1
00:00:03,520 --> 00:00:07,040
Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

2
00:00:07,120 --> 00:00:09,680
Speaker 1: day we bring you insight and analysis into the most

3
00:00:09,720 --> 00:00:12,200
Speaker 1: important legal news of the day. You can find more

4
00:00:12,240 --> 00:00:16,160
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

5
00:00:16,280 --> 00:00:20,200
Speaker 1: and on Bloomberg dot com slash podcasts. A divided Supreme

6
00:00:20,239 --> 00:00:23,560
Speaker 1: Court has blocked at least temporarily, a Louisiana law that

7
00:00:23,600 --> 00:00:27,319
Speaker 1: puts restrictions on abortion doctors. The vote was five to four,

8
00:00:27,400 --> 00:00:30,600
Speaker 1: the liberal justices in the majority and the conservative justices

9
00:00:30,600 --> 00:00:34,120
Speaker 1: in the minority, with Chief Justice John Roberts voting with

10
00:00:34,159 --> 00:00:37,000
Speaker 1: the liberal wing of the court joining me is Neil Kinkoff,

11
00:00:37,080 --> 00:00:40,680
Speaker 1: a professor at Georgia State University College of Law. Neil

12
00:00:40,800 --> 00:00:43,360
Speaker 1: tell us a little about the Louisiana law and what

13
00:00:43,479 --> 00:00:46,479
Speaker 1: the court did here. Well. The main provision that's an

14
00:00:46,479 --> 00:00:51,320
Speaker 1: issue is a provision that requires doctors who perform abortions

15
00:00:51,680 --> 00:00:55,160
Speaker 1: to have admitting privileges at a hospital within thirty miles.

16
00:00:55,720 --> 00:00:59,320
Speaker 1: The state of Texas adopted the same requirement, and in

17
00:00:59,320 --> 00:01:02,280
Speaker 1: a case the Supreme Court decided just two years ago,

18
00:01:02,640 --> 00:01:06,320
Speaker 1: the Supreme Court struck that requirement down because it didn't

19
00:01:06,360 --> 00:01:11,119
Speaker 1: advance any legitimate purpose. On the state's part and would

20
00:01:11,160 --> 00:01:16,600
Speaker 1: have the consequence of strictly limiting the availability of abortions

21
00:01:16,640 --> 00:01:22,280
Speaker 1: in Texas. So the Louisiana case involves a substantively identical

22
00:01:22,400 --> 00:01:25,720
Speaker 1: law that would have had the consequence if it applied,

23
00:01:26,480 --> 00:01:30,600
Speaker 1: of putting all but one doctor out of business, so

24
00:01:30,640 --> 00:01:33,280
Speaker 1: that the entire state would have been served only by

25
00:01:33,319 --> 00:01:38,679
Speaker 1: one doctor. And the five justices who voted the way

26
00:01:38,720 --> 00:01:44,240
Speaker 1: they did yesterday, I saw that as reversing in effect

27
00:01:44,440 --> 00:01:48,440
Speaker 1: the earlier um the case they decided just two terms ago,

28
00:01:49,320 --> 00:01:53,120
Speaker 1: and so they put in place an injunction to prevent

29
00:01:53,200 --> 00:01:57,440
Speaker 1: the Louisiana law from taking effect. This vote was a

30
00:01:57,440 --> 00:02:00,200
Speaker 1: bit of a departure for the Chief because in the

31
00:02:00,200 --> 00:02:03,480
Speaker 1: case you were talking about where the Supreme Court struck

32
00:02:03,520 --> 00:02:07,440
Speaker 1: down the Texas law and twenty sixteen Robert's dissented in

33
00:02:07,520 --> 00:02:12,520
Speaker 1: that case. Any inkling as to why the change here, well,

34
00:02:12,560 --> 00:02:15,200
Speaker 1: I think when the court gets the case on the merits,

35
00:02:15,240 --> 00:02:18,240
Speaker 1: there won't be a change in his position. What he's

36
00:02:18,320 --> 00:02:23,240
Speaker 1: doing is, I think, asserting the Supreme Court's exclusive power

37
00:02:23,320 --> 00:02:27,040
Speaker 1: to overrule its own precedence. Right. So in this instance

38
00:02:27,040 --> 00:02:30,160
Speaker 1: what happened is the lower court, the Fifth Circuit Court

39
00:02:30,160 --> 00:02:34,360
Speaker 1: of Appeals, in essence overruled the Supreme Courts precedent, and

40
00:02:34,440 --> 00:02:38,400
Speaker 1: Justice robertson part is voting the way he did because

41
00:02:38,520 --> 00:02:41,000
Speaker 1: he wants to make it clear that that's the Supreme

42
00:02:41,000 --> 00:02:44,440
Speaker 1: Court's job, not a lower courts job. So you think

43
00:02:44,480 --> 00:02:48,240
Speaker 1: that it's assumed that the Court will take up this case,

44
00:02:48,280 --> 00:02:50,320
Speaker 1: So it's a high probability that it will take up

45
00:02:50,360 --> 00:02:54,919
Speaker 1: this case. And you feel that he will vote with

46
00:02:54,960 --> 00:02:58,880
Speaker 1: the Conservatives, then so likely they will reverse their position

47
00:02:58,919 --> 00:03:03,919
Speaker 1: from I think that's overwhelmingly likely. Yes, when you look

48
00:03:03,960 --> 00:03:07,480
Speaker 1: at Justice roberts voting record in recent months, though he

49
00:03:07,520 --> 00:03:11,520
Speaker 1: has started with the liberals several times, hasn't he He's

50
00:03:11,639 --> 00:03:14,760
Speaker 1: been very careful lately. So yes, what you say is right,

51
00:03:14,840 --> 00:03:17,079
Speaker 1: and I think this case is a good example of that.

52
00:03:17,120 --> 00:03:20,400
Speaker 1: I think Justice Roberts did not want the Court to

53
00:03:20,480 --> 00:03:24,000
Speaker 1: be viewed as just a political entity, and so that

54
00:03:24,720 --> 00:03:30,679
Speaker 1: changing Justice Kennedy for Justice Kavanaugh would have an immediate

55
00:03:30,800 --> 00:03:36,200
Speaker 1: effect of overruling high profile precedents, especially in hot buttonary

56
00:03:36,360 --> 00:03:39,160
Speaker 1: is like abortion. So he wants to be much more

57
00:03:39,240 --> 00:03:43,080
Speaker 1: measured and careful in the way the Court proceeds because

58
00:03:43,080 --> 00:03:46,880
Speaker 1: he needs to protect the public perception that the Court

59
00:03:46,960 --> 00:03:50,760
Speaker 1: is being neutral and independent, whereas I think the other

60
00:03:51,120 --> 00:03:56,680
Speaker 1: conservatives in in his block really are getting impatient and

61
00:03:56,720 --> 00:04:00,960
Speaker 1: just want to move forward and start overruling a portion precedents.

62
00:04:01,600 --> 00:04:06,520
Speaker 1: Now there are cases coming up that would bring the

63
00:04:06,560 --> 00:04:10,160
Speaker 1: abortion issue into more of a focus. Are they likely

64
00:04:10,200 --> 00:04:12,280
Speaker 1: to take up those cases? Do they have the four

65
00:04:12,360 --> 00:04:15,640
Speaker 1: votes there to take them up? I think they clearly

66
00:04:15,640 --> 00:04:17,440
Speaker 1: have the four votes to take them up. In this

67
00:04:17,520 --> 00:04:20,719
Speaker 1: case is one that's a good example. So four votes

68
00:04:20,839 --> 00:04:23,200
Speaker 1: isn't enough to win, but it's enough to get the

69
00:04:23,240 --> 00:04:26,159
Speaker 1: court to review. And I think when this one comes

70
00:04:26,160 --> 00:04:28,919
Speaker 1: to the court, the court is going to reverse the

71
00:04:29,000 --> 00:04:32,080
Speaker 1: case from two years ago. But I think what that

72
00:04:32,200 --> 00:04:35,920
Speaker 1: shows is the Court is unlikely to ever actually come

73
00:04:35,920 --> 00:04:40,520
Speaker 1: out and directly over rule Roe versus Weight itself, because

74
00:04:40,640 --> 00:04:44,880
Speaker 1: if states can impose these kinds of restrictions on abortion,

75
00:04:45,400 --> 00:04:48,800
Speaker 1: they can, as a practical matter, make it unavailable and

76
00:04:48,920 --> 00:04:52,480
Speaker 1: make it effectively illegal, and then the Court doesn't have

77
00:04:52,600 --> 00:04:56,159
Speaker 1: to take that dramatic step of actually saying that Roe

78
00:04:56,279 --> 00:04:59,960
Speaker 1: versus Weight is overruled. And in that way, Justice raw

79
00:05:00,080 --> 00:05:03,400
Speaker 1: Bert's sort of gets what he wants, which is he

80
00:05:03,440 --> 00:05:06,920
Speaker 1: preserves the idea that the Court isn't just changing its

81
00:05:06,960 --> 00:05:10,000
Speaker 1: position because there are new members on the court that

82
00:05:10,080 --> 00:05:14,360
Speaker 1: it's independent and neutral. And yet as a practical matter,

83
00:05:14,880 --> 00:05:19,839
Speaker 1: ro versus Wade becomes meaningless except that in certain states,

84
00:05:20,000 --> 00:05:23,720
Speaker 1: certain Blue states, abortion would be available and it's unlikely

85
00:05:23,800 --> 00:05:28,680
Speaker 1: that state legislatures in those states would put restrictions on it. Right,

86
00:05:28,680 --> 00:05:31,919
Speaker 1: But if roversus Wade were overruled, those Blue states would

87
00:05:31,920 --> 00:05:36,760
Speaker 1: continue to make abortions legal, right, and overruling Road directly

88
00:05:36,839 --> 00:05:42,760
Speaker 1: wouldn't wouldn't require states to make abortion illegal. So if

89
00:05:42,880 --> 00:05:46,640
Speaker 1: Row were overruled, the result would be that in blue states,

90
00:05:46,640 --> 00:05:50,680
Speaker 1: presumably protections would remain in place, and in red states

91
00:05:50,920 --> 00:05:56,120
Speaker 1: abortion would be illegal. Allowing Red states to regulate abortion

92
00:05:56,160 --> 00:05:59,720
Speaker 1: out of existence without overruling Row comes to the same

93
00:05:59,880 --> 00:06:03,279
Speaker 1: d Now, let's just go back to this case for

94
00:06:03,279 --> 00:06:07,560
Speaker 1: a moment. Only the newest Justice, Brett Kavanaugh, published a descent.

95
00:06:08,360 --> 00:06:11,599
Speaker 1: Why and what did he say? So? His descent is

96
00:06:11,800 --> 00:06:14,720
Speaker 1: very technical. Um, you read it through. It doesn't say

97
00:06:14,720 --> 00:06:19,080
Speaker 1: anything about Roe versus Wade. It's very much based on

98
00:06:19,200 --> 00:06:21,880
Speaker 1: the his reading of the facts of the case. He

99
00:06:21,960 --> 00:06:26,760
Speaker 1: says it's possible for Louisiana's law to go into effect

100
00:06:26,800 --> 00:06:30,880
Speaker 1: in a way that wouldn't be disruptive to abortion providers.

101
00:06:31,360 --> 00:06:33,800
Speaker 1: You know, that's a that's a very selective reading of

102
00:06:33,839 --> 00:06:36,400
Speaker 1: the facts. The briefs on the other side, I think

103
00:06:36,440 --> 00:06:40,640
Speaker 1: demonstrated pretty convincingly that in fact, it would put all

104
00:06:40,680 --> 00:06:44,520
Speaker 1: of the abortion providers save for one doctor, out of

105
00:06:44,520 --> 00:06:51,000
Speaker 1: business right away. Looking forward from Justice Robert's record, can

106
00:06:51,080 --> 00:06:54,400
Speaker 1: you see what areas he might break with the Conservatives

107
00:06:54,520 --> 00:06:57,080
Speaker 1: or is that too hard to tell? Yeah, I don't

108
00:06:57,120 --> 00:06:59,600
Speaker 1: think he's going to break with the Conservatives in any

109
00:07:00,080 --> 00:07:03,080
Speaker 1: he is. What he might try to do is to

110
00:07:03,240 --> 00:07:06,760
Speaker 1: temper what the Conservatives are doing. So the other four

111
00:07:06,800 --> 00:07:11,080
Speaker 1: Conservatives seem like they want to make a full frontal

112
00:07:11,160 --> 00:07:16,600
Speaker 1: assault on liberal decisions like Row versus Wade, and I

113
00:07:16,640 --> 00:07:19,960
Speaker 1: think Justice Roberts wants to get to the same results

114
00:07:20,040 --> 00:07:22,480
Speaker 1: that they're trying to get to, but to do it

115
00:07:22,560 --> 00:07:27,000
Speaker 1: in a way that's not so dramatic and confrontational, so

116
00:07:27,040 --> 00:07:30,920
Speaker 1: that as a practical matter, Row will be meaningless. But

117
00:07:31,400 --> 00:07:34,720
Speaker 1: we don't have the rather dramatic headlines that say the

118
00:07:34,760 --> 00:07:38,480
Speaker 1: Supreme Court has overruled Row. Because if the Court goes

119
00:07:38,560 --> 00:07:42,360
Speaker 1: down that road, I think they lose the public perception

120
00:07:42,400 --> 00:07:46,280
Speaker 1: of their independence and justice. Roberts has been very eager

121
00:07:46,560 --> 00:07:50,040
Speaker 1: to promote and support that. That's Neil Kincoppa, Professor at

122
00:07:50,040 --> 00:07:54,200
Speaker 1: Georgia State University College of Law. Thanks for listening to

123
00:07:54,200 --> 00:07:57,520
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to

124
00:07:57,560 --> 00:08:01,040
Speaker 1: the show on Apple podcast, SoundCloud out, and on Bloomberg

125
00:08:01,080 --> 00:08:05,800
Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg

126
00:08:11,560 --> 00:08:11,600
Speaker 1: h