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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. On Monday, September 13th, a day when it seems like everybody is suing everybody. After a weekend, when many Americans drop politics as usual to pay tribute to the victims and heroes of 9/11, we're instantly back to business as usual. If the response to 3,000 Americans killed in the attacks became contentious, so too in spades is the response to 660,000 Americans dying in a year and a half from the coronavirus. Including in the last few weeks, more than 1,500 people a day. That's another 9/11 every two days, almost all of them unvaccinated.

As the Biden administration is suing Texas over the state's new ban on almost all abortions, Texas and other Republican-led states say they're planning to sue Biden over vaccine mandates. The right to health care and the right to endanger others by not getting health care, both seem headed out of the hands of public health officials and politicians, and into the hands of the lawyers. When Biden was asked about the possibility of being sued over a supposed right to not get vaccinated, he said this, which begins with the words, "Have at it."

President Biden: Have at it. Look, I am so disappointed that particularly some Republican governors have been so cavalier with the health of these kids, so cavalier with the health of their communities. We're playing for real here. This isn't a game.

Brian Lehrer: With me now is the perfect person to talk about this confluence of politics and law. Emily Bazelon, New York Times magazine writer, Slate Political Gabfest weekly podcast team member, and the Truman Capote fellow at the Yale University Law School. Maybe it all comes together in one of Emily's pieces for the Times recently called how the pandemic changed abortion access. Emily, thanks for starting your week with us. Welcome back to WNYC.

Emily Bazelon: Thank you so much for having me, so glad to be here.

Brian Lehrer: Can you start by laying out a little bit of what was in the president's new plan to fight the Delta variant, that the Republican governors might challenge, not just on policy grounds, but on constitutional grounds?

Emily Bazelon: The big step that President Biden is taking here is to require vaccination for federal workers, and also for workers at companies that have a 100 employees or more. This could cover as much as two-thirds of the American workforce. It's a big, broad vaccine mandate, of a kind that I don't think we've seen at a federal level in American history before. Inevitably, because vaccines, and particularly, vaccine mandates have become so polarizing in the United States, we are going to see legal challenges to this federal order.

Brian Lehrer: The country has other vaccine mandates. You can't send your kids to school almost anywhere without polio and pertussis and hepatitis and meningitis and measles, mumps, rubella vaccines, and others. Have these been tested in court?

Emily Bazelon: Yes, some of them have been challenged, and they've been upheld. Many states make exemptions on religious bases, and certainly, a medical bases for people who aren't recommended to take vaccines. There's been litigation about how broad those kinds of exemptions can be. What is different, I think is the point you made, we are used to vaccine mandates coming through schools.

Before you get to go to school, you have to get these vaccines. It's been imposed on kids and on families, and there's been some controversy about it, because there is this anti-vaccination movement in the United States, but it has such a long history that it is also mostly been accepted. What's different this time, of course, is that the mandate is coming through adults in the workplace because kids under the age of 12 aren't even eligible to get the vaccine.

Brian Lehrer: I don't even like the term "vaccine mandate." I'm curious if you have an opinion about this. They're not sending doctors and nurses and pharmacists to people's homes and forcing needles into their arms. They're saying, "You have a right to choose not to vaccinated, you do have that right, but then society has a way to protect itself from the risk you pose to others by making that choice."

To me, it's not exactly a vaccine mandate. Maybe our listeners can suggest a more accurate term, 646-435-7280. How much would that be the government's defense, or what do you think about the phrase "vaccine mandate."?

Emily Bazelon: Well, I think you're right to change how we are framing this in terms of choice. One important point to make is that, if you don't get vaccinated under this rule, then you are tested weekly, so that's another option. People who oppose requiring vaccines in some form or fashion, and we can talk about the language too, they say this is about their medical freedom.

Of course, I think the point you're making is that other people have the freedom to be in the workplace safely. The reason in the past the courts have given the government, state, federal government, broad power to protect public health, is that contagious diseases affect-- Everyone's behavior effects everyone else. It's not just about your own personal freedom, it's also about the way in which you're impacting other people.

Brian Lehrer: There is at least one Supreme Court precedent on vaccine mandates, isn't there?

Emily Bazelon: Yes, there is. Well, there's a really important precedent. It's called Jacobson versus Massachusetts. It was decided by the Supreme Court in 1905. I was actually just looking at a piece that John Witt, who's the law professor at Yale wrote about this whole issue a whole year ago. What happened in that case was that Cambridge, Massachusetts wanted to do a mandatory vaccine program to slow the outbreak of smallpox, and what the court did was to say, "Okay, is this a necessary step? Is the government doing this vaccine mandate in an arbitrary and unreasonable manner?"

Essentially, what you see here is, the court and courts, generally, upholding the actions of health authorities, but insisting, as John says, that regulation bear a rational relationship to an actual health imperative. That's the same kind of balancing test you would expect the courts to use this time around as well.

Brian Lehrer: Is the Gorsuch, Kavanaugh, Coney Barrett and co are likely to thumb their noses at this precedent, as they might also do to Roe vs. Wade, which we'll get to next?

Emily Bazelon: That is really the huge question. I think the Supreme Court is the wildcard here. What we've seen so far in COVID-related litigation, is that the court has been very protective of religious liberties. There were churches that challenged public health rules in California and New York, and they won. Now, I would argue that those public health rules were not as clearly unarbitrary, et cetera, as this new Biden order.

This gets into the weeds, but you know what the churches argued was that, they were being treated somewhat differently from other institutions that were open, and there were kinds of questions about whether the percentage capacity rules the local public health authorities had chosen were the correct ones. Anyway, I don't want to get too far into the weeds. I would argue that what Biden is doing has a strong basis, and this 1905 precedent is going to be-- Should be hugely influential even on these current justices.

Brian Lehrer: Now, listeners, we can take your questions or your legal arguments in the cases of the federal government suing Texas over its abortion ban. We're going to get to that with Emily Bazelon. Texas and other states planning to sue the federal government over vaccine rules for Emily Bazelon from the New York Times magazine, Slate's Political Gabfest, and the Yale University school of law, or you can propose a better term than vaccine mandate, for what's being required of people in the way we were just discussing. 646-435-7280.

646-435-7280, or tweet your comment, question or replacement term for vaccine mandate at Brian Lehrer. What about the question, Emily, staying on the Biden rules of whether Biden as president can do this through an executive order, or a group of them, rather than get a law passed by Congress? Is he making a claim to executive authority here that's being challenged as dictatorial?

Emily Bazelon: Yes, he's making a claim to federal authority. He's doing so under the rules for Occupational Safety and Health. We have a whole agency OSHA that has lots and lots of workplace rules. What Biden is saying is like, this is necessary to keep American workers safe in their workplaces, the same as various other rules. The federal government routinely imposes conditions on employers to protect workers' safety.

That is going to be the argument the government is making that this is really a very routine kind of practice. Yes, people are going to argue that it's unconstitutional, that it supersedes the powers of the president. I would say that for most of American history, when you look at the court precedence, it looks like president Biden is on safe ground. Again, the question will be whether this Supreme Court agrees.

Brian Lehrer: I'm so glad you brought up workers, because I think people forget the sort of worker-to-worker element of this and the workers' rights element of this, there's a New York City corollary, I think from when Mayor Michael Bloomberg imposed the no smoking in restaurants and other public places rule. One of the arguments against that by people who didn't like that was, "Well, if you don't want to be in a restaurant where people are smoking, you can go to a restaurant where voluntarily they impose a no smoking rule." That only focused on the patrons, because the no smoking rule, as much as anything, probably more than anything from mayor Bloomberg's standpoint was to protect the workers, who have no choice, but to be there. If they want to be employed in the restaurants in New York City, if they're working in that sector. There is a parallel to that here.

Emily Bazelon: Yes. I think it's really important that you brought up. I teach in university, and I've been teaching in a classroom where the students are required to be vaccinated and they're required to wear masks. As a result, I think I feel comfortable being there. I think a lot of faculty members are also feeling okay about the arrangement, but at universities where there are not those rules, you have staff members, the people in the dining halls, there are a lot of public facing workers in the world, who are at risk from people who are not vaccinated.

It is also, of course, this deep irony that it's the people who are not vaccinated, who are much, much more at risk of hospitalization and death. The CDC released data showing that again last week. I think what you're talking about are the responsibilities we all have to each other in the broader society. Then, in these particular social compacts we make in the workplace

Brian Lehrer: So far, the Republican governors are only saying they're planning to sue the Biden administration. Could it be that they're just playing politics by bluffing, because they know the legal precedents are strong and they'll lose, but they won't really go to court. They're just putting political pressure on Biden by saying they will.

Emily Bazelon: That's an interesting question. I would have still think that somebody will sue. Republican governors and attorney general have not been shy about suing Democratic administrations. The lawsuit in itself becomes a kind of political act. I would expect somebody to follow through, even if they are on weak, legal ground as a symbolic political matter, but we'll see.

Brian Lehrer: Okay. Republican led states, including Texas will likely sue the federal government over vaccine mandates. The federal government is suing Texas over its ban on abortions. We will take that up with Emily Bazelon, and then take your calls on both. When we returned in a minute, Brian Lehrer on WNYC.

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Brian Lehrer on WNYC, as we continue with Emily Bazelon, New York Times magazine writer, Slate Political Gabfest, weekly podcast team member, and the Truman Capote Fellow at the Yale University Law School. As we talk about the federal government suing Texas over its new abortion ban, and Texas and other Republican-led states getting ready to sue Biden over vaccine rules, and other COVID mandates.

Let's turn the page, Emily, and we'll take calls on both eventually. Let's talk about the justice department suing Texas over its ban on abortions that's being described as a ban after six weeks. I think that one too is a misnomer, but we'll get to that. CNN calls the lawsuit a, "Hail Mary pass," meaning it's a long shot. What's the Justice Department's case?

Emily Bazelon: The justice department says that, since Roe vs. Wade is on the books, Texas' law is unconstitutional. That the federal government, because it protects the constitution, has what's called an argument under the supremacy clause that Texas' law should fall. The idea here is that, when you have federal law, in this case, Roe vs Wade from the courts and the constitution, that is Supreme, or another way to put it is, that preempts the states from making a contradictory law.

That's the first part of the claim. It's a broad one about federal constitutional power. Then, there's a interesting, more technical argument about something called intergovernmental immunity that I had to go look up when I saw that term. What that involves is the idea that there are federal workers, who based on federal law are supposed to help people who seek abortions, get them, since that's their constitutional right.

The Job Corp Federal Program in Texas, the Office of Refugee Resettlement. There are other examples of people, who as federal employees, their work can include transporting people to get abortions. This Texas law is conflicting with their federal duties. That's the argument the Justice Department is making. I think the big question is, what kind of relief could really come through the suit.

The Justice Department says, they want a judgment saying this law should be enjoined from going into effect, and that no one can sue to enforce it. That's the key part, because what the Texas law does is, put the hands of enforcing this ban in private hands. Anyone can sue somebody who aids and abets an abortion. The Justice Department is trying to block that through this action.

Brian Lehrer: Because this is being nicknamed a bounty hunter law, these private individuals can sue somebody over having an abortion or helping somebody have an abortion, and make money that way.

Emily Bazelon: Yes, indeed. The bounties are $10,000 a pop, and you get your legal fees paid if you win, but you don't have to pay the other side's legal fees if you lose. That's the kind of enticement and the law for all kinds of lawsuits, very broad liability. The technical question this law has raised is, who do you sue to stop enforcement? The Justice Department is saying "We, the federal government are suing the State of Texas to prevent this law from going into effect."

Brian Lehrer: Is that unique, that bounty hunter provision, or do other criminal laws have that element?

Emily Bazelon: In some civil rights contexts, we have people privately who can sue as part of enforcement. For example, the American with Disabilities Act. If there's a violation of the ADA, there are no wheelchair ramps in a building, the government can sue, but so can somebody who is affected by that law, who can't get into the building. The difference here is that Texas has said that anybody can sue, really anybody, not even just any Texans. You don't have to be affected in any way. That's a different bounty hunting, I think.

Brian Lehrer: If I'm an individual in a wheelchair and a place doesn't have ramps that I can get into, place I need to get into, I could sue as an individual, but some, let's say, a person not in a wheelchair, can't sue just to make money over that.

Emily Bazelon: Exactly. It's the difference between vindicating your own rights and vindicating someone else's rights. Now, of course, people who oppose abortion would say, "Well, the fetus, in their words, the baby can't sue." You have to allow someone else to step in, but that's the conceptual difference still stands.

Brian Lehrer: Oh, you want to hear a really clever suggestion from a listener on Twitter, that ties these two stories together, and responds to my request to come up with a new name for vaccine mandate? Listeners, if you're just joining us, what I suggested earlier is that vaccine mandate is really a misnomer. Nobody, no government, local government or the federal government is saying, they're going to bring doctors and pharmacists and nurses to your homes, and force needles into your arms.

They're saying, "You have a right not to get vaccinated, but then society has a right through its elected officials to protect itself from your unvaccinated self, when you go into public spaces." What's a better term than vaccine mandate? Christina-- I'm sorry, Cynthia, on Twitter writes, "Rather than vaccine mandate, how about pro-life vaccination?" Suggests, "The left needs to reclaim the term pro-life, which is consistent with our-," what she calls, "-our policies and perspective."

That's interesting, it takes that phrase from the Anti-abortion Rights Movement and puts it on the vaccine mandate advocates pro-life because it's saving people's lives.

Emily Bazelon: Yes, it's interesting to watch the different sides take each other's terms or try to, because, of course, people oppose vaccine mandates are trying to claim the choice mantra for themselves.

Brian Lehrer: Exactly. Here's another one, SJ in Queens. You're on WNYC. Hi, SJ?

SJ: Hi. I thought it would be interesting if we called it the "Vaccine ultimatum." I don't think that that leaves room for shaming, it's just common sense that each decision you make, it's going to have a correlated--

Brian Lehrer: A consequence.

SJ: Consequence. It's an ultimatum, you either get the vaccine, and you get a chance to engage with blah-blah-blah, or you don't, and you don't necessarily have access to the same things as your fellow citizens, and until society feels like they feel safe for you to do so.

Brian Lehrer: Yes, that's an interesting one.

SJ: I think--

Brian Lehrer: Go ahead, SJ, you want to make another point?

SJ: I just think that when you take it back to your teenage years, when your parents give you an ultimatum, they're not shaming you necessarily. They're giving you an option. It may be not something that you-- You may not like your choices, but you get told, clean the kitchen or do your homework or you understand the consequences, and why you're being encouraged to do the main thing.

Brian Lehrer: I like that. I think it's very accurate. Vaccine ultimatum. Let's take one more Joanne in Manhattan, you're on WNYC. Hi, Joanne.

Joanne: Oh, hi. Yes, I have a similar comment to your last caller. In that, rather than say vaccine mandate, you say, "Okay, here is what you as an unvaccinated person can and cannot do." If those barriers are strong enough, it will encourage people to get vaccinated because they want to do the things they want to do.

Brian Lehrer: Joanne, thank you very much. Emily, I like vaccine ultimatum for how accurate it is. It strikes me as accurate. I don't know if it's politically any less polarizing than vaccine mandate?

Emily Bazelon: Yes, one thing that's interesting about it too, is an ultimatum is something that often you impose when you don't have any other choices. You're like at your wit's end. President Biden took a while to get here. A few months ago, he was basically saying mandates are not the way to go. The federal government was really hoping to persuade people to take the vaccine, but now we're stuck.

As everybody knows, this very contagious variant of Delta running around, making people super sick, and the idea that lots of people were persuadable just does not seem unfortunately, to be the case.

Brian Lehrer: Now, to the point you were making just before we took those calls, Texas and other Republican-led states are standing on the principle of individual liberty, being pro-choice when it comes to coronavirus health care, but anti-choice, anti-individual liberty when it comes to reproductive choice. I guess, we could say vice versa about the other side. Could anyone make the constitutional consistency case from either vantage point?

Emily Bazelon: I think, then you get into this question of what the standards are that the courts would impose. In the vaccine context, if the Supreme Court sticks with it, the courts traditional jurisprudence on public health measures, you expect them to use a test that's pretty deferential to the government. Is there a rational basis for this regulation?

In the context of abortion, because it's a protected constitutional right, as long as that's the case, the courts have a higher standard. It's not just like, "Oh, is there some rational basis for restricting abortion rights?" It's supposed to be more than that. The question of how much more, and what that standard is, is very much up for grabs right now, the standard that's still on the books, is this idea of an abortion restriction, imposing an undue burden on a person seeking it.

The Texas restriction is essentially a complete ban on abortion because many women don't even know that they're pregnant at six weeks. It absolutely imposes an undue burden. The question is, whether the Supreme Court still cares about that.

Brian Lehrer: Yes, and what you said about when women know and don't know that they're pregnant, everyone says it's a ban after six weeks of pregnancy, but just like vaccine mandate, I think it's a misnomer because isn't it measured from the start of the woman's previous period? Let's say, three weeks after the start of her period, she gets pregnant, then the ban would take effect when she's been pregnant for three weeks. Three weeks, not six weeks, and she might not even know.

Emily Bazelon: Yes, exactly. [chuckles] In a news conference, when the governor of Texas was talking about that, he seemed to not understand all these basic points about women's health, but yes, that is part of the problem here.

Brian Lehrer: You wrote a piece last month that ties together the pandemic and abortion rights called How the Pandemic Changed Abortion Access. Tell us about that. How do these healthcare, these two different healthcare stories connect?

Emily Bazelon: I was writing about medical abortion, and this is a regimen of pills that have been proved over and over again to be safe and effective when people take them around the world, and they're an alternative to surgical abortion, which still remains more common in United States. In Europe, for example, at this point, there are many, many more abortions performed with pills, and it's a way of doing it very early in the first trimester, it's essentially, you induce a miscarriage. That's how the pills work.

During the pandemic, there was a question about whether to continue requiring women who take abortion pills to see a doctor, or have some kind of in-person visit, maybe to have an ultrasound to date the pregnancy before the pills. The United States, its action say the United States, some Blue states suspended this in-person doctor requirement because of the risks of COVID, and so did the United Kingdom.

Researchers were able to do a study looking at tens of thousands of abortions in the UK, in which there was no in-person consultation, no in-person ultrasound, compared with women who had had the in-person consultation just a couple of months earlier. The rates for the medical abortions being safe and effective were just as high. The reason this is important, is it really shows that medical abortion through telehealth by having some consultation that is not in-person is very possible, very safe and effective.

That really should change how we think about abortion access, because you don't have to have a clinic. There isn't a medical reason that you need a clinic nearby, you could call a doctor anywhere in the world. The problem is that there are restrictions on these drugs that are still imposed by the FDA. Federal restrictions about who can provide them and how, and who can mail them.

Also, there are a bunch of states, the Red states that have telemedicine bans for abortion. I was trying to talk about the kind of medical evidence here versus the legal fickett that still exists.

Brian Lehrer: By the way, here's another good one, an alternative to vaccine mandate from listener, [unintelligible 00:27:05] on Twitter, "Vaccination privileges." I like that one too, because that puts a positive spin on, you get a vaccine, you get vaccination privileges. You get to work in a public school, you get to eat indoors in a restaurant, et cetera.

Emily Bazelon: Right. I think some local officials get the idea that you need to show some proof of vaccination or a negative test in order to eat in a restaurant, or go to the gym, like that is a way in which it is really consistent with the idea of privileges.

Brian Lehrer: Matt in Jersey City on the Texas abortion law. Matt you're on WNYC. Hi.

Matt: Hey, Brian. First off, I just wanted to throw out a great point for my wife that she would be pro-life, if it also included outlawing guns to that debate. My question was actually sort of, I'm still mystified at how the Texas law even works and why-- I guess, just because a bunch of legislators said that it was legal and okay for deputized people, I think you said for the bounties.

I think, even more crucially, though, is this the beginning of the Roberts era that he's feared where the courts, the five justices are clearly just doing what they want, rather than thinking with precedent. I guess is that just part of the political scene we're seeing in general with the norms collapsing, and all the great stuff you guys always talked about on the Gabfest.

Brian Lehrer: Emily, a fan of your podcast.

Emily Bazelon: I know. I love that. Thank you so much for listening. I'm also mystified by this law. It's not that I haven't worked hard to understand it. I technically understand it. It's just that, it should have been prevented from going into effect, when you look at the way courts have previously adjudicated abortion restrictions since Roe vs. Wade. What normally happens is, the state passes a restriction.

It's at odds with Roe vs. Wade and so the courts say, "It's not going to go into a fact, while we work this out and hear the case." The technical reason that didn't happen this time is that because it was all private enforcement and bounty hunters, the Supreme Court acted as if it was a big, unsolvable question. Who to sue? How do you sue all the bounty hunters? What public official do you sue, if the government isn't enforcing it?

The idea that there is one government official who you sue is a legal fiction to begin with, and the idea that you couldn't substitute some other public official or find some way to allow the suit to go forward was really a big choice the Supreme Court made. In answer to your concern about the Roberts Court arbitrarily going its merry way, the Supreme Court's part in this happened through what's called the Shadow Docket, which is this very cursory process, where you don't have full briefing.

You don't have argument in front of the court that everybody gets to hear, and the court itself issued a one-paragraph decision. This is not a fully developed set of legal reasons. It doesn't even touch the question of whether Roe vs. Wade and abortion access remains a constitutional right. I think that there are lots of people who are concerned about that.

Brian Lehrer: Carl in Valley Stream has an alternative to the term vaccine mandate. Hi, Carl.

Carl: Hi. How you doing? Yes, my belief is that, instead of vaccine mandate, we should just call it what it is, "Harm reduction."

Brian Lehrer: Harm reduction is a good way to approach it. As a phrase, it doesn't say you have to do it, or there will be consequences, but yes, harm reduction. One final one, Tina, in Harlem. You're on WNYC. Hi, Tina.

Tina: Hi, Brian. I was just thinking about how this is your duty, so I would call it, "Your vaccine duty."

Brian Lehrer: That's good and it appeals to people's sense of patriotism, which people on the right maybe wear more on their sleeves than people on the left. Biden has tried this. Emily, he's tried to talk about vaccines before he went to mandates, before he went to, "Oh, God, I have no other choice, but to do this," because the voluntary system, the encouragement system isn't working, he's invoked patriotism, hasn't he?

Emily Bazelon: Yes, he has. I expect that you're going to hear-- One would imagine that they're polling about this to figure out the best way to talk about it. They certainly should be doing that, especially, in the places with lower vaccination rates. Is there anything that Biden can say or public health officials can say that can help just reframe this question. Maybe patriotism and duty will work.

Maybe just the fact that you need to get to work will make people just decide. Look, if you were a conservative who felt like you had identity reason not to get vaccinated, but in your heart, you thought, "Well, maybe it's okay." Now, you have an excuse, and maybe that will be useful.

Brian Lehrer: Hey, Emily, before you go, if I could take advantage of your legal eagle self, to make a segue to our next segment, which is going to be about back to school controversies, it seems like everybody's suing everybody about that too. Vaccine requirements, yes. In person requirements, mask requirements. You want to weigh in on one or two of those that you think are especially important, or legally interesting. I know you did a Times piece about the consequences of having been remote.

Emily Bazelon: I wanted in that piece to focus on the enormous cost to kids of having missed so much school, in terms of their mental health, in terms of their learning. Yes, I'm sure there are going to be lawsuits about all these rules, because this becomes so politicized, and I would expect mask mandates and vaccine mandates to be upheld for the same reasons that we've been talking about before. They seem like the evidence justifies those public health measures right now.

With masks, you want to have limits on them. You might want to tie them to local COVID rates. You might want to have an escape route, because at some point, we're going to have to take into account the fact that they do, particularly, for younger kids have an effect on learning and social and emotion development and language development. Right now, we are in a continuing public health crisis, and it's super important for kids to be in school. To me, that's what really matters.

Brian Lehrer: Emily Bazelon, New York Times magazine writer. Slate Political Gabfest weekly podcast team member, and the Truman Capote Fellow at the Yale University Law School. Always great, Emily, thank you so much.

Emily Bazelon: Thanks For having me.

 

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