We The People

Louisiana Abortion Law at SCOTUS

March 12, 2020

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A challenge to the Louisiana abortion law that requires doctors performing abortions to have hospital admitting privileges was heard by the Supreme Court last week. Julie Rikelman of the Center for Reproductive Rights, who argued on behalf of the abortion providers in June Medical Services v. Russo, and Catherine Glenn Foster of Americans United for Life, who authored an amicus brief on behalf of Members of Congress on the opposing side of the case, joined host Jeffrey Rosen on this week’s episode. They presented the arguments on both sides of the case — diving into the facts, considering whether admitting privilege requirements are prudent and whether the “undue burden” standard established by the 2016 Supreme Court case Whole Women’s Health v. Hellerstedt is workable, and explaining how they think this case might impact the lives of women.

FULL PODCAST

PARTICIPANTS

Catherine Glenn Foster is President & CEO of Americans United for Life. She has testified before and advised the Senate Judiciary Committee, various House committees, and other federal and state bodies and representatives. She also spent seven years as litigation counsel at Alliance Defending Freedom. In the Russo case, she submitted an amicus brief on behalf of members of Congress on determining the burden in abortion cases. 

Julie Rikelman is the Litigation Director at the Center for Reproductive Rights, where she’s worked since 2011. She was previously Vice President of litigation at NBC Universal. In 2004, she won the National Law Journal Pro Bono Award. In the Russo case, Julie argued on behalf of the Petitioners - the abortion providers - before the Court. 

​​​​​​Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

Additional Resources

This episode was engineered by Greg Scheckler, and produced by Jackie McDermott. Research was provided by Michael Markus and Lana Ulrich.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a non-partisan non-profit chartered by Congress to increase awareness and understanding of the Constitution among the American people. Last week the Supreme Court heard June Medical Services versus Russo. That's a challenge to the constitutionality of a Louisiana law that requires doctors performing abortions to have hospital admitting privileges. The lawsuit was brought by abortion providers who argue that Louisiana's law places an undue burden on those seeking abortions and is unconstitutional under a Supreme Court case from 2016 called Whole Women's Health versus Hellerstedt.

Joining us to discuss the case are two of America's leading expert on reproductive rights and the Constitution and two of the leading experts on the case. Julie Rikelman is litigation director at the Center for Reproductive Rights, where she's worked since 2011. She was previously Vice-President of Litigation at NBC Universal. And Julie argued the Russo case on behalf of the petitioners before the Supreme Court and we are so honored to have her here. Julie, welcome.

Julie Rikelman: [00:01:18] Thank you so much, glad to be here.

Rosen: [00:01:20] And Catherine Glen Foster is President and CEO of Americans United for Life. She has testified before and advised the Senate Judiciary Committee and various congressional committees. She's also spent, uh, seven years as litigation counsel at Alliance Defending Freedom. In the Russo case, she submitted an amicus brief on behalf of members of Congress on determining the burden in abortion cases. Catherine, it is wonderful to have you on the show.

Catherine Glenn Foster: [00:01:45] Pleasure to join.

Rosen: [00:01:46] Julie you argued before the Court and you began your argument by saying, "Mr. Chief Justice and may it please the Court, this case is about respect for the Court's precedent. Just four years ago, the Court held in Whole Women's Health that the Texas admitting privileges law imposed an undue burden on women seeking abortions. The Louisiana law at issue here is identical to the Texas la and was expressly modeled on it. Tell our listeners more about what the Court held in Whole Women's Health and why you believe that this Louisiana law ide- is identical to the Texas law and should be upheld for the same reason.

Rikelman: [00:02:21] Absolutely. The Whole Women's Health case was about a Texas state law that imposed a requirement that all abortion providers have something called admitting privileges at a hospital within 30 miles of a clinic. And really what the law was about was shutting down clinics in the state of Texas. And that law was challenged and the Supreme Court said that it was unconstitutional because it imposed an undue burden. And its decision was really based on two key points. One, that admitting privileges laws do absolutely nothing for women's health and safety. And two, that they put up many burdens and barriers to people actually being able to access abortion services. And the law at issue in the case that was argued last week is identical to the Texas law and it was modeled on it. It was proposed in the Louisiana legislature just a few months after the Texas shuttered clinics in that state. And that's why we said this is really the same case and should have the same outcome.

Rosen: [00:03:25] Catherine, do you believe that this Louisiana law is different enough than the Texas so that it should be upheld under Whole Women's Health or do you believe that Whole Women's Health should be overruled?

Foster: [00:03:36] The Court's ruling in Hellerstedt does not mean that all admitting privileges laws are per se unconstitutional or that there's sufficient evidence in the record that Louisiana's law will lead to the closure of a large number of abortion facilities in Louisiana. And so determining whether an abortion regulation is unconstitutional under the undue burden test, it's a fact intensive inquiry that requires state specific evidence that the law causes a substantial obstacle to abortion access. And so the Justices here are looking to all of the specific factual nuances in the record to determine whether this case is Hellerstedt 2.0. Or if there are stark differences between Texas and Louisiana as the Fifth Circuit held.

Now that said, ruling in favor of Louisiana in this case does not require overturning Hellerstedt. It is entirely possible that the Court could look to the specific factual circumstances on the ground in Louisiana and say, "You know, this, this law in Louisiana, this emergency transfer agreement law, does not, uh, create any kind of undue burden under Casey. And in fact, it is something that, um, that meets constitutional muster."

Rosen: [00:04:48] Julie, both Chief Justice Roberts and Justice Kavanaugh asked you whether you believe that there should be a fact intensive inquiry into particular admitting privileges laws or whether you believe that all admitting privileges laws are unconstitutional. Tell our listeners what your answer is and why you think that question is important and what hangs on it.

Rikelman: [00:05:10] Yes. The, what the Court said in Whole Women's Health is that an admitting privileges law is medically unnecessary. It has no medical benefits whatsoever for women and it's holding was based on the really universal consensus of all the major medical organizations in this country, including the American Medical Association and ACOG, the American College of Obstetricians and Gynecologists. So, you've got a law that does absolutely nothing for women's health. And what I said to the Court in answer to Justice Roberts and Justice Kavanugh's questions was, "Perhaps the burdens of a law could change a bit state by state, but these laws have no benefits. They do nothing for women's health. And so the burdens that they impose on access are unconstitutional."

And the second point that's really key here is that there was a trial in this case, Louisiana had a chance to put on its evidence and the district court judge in Baton Rouge said, "There is no difference between this case and Whole Women's Health. The burdens are just as great, if not greater in Louisiana." So it's clear that this law is unconstitutional.

Rosen: [00:06:18] Catherine, tells us what you think the benefits of the Louisiana law are and why it should be upheld under the fact specific inquiry you, you believe Whole Women's Health requires.

Foster: [00:06:29] We know from [inaudible 00:06:30] Institute's own statistics and own studies that literally dozens of women every year are transferred, uh, are, are sent directly from an abortion facility to an emergency room in Louisiana alone. This is, this is concerning. This is a situation where women need emergency care and we need to do everything in our power to ensure that they get the smoothest, best possible transfer and emergency care that they need because this is potentially a life and death situation for these women. A situation where we want to give doctors every possible chance of saving a woman's life and saving her, her fertility if she decides in the future that she may, um, that she may want a child.

We want to give doctors every possible chance and give women every possible chance in this situation. Women deserve emergency care and that absolutely includes women who, uh, like myself, have sought abortion. And so this is something that, um, that Louisiana recognizes. That is why Louisiana passed this law. As Solicitor General Murill pointed out, the clinics themselves have taken, uh, very limited credentialing steps to ensure that the doctors that they employ are in fact even competent to perform abortions. The, the credentialing steps that they've, um, that they've taken are just, they're lackluster. We have one abortion facility who hired, uh, that hired a radiologist and a ophthalmologist to perform abortions. And they aren't tracking complications. And so they aren't able to speak adequately to their own safety record. Um, merely having a medical license is not in itself sufficient evidence of competence. And so what we need is, is a way to ensure that women are getting the emergency care that we deserve.

Rosen: [00:08:30] Julie, what's your response to the argument that women may need emergency care and will have to be transferred from clinics to hospitals? At the oral argument, Justice Ginsburg noted that if a woman has a problem, it will be her local hospital that she'll need to go to for the care and not something 30 miles from the clinic because often the emergency arises at home. Uh, you reaffirmed that point. Uh, tell us why you believe that this law does not serve the interests of women who might need emergency care?

Rikelman: [00:08:59] That, that's exactly right. This law has absolutely nothing to do with making sure that women are safe in emergencies. And if I could make a couple of points I would appreciate it. So first of all, um, again, every major medical organization in the United States has come out against these laws saying that all they do is hurt women's health rather than help them. And only anti-abortion politicians have supported these laws, not medical professionals.

Second, the Supreme Court in Whole Women's Health agreed with the medical consensus and noted that there's really no evidence that these laws make even one woman safer. And that's exactly what the federal district court judge in Baton Rouge, after trial, found about this case. It found that abortion in Louisiana is already ex- extremely safe. That this law will not make even one woman safer and that the physicians are qualified and competent.

And the third point I'd like to make is that there are already laws in place to make sure that emergencies, um, can be appropriately handled and transfers are appropriately handled. Those laws will remain in place even if this law is blocked. This law has nothing to do, um, with emergency transfers and in fact even the federal government last fall removed an admitting privileges requirement from its own federal regulations, recognizing it does nothing to protect health in the case of emergency transfers. And other laws are perfectly adequate to do that.

Rosen: [00:10:33] Catherine, what is your response to Justice Ginsburg's argument that if a woman has a problem it will be her local hospital that she'll need to go to for the care and not something 30 miles from the clinic. And more broadly, if the Court is inclined to uphold Whole Women's Health, what is it about this Louisiana law that you think makes women safe in a way that the Texas law did not?

Foster: [00:10:53] The questions in this case reaffirmed that Justice Ginsburg is still committed to the myth that abortion is safer than childbirth. But while many women in Louisiana may need to seek emergency care from their home, which may not be within 30 miles of the abortion facility, as we know from the Guttmacher Institute's own statistics as I just cited, from the, from their own percentages, dozens of women every year would be transferred directly from an abortion facility in Louisiana to a hospital, to a emergency facility. And so this law is about making sure that they get the smoothest possible transfer. That they get every chance for medical care and for potentially saving their life.

The case is simple. It's about whether states are allowed to protect the health and safety of their citizens with common sense protections that are common place for almost all other medical providers. We, we don't believe that abortionists deserve a carve-out from these patient protections. And that's because women seeking abortions have the same right to competent, quality medical care as patients involved in other surgical procedures.

And, and this law, the Louisiana law in question and, and June Medical Services merely protects that right. So if we have potentially dozens of women every year who may need to be transferred directly to a hospital, may need to go directly to an operating, uh, an operating room, that is what an emergency transfer agreement can accomplish. To ensure that they aren't, uh, left on their own to get themselves from the facility to the emergency room as we have seen in some instances. That they are not left to try to explain for themselves to the doctor what may be going on within their body if, if there may have been a, a, a uterine perforation. Uh, a bowel perforation. Some other very serious complication. And to ensure that they're immediately transferred and able to get, uh, whatever surgical care that they may need.

There are women in our country who have literally lost their lives because of a lack of, of swift operating room care. Because of a lack of emergency transfer agreement that would have gotten them into an operating, an operating theater, um, much more swiftly. And even if it's only one woman, you know, how many women are we willing to sacrifice in order to, uh, in order to strike down this law. Uh, I, I want to, to do everything in my power, especially as a woman who is post-abortive. As a woman who, um, who could have undergone some of these complications. I know what, what type of care I would have wanted. I know what type of care I would want for my mother, for my daughters. And every single woman deserves that level of care. Every single one of us.

Rosen: [00:13:52] Julie, there was a vigorous factual dispute at the argument about how many women were affected. Justice Kagan said, "Is it right that there's evidence in the record that Hope Clinic has served over 3,000 women annually for 23 years, so that's around 70,000 women, has transferred only four patients ever to a hospital." Justice Breyer finally said, "We're not going to solve this factual question at oral argument." But Mr. Wall arguing about, on behalf of the government said at the end, "The record here, unlike in Hellerstedt reveals that sometimes women develop complications in the clinic," and then cited a patient called Doe Number 3 who developed a problem and needed emergency care. So, help our listeners understand, Chief Justice Roberts, uh, dissented in Whole Women's Health but he might not want to overturn it here. If he were to distinguish between the two cases, what might he point to and why might there be women protected by the Louisiana law who were not protected by the Texas law?

Rikelman: [00:14:53] Uh, so a couple of things again. I think it's important to really set the factual record straight. So it's just inaccurate, um, to say that there are dozens of women who are transferred in Louisiana every year. That's just not true. The district court held a trial in this case and actually found that, um, at most there was a transfer once every two years or so. And again, there are plenty of protocols in place and procedures in place to make sure that those transfers happen appropriately and that women's health is protected. And that's what the district court found, that abortion is very safe. These laws have nothing to do with protecting women's health and safety, they're about closing down access to abortion. And every federal district court in the country that has held a trial on one of these laws has found that it does nothing for women's health and safety.

That's also what the Supreme Court said in Whole Women's Health just a few years ago. So again, the medical consensus on this could not be more crystal clear. They have nothing to do with health and safety. And yes, you're absolutely, the record in this case showed that Hope Clinic, the plaintiff, had transferred about 4 out of 70,000 patients over 23 years. And all of those patients received appropriate care because there are already protocols and laws in place to make sure that happens. Um, and of course abortion is one of the safest out-patient procedures that people can obtain in the country and the laws requiring admitting privileges for abortion providers single out those physicians for uniquely burdensome treatment and regulation that isn't applied to other types of physicians.

And what this law would do if it took affect would be to leave Louisiana with one clinic and one physician to provide abortions for about 10,000 people per year while doing absolutely nothing to protect women's health and safety.

Rosen: [00:16:54] Catherine, I'd like you to channel Chief Justice Roberts as well. He asked Mr. Wall, arguing for the government, "I understand the point. The impact of the law 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." What is your answer to, to, to that question. And, and, and, and again, distinguishing between this case and the Texas law, is the argument here that even if only one woman or four women are protected there's evidence on this record that they might be benefited by this law where there wasn't similar evidence in the Texas case?

Foster: [00:17:30] Uh, certainly. Uh, I think the benefit overall would be about the same. And, and I'm citing again the Guttmacher Institute itself, which has cited that 0.3% of all abortions require a direct transfer. If there are about 10,000 abortions per year in Louisiana, then that does result in, in a total number of, of dozens of women. Compare that to Texas, uh, 0.3% times 75,000 abortions annually. In 2014 that would be 240, uh, direct transfers. 210 were actually reported that year in Texas so that demonstrates how reliable that Guttmacher Institute, uh, abortion industry statistic is. That it is a reliable statistic and assuming that, um, that, that standards are about the same across the spectrum state to state, then that would hold that there would be in fact dozens in Louisiana that we would see. So that's the, the source of that.

Um, when it comes to determining whether, whether one of these, uh emergency transfer agreement laws is constitutional then the courts are looking then not only to the benefit but also the burden. And so the courts are looking to a number of different factors including, uh, the number of facilities in the state. What, what the emergency transfer agreement law might, um, might do to those facilities. Uh, how they might, um, whether, whether they would be bale to obtain, uh, emergency transfer agreement admitting privileges or not. Uh, looking to all of these factors to determine whether there is in fact an undue burden for women seeking abortion, um, caused by this law.

Rosen: [00:19:16] Julie, what's your response to both of those arguments. That the Guttmacher Institute suggests that there are benefits to the Louisiana law? And that those benefits are not outweighed by the burdens imposed on women?

Rikelman: [00:19:29] Sure. The, the Guttmacher, again, let me just be very clear and make sure I, I set the record straight because, um, the facts are really not correct as they've just been presented by the other side. The Guttmacher Institute has never suggested that this law has benefits. No major medical organization in the United States supports this type of law. They all have said that these laws will only harm women's health. So I think it's just really important to be crystal clear about that. The statistics that were cited are just incorrect. That's just not what the statistics are at all.

Um, and again, just to be crystal clear, there was a trial in this case and the district court found that this law would not make women safer in situations where a transfer is necessary. And the Fifth Circuit agreed with that, there isn't any evidence whatsoever that these laws, this type of law, will make women safer when, um, a transfer is necessary. There are already separate laws that require transfer agreements and that ensure that women get the care that they need in the case of a transfer. So that really has absolutely nothing to do with this case.

Um, and second, on the burdens point. Again, this law would actually be more burdensome than the law in Texas. This law if it took effect would leave Louisiana with one physician at one clinic to provide services for the entire state. And so the undue burden standard, it has no benefits whatsoever and extreme burdens and it's clearly an undue burden and that's what the district court here found.

Rosen: [00:21:06] Catherine, a response to that point that in fact Julie argues the Louisiana law is more burdensome than the Texas law because it would leave women with one physician in one clinic?

Foster: [00:21:16] Certainly. Uh, in Louisiana we would have no travel time to an abortion facility greater than an hour so each way. Unlike in the Texas Rio Grande Valley. It's quite a different situation where, uh, abortion access would still be no more than an hour away. Whereas in Texas it could be potentially significantly greater than that.

Um, I would also point out that, um, that while ACOG did say in its brief, uh, the American College of Obstetricians and Gynecologists, uh, they wrote, "Admitting privilege mandates are not accepted by the medical, legal, or research community." But back in 2004, we had over 30 major medical associations, including ACOG and the American Medical Association signing a statement of safety principles declaring in part, um, "that physicians performing office-based surgery must have admitting privileges at a nearby hospital, a transfer agreement with another physician who has admitting privileges at a nearby hospital or maintain an emergency transfer agreement with a nearby hospital."

This is something that, for many years, the medical community has aligned behind, they have said that when you are performing office-based surgery, admitting privileges are critical. That you need to have these types of emergency transfer agreements. They have come out, um, uh, against the Louisiana law but, but again what we're seeing is that there has been a carve-out for abortion, for this one particular procedure. Whereas comparatively overall, ACOG and the AMA support emergency transfer agreements.

Rosen: [00:22:56] Julie, your response to the argument that the distances are longer in Texas than they are in Louisiana and that some medical associations do support these requirements?

Rikelman: [00:23:09] Those are both incorrect. There's many people in Louisiana who already travel more than an hour each way to access abortion services. And if this law took affect, it would leave one physician at one clinic in New Orleans which means that people living in the northern part of the state in Baton Rouge would be traveling not just one, they'd be traveling 300 miles or more than 300 miles one way. So 600 miles round trip from the northern part of the state. Um, so this would be a severe impact on people seeking abortion services and that's what the district court found. And that's why he found this law was clearly an undue burden. And again the statement the medical organizations support an admitting privileges privilege is just simply wrong.

Rosen: [00:23:55] Catherine, does Americans United believe that Hellerstedt should be overturned and that these laws should be upheld without imposing the undue burden test?

Foster: [00:24:05] When it comes to the outcomes in this case, uh, I would say certainly that the Supreme Court's ruling in Whole Women's Health was confusing, it was unworkable and it was a complete failure as an objective legal standard. The, the whole reason that June Medical Services is even being heard by the Supreme Court is because the Court has not provided clarity on what their decision in Whole Women's Health means in states who do wish to pass common sense health and safety standards.

And so we implored the Court to provide clarity and urged the Court to allow states to protect the citizens under their jurisdiction by passing common sense health and safety protections. That said, finding that Louisiana's law is constitutional does not require overturning Hellerstedt. While we certainly would, would, would support and would request clarity, uh, it is entirely possible that the Court could uphold this law without touching Hellerstedt.

Rosen: [00:25:00] Julie, some Justices may be inclined to overturn Hellerstedt. Uh, why do you believe they should not do that? Why was Hellerstedt correctly decided? And how big a deal would it be if the Court overruled Hellerstedt?

Rikelman: [00:25:13] Whole Women's Health was correctly decided for a few reasons and the most important one was that abortion remains a constitutional right in the United States and it's not a real right if people can't acc- actually access abortion services. And so what the court said in Whole Women's Health was when you have a law that does absolutely nothing for women's health and it imposes severe burdens on abortion. It closes down clinics. It forces women to travel hundreds of additional miles. Um, that law is unconstitutional because you cannot restrict a constitutional right for no good reason.

And this case presents exactly the same situation. This is a law that would leave Louisiana with just one physician providing abortion for the entire state. For a law that will only harm women's health. It does nothing for women's health at all. And so the case made perfect sense, it was perfectly consistent with what the Court said in Casey when it protected the constitutional right to abortion again and said that the right had to have real meaning. And the standard that the Court created in Whole Women's Health has proved extremely workable. Um, in fact as I mentioned earlier, every federal district court that has held a trial on this type of law, on an admitting privileges law, has said it is an undue burden and unconstitutional.

And the only reason that the case came to the Supreme Court is because the Fifth Circuit didn't follow the Supreme Court precedent in Whole Women's Health.

Rosen: [00:26:41] Catherine, we've been privileged on We The People to have your colleague Clark Forsythe as a guest. He is the author of Abuse of Discretion: The Inside Story of Roe v. Wade. And, and he argues that the Court should overturn Roe v. Wade 'cause it was incorrectly decided on constitutional grounds. Share with our listeners whether or not you believe that Roe was correctly decided on constitutional and whether you think the Court should use this opportunity to overturn it?

Foster: [00:27:08] Uh, first of all I would point out that since the time of Roe, for nearly 50 years now, there have been many noted legal scholars on both the left and the right who have, uh, strongly stated that Roe was not correctly decided on constitutional grounds. That it was, in fact, not moored in any kind of, uh, of constitutional understanding. Even Justice Ginsburg herself has said that, that Roe would not be the way that she would go about, um, advocating for, for abortion rights. And that there was a better way to go about it than, uh, than using the Roe case.

Uh, do I believe that Roe v. Wade should be overturned? Absolutely. And, and, uh, and when you look back at the 1992 case, the Planned Parenthood v. Casey case. And, um, and one of the reasons that the Court chose to uphold the, the core holding of Roe being the reliance interest. The idea that, um, that women rely on abortion to, um, to succeed in society. Um, seeming to indicate that, that we cannot, um, that we cannot plan for and complete our education, or our careers without access to legalized abortion. That we can't adequately arrange for our families or our futures without access to legalized abortion. That we can't compete on a level playing field with men without access to legalized abortion.

It's hard for me to think of, of any less feminist concept than that. Because if there is, if I'm living in a society that is telling me that I cannot compete on a level playing field with men. That I cannot fully engage in any type of education or career that I want to and be a mom, if I so choose, then it is the society that has to change, not me. Then we need to be pouring our resources into finding solutions and ways for women to, um, to be able to have it all. For women to be able to, um, to do whatever we want. That, that's the goal here, right? That, that is the goal. So that we can, um, so that we aren't in these kinds of Catch-22 situations. So that we don't feel compelled to, um, to make these kinds of decisions. Going back to the 1990s and that idea that abortion should be safe, legal, and rare.

Um, that rare word, where, you know, we had prominent politicians recognizing that it wasn't the, the, the first choice. That it was, it was a last resort. That, um, that women, that women were, uh, were falling to. But that there would be a better solution out there. That's what we need to be working to provide for women so that women do get access to real life-affirming choices, um, to holistic care. Instead of, um, instead of being told that we're not enough, that we can't have both, we can't do it all. And, um, and we gotta choose in order to, uh, uh, to finish high school or, or get a bachelor's or whatever it might be.

Rosen: [00:30:15] Julie, are you concerned that if the Court upholds the Louisiana law at issue here it will be the first step toward overturning Roe? And tell our listeners why you believe that Roe should not be overturned?

Rikelman: [00:30:27] Roe, um, is critical for few reasons. One, it's of course critical to women's ability to make basic decisions about the course of their lives which is what the Court has recognized. And so that's why it's so important as a practical matter. And of course, um, over 60% or about 60% of women who obtain an abortion in the United States are already mothers. So these are people who are making decisions about what is best for themselves and their families and it's critical that they be able to do that for very practical reasons.

But Roe is also critical as part of our Constitution. It is [inaudible 00:31:03] the right to decide whether to end a pregnancy is part of our liberty. It's based on the word liberty and the 14th Amendment. And the right to liberty has been interpreted by the Court for many years since the early 1900s to include things like the ability to make decisions about child-rearing, to make decisions about your family life, about marriage.

Um, and in addition, liberty has included the right to make decisions about your body. And so what the Court has said is that of course the right to decide whether to end a pregnancy is protected by our right to liberty because it involves a very personal decision that impacts the course of your life. And that's something the Court protects as liberty. And it involves your bodily integrity and that's something the Court protects as liberty.So it is a key constitutional right that makes very good sense in our constitutional structure. And it's critical to people's ability to, um, really make the most basic decisions about the course of their lives.

And then to go to the first part of your question, it would be devastating for people in Louisiana if this law was upheld. Again as I said, if the law takes effect there will be only one physician left in the state to provide services to people who need abortion. Which means that most people won't be able to access those services at all and those who are will be delayed, will have greater costs. And one of the things that we know is that laws that restrict access to abortion only hurt people's health. Um, and so people will be very much harmed.

And I would like to just make one last point if I may going back to some of the, um, earlier issues we discussed. I, I do think it's very important for people to understand that this law has nothing to do with women's health and safety. It has nothing to do with emergency transfer agreements. There is a separate law in Louisiana that provides for those and it's not at issue in this case. So this is about admitting privileges requirement that every major medical organization in the United States has said will only hurt women's health.

Rosen: [00:33:08] Catherine, what is the significance of this decision for future challenges to restrictions on the right to choose abortion? What are the cases that are coming up in the lower courts that Americans United is following and what should our listeners be looking out for next?

Foster: [00:33:26] You know, this is a very important case because it does re-examine the Whole Women's Health standard. And it questions, um, you know, what, uh, what does it take for, um, for a state level protection to be constitutional. Um, what, uh, what can states do to protect the women and the, the citizens of their states that will meet constitutional muster in a situation, um, involving abortion. Um, in this case, um, you know, no patient has challenged this, this admitting privileges rule even, either in the legislature or in court. And, and what we're seeing is that, uh, is that the abortion industry is, is continuing to try to, to strike down these types of protections.

Um, we're seeing a number of cases in the lower courts, the Sixth Circuit, Ohio, Ohio PRENDA, uh, en banc, is being argued tomorrow, in fact. The Prenatal Nondiscrimination law passed in Ohio. Uh, we have, uh, an ultrasound case, uh, from Indiana. A, a parental notice, notification out of Indiana. Um, a number of, of cases in the lower courts that are coming up. And so the outcome of this case, um, as it's weighing the benefits and the burdens of this Louisiana law that is in fact intended to protect women. Um, you know, per the Fifth Circuit, this law leaves at least two and probably three abortion facilities open in Louisiana. Um, if June Medical Services can't, can't pay more to recruit more abortion doctors, uh, they're not constitutionally entitled to their business model for abortion.

Um, they're constitutionally entitled to, um, uh, women are constitutionally entitled to access abortion. Um, and what this case reminds us is how very unsettled Roe and the Court's abortion jurisprudence in general is when we have to have, uh, a case going up before the Court to examine, uh, very fact based on the ground inquiry, um, relating to, um, the burdens of an abortion law. And figuring out, um, how is this going to impact the women of Louisiana. You know, there, there are many cases in the lower courts that, that could be impacted by this. Um, by, by the Court's decision of what constitutes an undue burden, well another one in fact, they'll, um, the case out of, out of Indiana, an organization and a abortion facility that was denied a license. And the Seventh Circuit ordered Indiana to give one based on Hellerstedt. Cert's pending on that case.

Um, so, uh, again, this is, this is a case that, that has an opportunity to clarify Hellerstedt. And that is exactly what, um, what Americans need. What lawmakers need.

Rosen: [00:36:22] Thank you so much, Julie Rikelman and Catherine Glenn Foster for a civil, thoughtful, and illuminating discussion of June Medical Services at the Supreme Court. Julie, Catherine, thank you so much for joining.

Foster: [00:36:35] Thank you.

Rikelman: [00:36:37] Thank you.

Rosen: [00:36:40] Today's show was engineered by Greg [Sheckler 00:36:42] and produced by Jackie McDermott. Research was provided by Michael Marcus and [Lana Ulrich 00:36:46]. Please rate, review, and subscribe to We The People on Apple podcasts and recommend the show to friends, colleagues, or anyone anywhere who's hungry for a weekly dose of constitutional debate. And always remember that the National Constitution Center is a private non-profit. We rely on the generosity, passion, and the devotion to lifelong learning of people like you from across the country who are inspired by our non-partisan mission of constitutional education and debate. You can support the mission by becoming a member at constitutioncenter.org/membership or give a donation of any amount to support our work, including this podcast at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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