Leak of Draft SCOTUS Abortion Decision Is Stunning

Supreme Court has been considered just about leak proof. How surprised were you? Well, I was quite surprised, because while there have been a very very rarely leaks of appending outcome in a Supreme Court case, I can recall no case where we've seen a leak majority opinion in full laying out the courts reasoning and rationale and details of the vision. So that is even among the instances of previous leaks, historically unprecedented. Describe the process of the conferencing

and the circulation of drafts, Well, that's right. This majority opinion is really only a draft majority opinion, and it may not be the final decision that comes out of the Supreme Court. The way the Supreme Court works is the Court here's oral argument, and then a few days later meets in what they call the conference. And the conference involves only the justices. No clerks or secretaries or assistance are allowed in the room, and they go around and vote on the cases and hash out how the

reasoning is going to go. Those votes that the Court cast in the conference set a majority and sometimes a minority perspective on the court, and the two sides will go off writing their opinions. But those votes that are cast but the conference are not considered final votes. And there have been instances in the past where justices have changed their votes after the conference, including in planned Parenthood be casey, one of the important cases court here purports

to overturn. Chief Justice John Roberts came out with a statement saying that this is not going to affect how the Court operates. But I wonder how this might in fact affect the justices at their conferences and in circulating future drafts. If they're concerned that there could be a leak. Well,

I imagine it could have some effect. You might imagine, for instance, the Court adopting a system where every draft opinion has a watermark of some sort or a distinguishing feature, so that if a PDF file comes out like in this case, it can be traced back to the recipient

of that draft. However, I also think that more importantly than the leaking of the opinion, it's the opinion itself is going to cause a lot of disharmony on the Supreme Court, and we're likely to see the two sides of the Supreme Court very very starkly divided in coming years and very bitter over the Court's overturning of Grow versus Way. Let's talk about what Justice Slido wrote in his opinion. He wrote that Row was egregiously wrong from

the start. Explain his reasoning well. His argument is is that Row is an unwritten right under the Constitution, and that the way that we define which unwritten rights are protected by the Constitution simply doesn't support the holding of Row versus Wade. Alito says, the way we do that

is we look to history and tradition. Those rights that are deeply rooted in history and tradition are protected by the Fourteenth Amendments to Process Clause and he says the right to abortion is not deeply rooted in history and tradition. Uh And indeed, many people have criticized Row versus Wade over the years for not offering a particularly vibrant and robust argument for why the right to choose abortion was

protected by the Constitution. He wrote, far from bringing about a national settlement of the abortion issue, Row and Casey have inflamed debate and deepen division. That seems to me like it's a political argument. Well, there is a certain paradox in Alito's opinion. He says that the Court needs to rule on the basis of law without regard to

any of the political consequences or political opinions Americans. And yet this very idea pops up in the reasoning of the Court that his majority opinion says that Row hasn't settled things, and because it hasn't settled things, that becomes

a reason for overturning it. What that suggests is that people who are opposed to a constitutional ruling of the Supreme Court just need to agitate hard enough to make that a continuing and current controversy, and if so, then they will have unsettled the precedent and made it so the precedent doesn't survive. Let's talk about Alito's tone in writing this, which is very caustic and very critical of the Supreme Court author of row Well, I think that's right,

and he is very caustic. And Alito's opinions have been very caustic for many years, and indeed his questions at oral argument often play the same way. One thing that seems to run through Alita's opinion is a lack of any understanding of how anyone could come up with a different argument or a different perspective on the underlying right, and I think that's one of the real weaknesses of

this opinion. Many people have criticized some of the d process privacy opinions that were written by Justice Anthony Kennedy, such as Oberga Fowl and Lawrence recognizing same sex marriage

and same sex intimacy as fundamental rights respectively. But one thing Anthony Kennedy was always very careful to do was to try to show respect for the other side and for people who had differings, and made specific efforts in his opinion to call those people into his opinion and to support his arguments rather than sneering at them as being totally lacking in merit and any serious constitutional Adam Alito writes that we've long recognized, however, that starry decisive

is not an inexorable command, and he's got a list of cases. What does that do to the view of the Court as being, you know, an institution that follows precedent, even though on occasion we've seen that they don't follow precedent. But this is a precedent that the little girls were born with, this precedent, and now it's just being taken

away from them. This right, Well, that's right, And I do think that U the Court's treatment of precedent just highlights that the Roberts Court in particular is not that interesting precedent and has been overturning precedents pretty much left and right, often just using the shadow dockets so that they don't even have to offer precise and concise opinion

and reasoning explaining the decision. So we have seen that precedents are being overturned at an increasingly rapid rate in the new Roberts Court, especially after the addition of three new justices under as a Trump justice is Gorsch, Kavanaugh and Barrett and I think this case is a wake up call for those who think that Supreme Court nominees who go to the Senate and tell Susan Collins, as Brett Kavanaugh did, that rovers weight is the settled law

of the land, don't really mean anything by it. That precedent doesn't really mean anything to the justices of the Supreme Court. Well, Elito himself described it as precedent of his own confirmation hearings. Leaks happen in Congress, leaks happen in the White House, not usually in the Supreme Court. How does this affect the Court's legitimacy? Does it reinforce the idea that it's become a more political institution. I'm not sure what effect the League will have on the

perception of legitimacy of the Supreme Court. I think more disastrous to the legitimacy of the Supreme Court in the eyes of many in the public is overturning rovers His way is the substance of the underlying decision that was

released in draft form. If this decision holds, I think that many many people will lose faith in the Supreme Court in a way that the Screen Court hasn't seen in many, many decades, and I would expect that a lot of people who used to say, well, yeah, they talk about overturning rovers as way, but they'll never really do it, will now have to be would be forced to really reconsider their approach to politics and who they want to vote for, and how important issues of choice

really are to their sense of liberty and democracy. I've heard two different viewpoints, one being that the revelation of this draft opinion could lead the majority to dig in and stick to the opinion. The other side is that, well, it could lead some of the justices to rethink the opinion and perhaps go to the middle ground that the Chief Justice reportedly has been interested in. What do you think It's so hard to know, June. You know, we just don't have any information on leaked it and what

the possible reasons are for leaking it. One could imagine an argument that this was leaked by conservatives who are looking to shore up Aldo's opinion and stop someone like a Kavanaugh from wavering and signing onto a more moderate decision. Others have speculated that it's probably someone on the left, left leaning clerk who's so outraged and shocked that that persone wants to let the world know what's coming in Supreme Court and how outrageous this opinion really is in

light of constitutional law. I think those are really the key things, and among lawyers, I think that Alito's draft opinion, if it becomes the majority opinion, will not gain the respect of the legal community. At critical points in the argument, Aledo abandoned legal analysis for really pure policy preference. And I don't think that the argument that Alito makes will be received with any more compliments than Justice Blackman's original

decision and Grow versus Way. So it is possible, not probable, perhaps, but it is possible that one of the justices could change their vote. Absolutely justices in and have changed their votes after a conference and after majority opinions has been circulated. It happens, you know, with some regularity. Without saying it's frequent, it does happen, and it happens many times over the years.

One prominent example was Planned Parenthood Recasey, one of the cases that the Supreme Court reports to overturn in this draft opinion. In that case, Justice Kennedy originally voted to overturn Roe versus Wade and to uphold broad regulations of abortion, and then he changed his mind after the majority opinion started circulating. And it's happened in other much less controversial

areas as well. Sometimes justice is fine that they think an outcome is right until they see an opinion explaining the outcome, and then they say, wait, that reasoning an argument just doesn't work for me. I think I'm going to change my votes. I would be very surprised if that happens in this particular case. I think these justices have been thinking about Roe versus Wade for many decades.

All of them grew up at a time when roversus Wade was a very controversial opinion, the subject of much conversation among the Federalist society gatherings that that all of the current conservative justices attended with regularity, and so I think that their views on this issue are not really in play. And that brings us back to all the confirmation hearings where every single justice said Row was established precedent.

I guess that doesn't mean much anymore. Well, I guess it only means that it's an established precedent, but not that that precedent will be upheld if they get the chance to rule on it. You know, there is nothing wrong with overturning precedent as a matter of constitutional law. The Court has done that many times, and we'll do

it many times in the future. There is perhaps a little bit more of a concern about overturning precedent right now when we know that this challenge to Roe versus Way was really instigated by changing personnel on the Supreme Court, and it really undermines the Court's legitimacy to overturn widely supported, incredibly well recognized precedent like ro versus Wade, Life Planned Parent Heard versus Casey immediately after three new justices have

been appointed. I think that really calls into question the courts neutrality, and for an opinion that claims to want to leave the issue of abortion to politics and not constitutionalize it, we see that the constitutional question itself is decided by politics, decided by the election and Mitch McConnell's manipulation of the confirmation process to get three justices appointed to the Supreme Court in the Trump years. People are now speculating. A leader in his opinion said, this doesn't

mean that other rights are in jeopardies. But does this mean that other rights based on privacy are in jeopardy, for example, same sex marriage, or contraception, or interracial marriage. I think all of those precedents are called into question quite directly by all opinion. You're absolutely right. Alito's opinions to those decisions are not affected by the abortion move he says, because abortion is different. Abortion is different, he says,

because it involves potential fetal life and protecting potential to life. Well, that's there as a distinction, except it's not a distinction that's grounded in constitutional law or constitutional analysis. Right, there's nothing in the history and tuition of the fourteenth Amendment that says anything about fetal life or why the rights that affect third parties aren't going to be recognized by the Constitution. We have many rights that adversely affect third parties.

Think of the Second Amendment right to keep and bear arms that results in a number of people dying every year from gun violence. And so he makes a distinction of the distinguish away of those cases. But the basis for the distinction has no constitutional grounding. It's just a policy preference. Well, we think this is different because it's

uh being a life involved. Note that some of the other privacy rights that he referred to, such as the right to use contraception, arguably have a similar effect Row versus Way, and that a potential feet of life is involved.

More importantly, I think that despite Alito's effort to distinguish those other privacy right cases, the history and tradition analysis that Alito offers that says we only really look to history and law before eighteen sixty eight, when the Fourteenth Amendment was adopted, would not support many of the privacy rights that the Court has found. The rights interracial marriage would not be recognized under this history and traditional test

that Alito proposes. Here, a right to same sex intimacy or a right to minors to have some sexual privacy rights would not be recognized at all if we do the same history and tradition analysis that he offers. And so I think, despite Aldo's assurances, all those other rights are in jeopardy. Conservatives have had their eye on Row for so long. What is it about Row that has

led this whole sort of revolution. Well, I think it's that there's a real large co hort and American society that wants to restrict abortion, that doesn't want women to have these rights that doesn't want women to be able to exercise this kind of control over their bodies and sexuality.

And what's happened in in the last thirty years is that while there's been plenty of bad decisions about the Supreme Courts, plenty of decisions poor reasoning, but few of them occasion the kind of controversy and backlash that ro

versus Wade has caused. And I think that's part of the reason why the Court will overturn rovers way, because these justices have been steeped in the idea that Roll versus Wade is the original sin of American constitutional law, the most obvious example in all of American history of unbridled judicial activism, and they see it as their role to overturn it and to restore an earlier version of American law in which women's bodily autonomy was not recognized

as a constitutional right. Thanks so much for your insights ATAM. That's Professor Adam Winkler of u c l A Law School. Opioid overdose has killed nearly half a million Americans over two decades, and the epidemic is getting worse instead of better. D e a administrator and Milgram says an American is dying every five minutes from an overdose, and seventy five

percent of those deaths are from opioids. It's you know, Americans of all ages, cuts across every single demographic rural, urban, suburban, and that people are dying at record rate. San Francisco says opioid manufacturers Allergan and Teva distributor and a and pharmacy giant Walgreens flooded the city streets with prescription drugs and it's suing over the toll opioids have taken on the city where one quarter of emergency room visits are

the result of opioid related issues. Joining me is healthcare attorney Harry Nelson of Nelson Harden In Harry, san Francisco is using a public nuisance theory? What does it have to prove to make its case? So to prove a public nuisance, San Francisco has to prove that the three drug companies at issue, along with Walgreen's pharmacy, basically engaged in behavior that's so harmed so many people in San Francisco and that they need to be essentially forced to

pay for that harm. And the harm here that we're talking about, of course, this prescription opioid, and the claim is that these companies are responsible for having flooded San Francisco with prescription opioids and then failed to prevent them from being routed into the illegal market for misuse. San Francisco claims they aggressively marketed opioids to doctors as a risk free panacy for all forms of pain. What's the

line between aggressively marketing and just marketing. It's an interesting question. I think, you know, it's much easier when we talk about this question of where the line is on marketing to look at behavior from for example, Perdue Pharma, where it was very clear that they were aware that the problem of overdoses and the addictiveness of the drug was causing problems, and they just kept marketing more aggressively and

sort of building that issue into their marketing. It's a lot more fuzzy when you come to companies like Walgreens or Alegant Tava Pharmaceutical, where they were offering these drugs in the market. It's not clear what they did that was so unusual in that marketing, And frankly, I think that the city is going to have a very hard time showing that there was anything particularly distinctive about the way that these drugs were promoted, is that somehow ignored

the risk associated with them. The defendants claimed that they were sort of bit players in the opioid crisis, and they say the blame should be directed at Perdue, which has declared bankruptcy. I think it's a compelling argument. You know. The reality is that there were a lot of companies that manufactured and distributed, and in the case of the pharmacy's,

dispensed these drugs. But they are not all equal. Right, Perdue Pharma made billions of dollars and orchestrated an aggressive campaign to manipulate how doctors and patients perceived the risk. There's not the same kind of evidence with regard to

Allergan and Haveva. These are companies that clearly had a business line devoted to pain medication, but there's no signs that I've seen to this point to suggest that they were somehow scheming to hide the risks associated with these medicines or doing something to promote them more aggressively than

all the other medications that they sell. I personally think that the city has an uphill battle In this case, before trial, defendants J and J and three large distributors reached a twenty six billion dollar nationwide settlement of opioid claims. As I mentioned, Perdue went bankrupt five days before trial, and O Pharmaceuticals reached a deal with the city. Let's say the jury does fund these drug companies in this trial,

lie do they consider the settlements in deciding damages. If they reach a decision that there is liability, that the city proved his case of a public nuisance, the jury will then be asked to apportion responsibility and to allocate some responsibility to different companies. So there's going to be a moment where a jury is asked to decide how much Allergan, for example, is responsible or how much Walgreen

is responsible of the total amount of liability here. And and that's a very you know, it's hard to see how a jury is going to be in a good position, assuming that they get that far, to make a really nuanced decision when you have a lot of different companies, you know, promoting a drug for which there was enormous demand clearly, you know, for pain, but which was risky. That's the process the jury will be forced to go through.

But I can't say that I am optimistic that it will be an easy one or necessarily precise one for deciding how much each party should be response able to pay. Do you have any insight into why the other you know, why J and J D, etcetera. Why they decided to settle. Some of these companies have previous cases where there has

been more negative evidence. So I think in the case of Endo, for example, there there was some evidence, not nearly to the extent that we had against Purdue Pharma, but that they were a company that was aware of the risk and was marketing, for example, offering inducements to doctors to promote the drug. So Endo was one of those companies that had more risk because there was some

bad behavior. And I think that a lot of the companies that chose to settle were companies that had something that they were afraid the prosecutors in the city attorneys here would would point to to actually make them look like they had behaved badly. And my feeling is just the opposite that in this case, the companies that are still standing don't see that evidence and are challenging the city to the case that they that they actually did

anything wrong here. Some of the claims against Walgreens are that the pharmacy was under guideline to take fifteen minutes to fill prescriptions and that didn't check enough. That seems

pretty thin. Yeah, you know, my perspective on this is that over the last two decades, we've seen the standards that are expected for pharmacies, for example, changed radically, and this whole set of expectations of how much compliance, how much verification a pharmacist and a pharmacy is expected to do to verify that something is legitimate, have been completely overhauled.

But if we're not talking about Walgreen's actually affirmatively doing anything bad, we're saying that they failed to do certain checks that we wish they would have done. I definitely think that if you talk to anybody who is learning to be a pharmacist today, they're they're learning a very different set of responsibilities than the people who went through pharmacy programs, you know, twenty years ago. But but I do think that, um, I think it's a tough, tough

argument because there was a way of doing business. Pharmacies were entitled to just see that if if it really was a prescription from a doctor to assume that it was legitimate and then all of a sudden. In cases like this, the argument is being made that no, the pharmacists had to do more, And it's not clear how much more pharmacists could do beyond just seeing that a doctor prescribed this to a patient. It's not clear that

we want pharmacists to be second guesting doctors. So I actually think there's a very tough argument the city is going to have to try to prove here. This public nuisance legal strategy against drug makers for causing or fueling the opioid crisis hasn't had a very good track record, has it. A California judge ruled in favor of the defendants five pharmaceuticals, including Teva, five months ago, and the Oklahoma Supreme Court overturned a ruling against Johnson and Johnson.

Has this public nuisance argument been successful anywhere? Yeah, it has had more failures than successes. It's definitely. You know, public nuistance comes out of an environmental context, where it was much easier to say that a certain company polluted the environment in a certain area, and it was a very direct link from the source of the harm to

the actual harm the pollution in those cases. In this context, where we see a legitimate medication manufacture, distributed, prescribed by doctors, dispense and then traveling through the system in ways that cause harm, people getting addicted, people selling it onto the street, it's a lot more complicated, with a lot more different players, and it's not that clear link that we see in

those environmental cases. So I think that the public nuistance I understand why it's appealing to government and to attorneys who are looking to make a case to try to get the costs that are were imposed here, which we're significant on healthcare, on law enforcement across communities, to be shared. But it's not an easy theory and I'm not bullish on the future of public nuisance litigation in this area.

This is the fourth bell Weather case I believe, chosen for trial from about three thousand in the federal opioid litigation. Explain why it's called a bell Weather case. What that means. We had like a log jam, you know, of just thousands and thousands of cases that had to be tried. So so when we say bell Weather, we're the judge in this case was basically selecting a handful of representative

cases to look at harms in different context. So this, I believe is the first urban focused case of how did opiod harm you know, how did it progress, what did it look like in a city, as opposed to some of the rural cases, for example in Ohio that

were marked as bell weathers. So the idea is that hopefully the parties see how the arguments play out in these cases, how juries respond to them, and they use that as a kind of test so that we don't have to go through the same exercise over and over again, and that the parties on both sides will have a better sense of what their odds of success are, what their liability risks are, and settled cases based on the indicators that come out from this case. Let's talk of

this a little bit about Perdue. A six billion dollar deal was approved in bankruptcy court last year, but an appeals court threw it out in a surprising decision, and now it's being argued over in a New York court. Yes, so this is super interesting. The reason the settlement was thrown out on appeal was the question of whether a bankruptcy judge had the power to give the members of the family the Stackler family, which owned Perdue Pharma protection right.

The Stackler family is a very wealthy billionaire family that did not file for bankruptcy. The company that they founded did. But their insistence was that they were only going to settle and pay these billions of dollars out of Perdue if they also were given this legal shield, and so the court overturned that, and so now the parties are back in court arguing about it, and we're still seeing the family completely dug in and protecting themselves right the family.

By the way, reports have come out that the family took over ten eleven billion dollars out of the company in the years that they were aware of this crisis. And so it's still up in the air weather we're going to get a settlement here. I assume we will eventually, but it's a fascinating question of how far courts can go to protect the individual families from the harm resulting from the company that they that they owned and managed.

And the Sackler family has come to represent sort of like the evil kingpins of the opioid crisis, So there's not much sympathy for them at all. You know. The truth is that you know, most of the family was far away from this business. There were a handful of family members Dr Richard Sackler who were at the heart of this, you know, in some ways, you know, it's

a it's a tricky thing that the family. Clearly, any time you walk away with over ten billion dollars from a business that killed thousands of people and imposed billion dollars farm, you're gonna have a tough time getting sympathy. But I do feel for the family members who weren't involved that their name was used to grace you know, museums and and all kinds of you know, amazing medical schools and institutions all over the world for their philanthropy.

Has now become a sort of keyword for abusive behavior in the pharmaceutical world. So it's a lot of damage to the Stackler name that's gonna last far longer than these cases. And finally, I wanted to get your take on the Commissioner of the Food and Drug Administration told the Senate that he wants to toughen standards for drugmakers who want to sell new opioids. Congress would have to give the FDA that power. Do you think that's a good idea? Look I think it's a good idea, although

I do I think there's a real conundrum here. The reality is that something like one in five American adults, fifty million people complain that they live in severe or serious chronic pain. So we have an enormous need for these drugs. We've learned how dangerous they can be, how addictive they are, but we've also seen that when you deny people access to them, you know, it leads to terrible things, including increased risks of suicide. And so we do need more controls, and I think it's a good

thing for there to be more effort. But at the same time, we've learned, for example, that when the FDA requires the drug companies, for example, to put out additional educational materials to doctors so that doctors understand the risk, and the net outcome of that is that doctors actually

prescribe more of the medication. So I think that we sort of have these opposing tensions where there's an enormous need for these medications, doctors are are nervous in the in the current environment about what they can and can't do, and I think more clarity from government, more requirements that if if those translate to making it safer for doctors to prescribe to patients. I think those will be a

good thing. Thanks Harry. That's Harry Nelson of Nelson Hardeman And that's it for this edition of The Bloomberg Law Show. Remember you could always at the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law. I'm June Grosso and you're listen. Seemed to be Born