The Daily - A Test for Abortion Rights

Episode Date: March 9, 2020

A case before the Supreme Court is the first big test of abortion rights since President Trump created a conservative majority among the justices. We traveled to the Louisiana health clinic at the center of the case to ask what was at stake in the decision. Guest: Adam Liptak, who covers the Supreme Court for The Times, spoke with Kathaleen Pittman, director of Hope Medical Group for Women in Shreveport, La. For more information on today’s episode, visit nytimes.com/thedaily. Background reading: The justices are considering whether Louisiana can require doctors who perform abortions to have admitting privileges at nearby hospitals. While the law is specific, their decision may be a test for the future of abortion rights in America more broadly.Ms. Pittman remembers when there were 11 abortion clinics in Louisiana. Now there are only three, hers among them. After the Supreme Court’s upcoming ruling, there may be only one.

From The New York Times, I'm Michael Bavaro. This is The Daily. Today, a case now before the Supreme Court is the first major test of abortion rights since President Trump created a conservative majority on the court. Adam Liptak on what's at stake. It's Monday, March 9th.

It's a rainy Tuesday morning in Shreveport, Louisiana. And I'm outside the Hope Medical Clinic, one of the three remaining clinics in Louisiana. They perform abortions. I'm about to head inside and see what's going on. Adam Liptak, tell us about Hope Medical Clinic. It's a nondescript building. It doesn't have any windows. It's got a sort of double-door vestibule.

It's been the subject of a variety of attacks. A guy with a sledgehammer, Molotov cocktails. And this clinic is at the center of a major Supreme Court case. This clinic is at the center of a major Supreme Court case, and it involves a significant question that could put the clinic's future at risk. Yes, sir. Hi, I'm Adam Liptec. I'm here to see Kathleen. I'm from the New York Times. Yes, sir. So I go in. I ask to see the director of the clinic, Kathleen Pittman.

Hi, I'm Kathleen. Pleasure to meet you. You too. Thanks for seeing me. Certainly. I feel so badly for you and Kelly. We've had some beautiful weather and now we don't. Who turns out to be a folksy, tough, charming 62-year-old woman.

Tell me about you. How did you find yourself here? What's your background? That is a really long story. That's all right. She's been the director for a decade, but she's worked there much longer. How long ago was that? 92.

So that's... I've been here for 27 years. 27 years. Yeah. Personally, I worked here for two months before I told my mom, and I was a divorced mom living at home with her. And she told me that at first it made her nervous to tell her mom, she comes from a big Catholic family, what it was she was going to do for a living. And I worked here for two months before I finally told her.

But when I told her, I said, you know, I'm counseling women, but I didn't tell you the whole story. And her response was, women have always had abortions, darling. They always will. They need a safe place. And this is someone who... Did that surprise you that you got that response? Yes. I had 15 siblings.

To find my mom after all this was pro-choice. The phone lines burned up calling all my sisters. Do you know mother's pro-choice? This is what she said. My mother was so funny. She said, darling, I would have still been having babies had your sisters not stepped in. The oldest sisters told the doctor to do something. And she was fine with it.

She just couldn't be the one to tell them to do it. Wow. And why are you visiting this abortion clinic in this state and speaking to this director? this abortion clinic in this state, and speaking to this director. Well, Louisiana really is ground zero for state efforts to regulate, if not eliminate, abortion. Louisiana has enacted 89 different abortion restrictions. But what I find really interesting... Whoa.

Just one, just one. But this is the form the physician and sonographer must review with the patient. I'm going to give you this as well. So to be an abortion clinic in Louisiana means you have to literally, as Kathleen showed me, leaf through a sheaf of regulations just to make sure you can stay open. And they cover things like 24-hour waiting periods, requirements that abortion providers read their patients' descriptions of the fetus, the complications that might happen, show them sonograms they can look away if they wish, allow them to hear fetal heartbeats they can cover their ears if they wish.

But most importantly, for my purposes, I was there to assess the impact of a law that requires abortion providers, doctors who provide abortions, to have admitting privileges at nearby hospitals. And tell me a little bit more about that law. So this law, when you first hear about it, sounds perfectly sensible. Louisiana is the fifth state to adopt a law that requires abortion doctors to have admitting privileges at a nearby hospital. It was enacted in 2014. Supporters say they make health care safer. Lawmakers say that it was an effort to protect women's health, that it's a kind of

credentialing function. Opponents say the whole thing is a ruse, that abortion is a very safe procedure, that you'll be admitted to the hospital on the very rare occasions that there are complications, whether your doctor has admitting privileges or not, and that it's hard to get admitting privileges. Many hospitals don't want to give abortion providers admitting privileges or not, and that it's hard to get admitting privileges. Many hospitals don't want to give abortion providers admitting privileges for political reasons, and those conflicting views are at the center of a case that has reached the Supreme Court, which will decide whether this Louisiana abortion regulation

is constitutional. If the Supreme Court rules against you, this clinic closes, you think? Very possibly. And what does that mean for the women in this part of the state? How far are we from whatever clinics might remain? Minimum four hours. And for some women, that puts it out of reach. And for some women, that puts it out of reach.

You have to understand, most of the women we work with here live at or below the federal poverty level. The whole reason they're seeking to terminate a pregnancy is they're already trying to take care of the families they have. They can't add to that anymore. The clinic has said that although they have one doctor with admitting privileges, that doctor cannot carry the whole load of the clinic, and the clinic would very likely have to close. Adam, this question of admitting privileges and abortion and the Supreme Court, it has a very familiar ring to it. And it should. We begin tonight with the most sweeping decision on abortion in a generation. Today, the Supreme Court struck down a Texas law that imposed strict requirements on clinics and doctors. The Texas abortion law requiring doctors at abortion clinics to get admitting privileges at nearby hospitals.

The Supreme Court has already decided this question in the context of an identical Texas law in 2016. The court struck down the Texas law. Jubilation from the pro-choice side, but despair from anti-abortion forces. So it might be surprising to some that just a few years later, it's taking a look at an identical law from a different state from Louisiana.

Yeah, why would the court be looking at the exact same question if there is a precedent? And the precedent is that that Texas law is unconstitutional. Well, to the surprise of many, a federal appeals court had upheld the law, even though a nearly identical statute from Texas was declared unconstitutional. A federal appeals court sustained the Louisiana law, meaning the Supreme Court almost had no choice but to take this case. Because whatever the court might want to do itself about admitting privileges laws, it seems a little odd for a federal circuit court to be breaking new ground

and in the eyes of some to disregard what looks like binding Supreme Court precedent in this area. And why would a lower court openly defy a four-year-old Supreme Court precedent on an identical law? That doesn't make a whole lot of sense. They said that they were able to discern differences between Louisiana and Texas. They say that the abortion providers didn't try hard enough in Louisiana to get admitting privileges. And more importantly, a lot has changed since 2016. After the final day of the term, we have just learned that Justice Anthony Kennedy will be retiring. The Supreme Court, it's what it's all about.

The justices that I'm going to appoint will be pro-life. They will have a conservative bent. A lot has changed since President Trump put a lot of new judges on the courts, the lower courts and the Supreme Court. We are here to celebrate history, the taking of the judicial oath by the newest member of the United States Supreme Court, Neil Gorsuch. The newest member of the United States Supreme Court, Justice Brett Kavanaugh. A lot has changed in state legislatures, which are enacting abortion restriction after abortion restriction. Folks opposed to abortion are very hopeful that we live in a different judicial climate and that this new Supreme Court might take a very different view of abortion rights than earlier ones had.

We'll be right back. We'll hear argument this morning, case 181323, June Medical Services versus Russo, and the cross-petition 181460, Russo versus June Medical Services. Okay, so Adam, tell us what happened inside the Supreme Court last week as this case opens up. It was a little hard to make sense of what was going on at the court. You know for sure that the court's four more liberal members are completely on board with striking down this law. They think the 2016 Texas case takes care of it, but they also think if they were looking at this fresh, this is a regulation that they say confers no medical benefits,

but imposes enormous costs on women's ability to obtain abortions. So you could hear this intense skepticism as the more liberal justices ask questions. Justice Elena Kagan, for instance. Is it right that there is evidence in the record that Hope Clinic has served over 3,000 women annually for 23 years? So that's around 70,000 women and has transferred only four patients ever to a hospital? She did the math.

ever to a hospital? She did the math. She said it amounted to some 70,000 abortions, and they had complications necessitating trips to the hospital four times. Well, they know whether they've 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.

And so Kagan's point is women so rarely need to be admitted to hospitals that there's no rationale for requiring admitting privileges for abortion practitioners in these clinics. That was her point. If indeed having admitting privileges makes it more likely that you'll be able to go to the hospital. But that itself is a contested proposition. There's no real link between your doctor having admitting privileges and you getting the medical care you need at a hospital. What about the other liberal justices? Justice Sotomayor raised a different question, whether some doctors, because of the nature of their practices, could ever get hospital admitting privileges. She talked about a doctor who doesn't perform surgical abortions, but only so-called medication abortions where patients are given pills.

And that kind of doctor, she said, could never get admitting privileges in Louisiana, and so would be prohibited from performing abortions entirely. Adam, I have to imagine that some of these liberal justices also raise the simple question of precedent from that Texas case in 2016. Justice Breyer. I have read the briefs. I understand there are good arguments on both sides. Indeed, in the country, people have very strong feelings and a lot of people morally think it's wrong. And a lot of people morally think the opposite is wrong. The court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.

He paused and said, listen, people have very strong feelings about the issue of abortion. People have moral objections to it. People believe that women have a right to it. But why depart from what was pretty clear precedent? And the job for the court is to hold the nation together under the rule of law. And the way to do that, he said, was to respect precedent. And what is the response from the lawyers defending the law to that question of precedent? They say Louisiana is different. They basically say, our admitting privileges law, we have a different justification for it than the

one put forward by Texas, this credentialing justification. And we also think the impact in Louisiana is going to be different. In Texas, the fear was that the state would go from 40 abortion clinics to 10 in an enormous, geographically vast state. Here they say there's no special reason to think it should go from three to one because they say if only doctors tried harder to get admitting privileges, they probably could. So their point is maybe the words of the law are the same, but the facts on the ground are different. Thank you, counsel. Okay, that was the liberal side of the court. What did you see, Adam, from the conservative justices here who it seems will ultimately decide this case?

The right side of the court was unusually hard to read. Let's take one example. Let's take Doe number two. Doe number two is plaintiff in this case, right? Yes, your honor. The only justice who asked consistently hostile questions of the lawyer representing the abortion providers was Samuel Alito. He testified that he didn't apply for admitting privileges there because it's a Catholic hospital. Isn't that right?

That was part of the testimony. And he came on strong. When Doe No. 2 explained why he didn't apply to this hospital, he said in part because it's not a place where I would feel comfortable. Didn't he say that? He did, Your Honor. But he was the only one who came on strong. Clarence Thomas, as is his custom, asked no questions.

Justice Neil Gorsuch, President Trump's first appointee, is usually active at oral argument. And to my surprise and the surprise of many, he said nothing at all during this argument. Making it very difficult to know where he may be leaning. That's right. He's quite conservative. I have to think he doesn't think there's a constitutional right to abortion, but there's not a lot of judicial track record to pin that intuition on. What about President Trump's second appointee on the court, Justice Kavanaugh?

Justice Kavanaugh asked questions that seemed to show an open-minded attempt to sort through the various issues in the case. He wanted to know, for instance, whether a regulation that maybe didn't do anything to further women's health, but also didn't make it harder for them to have abortions, whether such a regulation would be possible. If a state passed an admitting privileges law, therefore, and suppose the state had 10 clinics and two doctors for each clinic, but all 20 doctors could easily get the admitting privileges so that there'd be no effect on the clinics, no effect on the doctors who perform abortions, and therefore no effect on the women who obtain abortions. Would a law be constitutional in that state?

So he asked hypothetically, what if every doctor in every clinic was able to get admitting privileges? Would we still have to strike down that law? And that was a way of asking the question of, are we bound by that Texas decision, or can we find that the same law with the same words has a different impact in a different place? But as open-minded as Justice Kavanaugh sounded, there is some evidence in his judicial rulings when he was a federal appeals court judge that he is not comfortable with abortion rights, voting, for instance, to block a pregnant undocumented teen from being able to get an abortion.

So it sounds like there's reason to believe that these four justices you have mentioned, Alito, Thomas, Gorsuch, Kavanaugh, they may all support this Louisiana law. They might vote to uphold it. Yeah, I think that's the best information we have, that the four liberals are solid, that the four conservatives you mentioned are pretty solid, and that leaves one justice. Chief Justice John Roberts. Yes, who more and more finds himself at the ideological center of the court in all kinds of cases. And what is John Roberts' conduct during these oral arguments? Do you agree that the benefits inquiry under the law is going to be the same in every case, regardless of which state we're talking about. So he's very hard to read in this case. But here's what you need to know. In the 2016 case, in the case involving Texas, he said the Texas law was fine. He voted to uphold the Texas law. Oh, interesting.

And now he's looking at the identical Louisiana law. And for him even to be open-minded about it might be a big surprise. I understand the point that the impact of the laws varies from state to state. But why do you look at each state differently if the benefits of the law, they're not going to change from state to state. He asks a series of questions that seem a little skeptical about the Louisiana law. He seems to be buying the idea that it may not confer any medical benefits to women. It may not protect their health. And that casts the chief justice in a very interesting light.

So Chief Justice Roberts was a vote in favor of this identical Texas law four years ago. And now in his questions to the lawyers, he seems skeptical of the identical law in Louisiana, perhaps somewhat open to striking it down. So Chief Justice Roberts often has conflicting impulses. He's basically conservative. He's a product of the conservative legal movement, but he's also the steward of the court's integrity and authority.

And he may think that, listen, we've decided this question once. A federal appeals court seems to have ignored us. That's not acceptable. And even though I might have voted differently the first time, there are other interests at play here. If there are no further questions. Thank you, counsel. The case is submitted. So how do you think this all will shake out? You have an almost startlingly good track record of predicting outcomes in Supreme Court cases. I'm confused, Michael. I really don't think that John Roberts wants to make it a habit of having five, four decisions in which he joins the court's liberals. But I guess I do think

that there's a class of cases, and this may be one of them, where a conception of respect for the rule of law and for precedent and for judicial integrity might push him in that uncomfortable direction. Towards the liberals and striking down this law. That's right. Adam, I'm curious, what does Kathleen say about what she thinks will happen here? She is very, very nervous. She thinks that in the past couple years, the landscape, the legal, social, political landscape has shifted against abortion rights. She's nervous about the future of her clinic. My one big hope is that the integrity of the Supreme Court means something,

or that it still exists, let me put it that way. I think, you know, anybody looking at the bigger picture would know that if we don't win, would know that if we don't win and if the court reverses itself or even qualifies its prior ruling, then it's going to open up a Pandora's box. Adam, thank you very much. Thank you, Michael. A Supreme Court ruling on the constitutionality of Louisiana's abortion law is expected by June. We'll be right back. Here's what else you need to know today.

On Sunday, in an attempt to contain the coronavirus, Italy locked down much of the country's north, restricting movement for about a quarter of the Italian population. It was the most sweeping effort outside of China to stop the spread of the disease, which has already infected more than 7,300 Italians and killed more than 365. But it was unclear how effective the lockdown would be. Hours before and after it began, people streamed out of the region on trains and planes. In the U.S., 21 passengers on a cruise ship off the coast of California have tested positive for the virus. New York has declared a state of emergency over its outbreak.

And a top health official told Fox News that regional travel restrictions could become necessary. Italy just announced that it is going to lock down an entire region of northern Italy that includes Milan and Venice with a quarter of the population. Could that happen here? You know, we have to be realistic. I don't think it would be as draconian as nobody in and nobody out, but there'll be, if we continue to get cases like this, particularly at the community level, there will be what we call mitigation, where you'll have to do essentially social distancing,

keep people out of crowded places, those kinds of things. And I think testing kits remain scarce. Over the weekend, American officials said that they have so far tested fewer than 6,000 people for the coronavirus. By comparison, South Korea has tested 10,000 people per day. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.