Legal Docket - Louisiana’s abortion safety requirements

NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 9th of March, 2020. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard—feeling better than I sound. Had a bout with the flu, and if it had to happen, I’m glad it happened now, because…

EICHER: Right! Because 10 days from now is The World and Everything in It Live in Greenville, South Carolina! And then two days later in Atlanta, Georgia. So, the 19th and the 21st.

REICHARD: So looking forward to this! What happens is we put together parts of the podcast live in front of the audience. We’ll talk about why the kind of journalism we do matters.

You’ll hear about the man whose name is basically synonymous with freedom of the press. The kind of thing that makes you wonder why you didn’t learn about it in school!

EICHER: That’s right. It’s also a chance for us to meet you, lots of opportunities to get to know you in person. There’ll be time for Q and A. An all-around great time. So if you are in the Greenville, South Carolina, area on March 19th or in Atlanta, Georgia, March 21st, please come! 

You can sign up at wng.org/live. And bring friends! 

The event is free, but you do need to sign up. And I should say it’s free because our friends at Samaritan Ministries have sponsored our live series for this year.

REICHARD: Now on to Legal Docket. 

Last Wednesday, crowds outside the Supreme Court faced off over abortion. They held signs that said “protect women, protect life” on one side and on the other, “thank God for abortion.”

And then there was the Democratic leader of the Senate: Chuck Schumer of New York, with words he’d later say he shouldn’t have used.

SCHUMER: I wanna tell you, Gorsuch!  I wanna tell you, Kavanaugh! You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.

EICHER: Schumer denied what he said there was a threat. But even the left-of-center American Bar Association wasn’t buying it. ABA president Judy Perry Martinez said she was deeply troubled by Schumer, her words, “threatening two sitting justices of the U.S. Supreme Court …”. She went on: “Whatever one thinks about the merits of an issue before a court, there is no place for threats—whether real or allegorical.”

REICHARD: What’s odd about the hysterics by Schumer and abortion activists at that rally is that the legal question before the justices last week wasn’t whether to overturn Roe v Wade. That’s the 1973 opinion that made abortion legal in all 50 states.

Rather, it’s a narrow question: Who has standing to challenge a state’s abortion regulations? “Standing,” meaning, does the person who wants to bring the lawsuit have sufficient connection to the challenged law to justify participating in the case?

That’s it.

EICHER: Here’s some background. 

When the atrocities of abortionist Kermit Gosnell came to light, many states looked for ways to curb those kinds of abuses.

In 2014, for example, Louisiana passed the Unsafe Abortion Protection Act. The state law requires an abortionist to have admitting privileges at a hospital within 30 miles of the place where the abortion begins or ends. That’s consistent with state requirements on all other outpatient surgical centers in Louisiana.

REICHARD: But there’s a hitch. 

Texas had a similar law the Supreme Court struck down in 2016, with a five-justice majority and Justice Anthony Kennedy the tiebreaker. This case is known as Whole Woman’s Health. The high court ruled the Texas law erected an “undue burden” on a woman’s abortion right, by requiring abortionists to possess admitting privileges to rush patients to hospitals nearby. 

In the Louisiana case, the lawyer from The Center for Reproductive Rights right off the bat cited the Texas decision. Here’s Julie Rikelman for the interests of the abortion industry.

RIKELMAN: This case is about respect for the court’s precedent. Just four years ago, the court held in Whole Woman’s Health that the Texas admitting privileges law imposed an undue burden on women seeking abortions.

Rikelman would go on to argue that the Supreme Court struck down the Texas law because the majority considered the rules medically unneeded and unduly burdensome to the abortion right. So, she argued, the same reasoning should apply to the Louisiana law.

What’s more, Rikelman said, her clients have clear standing to sue, because the law directly affects the abortionists.

Justice Samuel Alito sounded incredulous. Isn’t an obvious conflict of interest involved here? After all, abortionists get paid to abort.

ALITO: Really? That’s amazing. You think that if the plaintiff actually has interests that are directly contrary to those individuals on whose behalf the plaintiff is claiming to sue, nevertheless that plaintiff can have standing?

RIKELMAN: If the plaintiff is directly regulated by the law. This court has allowed an attorney to bring third-party claims against a statute that capped attorneys’ fees in  favor of clients. 


ALITO: Well, that’s amazing. 


Justice Ruth Bader Ginsburg sent a lifeline to help Rikelman make the standing-to-sue claim. What about an Oklahoma law that restricted sales of beer by sex and age of the buyer? Men had to wait longer than women to buy beer.

RIKELMAN: That’s correct, your honor, and the court allowed the saloon keeper to bring the third-party standing claim.

But still, Rikelman argued the justices need not get to that question. The state already waived its claim that the abortionists have no standing.

But Justice Alito wasn’t going along with that assertion.

ALITO: Well, I think that’s highly debatable that they waived it. They certainly didn’t raise it in the district court, but whether they affirmatively waived it is quite debatable.

Justice Brett Kavanaugh tried to get at a larger principle.

KAVANAUGH: Are you saying that admitting privileges laws are always unconstitutional, such that we don’t have to look at the facts state by state? Or are you saying that actually you do look at the facts state by state, and in some states, admitting privileges laws could be constitutional, if they impose no burdens?

RIKELMAN: Your honor, the burdens may vary, but a law that has no benefit and serves no valid state interest, which is what this court held in Whole Woman’s Health, is much more likely to be an undue burden.

Arguing for the other side, to uphold Louisiana’s regulations was the state’s solicitor general, Elizabeth Murrill. 

She encountered an aggressive Justice Ginsburg.

GINSBURG: What sense does the 30-mile limit make considering that certainly for medical abortions and for the overwhelming number of other abortions? If a woman has a problem, it will be her local hospital she will need to go to for the care. Not something 30 miles from the clinic which has no relationship to where she lives.

MURRILL: Justice Ginsburg, that regulation is consistent with the regulation that we have in our office surgery regulations and our ambulatory surgery regulations, so it is consistent with our regulatory structure. We also had evidence in the record of women who did require transfers.

“Ambulatory surgery,” meaning outpatient surgery centers, those that patients, when things go right, can walk into and out of. 

Court documents explained that in an obstetric emergency, though, a woman can bleed to death in less than 10 minutes. 

Murrill reminded the justices of the need for continuity of care and consistency within regulations governing ambulatory surgery. Why should abortion procedures be the exception, she wondered? 

But Justice Elena Kagan jumped in to say hospitals consider many factors when deciding whether to grant admissions privileges to doctors: The number of patients a doctor has, for example, because hospitals only make money from admissions. 

Another factor is whether a hospital needs more providers. And, Justice Kagan added, a general view that maybe they don’t want abortionists around. 

And that’s the problem.

KAGAN: So given that that’s all true, it was true in Texas and it’s true here, it seems that Whole Woman’s Health precludes you from making this credentialing argument, doesn’t it? 


MURRILL: No, I don’t think that it does at all. I mean, in our case it was  demonstrably different. They could and did get privileges. So all of the conjecture and the speculation about the reasons why they might be denied privileges were proved to be untrue.

Justice Kagan then jumped in to note that one Louisiana clinic served 70,000 women over 23 years, and yet transferred only four patients to a hospital.

Murrill was ready.

MURRILL: And there’s evidence in the record that they really don’t know that that’s an accurate rate because they don’t track their complications. They really don’t know what their numbers are.

KAGAN: Well, they know whether they have transferred women to a hospital? And it’s four. I mean, I don’t know of a medical procedure where it’s lower than that of any kind.

MURRILL: Four that they know of. They don’t track the numbers.

Also arguing in support of Louisiana’s admitting privileges law was the federal government, represented by Deputy Solicitor General Jeffrey Wall. 

Even if the numbers are low, Wall argued, that’s not the deciding factor:

WALL: I don’t think anybody knows the real rate. But the point is that it does happen. And when it does, it’s very serious.

The trick here has to do with Chief Justice John Roberts. He dissented in that 2016 Whole Woman’s Health case. Yet he might also be reluctant to overturn Supreme Court precedent that is only a few years old.

Ideological division is obvious in this case. So even though the legal question is quite narrow, the overall implications are not. 

I’ll note, too, that nobody brought up the perspective or standing of the individual in all this, the one who cannot speak yet but who also has the most to lose, her life.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite, File) In this June 20, 2019 file photo, the Supreme Court is seen under stormy skies in Washington. 

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