26:44
Speaker 9: data involving mifepristone. And the judge granted that request and
26:51
Speaker 9: asked the Trump administration for an update in October about
26:55
Speaker 9: how the study was going and said essentially if there
26:57
Speaker 9: weren't enough signs of progress for the judge's satisfaction that
27:01
Speaker 9: they may then grant Louisiana's request to immediately ban telehealth prescriptions.
27:07
Speaker 1: And the U.S.
27:08
Speaker 9: Supreme Court last spring allowed current access to mifepristone to
27:12
Speaker 9: remain in place while that process continues. So what Louisiana
27:15
Speaker 9: is looking for here is an immediate change in access
27:19
Speaker 9: to mifepristone while all these procedures continue. What's interesting is
27:22
Speaker 9: Louisiana acknowledges that it's already in a pretty good position
27:26
Speaker 9: and yet is still impatient for its demands to be met.
27:28
Speaker 2: It seemed like a lot of the oral argument was
27:31
Speaker 2: taken up with questions. about whether Louisiana has standing to
27:36
Speaker 2: even bring this suit.
27:38
Speaker 9: It was largely about standing. There were lots of questions
27:41
Speaker 9: to the lawyer representing the FDA about whether and how
27:46
Speaker 9: the FDA had reviewed adverse event data, and the attorney
27:50
Speaker 9: representing the FDA consistently refused to take a position on
27:53
Speaker 9: those issues. So there was certainly some sign that the
27:57
Speaker 9: members of the Fifth Circuit were concerned about adverse event data,
28:01
Speaker 9: which makes sense given that they're ruling last spring, turned
28:05
Speaker 9: pretty heavily on that. But there also seemed to be
28:08
Speaker 9: a lot of skepticism among the panel members about standing
28:12
Speaker 9: and also concerned about the timing of this, given that
28:14
Speaker 9: the Supreme Court had preserved existing access to Mifepristone in
28:19
Speaker 9: the present and whether that had any effect on or
28:23
Speaker 9: limit on what the Fifth Circuit could do now.
28:26
Speaker 2: I mean, Judge Higginson basically said that the Supreme Court's
28:28
Speaker 2: ruling did limit their authority.
28:31
Speaker 6: Do we have authority to reimpose this day? The Supreme
28:34
Speaker 6: Court has already said we can't. Exactly.
28:37
Speaker 9: And there was both a 2024 Supreme Court decision involving
28:43
Speaker 9: another challenge to Mifepristone filed by a group of anti-abortion
28:45
Speaker 9: doctors called the Alliance for Hippocratic Medicine. And then there
28:48
Speaker 9: was an order, a shadow docket order issued by the
28:52
Speaker 9: Supreme Court last year.
28:54
Speaker 1: So one question.
28:55
Speaker 9: Was whether the standing arguments made by Louisiana were pretty
28:59
Speaker 9: much an exact match for standing arguments the court had
29:03
Speaker 9: already rejected in that 2024 case, Alliance for Hippocratic Medicine.
29:07
Speaker 9: Another question was, given that the Supreme Court had frozen
29:11
Speaker 9: in place access to mifepristone in response to a request
29:15
Speaker 9: by the drugs manufacturer, Danko, last spring, did the Fifth
29:18
Speaker 9: Circuit actually have the ability to ignore that and still
29:22
Speaker 9: give Louisiana an order immediately blocking access to mifepristone?
29:27
Speaker 1: So there's two different questions.
29:29
Speaker 9: And Louisiana tried to argue that it had a better
29:32
Speaker 9: argument for standing than the Doctors for Alliance and Hippocratic
29:35
Speaker 9: Medicine had. And they tried to argue independently that the
29:40
Speaker 9: Supreme Court's order last spring was a shadow docket ruling.
29:44
Speaker 1: So it was simply just too vague.
29:46
Speaker 9: To have that binding effect on the Fifth Circuit because
29:50
Speaker 9: no one knows exactly who voted or what they were
29:52
Speaker 9: thinking or what their reasoning was. And while that's true,
29:55
Speaker 9: I think the panel was aware that whatever the Supreme
29:59
Speaker 9: Court concluded, it was not ultimately in Louisiana's favor. And
30:02
Speaker 9: so I think the panel judges at least signal that
30:06
Speaker 9: they might not be able to give Louisiana their relief
30:09
Speaker 9: it wants because of the Supreme Court's order.
30:11
Speaker 2: The Supreme Court has had a lot of decisions recently.
30:15
Speaker 2: limiting standing. What's Louisiana's argument that it has standing to
30:19
Speaker 2: bring this suit against the FDA?
30:21
Speaker 9: Louisiana has a couple of different standing arguments. One of
30:24
Speaker 9: them is essentially that it's being harmed because patients suffering
30:28
Speaker 9: complications from mifepristone. are going to hospitals and some of
30:32
Speaker 9: those patients are relying on state Medicaid programs. They're arguing
30:35
Speaker 9: that Mifepristone rules impede Louisiana's power as a sovereign and
30:41
Speaker 9: its ability to enforce its criminal abortion laws. And they
30:44
Speaker 9: also argue in a kind of novel claim that the
30:47
Speaker 9: FDA was targeting Louisiana by permitting telehealth access to abortion,
30:53
Speaker 9: essentially seeking deliberately to undermine Louisiana's abortion laws.
30:58
Speaker 2: And has a court ever second-guessed the FDA's approval of
31:02
Speaker 2: a drug?
31:03
Speaker 9: Judges have not second-guessed the approval of other drugs. There has,
31:07
Speaker 9: I mean, obviously prior to the final resolution of the
31:10
Speaker 9: Alliance for Hippocratic Medicine case, there has been a previous
31:14
Speaker 9: effort to regulate FDA's approval and regulation of Mifepristone, that's
31:22
Speaker 9: really been an outlier. And I think that was something
31:25
Speaker 9: that emerged in the argument, right? So when the Fifth
31:27
Speaker 9: Circuit was discussing demerits and adverse event reporting, An attorney
31:32
Speaker 9: for Danko made the point that the concerns that were
31:35
Speaker 9: raised about adverse event reporting and mifepristone could easily be
31:38
Speaker 9: applied to the approval of a lot of other drugs.
31:41
Speaker 9: So one of the other things lurking in the background
31:43
Speaker 9: here is whether the courts in general or the Fifth
31:46
Speaker 9: Circuit in particular will be setting a precedent for challenging
31:49
Speaker 9: all kinds of drug approvals if it goes down the
31:52
Speaker 9: road of allowing Louisiana to challenge mifepristone in this way.
31:55
Speaker 2: And as you referred to before, the FDA lawyer was
31:59
Speaker 2: in a strange posture, trying to oppose this on procedural grounds,
32:03
Speaker 2: but refusing to give the judges information about the FDA
32:08
Speaker 2: and its procedures.
32:09
Speaker 1: That's right.
32:10
Speaker 9: So the FDA's attorney was clearly in a very awkward
32:14
Speaker 9: spot and had been instructed to not say anything about
32:17
Speaker 9: the merits, no matter what the judges on the Fifth
32:20
Speaker 9: Circuit asked. and would pretty much just repeat arguments about
32:24
Speaker 9: standing and ask the court to allow the FDA to
32:27
Speaker 9: continue its review of mifepristone without judicial intervention. This did
32:32
Speaker 9: lead to some kind of weird and awkward moments where,
32:35
Speaker 9: you know, the attorney for the FDA was refusing to
32:37
Speaker 9: answer questions about the FDA's statutory authority and other things that,
32:41
Speaker 9: you know, would easily come within the expertise of the FDA.
32:44
Speaker 9: So it was another, I think, reminder that the Trump
32:47
Speaker 9: administration has been in a kind of political bind when
32:50
Speaker 9: it comes to Mifepristone, because clearly the administration doesn't want
32:54
Speaker 9: anything changing with respect to Mifepristone before the midterm, because
32:58
Speaker 9: that could cause political backlash, but also doesn't want to
33:01
Speaker 9: take any position defending the current rules on Mifepristone either.
33:07
Speaker 9: So that kind of rock in a hard place reality
33:10
Speaker 9: was on full display at the argument.
33:13
Speaker 2: Is there a danger that the FDA might change its
33:16
Speaker 2: policy on Mifepristone during the Trump administration?
33:20
Speaker 1: Absolutely.
33:20
Speaker 9: I don't think there's much of a danger of that
33:22
Speaker 9: happening prior to the midterm.
33:25
Speaker 1: The Trump administration has actually said as much.
33:27
Speaker 9: But I think there's a danger both because the Trump
33:30
Speaker 9: administration has been under pressure from abortion opponents to change
33:33
Speaker 9: the rules on Mifepristone for some time, and also because, frankly,
33:37
Speaker 9: the courts are putting a lot of pressure on the
33:38
Speaker 9: Trump administration.
33:39
Speaker 1: So the district court.
33:41
Speaker 9: In Louisiana has said that that as litigation in this
33:44
Speaker 9: case continues, that court is leaning toward granting Louisiana the
33:49
Speaker 9: relief it seeks if the Trump administration doesn't give Louisiana
33:52
Speaker 9: what it wants. So the Trump administration is facing both
33:55
Speaker 9: political pressure and judicial pressure. So while I don't think
34:00
Speaker 9: it's likely we're going to see anything change before November,
34:04
Speaker 9: after the midterm, I think is a very different story.
34:08
Speaker 2: Everyone seems to agree on one thing at least, that
34:11
Speaker 2: this is going to end up back at the Supreme Court.
34:14
Speaker 2: What do you think happens at that point?
34:16
Speaker 1: So it depends on what comes back to the Supreme Court.
34:19
Speaker 9: I mean, I think if the exact same questions the
34:22
Speaker 9: Supreme Court ruled on last spring or pretty close to
34:25
Speaker 9: the exact same questions come to the court again, we're
34:28
Speaker 9: likely to see the same result, right? Which is that
34:30
Speaker 9: the court is going to let access to Mifepristone stay
34:32
Speaker 9: in place while the case continues. What happens when the
34:35
Speaker 9: case comes back to the court again later in the
34:37
Speaker 9: litigation is anybody's guess, right?
34:39
Speaker 1: We have no idea what.
34:41
Speaker 9: Motivated the court's decision last spring because it was a
34:44
Speaker 9: shadow docket ruling. And we don't know if the court
34:46
Speaker 9: would rule differently if the FDA study, for example, was
34:51
Speaker 9: actually completed. One possibility is that the court agreed with
34:55
Speaker 9: the district judge and thought it would be better to
34:57
Speaker 9: let the FDA process play out before intervening.
35:02
Speaker 1: So it's not clear what the Supreme Court will do.
35:05
Speaker 9: I think it's unlikely that either the Fifth Circuit or
35:07
Speaker 9: the Supreme Court would grant Louisiana what it wants right now.
35:11
Speaker 9: But that doesn't mean Louisiana won't have better odds later.
35:15
Speaker 9: I think they have very good chance in the district
35:18
Speaker 9: court if the Trump administration doesn't put limits on Mifepristone
35:21
Speaker 9: telehealth access. I think that's probably true depending on the
35:24
Speaker 9: panel in the Fifth Circuit. It may be true in
35:26
Speaker 9: the U.S. Supreme Court, too. So I think at the moment,
35:29
Speaker 9: Louisiana is probably not going to get anywhere, but that's
35:32
Speaker 9: not forever in this case. That's just because Louisiana is
35:35
Speaker 9: kind of asking for a do-over in terms of immediately
35:40
Speaker 9: blocking Mifepristone as opposed to down the line.
35:43
Speaker 2: And it's your guess that the Trump administration will do
35:46
Speaker 2: something to change the rules on Mifepristone.
35:49
Speaker 9: There's not really, in my mind, that much of a
35:51
Speaker 9: question that the Trump administration will eventually do something on Mifepristone.
35:56
Speaker 9: They may not have a choice because of the courts.
35:58
Speaker 9: And I think the question just is what and how
35:59
Speaker 9: much they actually put effort into enforcing new limits.
36:03
Speaker 2: And do you see a way for the blue states
36:04
Speaker 2: to get around this practically? Well, I think.
36:07
Speaker 9: Blue states are going to, if the Trump administration does this,
36:11
Speaker 9: try to make political hay out of it. This would
36:14
Speaker 9: be a deeply unpopular move. And of course, it would
36:17
Speaker 9: make abortion into a major election issue in 2028, because
36:20
Speaker 9: whoever is in the White House would reshape what.
36:22
Speaker 1: The FDA is doing.
36:24
Speaker 9: It seems pretty clear that what the FDA is doing
36:27
Speaker 9: here is critically motivated. The Trump administration has been responding
36:31
Speaker 9: to a pretty steady drumbeat of pressure from, you know,
36:34
Speaker 9: pro-life groups, Republican lawmakers and the like. Although there would
36:37
Speaker 9: be a lot of pressure on the Trump FDA not
36:39
Speaker 9: to put a lot of resources into enforcing new limits
36:42
Speaker 9: on Mifepristone, I think there would also be a pretty
36:44
Speaker 9: big effort from blue state lawmakers and Democratic presidential candidates
36:49
Speaker 9: to make abortion into a major election issue in 2028.
36:52
Speaker 9: And I think that would probably work in a way
36:53
Speaker 9: it hadn't in 2024.
36:55
Speaker 1: Because if the Trump administration does.
36:57
Speaker 9: This, there would be a new national limit on abortion
37:00
Speaker 9: that would be the responsibility of Republicans, right, which was
37:03
Speaker 9: not true in 2024.
37:05
Speaker 2: No matter how many court decisions there are, abortion remains
37:09
Speaker 2: one of the most controversial issues in this country. Thanks
37:13
Speaker 2: so much, Mary. That's Professor Mary Ziegler of UC Davis
37:17
Speaker 2: Law School. And that's it for this edition of the
37:19
Speaker 2: Bloomberg Law Show. Remember, you can always get the latest
37:22
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37:25
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37:32
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37:35
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37:39
Speaker 2: June Grosso, and you're listening to Bloomberg.