Speaker 1: This is Bloomberg Law with June grassof from Bloomberg Radio.
Speaker 1: Broatesters from opposite sides of the abortion issue demonstrated outside
Speaker 1: the Supreme Court as the Justices heard arguments in its
Speaker 1: first abortion case in four years, a challenge to a
Speaker 1: Louisiana law requiring clinic doctors to have admitting privileges at
Speaker 1: a nearby hospital. My guest is Steve Sanders, a professor
Speaker 1: at Indiana University's Moral School of Law. In the court
Speaker 1: struck down a very similar Texas law. So shouldn't that
Speaker 1: be precedent here? Well, that's what many people think. Many
Speaker 1: people were very surprised when the Court agreed to hear
Speaker 1: this case. In twenty six and a case is known
Speaker 1: as the Whole Women's Health Case after the name of
Speaker 1: the abortion clinics in Texas. The Supreme Court struck down
Speaker 1: a couple of different Texas laws, which everybody knew had
Speaker 1: been passed in an effort to try to close abortion clinics.
Speaker 1: To make it more difficult for abortion clinics to operate,
Speaker 1: those laws required very high standards of equipment and facilities
Speaker 1: at abortion clinics. Basically, they had to be sort of
Speaker 1: full blown surgical centers, and they also required the doctors
Speaker 1: that abortion clinics had admitting privileges at hospitals. The Supreme Court,
Speaker 1: by a five to three decision in that case, struck
Speaker 1: those down, basically saying those imposed a substantial obstacle to
Speaker 1: a woman's ability to get an abortion without providing any benefit.
Speaker 1: Abortion is known to be actually one of the safest
Speaker 1: medical procedures, safer than actual childbirth in terms of its
Speaker 1: number of complications and its danger, and so the need
Speaker 1: for these elaborate standards and for admitting privileges simply wasn't necessary.
Speaker 1: But Louisiana had passed a similar law two years earlier
Speaker 1: in fourteen, and after the Louisiana law was challenged, a
Speaker 1: federal district court struck down Louisiana law, basically saying, this
Speaker 1: is essentially what the Supreme Court decided and whole women's health.
Speaker 1: The Louisiana law is just about admitting privileges. The district
Speaker 1: court said, this looks like exactly the situation the Supreme
Speaker 1: Court faced in Texas. Law violates the Constitution, violates whole
Speaker 1: women's health. But the Fifth Circuit, the Court of Appeals
Speaker 1: found some fairly narrow, fine grained differences between the situations
Speaker 1: in Louisiana and Texas, and so it upheld the law.
Speaker 1: And that's how we got to the Supreme Court arguments
Speaker 1: this week about whether or not these two cases are
Speaker 1: really distinguishable, or did the Supreme Court take this case
Speaker 1: now with two new conservative justices who weren't on the
Speaker 1: court back in twos sixteen Justice core such Injustice Kavanaugh,
Speaker 1: did the Court take this case essentially to reverse whole
Speaker 1: women's health or at least to poke some significant holes
Speaker 1: in it? In the arguments, did you see the questions
Speaker 1: falling down ideological lines. Well, you know, there's a certain
Speaker 1: amount of kabuki theater involved in Supreme Court arguments all
Speaker 1: the time. As I said, you know, sort of everybody
Speaker 1: knows that often you're sort of too polite to say
Speaker 1: it in court. Everybody knows that these laws were passed
Speaker 1: in states because lawmakers wanted to try to make it
Speaker 1: as difficult as possible for abortion clinic operators to operate.
Speaker 1: But the Court can't actually say that because that's a
Speaker 1: political statement. So instead, what you saw in the oral
Speaker 1: arguments were the conservative justices trying to emphasize that there
Speaker 1: could be state by state differences, in other words, and
Speaker 1: admitting privileges requirement in one state might have a different
Speaker 1: impact on the availability abortion, or it might be more
Speaker 1: justifiable in terms of medical safety and credentialing of doctors
Speaker 1: than a law in another state. And so you saw
Speaker 1: Chief Justice Roberts and Justice Kavanaugh pursuing that line of questioning,
Speaker 1: isn't it possible that there could be some state by
Speaker 1: state variations here, so that we would say whole women's
Speaker 1: health was about Texas and in a case about another
Speaker 1: state could come out differently. And you saw the more
Speaker 1: progressive justices, the more liberal justices, Justice Kagan, Justice Bryan,
Speaker 1: Justice sort of Mayorc really trying to push back against
Speaker 1: the idea that there were meaningful differences between the factual
Speaker 1: situations in these two cases. So much of the oral
Speaker 1: argument came down to debates about whether the doctors in
Speaker 1: this case had actually made enough of an effort to
Speaker 1: get admitting privileges, whether they already had admitting privileges, whether
Speaker 1: they would get admitting privileges if they asked for them.
Speaker 1: So it ended up being a lot of sort of
Speaker 1: skirmishing on the specific facts involved in this case. Did
Speaker 1: Justice Roberts suggest that he didn't see a factual distinction
Speaker 1: between of Texas and Louisiana cases. I think Justice Roberts
Speaker 1: was at least probing whether the existence of factual distinctions
Speaker 1: could mean that just because the law was struck down
Speaker 1: in one state doesn't necessarily mean a similar law would
Speaker 1: be struck down in another state. I didn't read Justice
Speaker 1: Roberts is getting into the details as much. I read
Speaker 1: his questions, as you know, can we at least agree
Speaker 1: that there could be differences from state to state such
Speaker 1: that whole women's health doesn't create a sort of blanket
Speaker 1: rule of facial rule against any sort of admitting privileges
Speaker 1: you saw. I think Justice a Lado and maybe to
Speaker 1: some extent, Justice Kavanaugh engaging a little bit more directly
Speaker 1: in trying to say the situation here is different. The
Speaker 1: admitting privileges law serves a stronger medical purpose and is
Speaker 1: more justifiable in this Louisiana case than perhaps it was
Speaker 1: in the Texas case. In the Texas case, Justice Roberts
Speaker 1: was in the descent. Where does that leave him? Now?
Speaker 1: You're right, Chief Justice Roberts was was among the three dissenters,
Speaker 1: and whole women's health, he would have upheld the Texas
Speaker 1: law in this case. In an earlier part of this case,
Speaker 1: he voted with the Court's progressive justices to at least
Speaker 1: put a hold on the Court of Appeals decisions so
Speaker 1: it couldn't go into effect, meaning that the law remained
Speaker 1: enjoined until the Supreme Court can decide. I think Chief
Speaker 1: Justice Roberts here faces a choice. On the one hand,
Speaker 1: you know, his vote in the Texas case in twenty
Speaker 1: six indicates he thinks there should be greater ability for
Speaker 1: states to regulate and put obstacles in the way of
Speaker 1: women's ability to get abortion. On the other hand, we
Speaker 1: know from his votes in previous cases and other contexts,
Speaker 1: the Chief Justice Roberts as the Chief Justice, also worries
Speaker 1: about the Court's institutional legitimacy, its credibility, how it is perceived,
Speaker 1: whether it is perceived as a political body or judicial body.
Speaker 1: And so I think he's going to face a sort
Speaker 1: of internal tug of war to go with his ideological beliefs.
Speaker 1: I think about what the law should be in this
Speaker 1: case versus if he ends up deciding that the cases
Speaker 1: are just too similar, and it would look frankly shocking
Speaker 1: for the Court to effectively overturn one of its own
Speaker 1: decisions after only four years. That might lead him to
Speaker 1: actually vote to strike down the Louisiana law. They will
Speaker 1: face a conflict between what he may think is the
Speaker 1: legally correct position from his judicial ideological perspective versus what
Speaker 1: he thinks the court's long term institutional credibility demands. He's
Speaker 1: reluctant to overturn precedent more than some of his other
Speaker 1: conservative colleagues are in this case. Does it seem to
Speaker 1: you as if the conservatives other than Justice Roberts on
Speaker 1: the Court would be willing to overturn that Texas case?
Speaker 1: I think the answer for just To Salito would have
Speaker 1: to be yes. Justice Salto, in the time he's been
Speaker 1: on the Court has been tagged as, you know, some
Speaker 1: people have said, a conservative activist. He was perhaps the
Speaker 1: most vigorous at oral argument in defense of the Louisiana law.
Speaker 1: Justice Kevinaugh hung back a little bit. He and the
Speaker 1: Chief Justice sort of circled around the edges trying to say, well,
Speaker 1: you know, if there are differences between these two laws,
Speaker 1: then could there be the possibility that one could be
Speaker 1: constitutional and another couldn't be Interestingly, Justice Gorsage did not
Speaker 1: ask anything. He liked. Justice Thomas, traditionally who's traditionally very
Speaker 1: quiet oral argument, didn't have any questions, and so we
Speaker 1: just couldn't get a read on them. You know, you said,
Speaker 1: the Chief Justice Roberts is reluctant to overturn the courts precedent,
Speaker 1: And a slightly more cynical view or realistic view might
Speaker 1: be that the Chief Justice is reluctant to see the
Speaker 1: Court engaging or turning on a dime doing things that
Speaker 1: are overtly political. But Justice Roberts has been complex, said
Speaker 1: in a number of cases over the years where the
Speaker 1: Court hasn't expressly overturned a precedent, but has limited a precedent,
Speaker 1: has poked holes in a precedent, has found a way
Speaker 1: to distinguish a new case from an old precedent in
Speaker 1: a way that weakens the precedent, but stop short of
Speaker 1: actually repudiating it or overturning it. And so that maybe
Speaker 1: one possible outcome in this case. In other words, they
Speaker 1: could rule in a very narrow way and uphold the
Speaker 1: Louisiana law without reversing the Texas case. They could they
Speaker 1: could say that there are enough meaningful differences between the
Speaker 1: situations in these two cases, mostly focusing on whether the
Speaker 1: admitting privileges requirements serves any legitimate, meaningful medical benefit or not.
Speaker 1: They could say that this one is different, and so
Speaker 1: this law can be upheld, and that would indicate then
Speaker 1: we're going to be kind of battling state by state,
Speaker 1: and the lower federal courts maybe very busy adjudicating similar
Speaker 1: laws that states either have passed or may attempt to pass.
Speaker 1: There's another way this case could be resolved, and that
Speaker 1: is there was sort of a side skirmish that a
Speaker 1: few of the justices were interested in about whether the
Speaker 1: doctors who brought this lawsuit have what's called standing, whether
Speaker 1: they can represent the legal interest. We're talking here about
Speaker 1: the right of women to have an abortion and the
Speaker 1: extent to which the Constitution protects that. But the plaintiffs
Speaker 1: in this case, we're not women. They were doctors. They
Speaker 1: were abortion providers, and so this gets into whether or
Speaker 1: not so called third parties that the doctors can um
Speaker 1: litigate a case that is really about the constitutional rights
Speaker 1: of the women. That was another point that Justice Alito
Speaker 1: made quite vigorously. He basically insisted that the doctors here
Speaker 1: didn't properly have standing. They weren't the proper plaintiffs in
Speaker 1: this case. If the court went that direction, if it
Speaker 1: essentially punted and said, well, the plaintiffs here didn't have standing,
Speaker 1: we didn't have jurisdiction, the case has to be dismissed.
Speaker 1: That would mean the Louisiana Low stands at least until
Speaker 1: it could be challenged by somebody who actually did have standing.
Speaker 1: A problem with that argument is there have been a
Speaker 1: number of other abortion cases over the years where doctors
Speaker 1: have been the plaintiffs, essentially representing the rights of the women,
Speaker 1: and those cases went forward and were decided. So to
Speaker 1: say at this point that we're going to stand on
Speaker 1: this principle that a doctor can't litigate the rights of
Speaker 1: a patient would seem to be again a bit opportunistic
Speaker 1: at a break with the court's own precedence on that question.
Speaker 1: That I'm not sure the court is actually squarely decided
Speaker 1: that question. But that problem has not stood in the
Speaker 1: way of the court adjudicating previous abortion cases. Is this
Speaker 1: one of the cases that anti abortion activists are hoping
Speaker 1: will allow the court to chip away at abortion rights.
Speaker 1: Oh absolutely. As I said the court, it has to
Speaker 1: be in a sense too polite to say what people
Speaker 1: know are the real politics behind these laws when they're litigated.
Speaker 1: We have to essentially pretend that this is really about
Speaker 1: whether the state was truly trying to protect women's medical
Speaker 1: health and protect the safety of abortion and so forth.
Speaker 1: That I think it's almost inarguable that if you know
Speaker 1: the politics of these laws, why these laws were passed,
Speaker 1: the coordinated way to get these kinds of laws passed
Speaker 1: around the country, you know that the effort was to
Speaker 1: try to make it difficult for abortion clinics to stay
Speaker 1: in business. It's an effort to limit access to abortion
Speaker 1: by putting pressure on the ability of abortion clinics to
Speaker 1: actually stay in business. So of course this was a
Speaker 1: coordinated strategy over the years prior to the Texas case.
Speaker 1: That these are sometimes called trap laws targeting of abortion providers,
Speaker 1: and so of course anti abortion activists will look very
Speaker 1: closely at what this case says about the attitude of
Speaker 1: the court. This is the first major abortion decision that
Speaker 1: the Court has fully decided since Justice Kennedy retired, and
Speaker 1: since we have two new justices, and now this is
Speaker 1: a This is a different court than it was four
Speaker 1: years ago, so it remains to be seen. People will
Speaker 1: be watching closely for signals about um Justice Kavanaugh, Justice Gore,
Speaker 1: such Justice Roberts, what the chemistry of the court and
Speaker 1: the lineup ideologically of the justices, whether and how that
Speaker 1: has changed since. I think most people are curious that
Speaker 1: it's almost become a litmus test for Supreme Court justices
Speaker 1: when they're going through their confirmation hearings to be asked
Speaker 1: about Roe v. Wade, and they inevitably say it's precedent.
Speaker 1: And I think that Kavanaugh said it's precedent on precedent.
Speaker 1: So can you ever be confident of that when we've
Speaker 1: seen cases where they reverse precedent all the time. The
Speaker 1: issue is, I think Roll versus Weight is not the issue.
Speaker 1: I think that no one thinks that the Court would
Speaker 1: be bold enough or were reckless enough to completely overturn
Speaker 1: Roversus Wade. The key case here. The key precedent is
Speaker 1: not roversus Weight itself. It's a decision that was decided
Speaker 1: um more than a decade after Roll Versus Weight, Casey
Speaker 1: versus Planned Parenthood of Southeastern Pennsylvania. It's the Casey decision.
Speaker 1: That upheld the basic idea of Row that a woman
Speaker 1: has a constitutional right to abortion, but approved the idea
Speaker 1: of that a state could express its view against abortion,
Speaker 1: could legislate more aggressively to protect the woman's health and
Speaker 1: to regulate the procedure, as long as it didn't create
Speaker 1: what's called a uh substantial obstacle, as long as it
Speaker 1: didn't create an undue burden to the women's access to
Speaker 1: an abortion. So what these cases are about is whether
Speaker 1: the Louisiana Admitting privileges law does create an undue burden
Speaker 1: by restricting the availability of abortion because clinics have to
Speaker 1: shut down. So if abortion rights are going to be
Speaker 1: chipped away are going to be put in danger, it's
Speaker 1: not because in one fell swoop the court is going
Speaker 1: to overturn roll versus Weight. I think it's quite clear
Speaker 1: that if that happens, it's going to be because the
Speaker 1: availability of abortion is chipped away, the ability of states
Speaker 1: to throw up more roadblocks in a woman's path to
Speaker 1: an abortion, the court will see in a more sympathetic way.
Speaker 1: I think there's going to be a lot of skirmishing
Speaker 1: around these issues in ways that could erode the meaningfulness
Speaker 1: of the idea that there is a constitutional right to abortion.
Speaker 1: The large your picture here, I think is that the
Speaker 1: Court's jurisprudence about abortion, meaning it there is a constitutional right,
Speaker 1: there is the ability of states to regulate it. There
Speaker 1: comes a point after viability when abortion can be banned. Altogether,
Speaker 1: I think the law of abortion right now that the
Speaker 1: Supreme Court has developed over the past forty five years
Speaker 1: really reflects where the country is. There's a quite stable
Speaker 1: consensus in public opinion that most people don't want to
Speaker 1: see abortion available on demand. Most people don't want to
Speaker 1: see abortion completely eliminated. A majority of Americans believes that
Speaker 1: abortion should generally be available with some reasonable restrictions, and
Speaker 1: that's essentially reflects the law we have right now. That's
Speaker 1: Steve Sanders, a professor at Indiana University's Mara School of Law.
Speaker 1: And that's it for this edition of Bloomberg Law. I'm
Speaker 1: June Grosso. Thanks so much for listening, and remember to
Speaker 1: tune into The Bloomberg Law Show weeknights at ten pm
Speaker 1: here on Bloomberg Radio. The Pendent and the Contendent to
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