The Daily - A Major Ruling on Abortion

Episode Date: June 30, 2020

The Supreme Court on Monday struck down a Louisiana law that could have left the state with a single abortion clinic. It was a setback for conservatives in the first major ruling on abortion since two Trump appointees joined the bench. We examine the implications for future challenges, and why — for the third time in two weeks — Chief Justice John G. Roberts Jr. sided with his four more liberal colleagues.Guest: Adam Liptak, who covers the Supreme Court for The Times.For more information on today’s episode, visit nytimes.com/thedaily Background reading: Chief Justice Roberts also voted with the court’s liberal wing in rulings on job discrimination against L.G.B.T.Q. workers and on a program protecting young immigrants.The ruling on Monday stalled anti-abortion momentum for now, but the movement has a long pipeline of new cases.Justice Stephen G. Breyer wrote that the Louisiana law was “almost word-for-word identical” to a law from Texas, which the court struck down in 2016.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, the Supreme Court issues its first major ruling on abortion since President Trump appointed a conservative majority. Adam Liptak on what the decision tells us about the court and its chief justice. It's Tuesday, June 30th. I'm starting a recording. Oh, gorgeous.

Thank you for doing that. We were all just joking. If it's a Monday in June, it's Adam Liptak time. Yeah. Once in a while, the spotlight swings my way. A lot of the time in June every year. So Adam, tell us about this latest Supreme Court ruling on Monday. We got a big abortion case and a somewhat surprising abortion case. The court struck down a Louisiana abortion restriction law that would have made it much harder for women in that state to get abortions. And the particular law at issue was about admitting privileges, about whether doctors who provide abortions have to have admitting

privileges at nearby hospitals. Right. And Adam, we have talked about admitting privileges for doctors who perform abortions in the past. But as a reminder, what is the idea behind them? It's a kind of business relationship between a doctor and a hospital. It allows doctors to admit and care for their patients at given hospitals. Supporters of admitting privileges laws say that it's a kind of credentialing function, that you're likely to be a slightly better doctor if a nearby hospital kind of vouches for you by giving you admitting privileges. Opponents of admitting privileges laws say they're a bit of a scam, that abortion is very safe. If you do have to go to a

hospital, they say you're going to be admitted whether you have a doctor with admitting privileges or not. So the Supreme Court on Monday sided with skeptics of this law who saw it as what you just described as a kind of fake, something that in practical terms was a way to restrict abortion, not make abortion safer by giving the doctors who perform it a formal relationship to a hospital. Yeah, the court basically says it doesn't provide any benefits and it imposes enormous costs on the ability of women to have access to their constitutional right to abortion. You know, on the surface, Adam, this case doesn't seem all that legally complicated, if I know my Supreme Court history well from talking to you for now three years,

which is that time and time again, the Supreme Court has ruled that states cannot place an undue burden on a woman's right to have an abortion. And a law like this in Louisiana would seem to place a significant burden on a woman's ability to have an abortion, and a law like this in Louisiana would seem to place a significant burden on a woman's ability to have an abortion. Well, there's a good reason to think that, Michael, because the Supreme Court in 2016, in a case involving the identical law but in Texas, said exactly that. Said that that Texas law did impose an undue burden, and it struck down the law. Two things made opponents of abortion hopeful, that the court would come to a different conclusion just four years later. President Trump has appointed a couple of justices, and President Trump has said

he's committing to appointing justices who will do away with abortion rights and overrule Roe v. Wade, the 1973 decision that established the constitutional right to abortion. And we also knew that Chief Justice Roberts, in the Texas case, had dissented. He was prepared to uphold this very same law in the Texas setting. So the surprise on Monday was that the Chief Justice, as it were, switched sides. That's a bit of an overstatement, but he said, listen, we have a precedent. The rule of law requires us to uphold precedent except for very good reasons. And here, even though I'd gone the other way in 2016, I'm going to live with that precedent today

and vote with the four more liberal members of the court to strike down the Louisiana law. more liberal members of the court to strike down the Louisiana law. So Chief Justice Roberts is saying, even though I didn't agree with a very similar case a few years ago, I am bound by the precedent that that ruling I disagree with created for the Louisiana law. Exactly right. So here's what the Chief Justice said. I joined the dissent in the Texas case and continue to believe the case was wrongly decided. The question today, however, is not whether that Texas case was right or wrong, but whether to adhere to it in deciding the present case. So there's something a little bit grudging about this. Yeah, I suppose grudging is one word for it. Another is principled. You know, this is a chief justice who's deeply concerned about the institutional integrity of the Supreme Court, doesn't want to have it seen as a political body that changes positions depending on changes in personnel.

So it may well be that he wasn't happy to find himself in this position. But at the same time, he might have been sending an important message about the court. But of course, not every justice voted that way. So Adam, help me understand the thinking of the conservative justices who dissented in this case and disagreed with Roberts that the Texas case created a binding precedent that should be applied to the Louisiana law. Yes, so everybody agrees, everybody on both sides agrees that this is the same law. It has the same words. But the dissenters say Louisiana is different from Texas.

The evidence in the case was different. The nature of the state is different. And so Justice Samuel Alito, surveying the evidence in the Louisiana case, says, at least in that case, there is ample evidence in the record showing that admitting privileges help to protect the health of women by ensuring that physicians who perform abortions meet higher standards of competence than is shown by the mere possession of a license to practice. So Alito's saying that in Louisiana, this makes a difference. And the evidence in the record, he says, shows that it makes a difference.

I mean, does that represent a disregard for precedent in your mind? Because I remember the hearings for almost each and every one of these conservative justices. And they were all asked over the past decade or so about the role of precedent. And I'm thinking back in particular to two of the conservative justices who dissented in this case, Neil Gorsuch, Brett Kavanaugh. And both of them were specifically asked by Senate Democrats during confirmation hearings about the role of precedent when it came to abortion. And here they seem to be saying that the precedent doesn't apply. Yeah, so I guess I want to stop at the very beginning of that

analysis, Michael. I don't think they're quite saying that. I mean, I think that's the music of the decision. But really what they're saying is we can live with the precedent, but we're good lawyers and we'll distinguish that precedent. And when we apply it to a different set of facts in a different state, we're going to come to a different conclusion. Got it. And I'm curious what the practical implications of this ruling are on the ground, pretty much across the country, now that the court has ruled that the Louisiana law is unconstitutional. It would seem to rule out this particular kind of abortion restriction. Now that Texas has lost and Louisiana has lost,

we're not going to see states enacting, admitting privileges restrictions, although creative opponents of abortion rights will find other ways to try to restrict the procedure. Mm-hmm. But this particular brand of restriction is now probably going to go away. You would think so.

And what about in Louisiana, where this case originated? Well, what would have been really striking in Louisiana is what would have happened if the case went the other way. Louisiana currently has three abortion clinics. That would have gone to one. It currently has about five doctors who are willing to provide abortion, and that also would apparently have gone to one. So it would have required every woman in the state to travel to New Orleans to get abortions, and it's not clear that that clinic would have had the capacity to

serve those women, even if they could make what, in some instances, would be a very long drive, five hours each way, and do it twice because Louisiana also has a law requiring a waiting period between the initial consultation and the procedure itself. So, I mean, we start with this law that sounds kind of basic, standard, unexceptional, that doctors should have admitting privileges. But it turns out that when you drill down, it's a vastly consequential restriction on abortion rights. We'll be right back.

Adam, we are now well into a series of very consequential rulings in a term that you have described as the most consequential since a conservative majority arrived on the court under President Trump. So how does this abortion ruling fit into the emerging picture we have of this conservative majority court? this conservative majority court? Well, we have a conservative majority court, and you're quite right to say that's what it is, delivering in the space of two weeks three big liberal victories on job protections for LGBTQ workers, on protection from deportation for young immigrants known as dreamers, and now this abortion case.

So we have a court that is full of surprises. Right. And in each case, it was a member of the conservative majority that proved decisive. Right. Well, it sort of can't be otherwise because it's a 5-4 court with the four liberals in the minority. So they have to pick up at least one conservative justice to prevail. So in the employment discrimination case, they picked up not only the chief justice, but also Justice Gorsuch, one of the Trump appointees who actually wrote the majority decision. In the Dreamers case, the DACA case, they picked up Chief Justice John Roberts, who

wrote the majority opinion. And now in the abortion case, they again picked up Chief Justice John Roberts, who voted with the majority but didn't join its reasoning. I'm curious why this keeps happening, that the liberal wing of the court keeps picking up these conservative justices. And the reason I ask this is because we have talked so many times with you, Adam,

and with our colleagues, about the intense vetting process that has led to conservative justices making it into the pipeline for the Supreme Court, getting picked, and then confirmed. And my sense is that the conservative legal apparatus is extremely careful about this vetting process, and it expects these judges, and tell me if I'm oversimplifying, to vote consistently and conservatively, and yet. So you're right, Michael. It's extraordinary. The conservative legal movement has put so much energy into identifying people they can count on who will vote the way they want,

and the vetting process is intense. And the reason the confirmation battles are so heated is because people on both sides are convinced that once one of these people gets on the court, they will vote in a right-wing direction. But it turns out that if you put a serious judge on the Supreme Court and give him or her life tenure, they are going to follow their judicial commitments, sometimes in directions that aren't political but are legal. And so in these three cases, they're all different, but they all conform to jurisprudential commitments of the justices who voted that way. So in the employment discrimination case, Justice Gorsuch thinks the law simply

means what it says, and he couldn't get away from that. And that's a conservative idea. In the DACA case, Chief Justice Roberts thought the Trump administration simply hadn't offered an adequate reason for winding down the program. That's also a conservative idea. And then in this latest case, the abortion case, Chief Justice Roberts said, listen, we have a precedent on point. We're supposed to follow precedent. That's basically a conservative idea. So depending on how you think about these cases,

they may be politically liberal, but in an important sense, judicially conservative. I have to imagine that the greatest disappointment for this right-wing legal apparatus that you described is with Justice Roberts, because he has been the most consistent swing vote to swing over to the liberals. And I hear you just saying that he's coming up

with a conservative legal rationale in each decision. But I have to imagine this pattern is complicating his reputation with the people who supported his nomination. Oh, that's way an understatement. Chief Justice Roberts consistently seems more concerned about the reputation of the court and his reputation among Democrats and the media than the rule of law. the reputation of the court and his reputation among Democrats and the media than the rule of law. The right wing, the conservative legal movement, Senator Ted Cruz, Senator Tom Cotton, are furious with John Roberts. I would recommend that he resign and travel to Iowa for the caucuses and see if he can earn the votes of his fellow Americans. I mean, maybe they could forgive him his two votes for upholding the Affordable Care Act. Maybe they could forgive him in the census case for not letting the Trump administration

add a question on citizenship. Judging is not a game. But sadly, over recent years, more and more, Chief Justice Roberts has been playing games. more Chief Justice Roberts has been playing games. But to come to three liberal conclusions in the space of two weeks in three different blockbuster cases is a bitter, bitter pill for them to swallow. And they're saying so. Sure. But here's the thing, Michael. Roberts, in moving to the center of the court, has become the most powerful chief justice since at least 1937. Wow. The idea of both being the chief justice and the swing justice, as it were, is almost unheard of. But what you have in Chief Justice Roberts is someone who's been in the majority 98% of the time

so far this term. Wow. And he's been in the majority in every 5-4 decision so far, which looks like it will set a record for a chief justice if it lasts through the end of the term. So perhaps he has alienated the right, but he has amassed a tremendous amount of influence as a justice on this court. Yes. I mean, people talk about the Roberts Court because you always talk about the court by the name of the chief justice. But this is really the Roberts Court in a second sense, too, that John Roberts is driving this trend. accurately predicted he might end up being a swing vote on a question like abortion. And when we have talked about him, you said that he prizes the reputation of the Supreme Court as a nonpartisan institution, and that he might prize that reputation above his own kind of most natural legal instincts.

Is that what you think may be at play here? Or is it possible that we just didn't quite understand his legal instincts the entire time? I think a large part of what explains this is what John Roberts goes around saying all the time and nobody takes seriously. Thank you very much. Thank you. That the court is not a political institution. We do not speak for the people, but we speak for the Constitution. Our role is very clear. And I think he's demonstrating that commitment,

that these are not, you know, sort of empty civics lesson statements that he makes in his public comments, but that he is authentically committed to them. We do not sit on opposite sides of an aisle. We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation. And I want to assure all of you that we will continue to do that to the best of our

abilities, whether times are calm or contentious. Thanks very much. I think he earnestly believes in the legal conclusions he's drawn. But at least incidentally, it helps maintain the institutional prestige, authority, legitimacy of the Supreme Court if it doesn't break along predictable ideological lines. So in a way, he's being the change he wants to see, which does fit with who he is, but may also stretch who he is. Yeah, okay. stretch who he is. Yeah, okay.

Adam, it feels like from everything you're saying about Chief Justice John Roberts that we may be getting an answer to the biggest question of all about how he may rule, which is on any kind of challenge

to Roe v. Wade. Because the rulings of the past couple weeks, and especially the ruling on the Louisiana law, suggest that he favors precedent, does not want to polarize the country, and collectively that would all suggest, tell me if I'm wrong here, that he would be inclined to support the precedent

that is Roe v. Wade if it is challenged? Well, so I think we have some substantial evidence for that proposition in today's ruling. He took precedent very seriously in an abortion case. But it's not as though John Roberts has never voted to overrule precedent. He voted to overrule precedent in Citizens United and in other cases. And he set out a fairly elaborate set of principles for when precedents can be overruled. And it's not clear to me that just because he thought this one precedent, which is trivial in comparison to the abortion right itself in Roe, will give you the

answer of how he will treat Roe. So I wouldn't count any chickens here. But there is more evidence Monday than there was last week that the chief justice takes precedent quite seriously. Adam, thank you very much. We appreciate it. Yes, thank you. Yes, thank you. On Monday evening, both the White House and President Trump's campaign issued statements denouncing the Supreme Court's ruling on abortion. Without naming him, the statement from the campaign appeared to criticize Chief Justice Roberts, saying, quote, five unelected Supreme Court justices decided to insert their political agenda in place of democratically determined policies. We'll be right back.

Here's what else you need to know today. Global deaths from the coronavirus have now surpassed 500,000, prompting a new wave of restrictions. China imposed a strict lockdown on nearly half a million people in a county south of Beijing in an effort to contain an outbreak there that is challenging the country's claim to have beaten back the virus. In the U.S., several states moved to delay reopenings. We must hit pause on the resumption of indoor dining. In New Jersey, Governor Phil Murphy scrapped a plan to open restaurants for limited indoor dining later this week, saying it posed too great a risk. Given the current situation in numerous other states, we do not believe it is prudent at this

time to push forward with what is in effect a sedentary indoor activity, especially when we know that this virus moves differently indoors than out, making it even more deadly. And the Times reports that intelligence officials gave President Trump a written briefing months ago laying out their conclusion that Russia offered and paid out bounties to militants in Afghanistan to kill U.S. and coalition troops there. So far, Trump has denied ever being briefed on the Russian bounties. But the intelligence has provoked a furor because the Russian bounties may be linked

to the death of three U.S. Marines in Afghanistan, and because the White House has not authorized any response. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.