WEBVTT - High Court’s First Abortion Case with Kavanaugh 0:00:00.680 --> 0:00:05.000 This is Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:05.320 --> 0:00:07.920 The U. S. Supreme Court will hear its first abortion 0:00:08.039 --> 0:00:11.680 case with a new conservative majority this term, ruling on 0:00:11.760 --> 0:00:15.680 a Louisiana law that requires doctors who perform abortions to 0:00:15.720 --> 0:00:18.919 get admitting privileges at a local hospital. The law is 0:00:18.960 --> 0:00:21.720 similar to a Texas measure the Court struck down in 0:00:22.280 --> 0:00:25.840 sixteen when Justice Anthony Kennedy was still on the court. 0:00:26.200 --> 0:00:29.200 The case promises to provide the clearest picture yet of 0:00:29.200 --> 0:00:33.960 whether Chief Justice John Roberts and the reconstituted Court will 0:00:34.000 --> 0:00:37.479 move quickly to roll back abortion rights. Joining me is 0:00:37.520 --> 0:00:41.480 Carol Sanger, a professor at Columbia Law School. So, Carol, 0:00:41.520 --> 0:00:45.240 the case before the Court is not directly about whether 0:00:45.280 --> 0:00:48.559 women have the right to an abortion. It's about admitting 0:00:48.600 --> 0:00:52.199 privileges for doctors. So why is it so important? The 0:00:52.240 --> 0:00:57.160 admitting privileges issue is very important because it's one of 0:00:57.280 --> 0:01:01.320 the techniques that's being used to make abort orcian harder 0:01:01.560 --> 0:01:06.200 to get by increasing the burdens that doctors have to 0:01:06.280 --> 0:01:10.040 follow in order to be licensed physicians who can perform 0:01:10.080 --> 0:01:14.200 abortions under state law. And so what admitting privileges. It 0:01:14.319 --> 0:01:18.240 does is say every doctor who performs abortions or a 0:01:18.280 --> 0:01:22.160 certain number of abortions has to have permission from a 0:01:22.280 --> 0:01:25.800 hospital within thirty miles of the clinic in order to 0:01:26.160 --> 0:01:30.160 be licensed to perform abortions. We have this identical case 0:01:30.400 --> 0:01:34.520 in Texas, and in Texas nothing is thirty miles from 0:01:34.560 --> 0:01:38.000 anything else. That's a bit of an exaggeration, but we 0:01:38.080 --> 0:01:41.319 know that it's very difficult to find hospital that close, 0:01:41.959 --> 0:01:45.119 and so the thought was by the state legislature, this 0:01:45.200 --> 0:01:48.200 is a really good way to cut down on the 0:01:48.320 --> 0:01:53.240 number of people who will be legally permitted to perform abortions. 0:01:53.760 --> 0:01:57.880 It doesn't regulate women, but it does regulate doctors. And 0:01:57.920 --> 0:02:01.240 so there are sort of three category rates that abortion 0:02:01.280 --> 0:02:04.960 regulation takes. One is to regulate women by like making 0:02:05.000 --> 0:02:09.440 them have waiting periods before they can consent, listen to 0:02:09.480 --> 0:02:14.480 mandatory scripts, things like that. The other is to regulate 0:02:14.560 --> 0:02:18.399 facilities by saying the facilities have to have something very 0:02:18.440 --> 0:02:22.160 close to a hospital operating room. And the third is 0:02:22.200 --> 0:02:27.360 to regulate doctors. And interestingly, the cases that are getting 0:02:27.400 --> 0:02:31.000 anywhere in terms of upholding the right for women to 0:02:31.160 --> 0:02:35.400 see doctors are the doctor cases because the doctors have 0:02:35.480 --> 0:02:38.400 a different set of arguments. They're arguing that we have 0:02:38.440 --> 0:02:42.480 a right to practice medicine under the best standards. So 0:02:42.919 --> 0:02:47.520 the case that you're talking about is really important from 0:02:47.560 --> 0:02:51.280 a practical point of view. It's also hugely important from 0:02:51.280 --> 0:02:55.200 a kind of abortion politics point of view. How did 0:02:55.200 --> 0:02:59.519 the Fifth Circuit uphold this Louisiana law when the Supreme 0:02:59.560 --> 0:03:07.360 Court decision involving Texas struck down a similar law in So, 0:03:07.720 --> 0:03:13.480 isn't that Texas case the controlling authority or precedent here? Well, 0:03:13.560 --> 0:03:17.760 it should be. The Texas case should indeed be the 0:03:17.880 --> 0:03:22.760 controlling precedent, Which means that if the facts of a 0:03:22.840 --> 0:03:26.440 preceding case are like the facts of a case that's 0:03:26.480 --> 0:03:29.280 now before the court, the court is supposed to take 0:03:29.360 --> 0:03:33.399 guidance from the earlier case. What the Fifth Circuit did 0:03:33.639 --> 0:03:37.840 the federal court that governs the territory of Louisiana. What 0:03:37.880 --> 0:03:41.440 they did was say, well, it's not exactly the same. 0:03:41.520 --> 0:03:46.440 Louisiana is is smaller than Texas, for example, and so 0:03:46.760 --> 0:03:50.160 while women may have had to travel further to find 0:03:50.160 --> 0:03:54.040 a clinic with a doctor who had admitting privileges in Texas, 0:03:54.440 --> 0:03:58.720 distances up to three miles. Louisiana is smaller, and we 0:03:58.760 --> 0:04:01.000 don't think there's going to be that kind of problem. 0:04:01.280 --> 0:04:06.000 So women aren't denied the ease of having an abortion 0:04:06.240 --> 0:04:10.680 clinic nearby as badly as they would be. The fact 0:04:10.760 --> 0:04:14.040 had shown in Texas that almost every clinic was going 0:04:14.120 --> 0:04:17.479 to have to close because the hospitals were not even 0:04:17.520 --> 0:04:22.480 granting admitting privileges to abortion providers. What your question is 0:04:22.600 --> 0:04:25.800 getting at is how do you get around precedent? And 0:04:25.880 --> 0:04:28.720 the way you get around precedent is to say, we 0:04:28.720 --> 0:04:31.760 don't have to be guided by that case because our 0:04:31.839 --> 0:04:36.120 facts are slightly different. That sixteen case where the Supreme 0:04:36.160 --> 0:04:38.840 Court struck down the Texas law appeared to be at 0:04:38.880 --> 0:04:44.560 the time of great victory for abortion rights. You're right 0:04:44.640 --> 0:04:47.120 in saying that that appeared to be a great victory, 0:04:47.160 --> 0:04:50.159 and in fact it was a great victory, last happy 0:04:50.279 --> 0:04:55.080 day abortion advocates had since, and it was a victory 0:04:55.120 --> 0:04:59.720 in several respects. First of all, it said enough with 0:05:00.000 --> 0:05:04.080 these regulations, which have nothing to do with women's health. 0:05:04.600 --> 0:05:08.440 The reason that the state can enact regulations is in 0:05:08.480 --> 0:05:11.560 the interests of women's health. That's the very basis sort 0:05:11.600 --> 0:05:16.920 of protecting the general welfare of state regulation, and the 0:05:17.279 --> 0:05:22.440 lower court curred all this evidence which showed that requiring 0:05:22.480 --> 0:05:26.480 admitting privileges was not good for women's health. In fact, 0:05:26.560 --> 0:05:29.680 it was bad for women's health because it was causing 0:05:29.720 --> 0:05:33.400 clinics to close, and the consequence of that was that 0:05:33.440 --> 0:05:37.160 women had to travel huge differences to what the court 0:05:37.279 --> 0:05:42.559 called overpacked facilities. The Court went on to say that 0:05:42.839 --> 0:05:46.359 women are entitled to good medical care, and what we 0:05:46.440 --> 0:05:50.200 want is individualized care. I've been talking with Professor Carol 0:05:50.279 --> 0:05:54.119 Sanger of Columbia Law School about an upcoming abortion case 0:05:54.160 --> 0:05:57.200 at the Supreme Court. It's the first abortion case to 0:05:57.240 --> 0:06:00.839 be decided with a new conservative majority this term. The 0:06:00.880 --> 0:06:03.839 Court will decide whether to strike down a Louisiana law 0:06:03.880 --> 0:06:07.600 that requires doctors who perform abortions to get admitting privileges 0:06:07.680 --> 0:06:10.440 at a local hospital. That law is similar to a 0:06:10.520 --> 0:06:13.479 Texas measure the Court did strike down in twenty six. 0:06:14.160 --> 0:06:17.400 The Trump administration has urged the Court to uphold the law, 0:06:17.680 --> 0:06:20.480 and a brief by more than two hundred members of Congress, 0:06:20.560 --> 0:06:25.120 almost all Republicans, urges the court to reconsider the landmark 0:06:25.279 --> 0:06:29.920 nine seventy three Roe v. Wade abortion rights ruling so Carol, 0:06:29.960 --> 0:06:33.760 we were discussing why that sixteen case appeared at the 0:06:33.839 --> 0:06:37.320 time to be the biggest abortion rights victory in a generation. 0:06:37.920 --> 0:06:40.080 So one of the reasons that the case has been 0:06:40.120 --> 0:06:44.280 so important was it changed the emphasis entirely about what 0:06:44.360 --> 0:06:49.440 abortion is, and it treated it as a medical procedure 0:06:50.080 --> 0:06:54.360 rather than, you know, a borderline criminal act. It took 0:06:54.400 --> 0:06:58.839 women as patients very seriously. So a pro choice abortion 0:06:58.880 --> 0:07:02.919 advocates were we're very happy to have this affirmation about 0:07:03.160 --> 0:07:06.600 sort of getting abortion back where it once had been, 0:07:06.760 --> 0:07:10.440 which was as a medical procedure. That was very important. 0:07:10.640 --> 0:07:13.040 The other thing that was important in the case is 0:07:13.160 --> 0:07:18.240 kind of legal proposition. But it said states you can't 0:07:18.280 --> 0:07:22.720 just come into court and say that this is good 0:07:22.760 --> 0:07:26.520 for women's health. You have to prove it. No longer 0:07:26.800 --> 0:07:30.760 do courts have to take what a state says at 0:07:30.840 --> 0:07:35.080 face value. It doesn't have to give deference to state 0:07:35.160 --> 0:07:39.239 declarations about what's good for women. Looking at the court 0:07:39.360 --> 0:07:43.000 at the time, in the majority for striking down the 0:07:43.080 --> 0:07:47.200 Texas law were Justices Briar, Ginsburg, so to Major, Kagan, 0:07:47.440 --> 0:07:53.680 and Kennedy. In the minority were Justices Alito, Thomas, and Roberts. 0:07:54.000 --> 0:07:59.120 Now you have on the court to additional justices Corsage 0:07:59.200 --> 0:08:05.200 and Kavanaugh, which cement the conservative majority. So if you 0:08:05.320 --> 0:08:08.840 just look at the numbers, does it appear that there 0:08:08.840 --> 0:08:13.560 are enough justices on the court to uphold this law? Well, 0:08:13.840 --> 0:08:16.800 guess it appears that there are enough justices on the 0:08:16.800 --> 0:08:22.480 court now to overturn Row. Whether they will overturn Row 0:08:22.720 --> 0:08:25.720 and do it on this case is a different question, 0:08:26.280 --> 0:08:31.280 But I think there's a consensus that the numbers. The 0:08:31.360 --> 0:08:34.880 numbers tell the story. And this is with no more 0:08:34.960 --> 0:08:39.280 resignations or deaths on the court. So this really emphasizes 0:08:39.320 --> 0:08:43.640 how much, how very important that the next presidential election 0:08:43.720 --> 0:08:46.800 will be um as it is now. I think um 0:08:46.840 --> 0:08:51.280 Trump has appointed of all federal judges at all levels, 0:08:51.400 --> 0:08:54.679 from district courts to the Supreme Court, and we're beginning 0:08:54.679 --> 0:08:58.960 to see the consequences of that as lower courts are 0:08:59.200 --> 0:09:03.600 beginning to become more conservative as well. If the justices 0:09:03.679 --> 0:09:06.280 decide just to rule on this case and not go 0:09:06.520 --> 0:09:11.680 any further, would they have to overrule their own precedent 0:09:12.280 --> 0:09:16.760 and say we were wrong in sen or would there 0:09:16.800 --> 0:09:19.800 be another way that they could do it without overruling 0:09:20.160 --> 0:09:23.640 the Texas case? Yes, there's a milder way that they 0:09:23.640 --> 0:09:26.640 could go about it. They could say the Texas case 0:09:26.800 --> 0:09:30.319 is not binding on the facts of the Louisiana case 0:09:31.000 --> 0:09:35.080 because of the differences in the two states, the populations 0:09:35.240 --> 0:09:40.720 where women live, where the clinics are located. They could 0:09:40.760 --> 0:09:44.440 do that. That would be really pretty I don't want 0:09:44.440 --> 0:09:47.760 to say shifty, but it would be pretty um playing 0:09:47.760 --> 0:09:52.000 with the facts when the trial court in Louisiana case 0:09:52.440 --> 0:09:56.320 also developed a very clear record that this was going 0:09:56.400 --> 0:10:01.760 to close clinics, and there's really no Um, there's really 0:10:01.800 --> 0:10:05.280 no argument that that's what legislators are trying to do 0:10:06.320 --> 0:10:10.520 right now. Uh, state legislatures are going out of their 0:10:10.559 --> 0:10:14.960 way to try to pass regulations that are so outrageous 0:10:15.080 --> 0:10:17.840 that the Court will have to take the case. And 0:10:17.880 --> 0:10:21.360 what they mean to do as with these admitting privileges regulations, 0:10:21.360 --> 0:10:25.360 and this is this is really was your opening question. Um, 0:10:25.360 --> 0:10:31.800 it's not really about admitting privileges. It's about dangling a situation, 0:10:32.200 --> 0:10:36.360 dangling a case before the Supreme Court and saying, come on, 0:10:36.559 --> 0:10:40.960 now's your chance. You can overturn the whole thing. You 0:10:41.000 --> 0:10:45.320 don't have to just pickt one regulation and and say well, 0:10:45.400 --> 0:10:48.680 that's no good, that's unconstitutional. You can go back to 0:10:48.840 --> 0:10:52.600 kind of scratch to pre Row and assume assume that 0:10:52.679 --> 0:10:56.240 you're deciding Row for the first time, and what they 0:10:56.280 --> 0:10:59.680 would do then is say we think that Row was 0:11:00.000 --> 0:11:04.719 wrong when it was decided, and it's wrong now. There 0:11:04.800 --> 0:11:07.960 is a brief by more than two members of Congress, 0:11:08.000 --> 0:11:13.559 almost all Republicans, urging the Court to reconsider Roe v. 0:11:13.720 --> 0:11:17.679 Wade in this decision. But most legal experts, so I 0:11:17.720 --> 0:11:20.240 don't know if you agree, but most legal experts seem 0:11:20.320 --> 0:11:23.080 to think that the Court won't go that far. I 0:11:23.120 --> 0:11:25.800 do agree with that. I think that it is it 0:11:25.960 --> 0:11:29.480 is really too early. First of all, the timing of 0:11:29.520 --> 0:11:33.079 the case would be before the election, so that we 0:11:33.120 --> 0:11:37.280 would have a decision on this case before November. And 0:11:37.360 --> 0:11:42.800 the Court is very aware of trying not to so 0:11:43.480 --> 0:11:48.720 obviously get into the political uh the political machinations that 0:11:48.760 --> 0:11:52.239 are going on now. The Court likes to present itself 0:11:52.480 --> 0:11:57.959 as neutral and not have partisan politics that are guiding 0:11:57.960 --> 0:12:02.240 its decision. So it has a huge institutional interest in 0:12:02.559 --> 0:12:05.480 its own integrity. And the reason for that is that 0:12:05.559 --> 0:12:09.000 the Court wants people to follow its decisions and to 0:12:09.040 --> 0:12:11.559 have legitimacy. They have to say, listen, We're not on 0:12:11.559 --> 0:12:14.160 one side or the other. We're just we're just deciding 0:12:14.200 --> 0:12:17.880 the law, as though deciding the law was a completely 0:12:17.920 --> 0:12:22.240 neutral thing. Um. But so that's one reason why I 0:12:22.280 --> 0:12:26.640 think they would be very reluctant or loath to to 0:12:26.640 --> 0:12:30.400 to kick out Row right now. The other thing is 0:12:30.960 --> 0:12:33.720 another reason why they might hesitate to do that, is 0:12:34.080 --> 0:12:38.320 it's not necessary to get rid of Row. You can 0:12:38.360 --> 0:12:40.520 take care of the case. You can take care of 0:12:40.559 --> 0:12:43.040 the issue that's been brought before the court, which is 0:12:43.640 --> 0:12:49.160 are admitting villages in Louisiana governed by the two thousand 0:12:49.240 --> 0:12:51.719 and sixteen case called the whole Women's Health that we've 0:12:51.760 --> 0:12:54.920 been talking about from Texas. And so that's the Court 0:12:55.040 --> 0:12:59.080 always has a sort of policy that it wants to 0:12:59.240 --> 0:13:03.160 rule as a narrowly as it can. It doesn't want 0:13:03.160 --> 0:13:05.800 to go any further than it has to do to 0:13:05.920 --> 0:13:10.400 decide the case before before it. So it would be 0:13:10.480 --> 0:13:13.960 taking a very big and bold step to say, you know, 0:13:14.240 --> 0:13:16.839 it's just not good enough to rule on admitting privileges. 0:13:16.960 --> 0:13:20.319 We're going to rule on the whole essence of Row. 0:13:20.800 --> 0:13:24.160 We're going to make abortion of crime again. So how 0:13:24.200 --> 0:13:28.320 would the justices go about getting to that point if 0:13:28.400 --> 0:13:31.400 they decide that they are going to deal with ROW, 0:13:32.040 --> 0:13:34.200 and deal with it, you know, go back to the 0:13:34.280 --> 0:13:38.960 drawing board. What is very important is the grounds that 0:13:39.040 --> 0:13:44.280 they announce for deciding that ROW is no longer good law. 0:13:45.040 --> 0:13:47.520 And I think what most people expect them to do 0:13:48.200 --> 0:13:53.120 is to say, we've reread ROW and we've decided. Their 0:13:53.160 --> 0:13:57.520 big mistake in ROW is there is no privacy right 0:13:57.600 --> 0:14:02.160 to privacy in the Federal Constitution, and that was their mistake. 0:14:02.280 --> 0:14:05.679 They based the whole decision on the right to privacy, 0:14:05.720 --> 0:14:11.960 which they some argue invented. Now many people, scholars and 0:14:11.960 --> 0:14:15.600 so on, I think that privacy is not an invention. 0:14:15.679 --> 0:14:18.360 That we have all kinds of examples of privacy, Like 0:14:18.640 --> 0:14:21.640 you can't have your your house search without a search 0:14:21.840 --> 0:14:25.280 warrant by by the state officers. And that's an example 0:14:25.320 --> 0:14:29.480 of the kinds of privacy that citizens can can expect. 0:14:29.760 --> 0:14:33.680 Even though this Constitution doesn't mention the word privacy, it 0:14:33.760 --> 0:14:37.360 says citizens have the right to be secure in their homes. 0:14:37.400 --> 0:14:39.720 But that's that's what they'd have to say. They'd have 0:14:39.840 --> 0:14:45.560 to say, Um, privacy is does not extend to things 0:14:45.640 --> 0:14:49.400 like deciding about abortion. That's just not that just carries 0:14:49.440 --> 0:14:51.960 it all too far. So that would be a way 0:14:52.120 --> 0:14:55.480 for the for the Supreme Court to say, so states, 0:14:55.560 --> 0:14:58.560 it's back in your it's back in your court again. 0:14:59.040 --> 0:15:01.960 All the states get to decide again as it was 0:15:02.120 --> 0:15:06.200 prior to Row, whether they want to make abortion a crime, 0:15:06.920 --> 0:15:11.400 because states have the right to decide what are crimes 0:15:11.440 --> 0:15:14.240 in their states. So let me ask you this then, 0:15:14.760 --> 0:15:18.360 looking at all the circumstances that you mentioned here, all 0:15:18.360 --> 0:15:21.680 the factors, what do you think the court is likely 0:15:21.720 --> 0:15:25.960 to do? Do you think they're likely to uphold the 0:15:26.000 --> 0:15:29.320 Louisiana law or strike it down? I think that the 0:15:29.360 --> 0:15:34.520 Court will uphold the Louisiana law, which would be how 0:15:34.560 --> 0:15:38.360 they've gone about ruling on abortion regulations. In a number 0:15:38.360 --> 0:15:42.720 of other circumstances. They'll say, you know, the Texas case 0:15:43.480 --> 0:15:47.800 doesn't cover everything in Louisiana, and we think that that 0:15:47.840 --> 0:15:51.800 we may have made an overstatement. Is how they'll put it. 0:15:52.280 --> 0:15:55.040 For example, the part about courts don't have to rely 0:15:55.480 --> 0:15:59.800 totally on what state legislatures say. They can say, well, 0:16:00.040 --> 0:16:03.640 not so fast. We think that state legislatures are entitled 0:16:03.920 --> 0:16:07.880 to deference in their lawmaking. That's what a democracy is. 0:16:08.440 --> 0:16:11.760 So there are ways that they can adjust and cut 0:16:11.800 --> 0:16:15.680 back on whole women's health. And that's what I think 0:16:15.680 --> 0:16:18.800 they'll do. Now, that's not what the brief you mentioned 0:16:18.880 --> 0:16:22.440 wants them to do. The members of Congress, it's not 0:16:22.520 --> 0:16:25.600 what a number of governors have come out and say, 0:16:25.680 --> 0:16:29.960 we want to encourage the Court to overrule Row. But 0:16:30.080 --> 0:16:33.880 I think that it's too early. UM. I don't think 0:16:33.920 --> 0:16:38.160 that Justice Roberts is keen to be the guy who's 0:16:38.160 --> 0:16:41.840 going to criminalize Row at this stage. Thanks so much 0:16:41.840 --> 0:16:44.640 for being on Bloomberg Law. Carol. That's Carol Sanger, a 0:16:44.760 --> 0:16:47.560 professor at Columbia Law School. And that's it for this 0:16:47.720 --> 0:16:51.280 edition of Bloomberg Law. I'm June Grosso. Thanks so much 0:16:51.320 --> 0:16:54.240 for listening, and remember to tune into The Bloomberg Law 0:16:54.280 --> 0:16:58.480 Show weeknights at ten pm Eastern, seven pm Central, right 0:16:58.480 --> 0:16:59.800 here on Bloomberg Radio.