High Court’s First Abortion Case with Kavanaugh

The case promises to provide the clearest picture yet of whether Chief Justice John Roberts and the reconstituted Court will move quickly to roll back abortion rights. Joining me is Carol Sanger, a professor at Columbia Law School. So, Carol, the case before the Court is not directly about whether women have the right to an abortion. It's about admitting

privileges for doctors. So why is it so important? The admitting privileges issue is very important because it's one of the techniques that's being used to make abort orcian harder to get by increasing the burdens that doctors have to follow in order to be licensed physicians who can perform

abortions under state law. And so what admitting privileges. It does is say every doctor who performs abortions or a certain number of abortions has to have permission from a hospital within thirty miles of the clinic in order to be licensed to perform abortions. We have this identical case in Texas, and in Texas nothing is thirty miles from

anything else. That's a bit of an exaggeration, but we know that it's very difficult to find hospital that close, and so the thought was by the state legislature, this is a really good way to cut down on the number of people who will be legally permitted to perform abortions. It doesn't regulate women, but it does regulate doctors. And so there are sort of three category rates that abortion

regulation takes. One is to regulate women by like making them have waiting periods before they can consent, listen to mandatory scripts, things like that. The other is to regulate facilities by saying the facilities have to have something very close to a hospital operating room. And the third is to regulate doctors. And interestingly, the cases that are getting anywhere in terms of upholding the right for women to see doctors are the doctor cases because the doctors have

a different set of arguments. They're arguing that we have a right to practice medicine under the best standards. So the case that you're talking about is really important from a practical point of view. It's also hugely important from a kind of abortion politics point of view. How did the Fifth Circuit uphold this Louisiana law when the Supreme Court decision involving Texas struck down a similar law in So, isn't that Texas case the controlling authority or precedent here? Well,

it should be. The Texas case should indeed be the controlling precedent, Which means that if the facts of a preceding case are like the facts of a case that's now before the court, the court is supposed to take guidance from the earlier case. What the Fifth Circuit did the federal court that governs the territory of Louisiana. What they did was say, well, it's not exactly the same.

Louisiana is is smaller than Texas, for example, and so while women may have had to travel further to find a clinic with a doctor who had admitting privileges in Texas, distances up to three miles. Louisiana is smaller, and we don't think there's going to be that kind of problem. So women aren't denied the ease of having an abortion clinic nearby as badly as they would be. The fact had shown in Texas that almost every clinic was going to have to close because the hospitals were not even

granting admitting privileges to abortion providers. What your question is getting at is how do you get around precedent? And the way you get around precedent is to say, we don't have to be guided by that case because our facts are slightly different. That sixteen case where the Supreme Court struck down the Texas law appeared to be at

the time of great victory for abortion rights. You're right in saying that that appeared to be a great victory, and in fact it was a great victory, last happy day abortion advocates had since, and it was a victory in several respects. First of all, it said enough with these regulations, which have nothing to do with women's health. The reason that the state can enact regulations is in

the interests of women's health. That's the very basis sort of protecting the general welfare of state regulation, and the lower court curred all this evidence which showed that requiring admitting privileges was not good for women's health. In fact, it was bad for women's health because it was causing clinics to close, and the consequence of that was that women had to travel huge differences to what the court

called overpacked facilities. The Court went on to say that women are entitled to good medical care, and what we want is individualized care. I've been talking with Professor Carol Sanger of Columbia Law School about an upcoming abortion case at the Supreme Court. It's the first abortion case to be decided with a new conservative majority this term. The Court will decide whether to strike down a Louisiana law that requires doctors who perform abortions to get admitting privileges

at a local hospital. That law is similar to a Texas measure the Court did strike down in twenty six. The Trump administration has urged the Court to uphold the law, and a brief by more than two hundred members of Congress, almost all Republicans, urges the court to reconsider the landmark nine seventy three Roe v. Wade abortion rights ruling so Carol, we were discussing why that sixteen case appeared at the time to be the biggest abortion rights victory in a generation.

So one of the reasons that the case has been so important was it changed the emphasis entirely about what abortion is, and it treated it as a medical procedure rather than, you know, a borderline criminal act. It took women as patients very seriously. So a pro choice abortion advocates were we're very happy to have this affirmation about sort of getting abortion back where it once had been, which was as a medical procedure. That was very important.

The other thing that was important in the case is kind of legal proposition. But it said states you can't just come into court and say that this is good for women's health. You have to prove it. No longer do courts have to take what a state says at face value. It doesn't have to give deference to state declarations about what's good for women. Looking at the court at the time, in the majority for striking down the Texas law were Justices Briar, Ginsburg, so to Major, Kagan,

and Kennedy. In the minority were Justices Alito, Thomas, and Roberts. Now you have on the court to additional justices Corsage and Kavanaugh, which cement the conservative majority. So if you just look at the numbers, does it appear that there are enough justices on the court to uphold this law? Well, guess it appears that there are enough justices on the court now to overturn Row. Whether they will overturn Row and do it on this case is a different question,

But I think there's a consensus that the numbers. The numbers tell the story. And this is with no more resignations or deaths on the court. So this really emphasizes how much, how very important that the next presidential election will be um as it is now. I think um Trump has appointed of all federal judges at all levels, from district courts to the Supreme Court, and we're beginning to see the consequences of that as lower courts are

beginning to become more conservative as well. If the justices decide just to rule on this case and not go any further, would they have to overrule their own precedent and say we were wrong in sen or would there be another way that they could do it without overruling the Texas case? Yes, there's a milder way that they could go about it. They could say the Texas case is not binding on the facts of the Louisiana case because of the differences in the two states, the populations

where women live, where the clinics are located. They could do that. That would be really pretty I don't want to say shifty, but it would be pretty um playing with the facts when the trial court in Louisiana case also developed a very clear record that this was going to close clinics, and there's really no Um, there's really no argument that that's what legislators are trying to do right now. Uh, state legislatures are going out of their way to try to pass regulations that are so outrageous

that the Court will have to take the case. And what they mean to do as with these admitting privileges regulations, and this is this is really was your opening question. Um, it's not really about admitting privileges. It's about dangling a situation, dangling a case before the Supreme Court and saying, come on, now's your chance. You can overturn the whole thing. You don't have to just pickt one regulation and and say well,

that's no good, that's unconstitutional. You can go back to kind of scratch to pre Row and assume assume that you're deciding Row for the first time, and what they would do then is say we think that Row was wrong when it was decided, and it's wrong now. There is a brief by more than two members of Congress, almost all Republicans, urging the Court to reconsider Roe v. Wade in this decision. But most legal experts, so I don't know if you agree, but most legal experts seem

to think that the Court won't go that far. I do agree with that. I think that it is it is really too early. First of all, the timing of the case would be before the election, so that we would have a decision on this case before November. And the Court is very aware of trying not to so obviously get into the political uh the political machinations that are going on now. The Court likes to present itself as neutral and not have partisan politics that are guiding

its decision. So it has a huge institutional interest in its own integrity. And the reason for that is that the Court wants people to follow its decisions and to have legitimacy. They have to say, listen, We're not on one side or the other. We're just we're just deciding the law, as though deciding the law was a completely neutral thing. Um. But so that's one reason why I think they would be very reluctant or loath to to

to kick out Row right now. The other thing is another reason why they might hesitate to do that, is it's not necessary to get rid of Row. You can take care of the case. You can take care of the issue that's been brought before the court, which is are admitting villages in Louisiana governed by the two thousand and sixteen case called the whole Women's Health that we've been talking about from Texas. And so that's the Court always has a sort of policy that it wants to

rule as a narrowly as it can. It doesn't want to go any further than it has to do to decide the case before before it. So it would be taking a very big and bold step to say, you know, it's just not good enough to rule on admitting privileges. We're going to rule on the whole essence of Row. We're going to make abortion of crime again. So how would the justices go about getting to that point if they decide that they are going to deal with ROW, and deal with it, you know, go back to the

drawing board. What is very important is the grounds that they announce for deciding that ROW is no longer good law. And I think what most people expect them to do is to say, we've reread ROW and we've decided. Their big mistake in ROW is there is no privacy right to privacy in the Federal Constitution, and that was their mistake. They based the whole decision on the right to privacy, which they some argue invented. Now many people, scholars and so on, I think that privacy is not an invention.

That we have all kinds of examples of privacy, Like you can't have your your house search without a search warrant by by the state officers. And that's an example of the kinds of privacy that citizens can can expect. Even though this Constitution doesn't mention the word privacy, it says citizens have the right to be secure in their homes. But that's that's what they'd have to say. They'd have to say, Um, privacy is does not extend to things

like deciding about abortion. That's just not that just carries it all too far. So that would be a way for the for the Supreme Court to say, so states, it's back in your it's back in your court again. All the states get to decide again as it was prior to Row, whether they want to make abortion a crime, because states have the right to decide what are crimes

in their states. So let me ask you this then, looking at all the circumstances that you mentioned here, all the factors, what do you think the court is likely to do? Do you think they're likely to uphold the Louisiana law or strike it down? I think that the Court will uphold the Louisiana law, which would be how they've gone about ruling on abortion regulations. In a number of other circumstances. They'll say, you know, the Texas case doesn't cover everything in Louisiana, and we think that that

we may have made an overstatement. Is how they'll put it. For example, the part about courts don't have to rely totally on what state legislatures say. They can say, well, not so fast. We think that state legislatures are entitled to deference in their lawmaking. That's what a democracy is. So there are ways that they can adjust and cut back on whole women's health. And that's what I think they'll do. Now, that's not what the brief you mentioned

wants them to do. The members of Congress, it's not what a number of governors have come out and say, we want to encourage the Court to overrule Row. But I think that it's too early. UM. I don't think that Justice Roberts is keen to be the guy who's going to criminalize Row at this stage. Thanks so much for being on Bloomberg Law. Carol. That's Carol Sanger, a professor at Columbia Law School. And that's it for this

edition of Bloomberg Law. I'm June Grosso. Thanks so much for listening, and remember to tune into The Bloomberg Law Show weeknights at ten pm Eastern, seven pm Central, right here on Bloomberg Radio.