UNBIASED - June 13, 2024: Supreme Court Dismisses Abortion Medication Challenge and Issues Two Other Decisions, Biden Administration Sued Over New Border Restrictions, and More.

Episode Date: June 13, 2024

1. Why I Played The Audio Recordings of the Supreme Court Justices (0:37) 2. Supreme Court Dismisses Controversial Abortion Medication Case (FDA v. Alliance for Hippocratic Medicine) (1:53)3. Supreme Court Issues Two Other Decisions in Trump Trademark Case and Starbucks Labor Case (9:42) 4. Biden Administration Sued Over New Border Restrictions (13:05)5. Quick Hitters: G7 Leaders Agree to Loan Ukraine Funds, Trump Meets With Lawmakers on Capitol Hill, and Biden Nominates New FDIC Chair (16:15) Support ‘UNBIASED’ on Patreon.Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Thursday, June 13th, and this is your final news rundown of the week, and it is packed. So I actually am releasing this a little bit early just because there's a lot of news from today that I want to get you as quickly as possible. As always, if you love the Unbiased approach that this show provides, please leave me a review on whatever platform you listen, share the show with your friends, and if you're watching on YouTube, hit that thumbs up button, subscribe to the channel.

All of those things really help me out. So without further ado, let's get into today's stories. I want to start this episode off with some Supreme Court news, but before we get into today's decisions, I want to first and very briefly talk about the audio recordings I played for you earlier this week. I know most of you appreciated hearing those full clips, but I had more people than I would have thought asking why the audio recordings were even in the news in the first place, why I chose to report on them. So here's the thing. My podcast and my platform are here to give you an unbiased take on the hot stories in the news because the hot stories are always the ones that are sensationalized, clickbaity, etc. It's my job to cut through all of that and just give you the facts.

Because those recordings made national news and because news outlets were using their usual clickbaity headlines, I wanted you to hear the full recordings and nothing else. I didn't want to give you any of my own, you know, my own take on it. I just wanted you to hear the recordings because that's the best way to form your own opinion about what happened when you're sifting through all of those headlines. That's why it was included in the episode. And again, I know most of you appreciated the context, but I did just want to clarify that point for those who didn't understand why I played the audio in the episode earlier this week. With that said, let's move on to some other news out of the Supreme Court. This morning, the Supreme Court released three new opinions. And up until now, opinion days were happening once a week. But now they're starting to up the

opinion days to twice a week in order to get all of the outstanding opinions out before the justices take their summer break in about two weeks. And just so we're all clear, the justices are currently releasing their decisions in cases heard throughout their last term, which spanned from October of 2023 through April of this year. And the reason that these decisions are so important for you and me and just, you know, America generally, is because these decisions are ultimately telling us what the new law of the land is for any given legal issue. For instance, today the opinions settled disputes within the trademark world and the employment world. So now we know what the new precedent is in those areas. Now, they did also decide an abortion-related case, obviously the

biggest case of the day, and we'll talk about it more in a minute. But as you'll hear, the decision in that case was a dismissal. It was dismissed based on a procedural issue rather than, you know, the justices didn't rule on the actual merits of the case. So the dispute that was at the center of that case wasn't actually settled. That's why, you know, I didn't group that case in with the trademark and employment cases just a second ago. But let's get into it. The first opinion released this morning was in the abortion medication case. This case is called FDA versus Alliance for Hippocratic Medicine. The court unanimously held that the plaintiffs in this case lacked the legal right

to bring the lawsuit in the first place, so the justices essentially dismissed it. But to give you a brief background of the case, there was this group of doctors that belonged to an alliance called the Alliance for Hippocratic Medicine. These doctors sued the FDA over the FDA's original approval of an abortion medication called mifepristone back in 2000 and over the FDA's subsequent regulation expansions in 2016 and 2021. When mifepristone was originally approved by the FDA in 2000, it could only be prescribed in person by a doctor, could only be used through the seventh week of pregnancy. The woman had to make three total trips to the doctor, one to take the actual drug, the second two days later to take the second drug in the protocol, and then a third visit to

confirm that the pregnancy had actually been terminated. And then finally, the fourth sort of requirement that was at issue is the original FDA regulations set forth this requirement for prescribers to report adverse effects of the drug. But in 2016, the FDA said, hey, look, we're going to make this a little more accessible. Now, non-physician healthcare providers can prescribe the drug. It can now be used through the 10th week of pregnancy. There's only one in-person appointment required, and the reporting requirement only applies to significant adverse effects. Then five years later in 2021, the FDA did away with the in-person dispensing requirement completely and allowed the drug to be prescribed through telehealth and sent

in the mail. So in 2022, these doctors sued the FDA and they challenged not only the 2016 and 2021 changes, but also the original approval in 2000. They wanted this drug off the market completely. Their argument was that the drug isn't safe. They wanted this drug off the market completely. Their argument was that the drug isn't safe, the FDA didn't accurately assess the risks associated with the drug, and that the drug should have never been approved in the first place. So in the lower court, the judge sided with the doctors. The judge found that the FDA had approved the drug despite legitimate safety concerns and held that the original approval of the drug and therefore the subsequent changes in the years that followed were completely void. So the FDA then appeals to the Fifth Circuit and on appeal, the appellate court both agreed and disagreed with the lower court. So for one,

the appellate court ruled that it was too late for the doctors to challenge the initial approval of the drug back in 2000. Therefore, the initial approval stands. However, the appellate court did agree with the lower court as to the more recent changes. So per the appellate decision, the actual drug approval remained intact, but the changes in 2016 and 2021 were rolled back. This effectively reinstated the 2000 conditions on the medication, meaning it could only be taken through seven weeks of pregnancy, it couldn't be mailed, it had to be prescribed in person, and all adverse effects had to be reported, not just significant adverse

effects. Naturally, the FDA takes it to the Supreme Court. And at the Supreme Court, the only issue was the 2016 and 2021 changes, because the appellate court had ruled in the FDA's favor on the original approval issue. So the only appealable issues remaining were the regulation expansions in 2016 and 2021. The questions for the Supreme Court were, one, can the doctors challenge the FDA's regulation at all? And two, if so, were the 2016 and 2021 regulation expansions permissible? And the justices today answered that first question in the negative, which means they didn't even answer the second question.

They dismissed the case, essentially. The justices unanimously held that the plaintiffs, the doctors, did not have a legal right to challenge the FDA's actions regarding the regulation of Mifepristone, and therefore the justices weren't going to decide whether the 2016 and 2021 changes were permissible. But let's take this back to the legal right to sue. What this is called is standing. So in order to bring a lawsuit, you have to prove that you have suffered some sort of harm or some sort of harm is imminent because of the actions of the defendant.

Without standing, you can't sue. So the doctors here tried to argue at oral arguments that they are going to suffer injury because they are the ones that are going to have to treat these patients who have complications from the drug. And because of the new 2016 and 2021 changes making the drug more accessible, they are now going to have to treat more women with abortion complications. And the justices disagreed with this rationale. The opinion reads, quote, plaintiffs are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others. Because plaintiffs

do not prescribe or use mifepristone, plaintiffs are unregulated parties who seek to challenge FDA's regulation of others. Plaintiffs advance several complicated causation theories to connect FDA's actions to the plaintiff's alleged injuries. None of these theories suffices to establish Article 3's standing. End quote. So all nine justices agreed as to this finding, and therefore the case is over. The justices didn't even get to the merits of the case because once they find standing doesn't exist and the plaintiff doesn't even have a right to bring the lawsuit, they can throw away the case completely. No. When I originally reported on this case back when the court heard oral arguments in late March, I said, I don't see this going in the alliance's favor. The justices definitely seemed to be leaning in favor of the government. Standing was a big issue at oral arguments. I believe every single justice, if not the vast majority of them, touched on the standing issue and seemed to

apply issues with it. So this isn't too surprising. Had they actually gotten to the merits of the case, this most likely would not have been unanimous. But as I said, they didn't even get to the merits here. So just to be clear, the court's decision today, while it didn't decide the merits of the case, leaves in place all FDA updates to mifepristone. So mifepristone can still be mailed, it can still be prescribed via telehealth, it can still be prescribed by a non-physician, taken up to the 10th week of pregnancy, etc., etc. And the last thing I'll say is that because the merits of the case weren't decided, the court can still decide the merits at a later date, assuming someone who has legal standing

brings a challenge. So the second opinion released today was in a case called Vidal versus Elster, and we'll spend a lot less time on this, but this was also a unanimous decision. The question for the court was whether the patent and trademark office violated a man's First Amendment right when it refused to register the Trump too small mark because the trademark identifies a living individual without his consent. and the court unanimously held that this did not violate the man's First Amendment right. So Elster had tried to register the trademark Trump Too Small to be used on shirts and hats during the 2016 election. After submitting this application, the Patent and Trademark Office denied it

based on what's known as the Names Clause. And what the Names names clause says, essentially, is that marks that consist of or compromise a name which identifies a living person are prohibited unless that living person gives written consent. Elster argued this provision is a violation of his First Amendment right, and he said that the denial equated to a content-based regulation of speech, which is presumptively unconstitutional. But the court disagreed with this. The justices unanimously found that the names clause does not violate the First Amendment,

and the court's rationale was mostly based on history and tradition, though the court did note that its opinion in this decision is a narrow one. The opinion reads, this decision, quote, does not set forth a comprehensive framework. The opinion reads, this decision, quote, does not set forth a comprehensive framework for judging whether all content-based but viewpoint-neutral trademark restrictions are constitutional, nor does it suggest that an equivalent history and tradition is required to uphold every content-based trademark restriction. The court holds only that the history and tradition establish that the particular

restriction here, the names clause, does not violate the First Amendment, end quote. And the third and final opinion of the day was in a case called Starbucks versus McKinney. This was a labor dispute, but more specifically a procedural dispute when it comes to labor disputes. The question for the court was, what test does a court have to use when determining whether to force an employer's action when a complaint is brought against it? Typically, if you file a lawsuit, let's say hypothetically, your neighbor makes a ton of noise all the time, all throughout the day, all throughout the night, you sue them. You will probably ask the court for what's called a preliminary injunction to get them to stop making the noise while the lawsuit plays out, you know, before a final

decision in the case is made. The preliminary injunction is the court's way of forcing behavior. When you ask for a preliminary injunction in civil suits, there are four factors that the court considers. But when it comes to labor disputes brought by the National Labor Relations Board, courts use a different standard, a two-prong test, which Starbucks said is too lenient and they sued. So the question here for the court was whether a court, when assessing a preliminary injunction request in a labor dispute, must use the traditional four-prong test or whether labor dispute injunctions are subject to a lower standard. And today, the justices unanimously sided with Starbucks and held that a court must use the traditional four-factor test for injunctions. So those were the three decisions released today, and the court is releasing more decisions tomorrow. So stay tuned for those because

we might get some good ones now that we're coming towards the end of June. Some good ones may be coming. In some other news, the Biden administration is officially facing its first lawsuit following President Biden's new border proclamation. A coalition of immigrant advocacy groups and the ACLU sued the administration, arguing that Biden's recent proclamation is essentially the same as Trump's 2018 border proclamation, which was blocked by a federal court and that the executive branch is precluded from barring non-citizens from asylum based on their manner of entry. Remember, the border proclamation that Biden just issued would limit asylum

processing and give law enforcement the ability to turn people away between lawful ports of entry at the southern border once the number of encounters between lawful ports of entry reaches 2,500 per day. Currently, average daily encounters are right around 3,100, but in recent weeks have been closer to 4,000. According to Biden's proclamation, the restrictions would be lifted two weeks after the daily encounter numbers are at or below 1,500 per day for a seven-day average. To implement these restrictions, President Biden invoked authority under Sections 212F and 215A of the Immigration and Nationality Act because the president's authority has to come from somewhere. And this is also the same authority that Trump used in issuing his proclamation back

in 2018. Now, Trump's border restrictions were a little different than Biden's in that Biden's sets number limits, whereas Trump's was a general 90-day restriction. So Biden set those 2,500 and 1,500 average daily encounter numbers, but Trump just said from this day forward and for the next 90 days, any person who crosses the southern border between lawful ports of entry cannot come in. And that was because at the time, average daily encounters were right around 2,000. Also, when it comes to exceptions, Biden's proclamation lays out more exceptions and does so more explicitly. So Biden's specifically exempts any, quote, non-citizen national of the United States, unaccompanied children, anyone who is determined to be a victim of a severe form of trafficking, anyone who is permitted to enter based on urgent humanitarian and public interests, etc. Whereas Trump's was more vague and didn't offer as many exceptions as Biden's does.

So those are how the two are different, but based on the same authority, essentially do the same thing. Back in 2018, though, Trump's restrictions were ultimately challenged by the ACLU and blocked by a federal court. Now, the thing is, the Ninth Circuit didn't decide the actual merits of that case. The case didn't get that far. What the Ninth Circuit did is it blocked the restrictions from taking effect while the case plays out, that injunction idea we just talked about, but the case didn't end up fully playing out because Trump left office. So the heart of the issue remains undecided, meaning whether a proclamation like this can be issued is still in the air. But that's what the ACLU is challenging again. So we'll have to see how far this case gets because a court may not even get to the merits of this case either. But at the end of the day, what the ACLU wants is to

at least just get that preliminary injunction or temporary restraining order, because that'll stop the restrictions from taking effect from the get-go, regardless of how far the case gets. And just a few quick hitters for you before we end the episode, starting with G7 leaders agreeing to loan Ukraine money backed by profits from frozen Russian investments. The seven leaders at the G7 summit include Italy's Prime Minister, President Biden, the President of France, Canada's Prime Minister, the German Chancellor, Britain's Prime Minister, and Japan's Prime Minister. According to an announcement from a United States official today, the roughly $56 billion loan will be drawn from funds

frozen by Western leaders in the wake of Russia's invasion. While only $3 billion of those funds are in U.S. banks, a much larger share amounting to hundreds of billions are located in European banks. In other news, former President Trump made a visit to Capitol Hill today. This was the first time he had been there since leaving office in 2021. He sat with Republican lawmakers for more than an hour discussing a wide range of topics, including his recent conviction, the election, the DOJ, Nancy Pelosi, abortion, and more. And finally, President Biden has nominated Christy Goldsmith Romero as chair of the Federal Deposit Insurance Corporation.

The search for a new FDIC chair came after the current chair announced he would resign following an independent investigation detailing sexual harassment, discrimination, and bullying within the agency. Goldsmith-Romero is a Democrat who is currently a member of the Commodity Future Trading Commission and previously served as Special Inspector General for the Troubled Asset Relief Program at the Treasury Department. She'll now need to be confirmed by the Senate before taking over the position. That is what I have for you today. Thank you so much for being here. I would say I will talk to you again on Monday, but we're going to see what the Supreme Court does tomorrow, because if there's anything crazy, you might get a special report from me. As you know, I don't typically do episodes on Friday, but who knows? If something crazy happens, you might hear from me tomorrow. And just as a reminder, these hats go on sale June 26th, limited quantity available. So stay tuned. I will post the link soon. It says

unbiased on the front, just the facts on the side. It's a good one and it looks good on everyone. So stay tuned for that and I will talk to you when I talk to you.