Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: The U. S. Supreme Court will hear its first abortion
Speaker 1: case with a new conservative majority this term, ruling on
Speaker 1: a Louisiana law that requires doctors who perform abortions to
Speaker 1: get admitting privileges at a local hospital. The law is
Speaker 1: similar to a Texas measure the Court struck down in
Speaker 1: sixteen when Justice Anthony Kennedy was still on the court.
Speaker 1: The case promises to provide the clearest picture yet of
Speaker 1: whether Chief Justice John Roberts and the reconstituted Court will
Speaker 1: move quickly to roll back abortion rights. Joining me is
Speaker 1: Carol Sanger, a professor at Columbia Law School. So, Carol,
Speaker 1: the case before the Court is not directly about whether
Speaker 1: women have the right to an abortion. It's about admitting
Speaker 1: privileges for doctors. So why is it so important? The
Speaker 1: admitting privileges issue is very important because it's one of
Speaker 1: the techniques that's being used to make abort orcian harder
Speaker 1: to get by increasing the burdens that doctors have to
Speaker 1: follow in order to be licensed physicians who can perform
Speaker 1: abortions under state law. And so what admitting privileges. It
Speaker 1: does is say every doctor who performs abortions or a
Speaker 1: certain number of abortions has to have permission from a
Speaker 1: hospital within thirty miles of the clinic in order to
Speaker 1: be licensed to perform abortions. We have this identical case
Speaker 1: in Texas, and in Texas nothing is thirty miles from
Speaker 1: anything else. That's a bit of an exaggeration, but we
Speaker 1: know that it's very difficult to find hospital that close,
Speaker 1: and so the thought was by the state legislature, this
Speaker 1: is a really good way to cut down on the
Speaker 1: number of people who will be legally permitted to perform abortions.
Speaker 1: It doesn't regulate women, but it does regulate doctors. And
Speaker 1: so there are sort of three category rates that abortion
Speaker 1: regulation takes. One is to regulate women by like making
Speaker 1: them have waiting periods before they can consent, listen to
Speaker 1: mandatory scripts, things like that. The other is to regulate
Speaker 1: facilities by saying the facilities have to have something very
Speaker 1: close to a hospital operating room. And the third is
Speaker 1: to regulate doctors. And interestingly, the cases that are getting
Speaker 1: anywhere in terms of upholding the right for women to
Speaker 1: see doctors are the doctor cases because the doctors have
Speaker 1: a different set of arguments. They're arguing that we have
Speaker 1: a right to practice medicine under the best standards. So
Speaker 1: the case that you're talking about is really important from
Speaker 1: a practical point of view. It's also hugely important from
Speaker 1: a kind of abortion politics point of view. How did
Speaker 1: the Fifth Circuit uphold this Louisiana law when the Supreme
Speaker 1: Court decision involving Texas struck down a similar law in So,
Speaker 1: isn't that Texas case the controlling authority or precedent here? Well,
Speaker 1: it should be. The Texas case should indeed be the
Speaker 1: controlling precedent, Which means that if the facts of a
Speaker 1: preceding case are like the facts of a case that's
Speaker 1: now before the court, the court is supposed to take
Speaker 1: guidance from the earlier case. What the Fifth Circuit did
Speaker 1: the federal court that governs the territory of Louisiana. What
Speaker 1: they did was say, well, it's not exactly the same.
Speaker 1: Louisiana is is smaller than Texas, for example, and so
Speaker 1: while women may have had to travel further to find
Speaker 1: a clinic with a doctor who had admitting privileges in Texas,
Speaker 1: distances up to three miles. Louisiana is smaller, and we
Speaker 1: don't think there's going to be that kind of problem.
Speaker 1: So women aren't denied the ease of having an abortion
Speaker 1: clinic nearby as badly as they would be. The fact
Speaker 1: had shown in Texas that almost every clinic was going
Speaker 1: to have to close because the hospitals were not even
Speaker 1: granting admitting privileges to abortion providers. What your question is
Speaker 1: getting at is how do you get around precedent? And
Speaker 1: the way you get around precedent is to say, we
Speaker 1: don't have to be guided by that case because our
Speaker 1: facts are slightly different. That sixteen case where the Supreme
Speaker 1: Court struck down the Texas law appeared to be at
Speaker 1: the time of great victory for abortion rights. You're right
Speaker 1: in saying that that appeared to be a great victory,
Speaker 1: and in fact it was a great victory, last happy
Speaker 1: day abortion advocates had since, and it was a victory
Speaker 1: in several respects. First of all, it said enough with
Speaker 1: these regulations, which have nothing to do with women's health.
Speaker 1: The reason that the state can enact regulations is in
Speaker 1: the interests of women's health. That's the very basis sort
Speaker 1: of protecting the general welfare of state regulation, and the
Speaker 1: lower court curred all this evidence which showed that requiring
Speaker 1: admitting privileges was not good for women's health. In fact,
Speaker 1: it was bad for women's health because it was causing
Speaker 1: clinics to close, and the consequence of that was that
Speaker 1: women had to travel huge differences to what the court
Speaker 1: called overpacked facilities. The Court went on to say that
Speaker 1: women are entitled to good medical care, and what we
Speaker 1: want is individualized care. I've been talking with Professor Carol
Speaker 1: Sanger of Columbia Law School about an upcoming abortion case
Speaker 1: at the Supreme Court. It's the first abortion case to
Speaker 1: be decided with a new conservative majority this term. The
Speaker 1: Court will decide whether to strike down a Louisiana law
Speaker 1: that requires doctors who perform abortions to get admitting privileges
Speaker 1: at a local hospital. That law is similar to a
Speaker 1: Texas measure the Court did strike down in twenty six.
Speaker 1: The Trump administration has urged the Court to uphold the law,
Speaker 1: and a brief by more than two hundred members of Congress,
Speaker 1: almost all Republicans, urges the court to reconsider the landmark
Speaker 1: nine seventy three Roe v. Wade abortion rights ruling so Carol,
Speaker 1: we were discussing why that sixteen case appeared at the
Speaker 1: time to be the biggest abortion rights victory in a generation.
Speaker 1: So one of the reasons that the case has been
Speaker 1: so important was it changed the emphasis entirely about what
Speaker 1: abortion is, and it treated it as a medical procedure
Speaker 1: rather than, you know, a borderline criminal act. It took
Speaker 1: women as patients very seriously. So a pro choice abortion
Speaker 1: advocates were we're very happy to have this affirmation about
Speaker 1: sort of getting abortion back where it once had been,
Speaker 1: which was as a medical procedure. That was very important.
Speaker 1: The other thing that was important in the case is
Speaker 1: kind of legal proposition. But it said states you can't
Speaker 1: just come into court and say that this is good
Speaker 1: for women's health. You have to prove it. No longer
Speaker 1: do courts have to take what a state says at
Speaker 1: face value. It doesn't have to give deference to state
Speaker 1: declarations about what's good for women. Looking at the court
Speaker 1: at the time, in the majority for striking down the
Speaker 1: Texas law were Justices Briar, Ginsburg, so to Major, Kagan,
Speaker 1: and Kennedy. In the minority were Justices Alito, Thomas, and Roberts.
Speaker 1: Now you have on the court to additional justices Corsage
Speaker 1: and Kavanaugh, which cement the conservative majority. So if you
Speaker 1: just look at the numbers, does it appear that there
Speaker 1: are enough justices on the court to uphold this law? Well,
Speaker 1: guess it appears that there are enough justices on the
Speaker 1: court now to overturn Row. Whether they will overturn Row
Speaker 1: and do it on this case is a different question,
Speaker 1: But I think there's a consensus that the numbers. The
Speaker 1: numbers tell the story. And this is with no more
Speaker 1: resignations or deaths on the court. So this really emphasizes
Speaker 1: how much, how very important that the next presidential election
Speaker 1: will be um as it is now. I think um
Speaker 1: Trump has appointed of all federal judges at all levels,
Speaker 1: from district courts to the Supreme Court, and we're beginning
Speaker 1: to see the consequences of that as lower courts are
Speaker 1: beginning to become more conservative as well. If the justices
Speaker 1: decide just to rule on this case and not go
Speaker 1: any further, would they have to overrule their own precedent
Speaker 1: and say we were wrong in sen or would there
Speaker 1: be another way that they could do it without overruling
Speaker 1: the Texas case? Yes, there's a milder way that they
Speaker 1: could go about it. They could say the Texas case
Speaker 1: is not binding on the facts of the Louisiana case
Speaker 1: because of the differences in the two states, the populations
Speaker 1: where women live, where the clinics are located. They could
Speaker 1: do that. That would be really pretty I don't want
Speaker 1: to say shifty, but it would be pretty um playing
Speaker 1: with the facts when the trial court in Louisiana case
Speaker 1: also developed a very clear record that this was going
Speaker 1: to close clinics, and there's really no Um, there's really
Speaker 1: no argument that that's what legislators are trying to do
Speaker 1: right now. Uh, state legislatures are going out of their
Speaker 1: way to try to pass regulations that are so outrageous
Speaker 1: that the Court will have to take the case. And
Speaker 1: what they mean to do as with these admitting privileges regulations,
Speaker 1: and this is this is really was your opening question. Um,
Speaker 1: it's not really about admitting privileges. It's about dangling a situation,
Speaker 1: dangling a case before the Supreme Court and saying, come on,
Speaker 1: now's your chance. You can overturn the whole thing. You
Speaker 1: don't have to just pickt one regulation and and say well,
Speaker 1: that's no good, that's unconstitutional. You can go back to
Speaker 1: kind of scratch to pre Row and assume assume that
Speaker 1: you're deciding Row for the first time, and what they
Speaker 1: would do then is say we think that Row was
Speaker 1: wrong when it was decided, and it's wrong now. There
Speaker 1: is a brief by more than two members of Congress,
Speaker 1: almost all Republicans, urging the Court to reconsider Roe v.
Speaker 1: Wade in this decision. But most legal experts, so I
Speaker 1: don't know if you agree, but most legal experts seem
Speaker 1: to think that the Court won't go that far. I
Speaker 1: do agree with that. I think that it is it
Speaker 1: is really too early. First of all, the timing of
Speaker 1: the case would be before the election, so that we
Speaker 1: would have a decision on this case before November. And
Speaker 1: the Court is very aware of trying not to so
Speaker 1: obviously get into the political uh the political machinations that
Speaker 1: are going on now. The Court likes to present itself
Speaker 1: as neutral and not have partisan politics that are guiding
Speaker 1: its decision. So it has a huge institutional interest in
Speaker 1: its own integrity. And the reason for that is that
Speaker 1: the Court wants people to follow its decisions and to
Speaker 1: have legitimacy. They have to say, listen, We're not on
Speaker 1: one side or the other. We're just we're just deciding
Speaker 1: the law, as though deciding the law was a completely
Speaker 1: neutral thing. Um. But so that's one reason why I
Speaker 1: think they would be very reluctant or loath to to
Speaker 1: to kick out Row right now. The other thing is
Speaker 1: another reason why they might hesitate to do that, is
Speaker 1: it's not necessary to get rid of Row. You can
Speaker 1: take care of the case. You can take care of
Speaker 1: the issue that's been brought before the court, which is
Speaker 1: are admitting villages in Louisiana governed by the two thousand
Speaker 1: and sixteen case called the whole Women's Health that we've
Speaker 1: been talking about from Texas. And so that's the Court
Speaker 1: always has a sort of policy that it wants to
Speaker 1: rule as a narrowly as it can. It doesn't want
Speaker 1: to go any further than it has to do to
Speaker 1: decide the case before before it. So it would be
Speaker 1: taking a very big and bold step to say, you know,
Speaker 1: it's just not good enough to rule on admitting privileges.
Speaker 1: We're going to rule on the whole essence of Row.
Speaker 1: We're going to make abortion of crime again. So how
Speaker 1: would the justices go about getting to that point if
Speaker 1: they decide that they are going to deal with ROW,
Speaker 1: and deal with it, you know, go back to the
Speaker 1: drawing board. What is very important is the grounds that
Speaker 1: they announce for deciding that ROW is no longer good law.
Speaker 1: And I think what most people expect them to do
Speaker 1: is to say, we've reread ROW and we've decided. Their
Speaker 1: big mistake in ROW is there is no privacy right
Speaker 1: to privacy in the Federal Constitution, and that was their mistake.
Speaker 1: They based the whole decision on the right to privacy,
Speaker 1: which they some argue invented. Now many people, scholars and
Speaker 1: so on, I think that privacy is not an invention.
Speaker 1: That we have all kinds of examples of privacy, Like
Speaker 1: you can't have your your house search without a search
Speaker 1: warrant by by the state officers. And that's an example
Speaker 1: of the kinds of privacy that citizens can can expect.
Speaker 1: Even though this Constitution doesn't mention the word privacy, it
Speaker 1: says citizens have the right to be secure in their homes.
Speaker 1: But that's that's what they'd have to say. They'd have
Speaker 1: to say, Um, privacy is does not extend to things
Speaker 1: like deciding about abortion. That's just not that just carries
Speaker 1: it all too far. So that would be a way
Speaker 1: for the for the Supreme Court to say, so states,
Speaker 1: it's back in your it's back in your court again.
Speaker 1: All the states get to decide again as it was
Speaker 1: prior to Row, whether they want to make abortion a crime,
Speaker 1: because states have the right to decide what are crimes
Speaker 1: in their states. So let me ask you this then,
Speaker 1: looking at all the circumstances that you mentioned here, all
Speaker 1: the factors, what do you think the court is likely
Speaker 1: to do? Do you think they're likely to uphold the
Speaker 1: Louisiana law or strike it down? I think that the
Speaker 1: Court will uphold the Louisiana law, which would be how
Speaker 1: they've gone about ruling on abortion regulations. In a number
Speaker 1: of other circumstances. They'll say, you know, the Texas case
Speaker 1: doesn't cover everything in Louisiana, and we think that that
Speaker 1: we may have made an overstatement. Is how they'll put it.
Speaker 1: For example, the part about courts don't have to rely
Speaker 1: totally on what state legislatures say. They can say, well,
Speaker 1: not so fast. We think that state legislatures are entitled
Speaker 1: to deference in their lawmaking. That's what a democracy is.
Speaker 1: So there are ways that they can adjust and cut
Speaker 1: back on whole women's health. And that's what I think
Speaker 1: they'll do. Now, that's not what the brief you mentioned
Speaker 1: wants them to do. The members of Congress, it's not
Speaker 1: what a number of governors have come out and say,
Speaker 1: we want to encourage the Court to overrule Row. But
Speaker 1: I think that it's too early. UM. I don't think
Speaker 1: that Justice Roberts is keen to be the guy who's
Speaker 1: going to criminalize Row at this stage. Thanks so much
Speaker 1: for being on Bloomberg Law. Carol. That's Carol Sanger, a
Speaker 1: professor at Columbia Law School. And that's it for this
Speaker 1: edition of Bloomberg Law. I'm June Grosso. Thanks so much
Speaker 1: for listening, and remember to tune into The Bloomberg Law
Speaker 1: Show weeknights at ten pm Eastern, seven pm Central, right
Speaker 1: here on Bloomberg Radio.