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The Supreme Court heard arguments Wednesday in a case about access to abortion doctors in Louisiana. The law in question is similar to a Texas one struck down by the Court in 2016 -- but decided by a different group of justices. Lisa Desjardins talks to the National Law Journal’s Marcia Coyle and Mary Ziegler, professor and author of “Abortion and the Law in America: Roe v. Wade to the Present.”
The U.S. Supreme Court heard arguments today in a major abortion case that considers access to abortion doctors in the state of Louisiana.
Lisa Desjardins examines what is at stake.
The Louisiana law at issue would require doctors performing abortions to have admitting privileges at a hospital within 30 miles of their abortion clinic.
Supporters say the law protects women, ensuring proper care in an emergency. But opponents of the law argue that its true aim is to restrict abortion access. They say it would leave only one doctor able to perform abortions in the state of Louisiana.
This is a bit of judicial deja vu. A similar Texas law was ruled unconstitutional by the U.S. Supreme Court in 2016, with a different makeup of justices.
Today, on the court steps, a crowd of activists rallied for different sides of the case. This marks the first time that this court, with Justice Kavanaugh on the bench, has considered a major abortion case.
In 2019 alone, 17 states enacted abortion restrictions, according to Guttmacher Institute, an abortion rights research organization.
Now, to take a closer look at the arguments inside the court, I'm joined by Marcia Coyle of "The National Law Journal," who was inside the courtroom today, and Mary Ziegler, professor of law at Florida State University and author of "Abortion and the Law in America: Roe v. Wade to the Present," which hits the shelves tomorrow.
Let me start with you, Marcia.
You were inside the courtroom, but I want to first talk more broadly. Why are they relitigating this case? The court just ruled a few years ago on a nearly duplicate Texas law.
Well, Lisa, what happened was, a lower federal appellate court upheld Louisiana's hospital admitting privileges requirement, even though the Supreme Court, in 2016, did strike down a nearly identical Texas law.
That appellate court distinguished the two state laws to uphold its constitutionality. A Louisiana clinic brought the case to the U.S. Supreme Court, saying that lower court was wrong, the 2016 decision controls, you need to correct that lower court. And that's why the court is taking another look at the issue, as well as the specific Louisiana case.
I'm very excited to talk to you about what happened in court today, but, first, I want to sort of set a larger stage.
Mary, help us with the broader view here. What is at stake overall here on the ground? What's the potential impact of this case?
Well, I think, if the court does uphold Louisiana's law, it's likely that many, if not all, clinics in the state will have to close.
We will have to wait and see exactly how that would go down. It would be likely that we would see many more states rush to copy Louisiana's law if the court, in fact, does uphold it. And then, of course, much would depend on how the court upholds it.
I think we're going to see the court send a message to state legislators going forward about how receptive it is to abortion restrictions and also what kinds of abortion restrictions states are going to have the best odds of seeing succeed.
Also on the line is whether abortion providers and clinics can actually bring lawsuits like there in the first place, which is another question the court agreed to hear.
And let's talk right about what happened today, Marcia, in the courtroom. I read it got rather intense, at least for — in terms of arguments.
Can we start with the merits first? What are those questions that sort of brought out this intensity, especially for the swing justices?
When we're talking about the Americans, you're talking about the hospital admitting privileges requirement that abortion physicians have hospital privileges within 30 miles of where the abortion is performed.
And I think you have to keep in mind, at the beginning of this argument that Texas case, that Texas decision. The Louisiana clinic lawyer, her very first sentence in her argument was, this is a case about respect for the court's precedents.
And that's why a lot of eyes and ears were focused on Chief Justice John Roberts, who may be the critical vote in this case. As you recall, in that Texas case, it was a 5-3 decision. Justice Anthony Kennedy was key. He has retired. Now on the bench are Trump appointees Justices Gorsuch and Kavanaugh.
So, Roberts is considered in the middle here. And he asked questions very similar of all the lawyers who argued today, and that — it really probed the extent of the 2016 decision and how controlling it has to be.
He asked, can we do a fact-by-fact inquiry of each state law to determine whether this kind of a requirement has a medical benefit? Because, in that 2016 decision, the Supreme Court said that Texas requirement had no medical benefit.
That the admitting privileges didn't affect the health of women in the clinics at all, yes.
Exactly, and, in fact, it could hurt it, and was unduly burdensome, which is the test for constitutionality of abortion restrictions today.
And then there also was just the merits of having a 30-mile restriction — requirement for hospital privileges. Justice Ginsburg, in particular pointed out, if a woman has complications from an abortion — and she said those complications are extremely rare — she's going to have it after the abortion at home.
And if she needs to go to a hospital, she's going to go to a local hospital. Louisiana's lawyer claims that there are benefits and, yes, the court should go state by state to look at these laws to determine it.
That Louisiana is different than Texas.
Separately, late today, we received an unusual statement from Chief Justice Roberts, pushing back at the words of Senate Democratic leader Chuck Schumer. Roberts was pointing to words of Schumer's, including words he quotes saying from Schumer to the court, "You will not know what hit you if you go forward with these awful decisions."
Schumer there talking about some of the Republican-appointed justices. And Roberts said that was inappropriate.
How unusual is this?
Well, it's very unusual.
As I understand it, Senator Schumer was on the plaza in front of the court today and made those comments. The chief justice is very reticent to step out into the spotlight in any kind of a political environment.
And it — but he has done it recently, in response to statements, criticism by the president of federal judges, and he's defended their independence. And I'm sure he saw this as another example of where he was reminding the senator, as well as the public, of the independence of the justices on the Supreme Court.
And it was disturbing enough that it overcame his usual reticence to make a statement.
He is most certainly in the spotlight.
Especially on as contentious issue as abortion.
Marcia Coyle, Mary Ziegler, thank you both.
Later today, a spokesman for Senate Minority Leader Chuck Schumer issued a statement, clarifying the senator's remarks and reacting to Chief Justice Roberts' rebuke.
He said Schumer was referring to the political price Senate Republicans will pay for putting Justices Kavanaugh and Gorsuch on the court.
And he added — quote — "For Justice Roberts to follow the right-wing's deliberate misinterpretation of what Senator Schumer said, while remaining silent when President Trump attacked Justices Sotomayor and Ginsburg last week, shows Justice Roberts doesn't just call balls and strikes."
The president had called for those two liberal justices to recuse themselves from any cases relating to his administration.
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