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A fight over a Louisiana abortion law was on the docket at the Supreme Court today, and the battle was contentious even before arguments began. Senator - Senate Minority Leader Chuck Schumer, speaking at a rally, accused the two Trump-appointed justices of releasing, quote, "the whirlwind," and said they will pay the price.
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Chief Justice John Roberts responded to Schumer, saying the justices know criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, but dangerous.
CORNISH: All that was the backdrop over a case that required doctors at abortion clinics to have admitting privileges at a nearby hospital. But as NPR legal affairs correspondent Nina Totenberg reports, the addition of the two Trump appointees, Justice Brett Kavanaugh and Justice Neil Gorsuch, could change the outcome.
NINA TOTENBERG, BYLINE: With a change in the court's composition, anti-abortion groups are pressing hard to get the court to backtrack on abortion rights, with the ultimate aim of getting Roe v. Wade overturned. In the Louisiana case before the court today, the state is defending an admitting privilege statute nearly identical to the Texas law that the court struck down in 2016. On the steps of the court, Congressman Mike Johnson of Louisiana said the reason is to protect patient safety.
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MIKE JOHNSON: There is a long record in Louisiana, as there are in other states, of really gross violations of health and safety standards in the abortion industry.
TOTENBERG: But Nancy Northup, president of the Center for Reproductive Rights, countered that if Louisiana's law is upheld, there will be only one clinic and one doctor to serve the needs of 10,000 women seeking abortions each year in the state.
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NANCY NORTHUP: It is not right that we have to be here refighting a legal battle that we have already won.
TOTENBERG: Inside the court chamber, lawyer Julie Rikelman, representing the Hope clinic in Shreveport, La., argued that the 5th Circuit Court of Appeals, in upholding the Louisiana law, had disregarded the factual findings of the trial court and openly defied the Supreme Court's precedents.
Conservative Justice Samuel Alito, who has opposed abortion rights for decades, led the charge against Rikelman. Why should the clinic be allowed to sue on behalf of its patients, he asked, when it has a conflict of interest for those patients? Rikelman replied that the Supreme Court has repeatedly held that a plaintiff directly regulated by a law can challenge that law. Really, replied Alito, his voice rising. That's amazing. He would reiterate those words over and over again.
Justice Ginsburg interjected. Is there any conflict of interest between doctors and patients here? Answer - no. The court has already held that admitting privileges serve no medical benefit. Indeed, said Rikelman, the federal government itself has eliminated that requirement for doctors performing outpatient surgical procedures on Medicaid and Medicare patients.
Justice Alito moved on to the facts in the case, seeking to show that doctors at the clinics did not try hard enough to get admitting privileges. Dr. Doe 3, he noted, did have admitting privileges. Rikelman replied that he had them because in his separate private practice, he delivers babies and thus admits at least 50 patients a year, the minimum required by the hospital.
When the lawyer for the state of Louisiana, Elizabeth Murrill, rose to make her argument, she faced a wall of questions from the court's liberals, especially its three female justices. Justice Ginsburg - what sense does it make to require doctors to have hospital admitting privileges within 30 miles of a clinic when most complications arise after the patient is at home and usually far away from the clinic? What about the vacuuming procedure that doctors routinely do after a miscarriage, she said. Are there hospital admitting privileges attached to those? Murrill conceded that such procedures done in a doctor's office do not require the doctor to have hospital admitting privileges nearby.
When Murrill argued that the admitting privileges requirement serves to assure doctors are properly credentialed, Justice Sotomayor asked, don't you have a medical licensing requirement in the state? Justice Kagan - the record shows that hospitals deny privileges for many reasons. The decision can rest on the number of patients the doctor admits. It could even rest on a general view that they don't want abortion providers in that hospital. Is it right, Kagan continued, that over 23 years, the Hope clinic has treated some 70,000 patients and transferred women to a hospital only four times? Replied lawyer Murrill, only four that they know of.
Justice Breyer interjected - we're not going to solve this at oral argument. Which of the doctors is your best case for not having tried hard enough to get admitting privileges? Doe 6, answered Murrill. Justice Breyer - the state's own expert witness conceded Doe 6, who only does abortions with pills, likely could not get admitting privileges.
Look, he said moments later, people in this country have very strong feelings about this issue. A lot of people morally think it's wrong, and a lot of people morally think the opposite. But why should the court depart from its repeated precedents over the last 40-plus years? If we do that, he seemed to suggest, why wouldn't we go back to landmark decisions in the founding era, too?
At the end of the day, of course, it was none of the avid questioners whose votes will count in this case. It likely will be Chief Justice John Roberts' vote that will be determinative. He was a dissenter in the 2016 ruling but voted to block the Louisiana law from going into effect while the court considers the case. Today, he asked few questions and did not tip his hand.
Nina Totenberg, NPR News, Washington.
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