WEBVTT - Supreme Court Appears Divided in Abortion Case 0:00:00.600 --> 0:00:05.360 This is Bloomberg Law with June grassof from Bloomberg Radio. 0:00:09.280 --> 0:00:13.600 Broatesters from opposite sides of the abortion issue demonstrated outside 0:00:13.600 --> 0:00:17.200 the Supreme Court as the Justices heard arguments in its 0:00:17.239 --> 0:00:20.639 first abortion case in four years, a challenge to a 0:00:20.680 --> 0:00:25.120 Louisiana law requiring clinic doctors to have admitting privileges at 0:00:25.120 --> 0:00:28.400 a nearby hospital. My guest is Steve Sanders, a professor 0:00:28.440 --> 0:00:33.880 at Indiana University's Moral School of Law. In the court 0:00:34.000 --> 0:00:38.640 struck down a very similar Texas law. So shouldn't that 0:00:38.720 --> 0:00:42.240 be precedent here? Well, that's what many people think. Many 0:00:42.280 --> 0:00:45.600 people were very surprised when the Court agreed to hear 0:00:45.640 --> 0:00:48.400 this case. In twenty six and a case is known 0:00:48.440 --> 0:00:50.879 as the Whole Women's Health Case after the name of 0:00:50.880 --> 0:00:54.760 the abortion clinics in Texas. The Supreme Court struck down 0:00:55.160 --> 0:00:59.720 a couple of different Texas laws, which everybody knew had 0:00:59.760 --> 0:01:04.080 been passed in an effort to try to close abortion clinics. 0:01:04.080 --> 0:01:07.560 To make it more difficult for abortion clinics to operate, 0:01:08.160 --> 0:01:13.319 those laws required very high standards of equipment and facilities 0:01:13.360 --> 0:01:15.760 at abortion clinics. Basically, they had to be sort of 0:01:15.800 --> 0:01:19.360 full blown surgical centers, and they also required the doctors 0:01:19.360 --> 0:01:24.240 that abortion clinics had admitting privileges at hospitals. The Supreme Court, 0:01:24.440 --> 0:01:27.440 by a five to three decision in that case, struck 0:01:27.480 --> 0:01:32.280 those down, basically saying those imposed a substantial obstacle to 0:01:32.360 --> 0:01:37.160 a woman's ability to get an abortion without providing any benefit. 0:01:37.440 --> 0:01:40.560 Abortion is known to be actually one of the safest 0:01:40.640 --> 0:01:44.319 medical procedures, safer than actual childbirth in terms of its 0:01:44.680 --> 0:01:48.360 number of complications and its danger, and so the need 0:01:48.440 --> 0:01:52.320 for these elaborate standards and for admitting privileges simply wasn't necessary. 0:01:52.600 --> 0:01:55.960 But Louisiana had passed a similar law two years earlier 0:01:56.000 --> 0:02:01.040 in fourteen, and after the Louisiana law was challenged, a 0:02:01.160 --> 0:02:05.600 federal district court struck down Louisiana law, basically saying, this 0:02:05.680 --> 0:02:08.760 is essentially what the Supreme Court decided and whole women's health. 0:02:08.840 --> 0:02:13.120 The Louisiana law is just about admitting privileges. The district 0:02:13.160 --> 0:02:16.000 court said, this looks like exactly the situation the Supreme 0:02:16.000 --> 0:02:20.800 Court faced in Texas. Law violates the Constitution, violates whole 0:02:20.800 --> 0:02:24.040 women's health. But the Fifth Circuit, the Court of Appeals 0:02:24.360 --> 0:02:29.959 found some fairly narrow, fine grained differences between the situations 0:02:30.000 --> 0:02:33.280 in Louisiana and Texas, and so it upheld the law. 0:02:33.560 --> 0:02:35.880 And that's how we got to the Supreme Court arguments 0:02:36.000 --> 0:02:39.240 this week about whether or not these two cases are 0:02:39.280 --> 0:02:43.680 really distinguishable, or did the Supreme Court take this case 0:02:44.280 --> 0:02:47.520 now with two new conservative justices who weren't on the 0:02:47.560 --> 0:02:51.480 court back in twos sixteen Justice core such Injustice Kavanaugh, 0:02:51.800 --> 0:02:55.760 did the Court take this case essentially to reverse whole 0:02:55.760 --> 0:02:59.200 women's health or at least to poke some significant holes 0:02:59.240 --> 0:03:03.840 in it? In the arguments, did you see the questions 0:03:03.960 --> 0:03:08.120 falling down ideological lines. Well, you know, there's a certain 0:03:08.120 --> 0:03:11.880 amount of kabuki theater involved in Supreme Court arguments all 0:03:11.880 --> 0:03:14.000 the time. As I said, you know, sort of everybody 0:03:14.040 --> 0:03:16.600 knows that often you're sort of too polite to say 0:03:16.639 --> 0:03:19.800 it in court. Everybody knows that these laws were passed 0:03:19.800 --> 0:03:22.920 in states because lawmakers wanted to try to make it 0:03:22.960 --> 0:03:27.120 as difficult as possible for abortion clinic operators to operate. 0:03:27.600 --> 0:03:30.440 But the Court can't actually say that because that's a 0:03:30.440 --> 0:03:33.519 political statement. So instead, what you saw in the oral 0:03:33.680 --> 0:03:40.080 arguments were the conservative justices trying to emphasize that there 0:03:40.080 --> 0:03:43.120 could be state by state differences, in other words, and 0:03:43.200 --> 0:03:48.320 admitting privileges requirement in one state might have a different 0:03:48.520 --> 0:03:52.400 impact on the availability abortion, or it might be more 0:03:52.520 --> 0:03:57.280 justifiable in terms of medical safety and credentialing of doctors 0:03:57.640 --> 0:04:00.160 than a law in another state. And so you saw 0:04:00.280 --> 0:04:04.320 Chief Justice Roberts and Justice Kavanaugh pursuing that line of questioning, 0:04:04.800 --> 0:04:07.560 isn't it possible that there could be some state by 0:04:07.600 --> 0:04:11.040 state variations here, so that we would say whole women's 0:04:11.080 --> 0:04:14.400 health was about Texas and in a case about another 0:04:14.480 --> 0:04:18.360 state could come out differently. And you saw the more 0:04:18.440 --> 0:04:22.559 progressive justices, the more liberal justices, Justice Kagan, Justice Bryan, 0:04:22.720 --> 0:04:26.200 Justice sort of Mayorc really trying to push back against 0:04:26.279 --> 0:04:30.760 the idea that there were meaningful differences between the factual 0:04:30.880 --> 0:04:33.960 situations in these two cases. So much of the oral 0:04:34.080 --> 0:04:38.160 argument came down to debates about whether the doctors in 0:04:38.200 --> 0:04:40.560 this case had actually made enough of an effort to 0:04:40.600 --> 0:04:44.679 get admitting privileges, whether they already had admitting privileges, whether 0:04:44.680 --> 0:04:47.520 they would get admitting privileges if they asked for them. 0:04:47.560 --> 0:04:49.680 So it ended up being a lot of sort of 0:04:49.720 --> 0:04:54.520 skirmishing on the specific facts involved in this case. Did 0:04:54.839 --> 0:04:59.279 Justice Roberts suggest that he didn't see a factual distinction 0:04:59.440 --> 0:05:03.960 between of Texas and Louisiana cases. I think Justice Roberts 0:05:04.040 --> 0:05:08.960 was at least probing whether the existence of factual distinctions 0:05:09.040 --> 0:05:11.599 could mean that just because the law was struck down 0:05:11.640 --> 0:05:14.600 in one state doesn't necessarily mean a similar law would 0:05:14.640 --> 0:05:17.080 be struck down in another state. I didn't read Justice 0:05:17.240 --> 0:05:20.840 Roberts is getting into the details as much. I read 0:05:21.000 --> 0:05:24.159 his questions, as you know, can we at least agree 0:05:24.320 --> 0:05:27.920 that there could be differences from state to state such 0:05:28.000 --> 0:05:32.000 that whole women's health doesn't create a sort of blanket 0:05:32.160 --> 0:05:35.600 rule of facial rule against any sort of admitting privileges 0:05:35.680 --> 0:05:38.240 you saw. I think Justice a Lado and maybe to 0:05:38.320 --> 0:05:41.840 some extent, Justice Kavanaugh engaging a little bit more directly 0:05:42.320 --> 0:05:45.520 in trying to say the situation here is different. The 0:05:45.560 --> 0:05:50.240 admitting privileges law serves a stronger medical purpose and is 0:05:50.240 --> 0:05:54.200 more justifiable in this Louisiana case than perhaps it was 0:05:54.240 --> 0:05:58.320 in the Texas case. In the Texas case, Justice Roberts 0:05:58.400 --> 0:06:01.280 was in the descent. Where does that leave him? Now? 0:06:01.560 --> 0:06:04.760 You're right, Chief Justice Roberts was was among the three dissenters, 0:06:04.760 --> 0:06:08.080 and whole women's health, he would have upheld the Texas 0:06:08.200 --> 0:06:12.440 law in this case. In an earlier part of this case, 0:06:12.560 --> 0:06:16.479 he voted with the Court's progressive justices to at least 0:06:16.560 --> 0:06:19.280 put a hold on the Court of Appeals decisions so 0:06:19.320 --> 0:06:22.400 it couldn't go into effect, meaning that the law remained 0:06:23.000 --> 0:06:26.200 enjoined until the Supreme Court can decide. I think Chief 0:06:26.240 --> 0:06:28.839 Justice Roberts here faces a choice. On the one hand, 0:06:29.320 --> 0:06:32.000 you know, his vote in the Texas case in twenty 0:06:32.120 --> 0:06:35.880 six indicates he thinks there should be greater ability for 0:06:36.000 --> 0:06:39.320 states to regulate and put obstacles in the way of 0:06:39.360 --> 0:06:42.919 women's ability to get abortion. On the other hand, we 0:06:43.040 --> 0:06:46.960 know from his votes in previous cases and other contexts, 0:06:47.040 --> 0:06:50.520 the Chief Justice Roberts as the Chief Justice, also worries 0:06:50.600 --> 0:06:56.520 about the Court's institutional legitimacy, its credibility, how it is perceived, 0:06:56.600 --> 0:07:01.080 whether it is perceived as a political body or judicial body. 0:07:01.600 --> 0:07:03.640 And so I think he's going to face a sort 0:07:03.640 --> 0:07:08.480 of internal tug of war to go with his ideological beliefs. 0:07:08.600 --> 0:07:10.720 I think about what the law should be in this 0:07:10.800 --> 0:07:14.800 case versus if he ends up deciding that the cases 0:07:14.840 --> 0:07:18.360 are just too similar, and it would look frankly shocking 0:07:18.440 --> 0:07:21.200 for the Court to effectively overturn one of its own 0:07:21.200 --> 0:07:25.400 decisions after only four years. That might lead him to 0:07:25.520 --> 0:07:29.400 actually vote to strike down the Louisiana law. They will 0:07:29.440 --> 0:07:32.000 face a conflict between what he may think is the 0:07:32.080 --> 0:07:37.520 legally correct position from his judicial ideological perspective versus what 0:07:37.680 --> 0:07:42.640 he thinks the court's long term institutional credibility demands. He's 0:07:42.720 --> 0:07:46.200 reluctant to overturn precedent more than some of his other 0:07:46.560 --> 0:07:50.600 conservative colleagues are in this case. Does it seem to 0:07:50.640 --> 0:07:53.720 you as if the conservatives other than Justice Roberts on 0:07:53.800 --> 0:07:58.559 the Court would be willing to overturn that Texas case? 0:07:58.960 --> 0:08:00.960 I think the answer for just To Salito would have 0:08:01.040 --> 0:08:03.880 to be yes. Justice Salto, in the time he's been 0:08:03.880 --> 0:08:06.240 on the Court has been tagged as, you know, some 0:08:06.280 --> 0:08:09.360 people have said, a conservative activist. He was perhaps the 0:08:09.480 --> 0:08:14.119 most vigorous at oral argument in defense of the Louisiana law. 0:08:14.560 --> 0:08:17.120 Justice Kevinaugh hung back a little bit. He and the 0:08:17.200 --> 0:08:21.200 Chief Justice sort of circled around the edges trying to say, well, 0:08:21.240 --> 0:08:23.800 you know, if there are differences between these two laws, 0:08:23.880 --> 0:08:26.400 then could there be the possibility that one could be 0:08:26.480 --> 0:08:30.240 constitutional and another couldn't be Interestingly, Justice Gorsage did not 0:08:30.320 --> 0:08:34.720 ask anything. He liked. Justice Thomas, traditionally who's traditionally very 0:08:34.800 --> 0:08:37.800 quiet oral argument, didn't have any questions, and so we 0:08:37.880 --> 0:08:41.440 just couldn't get a read on them. You know, you said, 0:08:41.480 --> 0:08:45.000 the Chief Justice Roberts is reluctant to overturn the courts precedent, 0:08:45.160 --> 0:08:49.000 And a slightly more cynical view or realistic view might 0:08:49.080 --> 0:08:52.320 be that the Chief Justice is reluctant to see the 0:08:52.440 --> 0:08:56.440 Court engaging or turning on a dime doing things that 0:08:56.480 --> 0:09:00.240 are overtly political. But Justice Roberts has been complex, said 0:09:00.280 --> 0:09:03.080 in a number of cases over the years where the 0:09:03.120 --> 0:09:08.439 Court hasn't expressly overturned a precedent, but has limited a precedent, 0:09:08.520 --> 0:09:11.440 has poked holes in a precedent, has found a way 0:09:11.480 --> 0:09:14.840 to distinguish a new case from an old precedent in 0:09:14.840 --> 0:09:18.720 a way that weakens the precedent, but stop short of 0:09:18.720 --> 0:09:23.160 actually repudiating it or overturning it. And so that maybe 0:09:23.200 --> 0:09:26.640 one possible outcome in this case. In other words, they 0:09:26.679 --> 0:09:30.320 could rule in a very narrow way and uphold the 0:09:30.400 --> 0:09:35.160 Louisiana law without reversing the Texas case. They could they 0:09:35.200 --> 0:09:39.080 could say that there are enough meaningful differences between the 0:09:39.160 --> 0:09:43.480 situations in these two cases, mostly focusing on whether the 0:09:43.760 --> 0:09:48.760 admitting privileges requirements serves any legitimate, meaningful medical benefit or not. 0:09:49.120 --> 0:09:51.080 They could say that this one is different, and so 0:09:51.400 --> 0:09:54.760 this law can be upheld, and that would indicate then 0:09:54.920 --> 0:09:57.720 we're going to be kind of battling state by state, 0:09:57.800 --> 0:10:02.400 and the lower federal courts maybe very busy adjudicating similar 0:10:02.480 --> 0:10:05.400 laws that states either have passed or may attempt to pass. 0:10:05.840 --> 0:10:09.160 There's another way this case could be resolved, and that 0:10:09.320 --> 0:10:13.240 is there was sort of a side skirmish that a 0:10:13.280 --> 0:10:16.679 few of the justices were interested in about whether the 0:10:16.760 --> 0:10:21.120 doctors who brought this lawsuit have what's called standing, whether 0:10:21.200 --> 0:10:24.440 they can represent the legal interest. We're talking here about 0:10:24.480 --> 0:10:26.440 the right of women to have an abortion and the 0:10:26.440 --> 0:10:29.959 extent to which the Constitution protects that. But the plaintiffs 0:10:29.960 --> 0:10:32.880 in this case, we're not women. They were doctors. They 0:10:32.880 --> 0:10:37.080 were abortion providers, and so this gets into whether or 0:10:37.120 --> 0:10:41.240 not so called third parties that the doctors can um 0:10:41.640 --> 0:10:45.439 litigate a case that is really about the constitutional rights 0:10:45.640 --> 0:10:49.120 of the women. That was another point that Justice Alito 0:10:49.240 --> 0:10:53.800 made quite vigorously. He basically insisted that the doctors here 0:10:53.840 --> 0:10:57.800 didn't properly have standing. They weren't the proper plaintiffs in 0:10:57.880 --> 0:11:01.000 this case. If the court went that direction, if it 0:11:01.160 --> 0:11:05.000 essentially punted and said, well, the plaintiffs here didn't have standing, 0:11:05.320 --> 0:11:07.920 we didn't have jurisdiction, the case has to be dismissed. 0:11:08.320 --> 0:11:11.360 That would mean the Louisiana Low stands at least until 0:11:11.400 --> 0:11:14.960 it could be challenged by somebody who actually did have standing. 0:11:15.280 --> 0:11:17.880 A problem with that argument is there have been a 0:11:18.000 --> 0:11:21.840 number of other abortion cases over the years where doctors 0:11:21.880 --> 0:11:25.640 have been the plaintiffs, essentially representing the rights of the women, 0:11:25.800 --> 0:11:29.480 and those cases went forward and were decided. So to 0:11:29.559 --> 0:11:32.480 say at this point that we're going to stand on 0:11:32.520 --> 0:11:35.400 this principle that a doctor can't litigate the rights of 0:11:35.440 --> 0:11:40.280 a patient would seem to be again a bit opportunistic 0:11:40.320 --> 0:11:43.280 at a break with the court's own precedence on that question. 0:11:43.360 --> 0:11:46.160 That I'm not sure the court is actually squarely decided 0:11:46.200 --> 0:11:49.360 that question. But that problem has not stood in the 0:11:49.400 --> 0:11:53.800 way of the court adjudicating previous abortion cases. Is this 0:11:53.920 --> 0:11:59.760 one of the cases that anti abortion activists are hoping 0:12:00.120 --> 0:12:04.480 will allow the court to chip away at abortion rights. 0:12:04.480 --> 0:12:07.199 Oh absolutely. As I said the court, it has to 0:12:07.240 --> 0:12:10.440 be in a sense too polite to say what people 0:12:10.600 --> 0:12:15.000 know are the real politics behind these laws when they're litigated. 0:12:15.080 --> 0:12:18.400 We have to essentially pretend that this is really about 0:12:18.840 --> 0:12:22.400 whether the state was truly trying to protect women's medical 0:12:22.640 --> 0:12:26.240 health and protect the safety of abortion and so forth. 0:12:26.240 --> 0:12:29.440 That I think it's almost inarguable that if you know 0:12:29.559 --> 0:12:32.880 the politics of these laws, why these laws were passed, 0:12:32.920 --> 0:12:35.960 the coordinated way to get these kinds of laws passed 0:12:36.280 --> 0:12:39.200 around the country, you know that the effort was to 0:12:39.280 --> 0:12:42.199 try to make it difficult for abortion clinics to stay 0:12:42.200 --> 0:12:46.079 in business. It's an effort to limit access to abortion 0:12:46.280 --> 0:12:49.800 by putting pressure on the ability of abortion clinics to 0:12:49.880 --> 0:12:53.720 actually stay in business. So of course this was a 0:12:53.800 --> 0:12:57.680 coordinated strategy over the years prior to the Texas case. 0:12:57.679 --> 0:13:02.480 That these are sometimes called trap laws targeting of abortion providers, 0:13:02.559 --> 0:13:06.440 and so of course anti abortion activists will look very 0:13:06.440 --> 0:13:10.480 closely at what this case says about the attitude of 0:13:10.480 --> 0:13:13.840 the court. This is the first major abortion decision that 0:13:13.960 --> 0:13:19.000 the Court has fully decided since Justice Kennedy retired, and 0:13:19.040 --> 0:13:21.719 since we have two new justices, and now this is 0:13:21.760 --> 0:13:24.760 a This is a different court than it was four 0:13:24.840 --> 0:13:28.640 years ago, so it remains to be seen. People will 0:13:28.640 --> 0:13:33.360 be watching closely for signals about um Justice Kavanaugh, Justice Gore, 0:13:33.400 --> 0:13:37.520 such Justice Roberts, what the chemistry of the court and 0:13:37.640 --> 0:13:41.480 the lineup ideologically of the justices, whether and how that 0:13:41.640 --> 0:13:47.640 has changed since. I think most people are curious that 0:13:47.840 --> 0:13:51.719 it's almost become a litmus test for Supreme Court justices 0:13:52.120 --> 0:13:55.720 when they're going through their confirmation hearings to be asked 0:13:55.720 --> 0:13:59.679 about Roe v. Wade, and they inevitably say it's precedent. 0:14:00.200 --> 0:14:03.439 And I think that Kavanaugh said it's precedent on precedent. 0:14:04.120 --> 0:14:08.240 So can you ever be confident of that when we've 0:14:08.280 --> 0:14:12.480 seen cases where they reverse precedent all the time. The 0:14:12.600 --> 0:14:16.080 issue is, I think Roll versus Weight is not the issue. 0:14:16.160 --> 0:14:19.280 I think that no one thinks that the Court would 0:14:19.280 --> 0:14:24.400 be bold enough or were reckless enough to completely overturn 0:14:24.560 --> 0:14:28.840 Roversus Wade. The key case here. The key precedent is 0:14:28.880 --> 0:14:32.720 not roversus Weight itself. It's a decision that was decided 0:14:33.040 --> 0:14:36.200 um more than a decade after Roll Versus Weight, Casey 0:14:36.280 --> 0:14:40.400 versus Planned Parenthood of Southeastern Pennsylvania. It's the Casey decision. 0:14:40.440 --> 0:14:43.360 That upheld the basic idea of Row that a woman 0:14:43.400 --> 0:14:47.400 has a constitutional right to abortion, but approved the idea 0:14:47.400 --> 0:14:51.160 of that a state could express its view against abortion, 0:14:51.320 --> 0:14:55.720 could legislate more aggressively to protect the woman's health and 0:14:55.760 --> 0:14:58.880 to regulate the procedure, as long as it didn't create 0:14:58.880 --> 0:15:02.480 what's called a uh substantial obstacle, as long as it 0:15:02.480 --> 0:15:06.480 didn't create an undue burden to the women's access to 0:15:06.520 --> 0:15:09.720 an abortion. So what these cases are about is whether 0:15:09.840 --> 0:15:14.680 the Louisiana Admitting privileges law does create an undue burden 0:15:14.880 --> 0:15:19.240 by restricting the availability of abortion because clinics have to 0:15:19.400 --> 0:15:23.440 shut down. So if abortion rights are going to be 0:15:23.800 --> 0:15:26.720 chipped away are going to be put in danger, it's 0:15:26.800 --> 0:15:29.760 not because in one fell swoop the court is going 0:15:29.800 --> 0:15:32.760 to overturn roll versus Weight. I think it's quite clear 0:15:32.840 --> 0:15:36.360 that if that happens, it's going to be because the 0:15:36.440 --> 0:15:41.200 availability of abortion is chipped away, the ability of states 0:15:41.280 --> 0:15:44.560 to throw up more roadblocks in a woman's path to 0:15:44.600 --> 0:15:48.480 an abortion, the court will see in a more sympathetic way. 0:15:48.560 --> 0:15:50.840 I think there's going to be a lot of skirmishing 0:15:50.880 --> 0:15:56.040 around these issues in ways that could erode the meaningfulness 0:15:56.080 --> 0:15:59.240 of the idea that there is a constitutional right to abortion. 0:15:59.320 --> 0:16:02.480 The large your picture here, I think is that the 0:16:02.560 --> 0:16:07.160 Court's jurisprudence about abortion, meaning it there is a constitutional right, 0:16:07.440 --> 0:16:10.640 there is the ability of states to regulate it. There 0:16:10.680 --> 0:16:14.800 comes a point after viability when abortion can be banned. Altogether, 0:16:15.040 --> 0:16:17.440 I think the law of abortion right now that the 0:16:17.480 --> 0:16:21.120 Supreme Court has developed over the past forty five years 0:16:21.560 --> 0:16:24.560 really reflects where the country is. There's a quite stable 0:16:24.560 --> 0:16:27.720 consensus in public opinion that most people don't want to 0:16:27.760 --> 0:16:30.800 see abortion available on demand. Most people don't want to 0:16:30.800 --> 0:16:34.960 see abortion completely eliminated. A majority of Americans believes that 0:16:35.000 --> 0:16:40.480 abortion should generally be available with some reasonable restrictions, and 0:16:40.840 --> 0:16:43.880 that's essentially reflects the law we have right now. That's 0:16:43.920 --> 0:16:47.840 Steve Sanders, a professor at Indiana University's Mara School of Law. 0:16:48.440 --> 0:16:51.040 And that's it for this edition of Bloomberg Law. I'm 0:16:51.120 --> 0:16:54.000 June Grosso. Thanks so much for listening, and remember to 0:16:54.040 --> 0:16:57.320 tune into The Bloomberg Law Show weeknights at ten pm 0:16:57.360 --> 0:17:03.440 here on Bloomberg Radio. The Pendent and the Contendent to 0:17:03.840 --> 0:17:05.959 DAK the dependent Ducal