Today, Explained - Roe v. Wade v. Roberts

Episode Date: March 5, 2020

There's a new fight over abortion at the Supreme Court and Chief Justice John Roberts is in the swing position. (Transcript here.) Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Visit connectsontario.ca. 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. 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. 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 a little bit more welcoming. But it also is a reminder that people are coming to this clinic from really far away.

Staff at Hope 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. 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, and 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 there 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 the 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. 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 the doctor. The doctor has to give you also certain state-mandated

information, and some of it includes information that 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 at 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 in your pregnancy. 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 have 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. 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? 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. What does that mean? So 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. And one of the main reasons is that abortion patients don't go to the hospital very often. They don't usually need to because the rate of complications for abortion is really low. The other reason 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. What's the defense of these laws?

Why do they even need to exist? So I talked to the state legislator who wrote the Louisiana law, and she really frames it as a women's health issue. It's a she? Yeah, she's a Democrat. 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. 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 I 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.

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 sides that Roe v. Wade is hanging by a thread, and 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. Anna North is a senior reporter for 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 Ramos from This Is Today Explained. Support for Today Explained comes from Ramp. Ramp is the corporate card and spend management software designed to help you save time and put money back in your pocket.

Ramp says they give finance teams issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month. And now you can get $250 when you join Ramp. You can go to ramp.com slash explained. Ramp.com slash explained. R-A-M-P dot com slash explained. Cards issued by Sutton Bank. Member FDIC. Terms and conditions apply.

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a sportsbook worth a slam dunk and authorized gaming partner of the NBA. BetMGM.com for terms and conditions. Must be 19 years of age or older to wager. Ontario only. Please play responsibly. If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. 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. Rousseau. How did it go? 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. And when I left, I was a little surprised by Chief Justice Roberts, who is very conservative and very conservative in particular on abortion. I left think there's maybe a 30% chance that he will flip over and vote to strike down the anti-abortion law. Which means the clinic would win and the state of Louisiana would lose?

That's right. I think there is at least some chance that there's going to be five votes in favor of the clinic here. The reason why is that the state claims that it passed this law in order to protect patients' health. And Robert seemed unpersuaded at times by that argument. It's not a convincing argument. There's very little empirical evidence for it. 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. Is this the argument that the clinic made in front of the court yesterday? That's right. Yeah. 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 was a case called Whole Women's Health v. Hellerstedt. 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 And what the Supreme Court said in that case is that admitting privileges laws do not benefit patients. And basically all that the clinic was arguing in this case was,

hey, that thing that you said less than four years ago, it's still true. The federal district court, after a trial, found the two provisions were unconstitutional. They constituted an undue burden on a woman's right to choose. The court of appeals for the Fifth Circuit reversed. We, in turn, agree with the district court and we reverse the Court of Appeals. So why hear the case then if they've already decided something so close in Texas? 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 nothing to do with the facts of the case. It has nothing to do with the law.

It has everything to do with the personnel on the Supreme Court. 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 that says, no, that goes too far. You're cutting too far into this core constitutional right that my quarters recognize. And that's what he said in Whole Woman's Health.

Kennedy's gone. Kennedy was the fifth vote in Whole Woman's Health. And his replacement, Brett Kavanaugh, has a very consistently anti-abortion record. 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 rewrites Supreme Court precedent. And Gorsuch is also fresh to the court from that 2016 decision.

That's right, yeah. Neil Gorsuch was appointed to replace Justice Scalia, who actually died while the Whole Woman's Health case was pending. So did Gorsuch and Kavanaugh weigh in on Wednesday in any way that might suggest how they're going to vote? So Gorsuch was quiet at the oral argument, but based on his record, when he was a lower court judge, he took some very aggressive steps against Planned Parenthood. I'm pretty darn confident that Gorsuch is going to cast anti-abortion votes. Kavanaugh also signaled that he intends to vote with the state here. 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 to get admitting privileges. And so this is a huge burden for no benefit. It struck down. Yeah. 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.

Is it? 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 villages and weren't able to do so. You know, and often it was for the exact reason that I said, that like one of the doctors, for example, only provides medication abortions and doesn't really have much of a medical practice beyond like 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 doctor's patients to go into a hospital. And so that person would have a really tough time getting admitting privileges. In fact, the state's own expert witness admitted that, yeah, that doctor would have a tough time getting admitting privileges. So what's the bigger picture here? We know from what you said about giving the state a 30% chance of winning this case here that Louisiana would go from three abortion clinics to maybe just one, which would make the procedure even more restrictive in the state. But what's going

on here with the Supreme Court, Roe v. Wade, and this new cast of characters? So this case is likely to come down to Roberts. 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, we want you to pretend that this law 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. 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. 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 new cast of characters, Gorsuch and Kavanaugh, and says Roe v. Wade is bad law? 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. But eventually, someone is going to show up and they're going to be more open about what they want.

I mean, there are the heartbeat bills. You know, 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 abortion's 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 going to be five votes who say, yes, we agree with you.