← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Get Ready for the Most Significant Supreme Court Term in a Decade
00:45:21
The justices are tackling abortion, guns, DACA, and LGBTQ rights.
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- [00:06]
A
In terms of just the numbers of people in this country who will be affected, these decisions are enormously important.
- [00:14]
B
The impact in Louisiana is even more drastic than the very drastic impact that the Texas law had, which is that it closed half the clinics in Texas.
- [00:31]
C
Hi and welcome back to Amicus. This is Slate's podcast about the law and the Supreme Court and the rule of law. I'm Dahlia Lithwick, and this is a special off week edition. It's our pre Supreme Court Curtain Raiser podcast. It's been a little bit delayed as a result of unanticipated constitutional happenings that rhyme with SHM impeachment over the months of September. But as the postman is inclined to say, neither rain nor snow, nor sleet nor hail will keep the Supreme Court from opening its doors and its 2019 session on the first Monday of October. And while that session is maybe not getting as many headlines as it would normally garner, I promise you it's a doozy. So to the extent you have it in you to multitask, I want you to keep a watch on Maryland Avenue this fall as you're watching the impeachment process, because this term will be one for the books. Later on in the show, we'll be joined by Nancy Northup of the center for Reproductive Rights to try to parse the Court's decision on Friday to take up the restrictive Louisiana abortion law and what it's going to mean for Whole Women's health and the future of Roe v. Wade. But first, let's get to previewing the other big ticket items on the docket thus far with Dean Erwin Chemerinsky. Erwin is the dean of the University of California at Berkeley School of Law. He's an expert in constitutional law, federal practice, civil rights, civil liberties. His 11 books include the Case against the Supreme Court, which we once talked about on this show, and we the A Progressive Reading of the constitution for the 21st century. He frequently argues appellate cases, including at the U.S. supreme Court. And he is also, thank God, preternaturally gifted at making that which is unclear perfectly comprehensible, which is a thing I would just like to have intravenously dripped into my veins today. So, Erwin, with that as preamble, welcome back to the show.
- [02:32]
A
Thank you so much. It's always a pleasure to talk with you.
- [02:36]
C
Can we start with some context? And specifically, I'm remembering you and I were on a stage at the Anti Defamation League Term Ender in July, and you said something that hadn't really occurred to me about the cases that are on the docket for this fall that the court really could have heard last spring if they weren't trying to avoid something. Can you talk about that?
- [02:59]
A
Of course. On Friday, January 11, 2019, the justices met in their private conference to decide the remaining cases for last term. October term 2018. They had eight slots open on their April oral argument calendar. They had an amazing array of cases to choose among. They had cases where there's a split among the circuits as to whether sexual orientation discrimination, employment is sex discrimination, violation of Title vii. They had a case about whether discrimination based on gender identity against transgender individual was employment discrimination based on sex in violation of Title vii. They had a decision of the Second Circuit that upheld the New York City ordinance that largely prohibited guns outside the home. They had a decision of the 9th Circuit that upheld a district court's preliminary injunction to keep President Trump from rescinding daca, the Deferred Action for Child Arrivals program. The court took none of those cases for last term, though. All of those could have been taken and heard in April. But then the court turned around and put them on the docket for this October term, 2019. I don't think it was an accident. I think after the bruising Kavanaugh confirmation fight, the justices were trying to keep a lower profile last term and therefore didn't take the cases. But now they're before the court and they've decided in the midst of the 2020 presidential election season. So I don't think the court's going to succeed for very long in having its lower profile.
- [04:34]
C
And it leads me to the obvious follow on question, which is how is it that the court, in attempting to keep its head down, is going to then what, in May and June, hand down these game changing decisions? All the issues you just talked about, guns, abortion, Title vii, executive power, God knows what will come up around the impeachment. They're going to do that five months before a presidential election and keep themselves out of the political whirlwind.
- [05:02]
A
We all know there are unintended consequences to the choices we make. I think the unintended consequence of their putting the cases over to October term 2019 is that these blockbuster decisions will come down in May and June of 2020 in the context of a presidential election campaign. And I think that may be a good thing because it will be a reminder to voters that elections really matter with the composition of the Supreme Court and the composition of the lower federal courts.
- [05:33]
C
So I want to, before we dig into the cases, I want to start at the very end of last term. Because it was dramatic, to say the least. Not just that Chief Justice John Roberts appears to have switched his vote in the census case. Talked about that a lot on this show last term. But that we have these two Trump justices, Neil Gorsuch, Brett Kavanaugh, and they end up differing more than anyone ever expected. Brett Kavanaugh seems to be at least tilting at being a centrist in the model of John Roberts. Gorsuch is staking out a role as a kind of very unpredictable maverick. Does that mean that last term, which we know there were a lot of unanimous opinions, it was not the monolithic 5, 4 term anyone expected. Is that in any way, does that have predictive value? Looking forward to what's coming down the road?
- [06:28]
A
I don't think so. We always should be careful about generalizing from small samples. I think last term was an unrepresentative sample for exactly the reasons we were just saying. The Court stayed away from the most divisive, controversial issues. And yet when you look at the issues most defined by ideology, there wasn't that much difference between Justices Gorsuch and Kavanaugh. They were both in the majority in the partisan Germany case. They both were in agreement with each other, at least with regard to the census case. When it came to property rights, they were together with the conservative justices. When it came to sovereign immunity, they were together. When it came to the death penalty, for the most part, they were together. And so I would be careful about reading too much into the instances where they disagreed last term.
- [07:19]
C
So I want to start with the three Title VII cases you flagged in your opening comments. Two are consolidated, and they essentially have to do with two men. One case is Zarda, the other one is Bostock. And these are men who were fired, they claim, for being gay. And the totality of the question really is, does title VII from 1964 Protect Against Discrimination on the basis of sexual orientation? So maybe those are going to be heard on the second day of the term. Can you just help us understand analytically what's at stake here?
- [07:57]
A
Sure. Title VII prohibits employment discrimination because of sex and what these men are arguing, or in one instance, the estate of one of the men who died. The claim is that to fire somebody for being gay is firing that person because of sex. Think of an easy example. Imagine that there's an employee named Lee, and Lee has never met the employer. They've just corresponded by email. And Lee will often refer to a husband such in discussing weekend activities. When the employer meets Lee, the employer is shocked to discover that Lee is a man. The employer had always assumed that Lee was female. After thinking about it a bit, the employer says, it violates my religion to employ a gay person. You are fired. Well, Lee says, if I was female, I would still have this job. I'm losing the job just because of my sex. And so the argument of the plaintiffs here is, and this was the argument that the 2nd Circuit accepted, is this fits the literal language of Title vii. On the other hand, what the defendants argue, and the Trump administration is on their side, is that if the employer were to fire both a gay man and a lesbian woman, there's no discrimination because of sexual. And the defendants in the Trump administration say when Congress passed the Civil Rights act of 1964, it never meant to stop discrimination based on sexual orientation. There have been many bills introduced in Congress over the years to try to amend Title VII to do this, but they've never passed.
- [09:37]
C
And it's important to say, I think you just said it implicitly, but it is. Nobody is making the claim that Title VII was intended to protect gay workers. It's been read more and more to do so. But I think one of the things that is tricky in these cases is you have suddenly this newfound reliance on either textualism or original public meaning or legislative attempt. Everyone is kind of trying to use the Scalia toy box to parse how to even get to this question, given that we know perfectly well what Congress did not intend to do with Title.
- [10:16]
A
Vii, though there is a difference. In the briefing, the plaintiffs say focus on the literal language. Is this discrimination because of sex? And they say it doesn't matter what Congress had in mind in 1964. And that is what you refer to as the Scalia toy box, the Scalia approach to statutory interpretation. But the defendants, including supported by the Trump administration, say we should consider what Congress had in mind in determining the meaning of the words. And Congress never thought because of sex would protect against sexual orientation discrimination. So you do see here the more liberal position, trying to use the conservative methodology with regard to statutory interpretation.
- [11:00]
C
And I want you to just give us now the third related, but actually quite different case. This is Amy Stevens, and this is a transgender employee for. Fired from a funeral home. Again, once she said, I'm going to. I used to present as a man, now I present as a woman. I'm going to come to work as Amy and is fired for that. It presents different issues, although it's easy to get confused about how they're different. Can you talk us through Amy Stevens?
- [11:33]
A
This is somebody who worked for the Harris Funeral Homes for about six years. Amy Stevens told the employer that now be referred to as Amy, addressed with female pronouns, would be wearing the clothes that women wear at the funeral home. And there's a standard uniform for men of coat and tie, and for women for skirts. The employer thought about it for a couple of weeks and said, it violates my religious beliefs to have a transgender individual employed. Stevens files a complaint with the Equal Employment Opportunity Commission. The Equal Employment Opportunity Commission sues on her behalf, and the EEOC wins in the lower court. And what the lower court says is, this is discrimination because of sex. If Amy Stevens were male, Amy Stevens would still have the job. Also, the Supreme Court said in Price Waterhouse v. Hopkins that discrimination on the basis of gender stereotypes is sex discrimination. Violation of Title vii, and the fact that Amy Stevens wasn't fitting the stereotypes that the employer had with regard to sex was thus a form of sex discrimination. Interestingly, here, the Trump administration is urging reversal of the lower court and is taking a position opposite another part of the federal government, the eeoc. So the Trump administration's brief is something you rarely see in the Supreme Court. It's in the caption a brief for respondent in favor of reversal of the lower court. And what the defendant funeral home says, what the Trump administration says is, this is an employer who would have fired a transgender man and would have fired a transgender woman. Men and women are treated the same. Therefore there's no sex discrimination. Also, they make the argument Title VII was never meant to deal with discrimination based on gender identity. And the funeral home says there's a parade of horribles. Were the court to rule in favor of the plaintiff here, it would endanger single sex bathrooms, women's sports and the like.
- [13:37]
C
And you've twice now Erwin mentioned religious objections of employers. How much of that is in play in these cases explicitly?
- [13:48]
A
Not at all. Implicitly very much lurking beneath the surface. And so in this latter case we're talking about, the employer explicitly said, it violates my religious beliefs to employ a transgender individual. I believe that sex was God given and cannot be changed. Now, the employer is not making a claim based on religious freedom. In the briefs before the court. This isn't a masterpiece cake shop situation where a person is claiming a right to discriminate based on free exercise of religion. But it is beneath the surface. The employer is quite open about saying it's religion that caused the firing of Amy Stevens.
- [14:29]
C
And I want to really be explicit about this. These decisions could affect millions and millions Of Americans, only 22 states currently prohibit employment discrimination based on sexual orientation. Only 21 prohibit discrimination based on gender identity. So if the court rules with the employers in all three of these cases, we could see millions of LGBTQ workers expressly left without legal protection. Correct?
- [14:58]
A
You're absolutely right. I mean, in terms of just the numbers of people in this country who are being affected, these decisions are enormously important.
- [15:07]
C
We can add that if the sex stereotyping language that has been invoked in Amy Stevens case is swept into the case, it could actually go back and unroll, as you said, Price Waterhouse and other protections. It's one of the reasons, I think, women's legal groups are very, very worried.
- [15:27]
A
About these cases, as well they should be. And what we've got to remember as we approach all three of these cases is that the majority opinion in every Supreme Court decision in history advancing rights for gays and lesbians was written by Anthony Kennedy. He's obviously no longer on the court. And I think the question for the plaintiffs in these three cases we're talking about, is there a fifth vote without Kennedy being there?
- [15:54]
C
And do you have any reason to believe, I know you were careful to say we have only a handful of opinions from Kavanaugh and only a handful more from Neil Gorsuch. Do you have any reason to believe that they might be in play in any of these three cases?
- [16:12]
A
On the one hand, their voting pattern so far is in the important cases, they are far more likely to side with the conservative justices than with the liberal justices. On the other hand, my hope is based on age. What I've discovered is that if you talk to current law students, even the most conservative law students, they don't understand what was the big issue, why gays and lesbians shouldn't be able to marry. Their issue is not at all about trying to interpret the law to allow discrimination against gays and lesbians. And so my hope is that maybe Gorsuch and Kavanaugh, being from a bit younger generation, might see this in a different way than, say, some of the older justices. And I mean, I've got to say here, this is a place where I don't hold much hope for John Roberts. One only has to go back and read Roberts dissent in Obertfell versus Hodges, the marriage equality case. And it's the only dissent Roberts has read on the bench since coming out of the court in October 2005. And it was such an angry, vituperative dissent, I don't see much chance he's going to be the fifth vote with the liberal justices in favor of protecting gays, lesbians, transgender individuals under Title vii.
- [17:25]
C
One of the themes of the last few years on this show has been trying to assess whether the justices would be willing to go big or go small. And I think as you pointed out at the beginning of the show, there were a lot of ways that they opted to go small last term, but now they've got at least one gun case, maybe a second docketed that it's going to be hard unless they make the first. There's a New York case that could be moot, but I think that there's an immense amount of pressure to go big on the Second Amendment. The Court hasn't taken up a Second Amendment case in almost a decade. Clarence Thomas is enraged that this has turned into a second class right. I'm wondering if you think the Second Amendment case or cases are a vehicle for the Court to go big, big, big on gun rights.
- [18:18]
A
As you point out, the Court hasn't decided a case about the scope of the Second Amendment since District of Columbia v. Heller, which was June of 2008. There is a split among the lower courts on so many issues with regard to the Second Amendment. Does it protect having guns outside the home? What level of scrutiny is to be used for Second Amendment rights? What types of government regulations are permissible? And the New York City ordinance was very restrictive with regard to the ability to have guns outside the home. The Second Circuit upheld it. But as you alluded to, New York has changed that law and the Justices were asked to dismiss the case as moot. We know that they were to take that up at their conference on October 1st. We don't know as of our current conversation of whether they're going to dismiss the case as moot or keep the case on the docket and it's then be argued in December.
- [19:13]
C
I want to take a moment to talk to you about our membership program, Slate Plus. If you're hearing this, you are listening to the regular version of this show, which is awesome. But if you were to sign up for Slate plus, you could enjoy this show commercial free and you would get access to bonus segments and extended versions of all your favorite Slate shows. And it's only $35 for your first year. Totally worth it. And you can sign up free for two weeks to check it out first. And that's not all. This is important. By signing up for Slate plus, you will be supporting this show and all the journalism we do here at Slate. We know you value our coverage. You keep writing to us to tell us, and we appreciate it. But you know, this work is really urgent right now and we need your help to do it. Sign up for Slate Plus Help Secure Slate Future. To learn more and to begin your free two week trial, go to slate.com amicusplus and now let's return to our look ahead at the supreme court term of 2019 with Dean Erwin Chemerinsky of the University of California, Berkeley School of Law. I know we're bouncing around, but I want to get to daca, which is another huge, huge case which will impact millions of people. This is another situation in November where the justices are going to hear three consolidated cases to determine whether Trump violated the Federal Administrative Procedures act when he rescinded daca. Can you just quickly walk us through what the issues are?
- [20:47]
A
President Obama adopted the Deferred Action for Child Arrival program. It gives deferred deportation status to 800,000 individuals. These are people who were brought to the United states before age 15. They're under 30. They're either currently enrolled in high school or college, or are serving in the military or have graduated and been honorably discharged. They have no felony conviction or no conviction for serious misdemeanor. And President Trump announced that he was rescinding the DACA program. This was challenged. Three different federal district courts said that he violated the Administrative Procedures act in doing so. The Ninth Circuit affirmed the district court here on the west coast, and the Supreme Court granted the three different cases, though they're briefed separately. They will be consolidated for oral argument and heard on November 12th. And what the challengers say is that in order to comply with the Administrative Procedures act, there has to be a reasonable, legitimate justification. President Trump said he was rescinding DACA because it was illegally adopted by President Obama. And what the lower courts say is DACA was lawful. It was part of President Obama exercising prosecutorial discretion about who to deport or not deport. It's estimated there are 11 million undocumented individuals in the United States. At most, the government deports about 400,000 a year. And this was President Obama saying, we're not going to put our enforcement priority into deporting these individuals. And the lower court said since the reason that President Obama gave was legitimate, it wasn't illegal. The justification offered by the Trump administration doesn't meet the requirements of the Administrative Procedures Act. On the other hand, what the Trump administration is saying at the Supreme Court is presidents have broad discretion with regard to immigration. President Trump's exercising this discretionary to rescind DACA there's reason to believe that DACA was illegal. But even if it wasn't, President Trump should have the ability as president to end the program. And it comes before a court that, remember in June of 2018 in Trump v. Hawaii upheld the Muslim travel ban and spoke Chief Justice Roberts majority opinion of the broad discretion of the president in areas of immigration.
- [23:17]
C
And it's probably also worth saying, if listeners are having flashbacks even to last spring in the census case, that in so many of these Administrative Procedures act cases, we have courts who are asking the question. You're asking, why? Why did you do it? Why did you do it this way? We know that became a problem for John Roberts in the census case. In a weird way, this becomes yet again a litmus test of how much John Roberts is willing to defer and to defer to pretextual argum that he kind of can see with his own eyes are pretexts.
- [23:51]
A
I think you're right to link the DACA case to the census case in the end of June, Department of Commerce v. New York, because there Chief Justice Roberts, joined by the liberal justice, said that the justification given for adding the question about citizenship was a pretext. There was no legitimate reason offered for doing so. And likewise, what the supporters of DACA are saying is no legitimate reason was given for ending the DACA program. Now, subsequent to ending the program, the Trump administration changed the justification. They broadened the justification. And the question is, will that make it different from the census case from last June?
- [24:34]
C
I want to ask you about one last case that I know you can speak to, and that again, is a case where the court can go big or go small or go home. The case I've got in mind is Espinoza versus this is Montana. This is a follow on to Trinity Lutheran, a case that allowed a program that provided rubber playground materials to schools to sweep in religious schools, in effect saying you can't give benefits only to secular schools. Trinity Lutheran was carefully cabined by the court. They said it goes this far and no further. Espinosa is a chance to go way further. Right?
- [25:10]
A
You're absolutely right. The Espinosa vs. Montana Department of Revenue involves a Montana law to write tax credits for parents who send their children to religious or secular private schools. There seemed little doubt from the legislative history that it really was about supporting parents with the financial assistance of tax credits if they sent their kids to religious schools. The Montana Supreme Court struck down the program as violating the Montana Constitution. The Montana Constitution prohibits the state from giving direct or indirect aid to Religion. The Supreme Court granted cert if the Court were to go big, broad, as you say, the issue before the Court is is the government constitutionally required to give aid to religious institutions whenever it gives them to private secular institutions? This is the question, as you say, that the Court avoided in Trinity Lutheran, where Chief Justice Roberts in footnote three said, oh, Trinity Lutheran is just about surfaces for playgrounds and no more than that. But in Trinity Lutheran, Chief Justice Roberts said whenever the government denies benefits to a religious institution that it provides to secular institutions, the government has to meet strict scrutiny. Chief Justice Roberts concluded his opinion on Trinity Lutheran by saying it's, quote, odious to deny benefits to religious institutions that are provided to secular ones. Does that suggest there are five votes to hold? Whenever the government gives aid to a private secular institution, it must give that aid to religious institutions. On the other hand, this case is a strange vehicle for approaching that question. The Montana Supreme Court struck down the entire Montana program. So under the Montana laws that now exist, no one, not secular private institutions or religious institutions, receives benefits. What would it mean for the Supreme Court to reverse? Would the Supreme Court be saying Montana has to have this law again? So I think there's a strong argument that the Court made a mistake by taking this case to reach this issue and maybe after realizing that the Court might dismiss, is certiorly improvidently granted.
- [27:22]
C
You opened by saying the Court, or at least John Roberts himself as the steward of the Court, was incredibly mindful of the Court's public estimation and respect. And he was careful in his stewardship to make sure that post Brett Kavanaugh hearings, the Court didn't detonate as the rest of the country did. And I wonder if it's fair to say some of what we saw at the end of last term wasn't liberals versus versus conservatives, but purists versus the compromisers. And so Elena Kagan and Steve Breyer on the left, Justice Kavanaugh and Chief Justice John Roberts on the right, trying to consolidate some kind of minimalist, small, non dramatic opinions rather than shifting doctrine in a big way. And then very angry Clarence Thomas, very frustrated, Sonia Sotomayor, Ruth Bader Ginsburg saying, no, what are you doing? These are important issues. We have to deal with them. And I wonder if some of that anxiety that undergirds all of that, which is the Court worrying so much or parts of the Court worrying so much about what the public thinks is going to increase as the Court really is now going to be at the epicenter of other happenings on Capitol Hill, John Roberts is going to be presumably overseeing a Senate impeachment trial. Does the fact that the rest of the world is on fire mean that the compromisers might have to do more compromising this term? Or do you have this sense of this is just a smash and grab where while everything has gone nuts on Capitol Hill, people are going to get what they can. And the pretense last year that, you know, we're all friends, we all get along, and we're certainly not partisan falls away.
- [29:19]
A
There's so much in that question. Let me start with sometimes. Last term you saw the effect of justices like Roberts, Kavanaugh, Breyer, Kagan compromising. But sometimes you didn't Think of the gerrymandering case Ruccio v. Common Cause. That was just a flat out 5, 4 on ideological lines, Roberts saying partisan Germany can never come to the federal courts, and Kagan writing a truly blistering dissent. There was no compromising going on there. Now, on the other hand, in the big religion case of the term American Legion versus American Humanist association, involving the 40 foot cross on public property in Prince George County, Maryland, I think you did see compromising. I think Alito was trying to write an opinion to reach out and get Kagan and Breyer go along, and they did. Ginsburg and Sotomayor would have none of it. I think it's a fascinating question of what will be the effect of the impeachment drama on the Supreme Court this term. Some of the cases don't lend themselves to compromise. They're either going to allow President Trump to rescind DACA or they're not. They're either going to say that sexual orientation, discrimination, employment violates Title 7 or they're not. And I think I can go through other examples like that. And so it may be that they painted themselves in a corner and that the matters that are before them this term just aren't going to lend themselves to compromises in the same way.
- [30:45]
C
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. Erwin, thank you very, very much for your time.
- [30:52]
A
It's always such a pleasure and I hope to talk to you soon.
- [30:56]
C
I wanted to let you know about a very exciting live show that I'm going to be participating in this coming November, November 20th, which will be a year ahead of the 2020 election. I'm going to be on stage at the Bell House in Brooklyn with Slate's amazing roster of female journalists for a live off the cuff deep dive into the 2020 election. We will be tackling in no particular order, candidates, the myth of likability, policy proposals, media coverage. I'm guessing the Ukraine may pop up. So let Slate womansplain this election to you. That's November 20th at the Bellhouse in Brooklyn. Go to slate.com live for more information and we'll see you there. On Friday morning, the Supreme Court announced that it will be hearing June Medical Services this term. That's a case that will force the high court to take a position on the continuing validity of Roe v. Wade. This appeal is a challenge to a 2014 Louisiana law that requires abortion providers to have admitting privileges at a local hospital. That admitting privileges require requirement is functionally identical to the rule that the court struck down in 2016 in Whole Women's Health v. Hellerstedt. Now, because the Fifth Circuit Court of Appeals functionally just nullified the Whole Women's Health ruling when it upheld the provision in 2018, it more or less forced the US Supreme Court to make a decision as to whether Whole Women's Health is still going to be good law. The only really crucial legal fact that distinguishes June Medical Services from Whole Women's Health. Well, Anthony Cannon Kennedy was on the court in 2016 and voted with the liberals in Whole Women's Health. He has since been replaced by Brett Kavanaugh. And so all eyes will be on Justice Kavanaugh as this case makes its way to the high court. Joining us to discuss this is Nancy Northup. She's president and CEO of the center for Reproductive Rights and represents local provider Hope Medical Group in this litigation. Nancy, welcome to amicus. Thanks for making time today.
- [33:02]
B
Glad to be here to talk about this important case.
- [33:05]
C
So I think it was widely expected that the court would have to take this case. And in some sense, this isn't a surprise Friday's decision. But were you surprised in some sense that they stacked it onto a term full of so many other blockbuster cases? Wasn't the Supreme Court trying to lay low before the 2020 election?
- [33:24]
B
Well, as you said, they had to take the case because Louisiana is in open defiance of the Supreme Court's whole women's health versus Hellerstadt decision of 2016. The laws are actually identical. Indeed, the lawyers for Louisiana during the course of this litigation, when they thought that Texas was going to win their admitting privileges case, which they did not, they ultimately lost in the Supreme Court. But the lawyers of Louisiana admitted that the law was identical, and they admitted that in court. And it's identical, not just in the language of the law, this requirement that doctors have admitting privileges within 30 miles of a clinic. But also the impact, if anything, the impact in Louisiana is even more drastic than the very drastic impact that the Texas law had, which is that it closed half the clinics in Texas. In Louisiana, we're down to just three clinics. In 2001 there were 11. In 2011 it was down to seven. And now it's down to just three clinics. And that leaves more than 90% of the counties in Louisiana without any abortion provider at all. And as the district court found, there would just be one clinic open and just one doctor providing should this law go into effect.
- [34:51]
C
And Nancy, I know this is weedy, but it's important, I think, to understand the issue because I think viscerally folks think, what's wrong with admitting privileges? It just ensures that if there's a catastrophic emergency in the midst of an abortion procedure, a doctor can get a patient admitted quickly to a nearby hospital. So it sounds safe and I guess sane. It does have the effect, as you said, of shutting down clinics. But can you explain why it is that you at least put admitting privileges under the bucket of trap laws that are really purport to be advancing women's health, but in fact just closed clinics?
- [35:33]
B
Yeah. Admitting privileges laws are just underhanded ways for a state like Louisiana to prevent women from having abortions. Not by they can't do it under Roe versus Wade by just outlawing abortion. Right. Alabama tried that this year and they were swiftly told no, Roe versus Wade is still the law. But what they try to do is have what is an unnecessary and very burdensome regulation that ends up shutting clinics. And the reason why they're not reasonable. Supreme Court found so in whole women's health. And the district court here also, as the Supreme Court did, made clear that they don't advance health and safety because first of all, abortion is one of the safest medical procedures in the United States. Complications are very rare. So you don't even admit patients to hospitals. It's very rare for that to happen. And hospitals don't grant admitting privileges to doctors who don't admit patients. So it does not have any kind of good housekeeping, seal of approval, credentialing function. So it would do nothing to advance women's health. It's not the standard of what is required in the state of Louisiana. There is no evidence, the district court found that of any instance in which an admitting privilege is requirement would have helped even one woman obtain better treatment. And so it's designed. Hospitals can deny admitting privileges for any reason. They're basically saying, oh, this doctor is on our staff, they can do surgery here, et cetera. And they can deny admitting privileges because they have a business reason to do so. If you're not admitting patients, they're not helping bring revenue into the hospital. They can do it because they don't like abortion providers or someone's putting heat on them about that. So they don't serve. You know, all of this was litigated before the Supreme Court in 2016. They do not serve any kind of benefit to women's health.
- [37:40]
C
And the district court, looking at the Louisiana law, said, as you just said, basically the same law, even more clinics proportionately will close and found, as Justice Breyer found in Wholewood Health, by the way, women are not going to be helped, but a lot of women are going to be deterred. Clinics are going to close. That should have been the end of the story. But then this case goes up to the fifth Circuit Court of Appeals and a divided panel reversed very, very, I think, elaborate fact finding and upheld the law. What was the basis for the fifth Circuit's decision?
- [38:16]
B
Well, I mean, the fifth Circuit clearly did not follow the whole women's health. They in some ways said, well, gee, the doctors didn't try hard enough. If it's already been found, it's not necessary. That's not relevant. But in fact, the doctors here did try. They looked at the most, as you well know, appellate courts are not in the position of retrying facts, that is for the trial court. But the fifth Circuit went out of its way to, to question this and that, you know, kind of factual things, to find that the burdens were not what the trial court had found. So they both did not apply the right legal standard. And they also retried facts in a way that was not based on the evidence and led them to conclude that it's not an undue burden. Let's let the law go into effect.
- [39:08]
C
And I think that they tried to distinguish the case a little bit by saying it's not clear that these doctors couldn't get admitting privileges, they should try harder, as though that again, you know, trying those facts at the, at the appellate court level. And then it kind of went up to the Supreme Court in a preliminary posture. In November last year, right after Brett Kavanaugh was seated, a last minute request came in in this case from abortion providers saying, please block this while we pursue an appeal. Otherwise we're down to that one clinic. And in a, I guess a surprise, John Roberts sided with the liberals to keep the law from going into effect. I think the conventional wisdom at the time was nobody wanted to detonate a huge abortion case weeks after Justice Kavanaugh had been seated. Do you have the sense that the Court is ready now to go all in on it a year later?
- [40:08]
B
I don't want to speculate about what the Court's going to do. This is a straightforward case and we're going to make clear to the Court when we're before it that it is an identical case to the Texas law. It is identical in its language. It's identical in its lack of medical benefit. It's identical and actually worse in the harm that it would have for women in Louisiana. So it was actually there was some back and forth in the 5th Circuit before we got up to the Supreme Court. When we rushed up there, it was actually in February of 2019. Indeed, Chief Justice Roberts did join the other Justices to stay this while we sought review, which was the right thing to do because it's on all fours with their previous case. And even though he was not in the majority of the whole women's health case, it was the right thing to do to block it so that we have an opportunity to get it overturned under the clear precedent of the Supreme Court's recent jurisprudence.
- [41:04]
C
And Nancy, I think this is also something that listeners sometimes lose in the murk of this. But it's always seemed as though there were two tracks to go after Roe v. Wade. One was these trap laws that ostensibly were advancing maternal health interests but were in fact closing clinics. And then the other. You flagged this in your answer to the very first question is just to all out make abortion illegal, which is. We've seen a host of those come through the state pipelines in the last year. Does this in any way signal that if the Court is going to take a wrecking ball to Roe, it's not going to do it by way of one of these all out bans that we're seeing in the states that are emboldened by Kavanaugh that they're going to do this incremental chip, chip, chip away, holding the Roe to still be good law while essentially eviscerating it in the states that don't want to have clinics.
- [42:07]
B
I'm remaining confident that the Supreme Court is going to do the right thing in this case. So, you know, we have been threatened, as you pointed out. Well, with both the chip, chip, chipping away strategy that at some point becomes just taking a sledgehammer, which is what these admitting privileges laws are like, because when you close two thirds of the clinics in the state you've pretty much taken a sledgehammer to access. And then also obviously, the attempts as well as we've talked about before of Alabama and other states to ban abortion entirely or very early in pregnancy. But we have to keep in mind, and we are going to be strenuously arguing to this court, I mean, it is precedent on top of precedent. You know, since 1973, the Supreme Court has continued to recognize the fundamental right of a woman pre viability to make the decision about the termination of pregnancy. And, and many things have gone at that to try to erode that right. But the court has stayed with it and including, again importantly in the last case in 2016, rejecting what had been decades of these underhanded attempts to do by the back door what you can't do by the front, which is to try to just, you know, if you can't ban abortion entirely, then, you know, shut the clinic so that women have nowhere to get services. So I'm, you know, we have been to the brink many times. The stakes here are extraordinarily high. But we are going to be arguing before justices that all, you know, testified at their hearings that they follow precedent and, you know, it's a critical time in terms of the Supreme Court's integrity. And we're going to count on them to uphold the rule of law, protect our constitutional rights and, you know, hopefully be independent of the partisan politics which are behind these restrictions.
- [44:09]
C
Nancy Northup is president and CEO of the center for Reproductive Rights, and they represent local provider Hope Medical Group in this litigation. Nancy, thank you again for making time to talk to us today.
- [44:22]
B
Thank you, Dalia.
- [44:24]
C
And that is a wrap for this episode of Annika, the Supreme Court Curtain Raiser. Thank you so much for listening. If you'd like to get in touch, our email, as ever, is amicuslate.com and you can find us@facebook.com amicus podcast. And now more than ever, we love getting your feedback about what it is that's confusing or confounding. We will try to help you figure out what's going on. Today's show was produced produced by Sarah Burningham. Gabriel Roth is editorial director of Slate Podcasts, and June Thomas is senior managing producer of Slate Podcasts. We'll be back with you with another episode of Amicus next week with analysis of the arguments in the trio of Title VII cases we just talked about that are before the court next week. Until then, thanks for listening. Talk to you soon.