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Matt Katz: It's The Brian Lehrer Show on WNYC. Welcome back, everybody. I'm Matt Katz, keeping the seat warm for Brian today. Unanimous decisions typically elude the Roberts court, but Thursday saw a rare 9-0. The heavily right-leaning court rejected an attempt to ban the abortion drug Mifepristone, concluding that the plaintiffs in the case had no real standing to sue.

Justice Kavanaugh, who delivered the opinion in the case, wrote, "The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA's relaxed regulation of Mifepristone," but, see if you can catch the caveat in this next part of Kavanaugh's opinion. "It is not clear that no one else would have standing to challenge the FDA's relaxed regulation of Mifepristone." In other words, the door may yet be open to future challenges to abortion pills.

We'll hear more about the rare unanimous decision in this case, FDA v. Alliance for Hippocratic Medicine, and we'll hear about some of the other items on the agenda for the Supreme Court before the end of the term, from Donald Trump's claim of immunity from prosecution to misinformation on social media and more. My guest is Aziz Huq, Professor of Law at the University of Chicago Law School and author of the forthcoming The Rule of Law: A Very Short Introduction (Oxford University Press). He's writing the book on the rule of law. Aziz, welcome back to WNYC.

Aziz Huq: Thanks for having me, Matt.

Matt Katz: Before we get into what the court did yesterday and what it might do before the conclusion of this term, I want to start with today's rulings. Today was apparently a very light day, but the court did issue three rulings, including one that provides an answer to the question of whether a bump stock meets the statutory definition of a machine gun. I've been on the air, so I know very little about what the court said. What did the court say? Have you had a chance to take a look at the decision? Do you want to kind of also give us a rundown of the case and the implications of it?

Aziz Huq: Sure. There's a federal statute that allows the federal government to regulate machine guns. The Bureau of Alcohol, Tobacco, and Firearms, the ATF, is charged with doing that. Until 2017, ATF took the position that a device called a bump stock did not count as a machine gun, which is subject to regulation and even prohibition under federal law. In October of 2017, a person using a bump stock killed 58 people and injured 500 others in a mass shooting in Las Vegas, Nevada. In the wake of that mass shooting, ATF changed its interpretation of the law.

ATF held that or issued a rule saying that a bump stock, when it is attached to a semi-automatic weapon, becomes a machine gun that is prohibited under federal law. It required people who own bump stocks to hand them in and for vendors not to sell them. What's a bump stock and how did the case unfold? A bump stock is a mechanical device that is attached to the end of a semi-automatic weapon and effectively allows the user of that weapon to hold down the trigger in a way that produces not 60 to 100 shots per minute, which is the rate at which a semi-automatic weapon fires, but 400 to 600 shots per minute.

The Las Vegas shooting is an example of what the effect of that change can have. The Supreme Court today voting 6-3, the Conservative majority holding in this case, the Supreme Court held that the ATF was wrong to say that a bump stock adjustment to a semi-automatic weapon makes that device into a machine gun. The crux of that ruling was a very close reading of the federal statute that defines a machine gun in a way that excludes, puts outside of the statute scope, bump stocks.

I'm happy to explain the technical details of that but the downstream effect of that ruling is that this ATF regulation is no longer on the books. People are permitted to own and sell bump stocks. As Justice Alito says in a separate concurrence, Congress can always come back and amend the statute in a way that reaches bump stocks, but of course, you and I, and probably he knows that that is very unlikely to happen in an election year or indeed afterwards.

Matt Katz: Yes, right. For sure. This is going to be, it seems the rule of the land for the foreseeable future.

Aziz Huq: That's right. In the absence of congressional action to eliminate the legality of bump stocks, we're likely to see bump stocks continuing to be sold, even if you have a state like New York or Illinois enacting a measure that prohibits bump stocks. Of course, we live in a country in which there's a great deal of traffic and movement across states. The mere fact that New York bans bump stocks, let's say, doesn't mean that somebody cannot bring one from Pennsylvania or from another state where they are permitted.

Matt Katz: I'm just going to quote from Justice Sotomayor. She wrote in her dissent, "When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck." That would refer to bump stocks being essentially weapons, I imagine. Moving on to another case we have to get to. On Thursday, yesterday, a Supreme Court that includes three Trump-appointed justices rejected a challenge to an abortion bill unanimously. Who are the plaintiffs in that case and why did their challenge fail with what seems like a favorable court?

Aziz Huq: A group of anti-abortion physicians challenged the FDA's 2000 authorization and its 2016 reauthorization with expansion of a drug called mifepristone, which is one of two potential pharmaceutical regimes employed in medication abortions. Mifepristone, which is the dominant regime used in the United States, there's a different drug that's used predominantly outside of the United States.

Mifepristone has come into very broad use in the wake of the pandemic because the FDA authorized the prescription and the receipt of mifepristone through telehealth, which obviously makes it dramatically easier for pregnant persons to access a physician and access the medication, including in instances in which they're located in a state, about one-third of them now, that prohibits or dramatically restricts abortion at physical facilities in the state.

These FDA actions were challenged by a group of doctors who by their own lights, anti-abortion. They took the view that the availability of mifepristone had a deleterious, a damaging effect to them because they were at risk of having to see patients who experienced negative side effects from taking mifepristone, and in the course of treating those patients, they would have to perform medical procedures that they viewed as abortions. Now, the ruling in the case was that those doctors do not have standing. Standing is a technical legal doctrine that says in order to bring a case in federal court, you need to have skin in the game.

You need to have some kind of stake in the actual controversy that's before the court. The unanimous court yesterday found that these doctors didn't have skin in the game because there was no realistic possibility that they would be asked to perform any surgical or medical procedure on a patient who had earlier received mifepristone. Obviously, these are physicians who would not themselves prescribe medication abortions. The only argument that they had is, "Well, maybe somebody who's received a medical abortion could come to us and say, 'we need a procedure."'

The core of the court's finding that they didn't have skin in the game is that there are conscience provisions, conscience exceptions, under both federal and state law that say if a physician or a nurse has a religion-based objection to delivering a certain procedure, it's not just that they have the right to opt-out at that moment, it's that hospitals have an obligation to create some set of rules that make sure they're not going to be in the position where they're having to do that procedure. Because of those conscious objections, there's no realistic possibility, the court said, that these physicians would be in a position where they're harmed by the existence of a mifepristone authorization.

It's important to say, and you flagged this earlier, Matt, that the court did not completely close the door to challenges to Matthew Bristow. The court indeed and in particular, a solo concurrence by Justice Thomas alludes to the possibility that Republican states, which have already sought to intervene in this litigation, could have legal standing to bring a challenge to the provision of mifepristone on the ground that hospitals that they run in the state are having to pay for procedures that are dealing with the downstream negative consequences of Mifepristone.

One last thing that's worth saying, mifepristone is extraordinarily safe pharmaceutical. The rates of complications for mifepristone are an order of magnitude smaller than the rates of complications for penicillin or Viagra, drugs that are commonly and widely used, albeit by different populations. The notion that the factual claim that there is any spillover financial harm to hospitals because of the provision of, or the availability of mifepristone is an extraordinarily weak empirical read.

Matt Katz: We can take some calls on all of this and the Supreme Court term as we spend a little bit more time on this decision and other cases to come. The court is yet to decide whether Donald Trump is immune from prosecution for trying to block the results of the 2020 election. There is a case related to the power of federal agencies and other related to the Opioid Lawsuit and the Sackler family, and a lot more before the end of the term.

Listeners, your SCOTUS questions are welcomed for Aziz Huq, professor of Law at the University of Chicago Law School, and author of the forthcoming book, The Rule of Law: A Very Short Introduction. Our number is 212-433-WNYC, 212-433-9692. Give us a call or text us. Aziz, we're going to get into some of these other cases, but I'm just wondering what lessons should we be taking about this court by looking at some of the rulings that have so far been issued this year.

Aziz Huq: Matt, I think that this is a court that is, to some extent, aware of how politically divisive its rulings in the last two years have been particularly with respect to affirmative action and abortion, and where there seems to be a tempering across the board of the tone and an effort to reach unanimous opinions. I think we see that not just with yesterday's mifepristone ruling, we also see it with respect to the Trump, the Anderson ruling earlier in the year concerning Colorado's disqualification of President Trump from the ballot. Now, that unanimity is often in evidence right up until the last days of the court's term.

Because it is in the last days of the court's term that we tend to see those opinions that have most sharply divided the justices where we have dueling opinions back and forth where each justice is trying to respond to what the other has said right up until the last moment when the opinions are issued to the public. Absolutely, we're seeing a measure of unanimity but that unanimity is likely to fall away to some extent before the end of the year.

Matt Katz: Interesting. Since we've been focused on the abortion pill here, I want to ask about one other case that's yet to be decided by the Supreme Court this term, which will apparently have implications for the future of emergency abortion care, Idaho v. US.

Aziz Huq: This is a case involving an Idaho statute that prohibits abortion except in cases where the life of the person bearing the child is at stake. There's not a health or serious bodily harm exception as I understand it to the Idaho statute. The question presented in the Idaho case is whether that prohibition is ousted by a potentially contrary federal law called EMTALA. EMTALA is a federal statute that regulates the provision of emergency care by hospitals that receive federal funding. Because almost all hospitals receive federal funding, EMTALA effectively provides a flaw of care under which these hospitals are not allowed to go without violating that federal statute.

The issue in the case is whether EMTALA, which uses general language about the services that are required in emergency rooms. Whether that statute requires that these hospitals, hospitals in anti-abortion states like Idaho, provide abortion care when there are serious risks to the life or the health of a mother. The issue is technically called one-off preemption. Does the federal statute, EMTALA, preempt or oust the conflicting state statute because Federal Law is always superior to State Law?

In the oral argument, it seemed that the court was closely divided on that question. It seemed as if there was a majority of justices. Interestingly, it might not be the six conservatives, it might be the five male conservatives who would rule that EMTALA is written in vague terms and therefore does not require contentious procedures like abortion even where they are necessary for the life or the health of the mother. Therefore, there is no conflict between EMTALA and State Law.

It's important to say that that kind of a ruling, just like the mifepristone ruling, would have an immediate and dramatic effect upon health outcomes, particularly in anti-abortion states where people are struggling to obtain care, delaying their access to care, to the point at which they are much more likely to end up in an emergency room in a situation where a physician is having to choose between, on the one hand, imperiling the mother's life or health, or on the other hand, doing a procedure that might be banned by State Law.

Matt Katz: There's another case that seems to have such wide implications. The courts already ruled that Colorado cannot disqualify Trump from election ballots because of his actions on and before January 6th, 2021, but it hasn't yet decided whether Trump is immune from prosecution over his efforts to overturn the 2020 election. Can you remind us what Trump's claiming here in this immunity case and what the justices indicated during oral arguments?

Aziz Huq: Trump asserts that under the Constitution, a president, while he or she is in office, has something called official immunity from criminal liability for all of the actions he or she takes. This is, I think for many people, an extraordinary claim. As the judges on the lower court, the DC Circuit Court of Appeals, explored. It suggests that the president would be able to send, say, SEAL Team Six into the chambers of Congress to kill his or her enemies without any kind of criminal liability. That was the example that came up in the oral argument.

The idea, however, of official immunity in certain respects is actually an old one. It is quite well-settled law, almost a half-century old, that presidents have immunity from civil damages suits for actions they take that are official acts within the circumference of their power as a president. That's a Nixon-era or a post-Nixon-era ruling. What Trump wants to do is to extend that ruling into the criminal context, which would be a first, and further he wants to say that all of the actions that are the basis of Jack Smith's indictment in Washington DC are official acts.

Now, it is reasonably clear from the oral argument that the justices think that, or that there is likely a majority of the justices to say there is some measure of immunity on the part of presidents, from criminal liability, for acts they take in office. It is also clear that the vast majority of the actions that are alleged by Jack Smith in the DC indictment are not in any way, shape, or form official acts. They were acts taken by Trump as a candidate, they were acts taken by Trump as a political figure speaking in public, they were not taken as the president exercising the official power of the White House.

I think the most likely outcome of that case is a ruling that says there is some core of immunity from criminal liability, but most of the actions here fall outside that core. I think that the really crucial thing that people should be looking out for is how the justices remand the case. Do they remand the case in a way that allows that criminal proceeding that's been stayed in Judge Tanya Chutkan's court to get started again, or do they remand it back to the circuit court, which is the intermediate body, in a way that adds further delay to the criminal proceedings?

The core question in both Trump v. Anderson, which was the disqualification case, and United States v. Trump, which is the immunity case, the core question was always one of timing, and whether these proceedings would unfold quickly or slowly, with Trump wanting the immunity case to go slow and the disqualification case to go quick. So far, the court has exceeded to Trump's a desire to see his name quickly put back on the ballot, while it has slow-walked the immunity case in a way that even if Trump loses substantially on the merits, perhaps he's won everything he wants to merely by the fact of delay.

Matt Katz: Fascinating. We're going to go to a caller here. Let's see, Michael, in the West Village. Hi, Michael. You're on with Katz and Huq.

Michael: Hello. Good morning. A great program.

Matt Katz: Good morning.

Michael: I hope many people are listening because the breakdown is excellent and a lot of people would benefit from an understanding of the fine points. I wanted to just briefly comment on both the abortion pill case and the bump stock case. In both of them, people are going to read the headline and may decry one and celebrate the other, but the discussion here is something that a lot of people should be having, and it really is that in both instances, the court did not wade very deeply, if at all, into the ideological points of the issues presented.

You had a standing decision in the abortion pill ruling, and you had a statutory interpretation basis in the bump stock opinion. While you might disagree with the holding in one or the other, I think if people are paying attention, they have to acknowledge that this is neither an endorsement or a rejection of the abortion pill, nor is it an endorsement or a rejection of bump stocks. It's not really a Second Amendment determination.

I think that that suggests the court either wants to avoid wading into the ideology when it can be avoided, or alternatively, that they really are trying to stick to their knitting and doing their job in the narrowest way possible, which is to take a look at threshold issues and avoid wading into the murkier, more contentious constitutional debates. I think that should restore some confidence in the belief it's overly ideological or overly political, because the basis for these decisions, outcome notwithstanding, is a little purer.

I hope that those who follow the headlines bother to read what it is that you're discussing here today, because I think the discussion and the details is very, very valuable in this moment when the court is being attacked as so overtly political. Thank you.

Matt Katz: Thank you very much, Michael. That's a really interesting perspective. Aziz, we just have about a minute or so left. Your thoughts on that take from Michael about what this means about the ideology of the court?

Aziz Huq: I think Michael has a really good point about outcomes. I think I would say is that we are at a point where the question of who has standing to bring challenges and the question of how one reads statutes are both ideologically charged in ways that are not immediately apparent to the general public, but I think that the lawyers who follow the court closely recognize. I think that we should be careful about assuming that merely because an opinion is technical and in the weeds in its character, that it doesn't have ideological stakes somewhere below.

Matt Katz: Aziz Huq is professor of law at the University of Chicago Law School and author of the forthcoming book, The Rule of Law: A Very Short Introduction. Aziz, I feel like I just went to law school listening to you break down these Supreme Court decisions for us. Thanks so much for being here. I really appreciate it.

Aziz Huq: Thanks, Matt. Thanks for having me.

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