This is Bloomberg Law with June grassof from Bloomberg Radio. Broatesters from opposite sides of the abortion issue demonstrated outside the Supreme Court as the Justices heard arguments in its first abortion case in four years, a challenge to a Louisiana law requiring clinic doctors to have admitting privileges at a nearby hospital. My guest is Steve Sanders, a professor at Indiana University's Moral School of Law. In the court struck down a very similar Texas law. So shouldn't that
be precedent here? Well, that's what many people think. Many people were very surprised when the Court agreed to hear this case. In twenty six and a case is known as the Whole Women's Health Case after the name of the abortion clinics in Texas. The Supreme Court struck down a couple of different Texas laws, which everybody knew had been passed in an effort to try to close abortion clinics.
To make it more difficult for abortion clinics to operate, those laws required very high standards of equipment and facilities at abortion clinics. Basically, they had to be sort of full blown surgical centers, and they also required the doctors
that abortion clinics had admitting privileges at hospitals. The Supreme Court, by a five to three decision in that case, struck those down, basically saying those imposed a substantial obstacle to a woman's ability to get an abortion without providing any benefit.
Abortion is known to be actually one of the safest medical procedures, safer than actual childbirth in terms of its number of complications and its danger, and so the need for these elaborate standards and for admitting privileges simply wasn't necessary.
But Louisiana had passed a similar law two years earlier in fourteen, and after the Louisiana law was challenged, a federal district court struck down Louisiana law, basically saying, this is essentially what the Supreme Court decided and whole women's health. The Louisiana law is just about admitting privileges. The district court said, this looks like exactly the situation the Supreme Court faced in Texas. Law violates the Constitution, violates whole
women's health. But the Fifth Circuit, the Court of Appeals found some fairly narrow, fine grained differences between the situations in Louisiana and Texas, and so it upheld the law.
And that's how we got to the Supreme Court arguments this week about whether or not these two cases are really distinguishable, or did the Supreme Court take this case now with two new conservative justices who weren't on the court back in twos sixteen Justice core such Injustice Kavanaugh, did the Court take this case essentially to reverse whole women's health or at least to poke some significant holes in it? In the arguments, did you see the questions
falling down ideological lines. Well, you know, there's a certain amount of kabuki theater involved in Supreme Court arguments all the time. As I said, you know, sort of everybody knows that often you're sort of too polite to say it in court. Everybody knows that these laws were passed in states because lawmakers wanted to try to make it as difficult as possible for abortion clinic operators to operate. But the Court can't actually say that because that's a
political statement. So instead, what you saw in the oral arguments were the conservative justices trying to emphasize that there could be state by state differences, in other words, and admitting privileges requirement in one state might have a different impact on the availability abortion, or it might be more justifiable in terms of medical safety and credentialing of doctors
than a law in another state. And so you saw Chief Justice Roberts and Justice Kavanaugh pursuing that line of questioning, isn't it possible that there could be some state by state variations here, so that we would say whole women's health was about Texas and in a case about another
state could come out differently. And you saw the more progressive justices, the more liberal justices, Justice Kagan, Justice Bryan, Justice sort of Mayorc really trying to push back against the idea that there were meaningful differences between the factual
situations in these two cases. So much of the oral argument came down to debates about whether the doctors in this case had actually made enough of an effort to get admitting privileges, whether they already had admitting privileges, whether they would get admitting privileges if they asked for them. So it ended up being a lot of sort of skirmishing on the specific facts involved in this case. Did Justice Roberts suggest that he didn't see a factual distinction
between of Texas and Louisiana cases. I think Justice Roberts was at least probing whether the existence of factual distinctions could mean that just because the law was struck down in one state doesn't necessarily mean a similar law would be struck down in another state. I didn't read Justice
Roberts is getting into the details as much. I read his questions, as you know, can we at least agree that there could be differences from state to state such that whole women's health doesn't create a sort of blanket rule of facial rule against any sort of admitting privileges you saw. I think Justice a Lado and maybe to some extent, Justice Kavanaugh engaging a little bit more directly
in trying to say the situation here is different. The admitting privileges law serves a stronger medical purpose and is more justifiable in this Louisiana case than perhaps it was in the Texas case. In the Texas case, Justice Roberts was in the descent. Where does that leave him? Now? You're right, Chief Justice Roberts was was among the three dissenters, and whole women's health, he would have upheld the Texas
law in this case. In an earlier part of this case, he voted with the Court's progressive justices to at least put a hold on the Court of Appeals decisions so it couldn't go into effect, meaning that the law remained enjoined until the Supreme Court can decide. I think Chief Justice Roberts here faces a choice. On the one hand, you know, his vote in the Texas case in twenty six indicates he thinks there should be greater ability for states to regulate and put obstacles in the way of
women's ability to get abortion. On the other hand, we know from his votes in previous cases and other contexts, the Chief Justice Roberts as the Chief Justice, also worries about the Court's institutional legitimacy, its credibility, how it is perceived, whether it is perceived as a political body or judicial body. And so I think he's going to face a sort of internal tug of war to go with his ideological beliefs.
I think about what the law should be in this case versus if he ends up deciding that the cases are just too similar, and it would look frankly shocking for the Court to effectively overturn one of its own decisions after only four years. That might lead him to actually vote to strike down the Louisiana law. They will face a conflict between what he may think is the legally correct position from his judicial ideological perspective versus what
he thinks the court's long term institutional credibility demands. He's reluctant to overturn precedent more than some of his other conservative colleagues are in this case. Does it seem to you as if the conservatives other than Justice Roberts on the Court would be willing to overturn that Texas case? I think the answer for just To Salito would have to be yes. Justice Salto, in the time he's been on the Court has been tagged as, you know, some
people have said, a conservative activist. He was perhaps the most vigorous at oral argument in defense of the Louisiana law. Justice Kevinaugh hung back a little bit. He and the Chief Justice sort of circled around the edges trying to say, well, you know, if there are differences between these two laws, then could there be the possibility that one could be constitutional and another couldn't be Interestingly, Justice Gorsage did not
ask anything. He liked. Justice Thomas, traditionally who's traditionally very quiet oral argument, didn't have any questions, and so we just couldn't get a read on them. You know, you said, the Chief Justice Roberts is reluctant to overturn the courts precedent, And a slightly more cynical view or realistic view might be that the Chief Justice is reluctant to see the Court engaging or turning on a dime doing things that
are overtly political. But Justice Roberts has been complex, said in a number of cases over the years where the Court hasn't expressly overturned a precedent, but has limited a precedent, has poked holes in a precedent, has found a way to distinguish a new case from an old precedent in a way that weakens the precedent, but stop short of actually repudiating it or overturning it. And so that maybe
one possible outcome in this case. In other words, they could rule in a very narrow way and uphold the Louisiana law without reversing the Texas case. They could they could say that there are enough meaningful differences between the situations in these two cases, mostly focusing on whether the admitting privileges requirements serves any legitimate, meaningful medical benefit or not.
They could say that this one is different, and so this law can be upheld, and that would indicate then we're going to be kind of battling state by state, and the lower federal courts maybe very busy adjudicating similar laws that states either have passed or may attempt to pass.
There's another way this case could be resolved, and that is there was sort of a side skirmish that a few of the justices were interested in about whether the doctors who brought this lawsuit have what's called standing, whether they can represent the legal interest. We're talking here about the right of women to have an abortion and the extent to which the Constitution protects that. But the plaintiffs
in this case, we're not women. They were doctors. They were abortion providers, and so this gets into whether or not so called third parties that the doctors can um litigate a case that is really about the constitutional rights of the women. That was another point that Justice Alito made quite vigorously. He basically insisted that the doctors here didn't properly have standing. They weren't the proper plaintiffs in
this case. If the court went that direction, if it essentially punted and said, well, the plaintiffs here didn't have standing, we didn't have jurisdiction, the case has to be dismissed. That would mean the Louisiana Low stands at least until it could be challenged by somebody who actually did have standing. A problem with that argument is there have been a number of other abortion cases over the years where doctors have been the plaintiffs, essentially representing the rights of the women,
and those cases went forward and were decided. So to say at this point that we're going to stand on this principle that a doctor can't litigate the rights of a patient would seem to be again a bit opportunistic at a break with the court's own precedence on that question. That I'm not sure the court is actually squarely decided that question. But that problem has not stood in the
way of the court adjudicating previous abortion cases. Is this one of the cases that anti abortion activists are hoping will allow the court to chip away at abortion rights. Oh absolutely. As I said the court, it has to be in a sense too polite to say what people know are the real politics behind these laws when they're litigated.
We have to essentially pretend that this is really about whether the state was truly trying to protect women's medical health and protect the safety of abortion and so forth. That I think it's almost inarguable that if you know the politics of these laws, why these laws were passed, the coordinated way to get these kinds of laws passed around the country, you know that the effort was to try to make it difficult for abortion clinics to stay
in business. It's an effort to limit access to abortion by putting pressure on the ability of abortion clinics to actually stay in business. So of course this was a coordinated strategy over the years prior to the Texas case. That these are sometimes called trap laws targeting of abortion providers, and so of course anti abortion activists will look very closely at what this case says about the attitude of
the court. This is the first major abortion decision that the Court has fully decided since Justice Kennedy retired, and since we have two new justices, and now this is a This is a different court than it was four years ago, so it remains to be seen. People will be watching closely for signals about um Justice Kavanaugh, Justice Gore, such Justice Roberts, what the chemistry of the court and the lineup ideologically of the justices, whether and how that
has changed since. I think most people are curious that it's almost become a litmus test for Supreme Court justices when they're going through their confirmation hearings to be asked about Roe v. Wade, and they inevitably say it's precedent. And I think that Kavanaugh said it's precedent on precedent. So can you ever be confident of that when we've seen cases where they reverse precedent all the time. The issue is, I think Roll versus Weight is not the issue.
I think that no one thinks that the Court would be bold enough or were reckless enough to completely overturn Roversus Wade. The key case here. The key precedent is not roversus Weight itself. It's a decision that was decided um more than a decade after Roll Versus Weight, Casey versus Planned Parenthood of Southeastern Pennsylvania. It's the Casey decision.
That upheld the basic idea of Row that a woman has a constitutional right to abortion, but approved the idea of that a state could express its view against abortion, could legislate more aggressively to protect the woman's health and to regulate the procedure, as long as it didn't create what's called a uh substantial obstacle, as long as it didn't create an undue burden to the women's access to
an abortion. So what these cases are about is whether the Louisiana Admitting privileges law does create an undue burden by restricting the availability of abortion because clinics have to shut down. So if abortion rights are going to be chipped away are going to be put in danger, it's not because in one fell swoop the court is going
to overturn roll versus Weight. I think it's quite clear that if that happens, it's going to be because the availability of abortion is chipped away, the ability of states to throw up more roadblocks in a woman's path to an abortion, the court will see in a more sympathetic way. I think there's going to be a lot of skirmishing around these issues in ways that could erode the meaningfulness of the idea that there is a constitutional right to abortion.
The large your picture here, I think is that the Court's jurisprudence about abortion, meaning it there is a constitutional right, there is the ability of states to regulate it. There comes a point after viability when abortion can be banned. Altogether, I think the law of abortion right now that the Supreme Court has developed over the past forty five years really reflects where the country is. There's a quite stable consensus in public opinion that most people don't want to
see abortion available on demand. Most people don't want to see abortion completely eliminated. A majority of Americans believes that abortion should generally be available with some reasonable restrictions, and that's essentially reflects the law we have right now. That's Steve Sanders, a professor at Indiana University's Mara School of Law. 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 here on Bloomberg Radio. The Pendent and the Contendent to DAK the dependent Ducal