Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. A divided Supreme
Speaker 1: Court has blocked at least temporarily, a Louisiana law that
Speaker 1: puts restrictions on abortion doctors. The vote was five to four,
Speaker 1: the liberal justices in the majority and the conservative justices
Speaker 1: in the minority, with Chief Justice John Roberts voting with
Speaker 1: the liberal wing of the court joining me is Neil Kinkoff,
Speaker 1: a professor at Georgia State University College of Law. Neil
Speaker 1: tell us a little about the Louisiana law and what
Speaker 1: the court did here. Well. The main provision that's an
Speaker 1: issue is a provision that requires doctors who perform abortions
Speaker 1: to have admitting privileges at a hospital within thirty miles.
Speaker 1: The state of Texas adopted the same requirement, and in
Speaker 1: a case the Supreme Court decided just two years ago,
Speaker 1: the Supreme Court struck that requirement down because it didn't
Speaker 1: advance any legitimate purpose. On the state's part and would
Speaker 1: have the consequence of strictly limiting the availability of abortions
Speaker 1: in Texas. So the Louisiana case involves a substantively identical
Speaker 1: law that would have had the consequence if it applied,
Speaker 1: of putting all but one doctor out of business, so
Speaker 1: that the entire state would have been served only by
Speaker 1: one doctor. And the five justices who voted the way
Speaker 1: they did yesterday, I saw that as reversing in effect
Speaker 1: the earlier um the case they decided just two terms ago,
Speaker 1: and so they put in place an injunction to prevent
Speaker 1: the Louisiana law from taking effect. This vote was a
Speaker 1: bit of a departure for the Chief because in the
Speaker 1: case you were talking about where the Supreme Court struck
Speaker 1: down the Texas law and twenty sixteen Robert's dissented in
Speaker 1: that case. Any inkling as to why the change here, well,
Speaker 1: I think when the court gets the case on the merits,
Speaker 1: there won't be a change in his position. What he's
Speaker 1: doing is, I think, asserting the Supreme Court's exclusive power
Speaker 1: to overrule its own precedence. Right. So in this instance
Speaker 1: what happened is the lower court, the Fifth Circuit Court
Speaker 1: of Appeals, in essence overruled the Supreme Courts precedent, and
Speaker 1: Justice robertson part is voting the way he did because
Speaker 1: he wants to make it clear that that's the Supreme
Speaker 1: Court's job, not a lower courts job. So you think
Speaker 1: that it's assumed that the Court will take up this case,
Speaker 1: So it's a high probability that it will take up
Speaker 1: this case. And you feel that he will vote with
Speaker 1: the Conservatives, then so likely they will reverse their position
Speaker 1: from I think that's overwhelmingly likely. Yes, when you look
Speaker 1: at Justice roberts voting record in recent months, though he
Speaker 1: has started with the liberals several times, hasn't he He's
Speaker 1: been very careful lately. So yes, what you say is right,
Speaker 1: and I think this case is a good example of that.
Speaker 1: I think Justice Roberts did not want the Court to
Speaker 1: be viewed as just a political entity, and so that
Speaker 1: changing Justice Kennedy for Justice Kavanaugh would have an immediate
Speaker 1: effect of overruling high profile precedents, especially in hot buttonary
Speaker 1: is like abortion. So he wants to be much more
Speaker 1: measured and careful in the way the Court proceeds because
Speaker 1: he needs to protect the public perception that the Court
Speaker 1: is being neutral and independent, whereas I think the other
Speaker 1: conservatives in in his block really are getting impatient and
Speaker 1: just want to move forward and start overruling a portion precedents.
Speaker 1: Now there are cases coming up that would bring the
Speaker 1: abortion issue into more of a focus. Are they likely
Speaker 1: to take up those cases? Do they have the four
Speaker 1: votes there to take them up? I think they clearly
Speaker 1: have the four votes to take them up. In this
Speaker 1: case is one that's a good example. So four votes
Speaker 1: isn't enough to win, but it's enough to get the
Speaker 1: court to review. And I think when this one comes
Speaker 1: to the court, the court is going to reverse the
Speaker 1: case from two years ago. But I think what that
Speaker 1: shows is the Court is unlikely to ever actually come
Speaker 1: out and directly over rule Roe versus Weight itself, because
Speaker 1: if states can impose these kinds of restrictions on abortion,
Speaker 1: they can, as a practical matter, make it unavailable and
Speaker 1: make it effectively illegal, and then the Court doesn't have
Speaker 1: to take that dramatic step of actually saying that Roe
Speaker 1: versus Weight is overruled. And in that way, Justice raw
Speaker 1: Bert's sort of gets what he wants, which is he
Speaker 1: preserves the idea that the Court isn't just changing its
Speaker 1: position because there are new members on the court that
Speaker 1: it's independent and neutral. And yet as a practical matter,
Speaker 1: ro versus Wade becomes meaningless except that in certain states,
Speaker 1: certain Blue states, abortion would be available and it's unlikely
Speaker 1: that state legislatures in those states would put restrictions on it. Right,
Speaker 1: But if roversus Wade were overruled, those Blue states would
Speaker 1: continue to make abortions legal, right, and overruling Road directly
Speaker 1: wouldn't wouldn't require states to make abortion illegal. So if
Speaker 1: Row were overruled, the result would be that in blue states,
Speaker 1: presumably protections would remain in place, and in red states
Speaker 1: abortion would be illegal. Allowing Red states to regulate abortion
Speaker 1: out of existence without overruling Row comes to the same
Speaker 1: d Now, let's just go back to this case for
Speaker 1: a moment. Only the newest Justice, Brett Kavanaugh, published a descent.
Speaker 1: Why and what did he say? So? His descent is
Speaker 1: very technical. Um, you read it through. It doesn't say
Speaker 1: anything about Roe versus Wade. It's very much based on
Speaker 1: the his reading of the facts of the case. He
Speaker 1: says it's possible for Louisiana's law to go into effect
Speaker 1: in a way that wouldn't be disruptive to abortion providers.
Speaker 1: You know, that's a that's a very selective reading of
Speaker 1: the facts. The briefs on the other side, I think
Speaker 1: demonstrated pretty convincingly that in fact, it would put all
Speaker 1: of the abortion providers save for one doctor, out of
Speaker 1: business right away. Looking forward from Justice Robert's record, can
Speaker 1: you see what areas he might break with the Conservatives
Speaker 1: or is that too hard to tell? Yeah, I don't
Speaker 1: think he's going to break with the Conservatives in any
Speaker 1: he is. What he might try to do is to
Speaker 1: temper what the Conservatives are doing. So the other four
Speaker 1: Conservatives seem like they want to make a full frontal
Speaker 1: assault on liberal decisions like Row versus Wade, and I
Speaker 1: think Justice Roberts wants to get to the same results
Speaker 1: that they're trying to get to, but to do it
Speaker 1: in a way that's not so dramatic and confrontational, so
Speaker 1: that as a practical matter, Row will be meaningless. But
Speaker 1: we don't have the rather dramatic headlines that say the
Speaker 1: Supreme Court has overruled Row. Because if the Court goes
Speaker 1: down that road, I think they lose the public perception
Speaker 1: of their independence and justice. Roberts has been very eager
Speaker 1: to promote and support that. That's Neil Kincoppa, Professor at
Speaker 1: Georgia State University College of Law. Thanks for listening to
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to
Speaker 1: the show on Apple podcast, SoundCloud out, and on Bloomberg
Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg
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