5 MARCH 2020/ SCOTUS ABORTION
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ANNA NORTH (Vox reporter): Earlier this year, the anti-abortion group Americans United for Life went through all of the states in America and ranked them by how pro-life, in their words, they are. And at the top of that ranking was the state of Louisiana. Louisiana has three abortion clinics, and on Wednesday, the Supreme Court heard oral arguments in a case that could bring that number down to one.
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ANNA: So I've been covering this case for a long time. And in late December, I went to one of the three remaining clinics in Louisiana. Hope Medical Group for Women. Hope is in Shreveport, it’s in northern Louisiana. And depending on what happens with the Supreme Court case this year, Hope could face being closed.
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ANNA: The clinic itself, it felt like it had really taken a lot of steps to be homey and be welcoming. You know, it was the holiday season. Some of the staff were wearing reindeer antlers. There's coffee and posters on the walls of things to do in Shreveport and sort of touches to make it to make it a little bit more welcoming. But it also is a reminder that people are coming to this clinic from really far away. Staff at home told me folks are coming from Texas. They're coming from Oklahoma. They're coming from Arkansas. Sometimes they're coming from Mississippi. So it can be routinely a 200 mile drive for people to get an abortion there.
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ANNA: I got there early in the morning. The staff was there, but the patients weren't there yet. They started to come in mid-morning. There's a brief time where the clinic is really bustling and there's lots and lots of people in the waiting rooms are full. I believe a majority of their patients are black and a majority of them live below the poverty line. It's a lot of people in their 20s and that tracks with abortion around the country. Also, in a lot of cases, folks are they're not yet to get their procedure because in Louisiana, in order to get an abortion, you first have to make an appointment, get counseling from a doctor and get an ultrasound. The doctor has to give you certain state mandated materials. And then you have to wait 24 hours. That's a law that exists in a lot of states. Louisiana is one of them. So a lot of the folks that were coming through their clinic on the day I was there, they weren't actually getting their abortion yet. They were just coming to talk to a doctor, get an ultrasound, get some materials. Then they have to go home and wait.
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ANNA: So here's what you're doing. You're going to this clinic. It might be hundreds of miles away. You have an initial appointment where you get an ultrasound. You discuss it with a doctor. The doctor has to give you also certain state mandated information. And some of it includes information. That's a lot of reproductive health advocates say isn't correct, including an abortion will raise your risk of breast cancer. There's no evidence of that. In any case, you get the materials, you get the ultrasound, then you have to go home and wait for 24 hours. If you can go home. But if you are 200, 300 miles away from home, then maybe you're staying the night in Shreveport. Maybe you're paying for a hotel and the procedure itself is $550. So to get an abortion and hope you need $50 for the initial consultation and then it starts at $550 for an abortion procedure, whether that's a medication abortion where you take pills or a surgical abortion, and then it goes up from there, depending on how far along you are on your pregnancy.
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ANNA: I heard a lot of stories from staff members of people maybe having to barter saying maybe I'll take care of your kid for a week if you'll drive me or I'll pick up a shift at work or things like that. You know, trying to figure out something that will work. Then you've to take the time off work, which might be a couple of days if you're staying overnight. You have to find someone to take care of your kids. The majority of people who get abortions in America already have at least one kid. So there's just a lot that drives the cost up.
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SEAN: So on top of all of these difficulties to secure an abortion in a place like Louisiana, this case at the Supreme Court might make it even harder. What's going on?
ANNA: Right. So Louisiana for years has been passing a number of restrictions on abortion. And in 2014, they passed a law requiring abortion providers to have admitting privileges at a local hospital.
SEAN: What does that mean?
ANNA: So it's asking a doctor to develop kind of an official relationship with a local hospital such that if you got admitted to the hospital, that doctor could come into the hospital and treat you there. Now, these are very difficult to get for abortion doctors. One of the main reasons is that abortion patients don't go to the hospital very often.
SEAN: Hmmm.
ANNA: They don't usually need to because the rate of complications for abortion is really low. The other reason that abort—that admitting privileges are hard to get, one of the other reasons that they're hard to get is that hospitals don't necessarily want to give abortion doctors admitting privileges. The hospital itself may be opposed to abortion, but usually in the past, in other states, admitting privileges laws have had the effect of shutting clinics down.
SEAN: What's the defense of these laws? Why do they even need to exist?
ANNA: So I talked to the state legislator who wrote the Louisiana law, and she really frames it as a women's health issue.
SEAN: It's a she!
ANNA: Yeah. She's a Democrat.
<CLIP> LOUISIANA REP. KATRINA JACKSON: Louisiana is the number one pro-life state in the nation. And mainly because in Louisiana, it doesn’t matter if you’re Democrat, Republican, Black or White, we fight for life! I tell people in my state when they ask me why are you a black, female democrat fighting for life, I say because I’m a Christian first.
ANNA: Louisiana is a rare state where being anti-abortion is kind of bipartisan. There are a lot of anti-abortion Democrats. But her argument is this is a women's health issue. Patients need continuity of care. They should be able to have their doctor go over to the hospital to take care of them. What abortion rights folks would say is that the continuity of care argument doesn't necessarily make sense, in part because so few people are going to the hospital, but also because if you're 100 miles away, 200 miles away from the clinic where you got your abortion and you have a complication later, you're probably going to the hospital in your town. You're not going to the hospital near the clinic where this doctor might have admitting privileges. And that's why Hope Medical Group for Women, the clinic that I visited in December, decided a few years back to challenge Louisiana's admitting privileges law. And that challenge has been working its way through the courts ever since. And on Wednesday, it was the subject of oral arguments before the Supreme Court.
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ANNA: Depending on what the Supreme Court decides, it's not just clinics in Louisiana that could close. Other states could decide that they could pass admitting privileges laws or they could pass other similar laws to restrict clinics and those clinics could close. A lot of people, even on both sides of the issue, are calling this the beginning of the end of Roe v. Wade. Somebody said that to me outside the court on Wednesday, and I've been hearing it a lot. There's a lot of feeling really on both sides that that Roe v. Wade is hanging by a thread. It's getting thinner and thinner. And it's a totally different court. It's the Trump era. I think everyone agrees the stakes couldn't be higher.
SEAN: Anna North is a senior reporter at Vox.
Hope Medical’s corporate name is June Medical Services LLC. The Health Secretary of Louisiana’s name is Stephen R. Russo. In a moment, oral arguments in June Medical Services LLC v. Russo.
I’m Sean Rameswaram. This is Today, Explained.
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SEAN: Ian Millhiser, you cover the Supreme Court for Vox and you were at the court yesterday for oral arguments in this case, June Medical Services v. Russo. How did it go?
IAN MILLHISER (Vox reporter) : It was a little surprising. So when I woke up Wednesday morning, I thought there was a 0% chance that the Supreme Court would vote to strike down this anti-abortion law.
SEAN: Okay.
IAN: And when I left, I was a little surprised by Chief Justice Roberts, who is very conservative and very conservative in particular on abortion.
SEAN: Mmm-hmm.
IAN: I left thinking there's maybe a 30% chance that he will flip over and vote to strike down the anti-abortion law,
SEAN: Which means the clinic would win and the state of Louisiana would lose?
IAN: That's right. I think there is at least some chance that there's gonna be five votes in favor of the clinic here.
SEAN: Hmmm.
IAN: The reason why is that the state claims that it passed this law in order to protect patients' health, and Roberts seemed unpersuaded at times by that argument. It's not a convincing argument. There's very little empirical evidence for it. At Hope Medical Center, the abortion clinic at the heart of this has performed about 70, 000 abortions and only four of those have led to complications that required hospitalization. So, you know, if your fear is that there's this epidemic of people who are having complications after they have an abortion, require hospitalization and they can't get into the hospital because there isn't… I mean, fear not that problem has already been solved by the fact that abortion is very safe and the chances that an abortion patient is going to require hospitalization is vanishingly small.
SEAN: Is this the argument that the clinic made in front of the court yesterday?
IAN: That's right. Yes. So the clinic and I should point out, like some of our listeners, might be having deja vu here. The reason why they might be having deja vu is because in 2016, there's a case called Whole Women's Health v. Hellerstedt,
<CLIP> STEPHANIE TOTI, LAWYER: Mr. Chief Justice, and may it please the Court: The Texas requirements undermine the careful balance struck in Casey between States' legitimate interests in regulating abortion and women's fundamental liberty to make personal decisions about their pregnancies. They are unnecessary health regulations that create substantial obstacles to abortion access.
IAN: And what the Supreme Court said in that case is that admitting privileges laws do not benefit patients. And basically, all at the clinic was arguing in this case was, ‘Hey, that thing that you said less than four years ago still true.’
<CLIP> JUDGE STEPHEN BREYER: The federal district court after a trial found the two provisions were unconstitutional. They constituted an undue burden on a women's right to choose. The Court of Appeals Fifth Circuit reversed. We in turn agree with the district court and we reverse the Court of Appeals.
SEAN: So why hear the case then, if they've already decided something so close in Texas?
IAN: The biggest difference between Whole Woman's Health, the case from four years ago and June Medical, the case that was heard this week has nothing to do with the facts of the case, has nothing to do with the law, has everything to do with the personnel on the Supreme Court.
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IAN: Four years ago Justice Kennedy was still on the court. And Justice Kennedy, you know, I wouldn't call him a huge defender of abortion rights. You know, he voted to strike down the overwhelming majority of the abortion restrictions that came before him. But every now and then, he would see a restriction and say ‘no, that goes too far, you're cutting too far into this core constitutional right that my court has recognized.’ And that's what he said in Whole Woman's Health.
SEAN: Hmm.
IAN: Kennedy is gone. Kennedy was the fifth vote in Whole Woman's Health. And his replacement, Brett Kavanaugh, has a very consistently anti-abortion record.
<CLIP>SENATOR DIANNE FEINSTEIN (D-CA) In making your argument you ignored and I believe mischaracterized a Supreme Court precedent. You reasoned that Jane Doe should not be unable to exercise her right to choose because she did not have family and friends to make her decision. The argument re-writes Supreme Court precedent.
SEAN: And Gorsuch is also fresh to the court from that 2016 decision.
IAN: That's right. Yeah. Neil Gorsuch was appointed to replace Justice Scalia, who actually died while the Whole Women's Health case was pending.
SEAN: So did Gorsuch and Kavanaugh weigh in on Wednesday in any way that might suggest how they're going to vote?
IAN: So Gorsuch was quiet at the oral argument, but based on his record, you know, when he was a lower court judge, he took some very aggressive steps against Planned Parenthood. Like, I'm pretty darn confident that Gorsuch as is going to cast anti-abortion votes. Kavanaugh also signaled that he intends to vote with the state here.
SEAN: Hmm.
IAN: And Kavanaugh's argument. So remember that Whole Woman's Health, the Texas case, said that admitting privileges don't do anything to benefit patient health. And it also said that it's also really hard for doctors to get these things, or at least for abortion doctors state to get admitting privileges. And so this is a huge burden for no benefit. It struck down.
SEAN: Yeah.
IAN: Kavanaugh said, well, how do we know that's true in Louisiana? Sure. It might be true that in Texas, it's really hard for abortion doctors to get these credentials, but maybe it's different in Louisiana.
SEAN: Is it?
IAN: No, it's not. The American Medical Association and the Medical Association representing obstetricians and gynecologists filed an amicus brief where they said, nope, it's the same. The evidence in the case suggests that it's the same. There are several doctors in this case who tried to get admitting privileges and weren't able to do so. You know, and often it was for the exact reason that I said they like one of the doctors, for example, only provides medication abortions, you know, and doesn't really have much of a medical practice beyond every now and then prescribing medication abortions. And so this person admits pretty much no one to a hospital, because there's no need that for any of this doctors, patients to go into a hospital. And so that person would have a really tough time getting admitting privilege. In fact, the state's own expert witness admitted that, yeah, that that doctor would have a tough time getting admitting privileges.
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SEAN: So what's the bigger picture here? We know from what you said about giving the state a 30 percent chance of winning this case here.
IAN: Right.
SEAN: That Louisiana would go from three abortion clinics to maybe just one.
IAN: Right.
SEAN: Which would make the procedure even more restrictive in the state. But but what's going on here with the Supreme Court, Roe v. Wade, and this new cast of characters?
IAN: So this case is likely to come down to Roberts. You know, he was the only person I saw up there who seemed in any way uncertain about how he would vote. And Roberts really doesn't like Roe v. Wade. You know, if the lawyer for the state had come in and had said, we think that Roe v. Wade was wrongly decided and we think that this court should overrule it. And here's our argument for why, you know, this should be overruled. And they've just been opened about what they were trying to accomplish. I think there's a really good chance Roberts would have said yes, like that's what I want to what the state did instead is it passed this law, which is really an abortion restriction, but it's kind of disguised as a health regulation. And then they asked the justices to say, like, ‘Yeah, we want you to pretend that this lall is going to protect people's health, even though we can't provide you much evidence that it will. And even though you said four years ago that it won't. And even though our lawyer is now in an oral argument and the liberal justices are peppering her with questions, asking her to find, demonstrate evidence, this will protect women's health. And she's unable to do it.’
SEAN: Hmm.
IAN: The state was asking the justices to participate in a pretty deceptive act here. There's a chance that Roberts isn't going to go there.
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SEAN: But what does it mean for the next case that comes that isn't handled this way, that doesn't have this precedent? What does it mean when someone comes to this Supreme Court, to this to this new cast of characters? Gorsuch and Kavanaugh and says Roe v. Wade is bad law.
IAN: Yeah. I mean, and that's I think the bad news for people who care about abortion rights is I think that there's a chance that Roberts gives Roe v. Wade a stay of execution here.
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IAN: But Eventually someone is going to show up and there are going to be more open about what they want . I mean, they're the heartbeat bills. You know, there there are various laws being passed by states right now where the states are being pretty honest about their motive. They're saying, look, like we think abortions bad and we want to protect fetal life. And so we are passing this law for the purpose of protecting fetal life and making it. Harder for people to get abortions, and I think that if a state comes in and they say that openly and honestly, I think it's very likely that there's gonna be five votes who say, ‘Yes, we agree with you.’