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tv   Supreme Court Oral Argument on Louisiana Admitting Privileges Law for...  CSPAN  March 6, 2020 8:02pm-9:04pm EST

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agree that some set of rules are fair and some set of procedures are fair and we can abide by those outcomes. >> watch rahm emanuel, jill wine banks, and "after words" with lee druckman, this weekend on booktv. be sure to tune in next weekend for our two day live coverage of the tucson festival of books on booktv on c-span2. >> on wednesday the supreme court heard a challenge to louisiana law requiring doctors who perform abortions to have admitting privileges at the hospital within 30 miles of the facility where they perform abortions. the oral argument from that case is up next here on c-span2 >> your argument this morning case 1813 23 june medical services versus russo and the cost petition 1814 60 russo versus june medical services.
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>> mr. chief justice and may it please the court, this case is about the respect for the court's precedent, four years ago the court held in holmes help the texas admitting privileges law imposed an undue burden on women seeking abortions. the louisiana law at issue here act 620 is identical to the texas law and was expressly modeled on it. after a trial, the district court ruled act 620 unconstitutional finding no material differences between this case and hold 'em's health. on burden it found the act 620 would leave louisiana with just one clinic and one doctor providing abortions. at the same time, it found the act 620 would do nothing for women's health. in reversing the district court's decision, the sixth circuit committed two fundamental errors in my first date used served the role of
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district court and disregarded nearly all its factual findings. second, the ãbaccepted legal arguments that this court rejected four years ago. nothing, however, has changed that would justify such a legal fact, even more medical organizations have joined the ama and icon to say admitting privileges and pores: imposed barriers to abortion without benefit to patient and the impact is not state-dependent. finally, the states 11th hour objection to third-party standings runs up against more binding precedents.the court squarely held incorrect versus boring that such objections are waivable and the state deliberately and strategically waived the issue in the district court. even if the state could get past waiver, denying standing here would contradict decades
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of this court's precedent in numerous areas of the law. in short, petitioners have third-party standing especially because act 620 restricts abortion by regulating them rather than their patients. >> would you have done anything different if it had been third-party standing had been timely raised? >> your honor, we certainly could have it submitted additional evidence of the court but we believe the evidence that's already there is sufficient to find third-party standing. this court has squarely found third-party standing in at least four abortion cases that are point as well as a number of other cases such as meyer, craig, harry, and the court's cases have been consistent in saying that a plaintiff who is directly regulated by a law has third-party standing. >> would you agree with the general proposition that a party should not be able to sue ostensibly to protect the
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rights of other people if there is a real conflict of interest between the party who was suing and those whose rights the party claims to be attempting to defend. >> no, your honor, not if the party is directly regulated by the law in question. this court has allowed third-party standing in cases where the state argued that the third parties were protected by the law and in a sense protected ã >> that's amazing, you think that if the plaintiff actually has interests that are directly contrary to those individuals on whose behalf the plaintiff is claiming to sue, nevertheless the plaintiff can't have standing? >> if the plaintiff is directly regulated by the law this court has allowed an attorney to bring third-party claims against a statute ã >> that's amazing. i know you think that the
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admitting privileges requirement serves no safety purpose but suppose that the regulation being challenged was one that a lot of people might think really did serve a safety purpose. let's say there's ãban abortion clinic wants to challenge training requirements for physician assistants it thinks those are two onerous and there is no justification for them. if they are wrong about that, it implicates the interest of the women who may want to get an abortion but he would say the clinic nevertheless can sue on behalf of those limits? >> this court has squarely held in many cases that a plaintiff directly led regulated by the law can sue, those cases make sense for at least two reasons. first because a plaintiff should not be subject to severe penalties under an
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unconstitutional rule and second, if the plaintiff is the one directly regulated then there is excess if they are the appropriate plaintiff. >> that sounds like direct standing, not third-party standing. in this case is there anything like the conflict that justice alito has mentioned? is there a confident dome conflict? >> no your honor, there's not even a plausible conflict in this case because the cysts ãb the district court here after a trial specifically found that this law would serve no benefit and what harm the health of women in louisiana. >> your argument it is using the merits to defeat, to support standing. there is a serious problem with that. >> no your honor, i believe it's the state that's collapsing standing and merit. the court has allowed third-party standing in cases where one could argue that the state law in question was
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protecting third parties from the plaintiffs. in addition to triplett, that was the issue in cragg versus boren the law there was a state law in oklahoma and the state claimed it protect young men from buying beer in order to make sure they were safe and didn't get into traffic accidents. >> i'm just wondering, are these doctors in any different position than potential plaintiffs women who feel burdened by this law. >> no your honor, the state has not appointed to a single thing that would've been different if one woman had been joined in this lawsuit. to the contrary the issues that the state says are key issues in this case whether the law serves health and safety benefits and how difficult is our issues that the physicians are particularly well-suited to litigate. this is the law. >> the point is, you have standing on behalf of those women who feel burdened.
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to the extent other women may not have brought a suit that's irrelevant to the fact there are some, those burdens who could have and would have if situations had permitted them to. >>. >> why shouldn't they be the ones to bring suit? >> this is the law that restricts abortion by regulating the physicians rather than their patients. it's appropriate for them to be the plaintiffs here. ã >> the constitutional right at issue is not a constitutional right of abortion clinics if the right of women. >> that's correct your honor. in order for women to access their right to abortion they need to be able to access those services. >> you think a party can have ã ãthere can be third-party standing if there is no hindrance whatsoever to the bringing of suit by the people whose rights are at stake. >> this court has allowed third-party standing in cases where law directly regulates
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the plaintiff without showing of hindrance. in cragg versus boren there was no hindrance but i would also say the court doesn't need to reach these issues here because the state strategically and deliberately waived third-party standing. >> i think it's highly debatable they waived it. they certainly didn't raise it in the district court but whether they affirmatively waived it is quite debatable. >> ja 45 the state explicitly conceded third-party standing and urged the district court to reach the under burden claim saying that it had a keen interest in removing any cloud upon the validity of its law that this case was the proper vehicle for doing so. >> is a highly debatable interpretation of that passage, which i read numerous times. what the state was saying was that if a temporary restraining order was issued, the lawsuit should continue to go forward and they said there wouldn't be an impediment to a lawsuit going forward because doctors would have standing.
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they would have standing under the law that was applicable at that time. we could debate what was actually said but i think it's quite the stretch of the record for you to say that there wasn't a affirmative waiver. >> ja 45 there was a deliberate waiver. the state did it strategically because it was attempting to take advantage of favorable sixth circuit president at the time because the fifth circuit had just upheld the texas admitting privileges law. the state specifically urged the district court to decide the undue burden claim saying this case would be proper vehicle for resolving the constitutional issues and that any delay would serve additional efficiency. >> it wasn't raised in addition for or in the court of appeals it was. [indiscernable] >> that's correct your honor. >> and if you had timely notice as insurance, joined a patient
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or two? >> yes your honor, it would be profoundly unfair to allow the state to raise the objection for the first time five years into this litigation after it urged the district court to decide the undue burden claim and pursue the undue burden claim through multiple rounds of appeals. they didn't even raise the issue in this case came before the court in 2016 on this day. the first time it raised objection when it filed cross petition. at j 45 deliberately and strategically waived this issue. >> how many abortion cases has the court either expressly or silently allowed the doctors to sue on behalf of the women? i counted eight but maybe that's overstating it. how many abortion cases in this court? >> at least eight and i believe at least four of them squarely
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allowed standing in precisely these circumstances. >> if we did it in this case it would require either directly or indirectly overruling eight cases in the court?>> that's correct and in danforth and akron the same type of law was at issue. it was a law that the state claimed was designed to protect the health and safety of women but the court allowed the physicians to bring the claim and to show that in fact the law did it further health and safety. >> how many of these cases did the court discuss the issue of conflict of interest. >> the ãbsaid the plaintiff had standing it wasn't discussed in terms of the word conflict but the same types of arguments were in front of the court.>> was a footnote? >> i don't believe so. i believe it was a footnote in akron but in danforth ã >> the point about ãbis that the extensible purpose of the law was to save the vulnerable young men from the evils of 3.2 beer. >> the court allowed the saloon keeper to bring the court
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allowed a mail order contraceptive company to challenge a law that was designed to limit contraceptives to pharmacists claiming that was about protecting the health and safety of people. the court has allowed third-party standing in many cases that are squarely on point. >> counsel, do you agree that the inquiry under heller stat is a factual one that has to proceed state-by-state? >> i think the facts may vary but what we know is that the district court held a trial here and found that there were no material differences between ã >> i know but if the issue of statutes on the books in other states and if the issues are raised there is the same inquiry required in each case you have to have the district court examine the availability of specific clinics so that the litigation can be results could be different in different
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states. >> this court held and hold men's health at the texas permitting law was medically unnecessary and its burdens were undue. that holdings should clearly apply to louisiana identical law and certainly the courts reasoning is applicable in louisiana. the burdens of the law may vary but a law that has no benefits and doesn't serve any valid state interest is much more likely to impose an undue burden. >> if the state passed and admitting privileges law therefore and supposed estate had 10 clinics and two doctors for each clinic but all 20 doctors could easily get the admitting privileges so that they would be no effect on the clinics, no effect on the doctors who perform abortions and therefore no effect on the women who obtain abortions, would a law be constitutional in that state? >> that law may still be
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unconstitutional if it's restricting access because of the 30 mile limit but that's very different from the situation here where the district court ã >> i'm sorry to interrupt, if it didn't put aside the 30 mile ãbassume all the doctors currently perform abortions can obtain admitting privileges, could you say that the law still imposes an undue burden even if there were no effect? >> that law would have no benefit. it may pose a much harder question in this case but this case the district court after trial explicitly found that the burdens of this law would be severe and would leave only one physician to serve 10,000 people per year in the entire state. >> the fifth circuit went through what the district court had said about the various doctors. it was proper for the fifth circuit to review the district court's findings for clear error, was it not? >> clear error is the standard and we believe the district
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court's findings are more than possible under the standard here. >> let's take one example. let's take door number two, door number two is plaintiffs in this case. >> yes your honor. >> he didn't have ãbit would be counter to his own interest for him to make a super effort to get admitting privileges, he'd be defeating his own claim. >> no your honor. to protect the rights of his patients and the district court found he was competent and qualified and he made good faith efforts. >> all right, we can argue about whether he has conflict of interest or not. he previously had admitting privileges at the hospital in the shreveport area, did he not? >> yes. >> predecessor of krista shumpert. >> yes your honor. >> he testified he didn't apply for admitting privileges there because it's a catholic hospital. isn't that right? >> that was part of the testimony but in addition to bylaws the hospital showed that there would be admissions
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requirements that ã >> he testified directly, i did not apply there because it's a catholic hospital. is that not correct? >> that's correct your honor. dough number three performs abortions, does he not? >> yes. >> dough number three has admitting privileges. >> he has admitting privileges that are required ãthat she's able to satisfy because he has an expect tricks practice and that's why he was the only physician with purpose. states own credentialing expert in this case conceded that outpatient physician likely to never intended to treat patients in the hospital will not be able to get privileges in the hospital bylaws included many criteria that these physicians could never satisfy. >> when doe number two explain why he didn't apply this hospital he said in part "because it's not a place i would feel comfortable ". did he say that. >> he did, booktv 2 focused where he felt he had the best
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chance ã >> did the district court mention any of these facts? >> yes your honor, district court opinion was very careful and its decision and finding that these physicians would not be able to get privileges was based on at least four points, one the fact that they applied and attempted to get privileges at 15 hospitals over 1.5 years. that the state's key credentialing expert conceded that physicians who never intended to treat patients in the hospital would not get privileges.>> footnote, that's doctor number six. >> all the physicians or outpatient physicians. >> number six is only medical doctor. >> that's correct. he hasn't done any surgical procedures since 2004 and 2005. >> that's correct in the states expert conceded that a physician who provides medication and counseling would never be able to get ãbthe
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finding of every district court that has held a trial on a similar law has been that these laws will restrict access to abortion. here the district court found that this law would leave louisiana with just one clinic and one state to serve about 10,000 people per year and that would mean that hundreds of thousands of women would now live more than 150 miles from the closest provider and the burdens were actually more severe than this court found. >> can we go to doe 3, the doctor who had the active ob/gyn practice. he is only a part-time doctor in hope. >> that's correct. >> there's been much talk about his statement or findings by the district court that he was a superseding cause to the act
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because he on his own will not practice in that hope if this law goes into effect because he would be the only doctor. the manager testified he only does a limited number of abortions and without the other doctor ãbthe district court found that without doe 1, the primary provider hope would not be a viable concern. regardless of doe 3's testimony hope would have to close because doe 3 was providing fewer than 30% of the abortion services at the clinic. the prime ãwas then able to get religious and hoping it would close. meeting women living in northern louisiana would have to travel hundreds of additional miles for a law that has no benefit in order to
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access abortion services. >> there is no dispute here about doe 1? >> correct. >> the other side that findings is it's right. now c-span3 whether or not he would quit or not the clinic would have to close. it wouldn't have a doe 1. >> correct. >> at least with respect to that with respect to doe 6, that's medical doctor only who hasn't been in the hospital for over 10 years. it seems implausible given that every single hospital mentioned by the district court in that area has requirements of in patient ãbof receiving patients by the doctor and he can't fulfill that under any circumstances. >> correct. >> can i follow-up on the chief justice's earlier question and mine as well. are you saying that admitting privileges laws are always unconstitutional such that we don't have to look at the facts in state-by-state or are you saying that actually do look at the facts state-by-state and in
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some states admitting privileges laws could be constitutional if they impose no burdens. >> the burdens may vary but a law that has no benefit and serves no valid state which is what this court held it's much more likely to be. >> the medical consent since against these laws is clear. >> would this be different if they did something as limited as for example you have to be admitted somewhere because being admitted somewhere does further credentialing benefits. this you have to be admitted
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within 30 miles. some of these doctors were admitted further away but were still credentialed by someone. >> correct. if credentialing was a true goal of the law the 30 mile limit would make no sense. one of the practical real-world impact if this law would take effect is that women in the baton rouge area would now have to travel 320 miles back back and forth to new orleans to see you say the same proves physician they could've previously seen. >> how many miles from the hope area? >> is 320 miles your honor, from shreveport to new orleans and from baton rouge back and forth because of the trip law is 320 miles. they would be making that trip to see the same exact physician who had been previously providing services in baton rouge and that has no benefit to women's health. it's exactly what the district court found.
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[inaudible] if she needs a hospital is certainly not to be the one near the clinic. she will be home. >> that's exactly right your honor, that's what the court recognizes in homelands health one of the reasons why concluded the law is medically unnecessary because the competition rate is extremely small to begin with but when complications occur it's almost after the woman has left the clinic. the standard of care at that point is for them to go to the hospital closest to their home. about 40% of abortions in louisiana and medication abortions and any complications from those abortions will always happen when the patient is at home, which is what this court recognized in homelands health and that's one of the reasons why the ama and a cog are clear that these laws have no medical benefits whatsoever and only imposed barriers to abortions and that's true in every state together so the
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state circumstances. these laws will always put barriers to abortion law serving no health and safety benefits and in fact the district court here found abortion in louisiana in the years before the law was extremely safe with a very low rate of publications. that hope had an excellent safety record and its physicians were competent and qualified to provide abortion services. it concluded that there is no basis to distinguish this case from coleman's health and instead the burdens of this law would be even more severe than the texas law that this court struck down in homelands health. >> hope is the name under which june medical does business is that correct? >> yes your honor. >> was june medical license suspended for regulatory violations. >> this rejected the states allegations after listening to
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the clinics administrator and looking at the evidence in the record. it concluded that hope has an excellent safety record and its physicians are qualified and cognizant. >> thank you counsel. >> thank you chief justice may ãbthe circuit correctly held that the plaintiff in this case failed to carry their heavy burden of truth that's required to invalidate the state law. louisiana's decision to require abortion providers to have admitting privileges was justified by abundant evidence of life-threatening health and safety violations, malpractice, noncompliance with professional licensing rules, legislative testimony from post-abortive women, testimony from doctors who took care of abortion providers abandon patients. the substantive due process claimed that plaintiffs serve on the patient's behalf hinged
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upon their assertion that they would not be able to get privileges. that they can and they did. their claims also failed for independent reason. so they do not meet the modern rigorous rule with third-party standing. instead they invite this court to exempt them from the rules. this court should decline to make abortion providers unique among federal plaintiffs. and reaffirm that even abortion providers must comply with the same rules as all the other litigants. doctors and healthcare providers and healthcare facilities are heavily regulated for ethics reasons and for consumer protection. in this context the conflict between the plaintiffs and the individuals between the law six to protect should defeat the close relationship prong and third-party standing. apart from that conflict, the records show they do not have a close relationship with their
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patients and individual women have litigated abortion cases on their own for decades. i would like to demonstrate why this is different from ãb the state presented abundant evidence of how this case is different, the law was different, the fact was different, the regulatory structure is different and the record is different. all those things dictated a different result. the fifth circuit focuses on one of the things the fifth circuit focused on was credentialing. the record in this case demonstrates that there is no credentialing that's performed by these facilities. they allege they had robust policies but they don't read them and they don't follow them. >> this is the 30 mile limit make? certainly for medication abortions and for the overwhelming number of other abortions.
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>> ã >> if a woman has problems it would be her local hospital that she will need to go to for the care, not something 30 miles from the clinic. with no necessary relationship to where she lives. >> justice ginsburg, that regulation is consistent with the regulation that we have in our office surgery regulations and ambulatory surgery regulations. it's consistent with our regulatory structure. we also had evidence in the record to women who did require transfers. i think there's at least those three testified unambiguously that he had to transfer for patients who had punctured universes and were hemorrhaging ãbyou had punctured uterus is and were hemorrhaging. >> what about ãbthese two procedures are very much alike. within 30 miles an admitting
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privileges after dnc following a miscarriage. under the ambulatory services center, yes. under the office practice rugs which do not regulate abortion clinics, a doctor who doesn't have a residency in the proper scope of care would have to have admitting privileges and would have to have them within 30 mile radius of the clinics. it's the same requirements. >> it is the same. i thought it was something in the records suggesting there was no such requirement. >> the office practice regulations are not as tightly regulated as ambulatory service centers, facility licensing. these are separate licensing constructs, facilities are licensed by the louisiana department of health as our ambulatory surgery centers and those require all the medical staff to have admitting privileges that requirement under afc says geographically close and interpreted under the
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rugs is the same way. we don't interpret it differently. we are applying it consistently and reading regulations the same. >> do you agree that the benefits inquiry under the law is going to be the same in every case regardless of which state we are talking about? i understand the idea the impact might be different in different places. as far as the benefits of the law, that can be the same in each state, isn't it? >> no i don't think the benefit, i think the state could certainly showed greater benefits depending on what the regulatory structure is and what the facts are on the ground that state. i think we could show that it serves a greater benefit. in our situation, for example, we demonstrated that the doctors don't do credentialing. the testimony from the executive director in the record at ja 1373 testified specifically that the lsd and me doesn't do credentialing for procedures. that's what the hospital would do and that's what if the
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clinic has policies it would do. >> i'm sorry, there are laws that require credentialing to be done by the state, with respect to these doctors, correct? they have to get a license they have to have certain competencies to get the license. they also the license is suspended if they are convicted of a criminal act. you are making it sound like there is no state licensing of these doctors. they are licensed. >> they are licensed by the state and doctor cecile testified specifically at ja 1373 that the board does not do credentialing. that's not our role. [multiple speakers] >> to testify what they did ensure each of these doctors was skilled in the procedures they were performing? >> no. doe 3 performed a radiologist
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an ophthalmologist to perform abortions in one time. >> to supervise what they were doing? that's what he testified to. >> that's not within the scope of care and our record clearly demonstrates that you should have a residency and you should have training in the area in which you were performing surgical procedures. it would not comply even with our office practice doctor a radiologist to perform abortions. that would not. >> was he doing the surgical procedure?or was he doing medical abortion? >> he was performing surgical abortions to the best of my knowledge there is no indication he wasn't. i believe the testimony is that he was performing he wasn't restricting.there's not a lot of testimony in the record about what those doctors were doing.other than he hired them but to your question. >> we are not talking about them, we are talking about these doctors and their credentials. i'm sort of still at a mystery
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to me why if what's important to you is the credentialing, why the 30 mile limit has significance? >> because it's not just's all the other factors also play into it it does provide continuity of does cover ãb noncompliance ã [multiple speakers] >> if there is no continuity in care the law itself commits a doctor to either have admitting privileges or to be in contract with someone who does. so it's not necessary that there be continuity of care in a hospital.the only thing is the credential he said is to make sure that they have the skill level but if their credentials somewhere else they have the skill level. >> they did not even comply with the transfer requirement. they did not comply with multiple health and safety requirements of the state. so part of what the credentials ã >> so is this in the district court?>> yes. >> and the district court looked at it and found
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explanations that were adequate for each and did it come to the conclusions you did. the legislature did. i thought the standard of review for the fifth circuit here was whether there was a plausible basis in the record for the conclusions of district court reached? >> the district court judge ignored all the health and safety violations. he ignored an entire category of courtesy privileges if were talking about compliance. i would like to take us back to the point that they could and did get privileges and their primary assumption from the beginning. >> before you do that, on this credentialing point, which you mentioned several times, of course the whole women's health discuss that and said the state can say is doing this for credentialing services if the hospital's reasons for denying admitting privileges have nothing to do with the doctors
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quality. that was true in whole women's health and is true here too that there's a great deal of evidence in the record that indicates admissions privileges rest on many things, it could rest on qualifications but it could rest on a number of patients the doctor has. it could rest on whether a particular hospital needs more providers, it could rest on a general view that they don't want abortion providers in the hospital. given that that's all true, it was true in texas and true here, it seems whole women's health precludes you from making this credentialing argument, doesn't it? >> i don't think it does at all. in our case it was demonstrably different. they could and did get privileges. all the conjecture and speculation about the reasons why they might be denied privileges were proved to be untrue. >> is it not the fact that most hospitals in louisiana in order to get admitting privileges you
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have to admit a certain number of patients, abortion providers will never if they are not also doing obstetrics and gynecology, they will never qualify because their patients don't go to the hospital. there's one finding in that respect and you can tell me if there's any dispute about it, this circuit did it seem to contest this finding of the district court that a hospital transfer was required far less than once a year or less than one per several thousand patients. most of the people who get abortions never have any need to go to a hospital, isn't that
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so? >> justice ginsburg, to your first point about the privileging and the minimum requirements, every set of bylaws and our records show there is a category of courtesy privileges that permits low admit from anywhere ã >> my question is, is anything inaccurate about this determination that the access to a hospital ãbrequired far less than once a year less than one per several thousand patients. >> it is inaccurate because what the record demonstrated is that they don't know what they are qualified, what the complication rates are. they all testified that they don't know because women don't follow up with them or they don't follow up with women. they really don't know what they're complication rates are and they did testify they had direct transfers that resulted in women having hysterectomies. >> is it right that there is evidence in the record that hope clinic has served over 3000 women annually for 23
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years so that's around 70,000 women and transferred only for patients ever to a hospital? >> there is evidence in the record that they really don't know that that's an accurate rate because they don't track the complications. they really don't know what the numbers are. >> they know whether they transferred women to a hospital and it's for. i don't know the medical procedure where it's lower than that of any kind. >> it's for that they know of. they don't check the numbers. >> you don't dispute that among medical procedures, first trimester abortion is among the safest, far safer than childbirth. >> justice ginsburg, first trimester abortion can be either medical or surgical and even if it's medical, the doctor should have the qualifications to be able to
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handle the most likely complication of that procedure which is a surgical abortion. under the standard of care in louisiana even if it's a medical even if it's a medication abortion, the doctor should be able to handle a surgical abortion and be qualified to do that. i think the record is questionable about whether doe 3 can even do doe 1 can even do that. >> c-span.orgthe old law said y have admitting privileges or a written transfer agreement. it's a little hard to see how this improves anything. since you had to have a written transfer agreement anyway, isn't that true? >> doe 1 did not comply. >> but then i don't know why that this fifth circuit court of appeals, seem to have problems with the district court agreed with the district court as to doe 1 but that's not my question. the question is, were documents of this in oral argument. what i've done and i'm sure the
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others have, i've gone through the district court findings and i have gone through the court of appeals findings and i have looked at the relevant bits of the record to my office and will do more of that. i think doe 2 is your weakest case. i think there are others that are stronger but i would like your opinion, your opinion about which of these does is your strongest and i will be sure to look very carefully at that. >> want to understand the question. >> by the strongest i mean you're trying to make an argument. i do have board does you have to deal with. i want to know of your opinion in respect to which doe is the strongest? your argument is that the fifth circuit was right to overturn a fact-finding and with doe 3
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credibility finding of the district court. that your argument. you have to support that and i want to know in respect to which doe you feel is the strongest support for you? >> and i go in order? >> you can give me all of them if you want but you don't have that much time. if you want to say they're all equally strong, fine, that's okay you can say that because i have an opinion about doe 2 at least. you can say what you want. >> i think there's evidence in virtually all of them that they sabotage their own applications. and that doe 5 ãbasked only one doctor to back him up in baton rouge and all the doctors agreed that's not difficult to satisfy. >> they don't all agree. but we are not going to get only want to know is a number and the reason is, we have limited time and i could spend two hours discussing with you
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which should i look at especially hard? >> i would look at doe 6. >> that's a great example because he's the doctor who does only medical abortions, not surgical. he hasn't done a surgical procedure for over 12 years and your states own expert testified that it was not likely he was going to get privileges anywhere because he only did medical procedures, never saw a patient. in virtually all of the hospitals if not all of them even if there was it like in ã ãeven if there wasn't a minimum number of patients that had to be admitted before you get privileges you had to see a certain number of patients in the hospital per year to maintain your privileges.
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and he couldn't meet that requirement. so you talk about him applying to only one hospital in a situation where it was guaranteed that he couldn't meet the requirements of any hospital. my understanding of hospital practice today is you got to stay alive only if somebody sees patients. because if they don't see patients they are of no value to the hospital. if the patients aren't admitted and there is no circumstance in which this doctor is going to admit the patient because he does know surgical procedures. >> i think the record shows that they can get privileges they did get privileges and there's nothing in the bylaws that prohibits them. >> your own expert doctor mary a testified it's unlikely that a doctor who like doe 6 does what justice sotomayor said would "probably not ". be able
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to obtain "active admitting and surgical privileges ". that was you are expert and the basis of that and various other things the district court finds that he didn't have to apply to all hospitals because it was no point because your expert said he probably could not get them. it's on the basis of that kind of thing that the district court held that he was likely not to be able to practice. where does the fifth circuit able to say that that was clearly wrong? >> justice breyer, the fifth circuit did a searching review of the record as is it is instructed by to do by whole women's health. the brief amount of time i have left and would like to say just one thing about standing. i think the record the reason why demonstrates that these doctors should not be able to challenge a regulation that
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protects people that's intended to protect a class of people from a certain type of activity. its health and safety regulations as a practical matter and even yesterday this court was talking about the fact that consumers are protected by certain body of laws. that's what we are doing with health and safety regulation. >>. >> craig against warren first of all had a beer buyer who was a first party plaintiff in the beginning of the case all the way through and tell the appeal in addition to that. >> but he didn't count. the case rode on the owner of the ãbstanding. craig turned 21 he was no longer subject to the law. >> which is why i believe it's better characterized as a mootness the case but i would also point out ã >> the court went on to merits solely on the basis of the beer cellar standing and you had a state regulation that this
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offensively was designed to protect the vulnerable boys from drinking beer and getting into accidents. >> ã >> very briefly, counsel, ã >> justice ginsburg my answer to that is that the buyer in that case was much more just a financial transaction. the interests were better aligned because he was not prohibited from consuming or possessing the alcohol. >> thank you counsel. >> mr. chief justice petitioner's counsel began this morning by saying that this case is about respect for the court's precedents. but she went on to acknowledge two remarkable propositions
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that flow from the logic of petitioner's position and are nowhere to be found in the court you justice alito, the plaintiffs bring the suit even if there is potential or actual conflict of interest with you louisiana women. to you justice kavanaugh that this law would be unconstitutional even if all providers in louisiana already had admitting privileges or could easily get them. i think the petitioner did acknowledge what is in the court cases which is to your question mr. chief justice that the burdens may vary by state. at that point under the substantial obstacle test we ought to be talking about doe 2, 5, and 6. nobody disputes with the doctors did. we all agree on the facts. there's no factual dispute about what the doctors did and didn't do. it's about how rigorously we worked on review for the efforts. >> the 30 mile that's what i don't understand. i think everybody also agrees that the most likely place the
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woman will be if she needs to be in the hospital she will be at home. in her home has no necessary relationship to 30 miles from the clinic. >> that's going straight to the benefits and bypassing burdens. not looking first to whether there substantial obstacle but going straight to your question, all admitting privileges and requirements of which i'm aware and fairly uncontroversial have some distance limitation and i think the benefits they go to the most obvious is continuity of care. because you want the doctor to be able to admit them at some nearby hospital and at least some rural area. you draw a 15 or 20 or 30 miles. with respect to credentialing and make sense to think ã >> it started out from the
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clinic. she's not going to be in the clinic. >> that's often true but the record here unlike in heller study reveals sometimes it's not true. sometimes women develop complications in the clinic and doe 3 were thinking this record is the most competent of the does said that he has on occasion had a patient who develops a problem like a perforated uterus and admitted into the hospital and treated. even doe 3 thinks of this as best medical practice. granted we don't know how often it happens then justice kagan and prepared to concede it might not happen that often i don't think anybody knows the real rate but the point is, it does happen and when it does it's very serious. >> it would never happen when you go to the clinic just to take two pills and go home. >> if you develop a complication at home is not, it's not clear that you won't call the clinic and say to your doctor and having a problem in your doctor will say, go to the following hospital i have privileges i will meet you there. that's not to say as a patient that's what you want but it's hard to me to believe that women in louisiana would want the option to be treated by the doctors.
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>> are you taking the position that there is no woman in louisiana who doesn't feel burdened by this law? >> and taking the position ã >> answer that question. is there at least one potential woman you believe that could bring this lawsuit? >> i assume there are. >> stopped a moment, assuming, we assume because it's logical. the woman who lives 300, there's gonna be some woman who lives 330 miles away is going to say, that's an unusually long period of time for me to have to drive and drive back the same day. or the next day. putting that aside, where is there a conflict between that woman and the doctor? if that woman is going to take the position that this law unduly burdens me, what's the potential conflict?
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she's going to come in and say, you doctors could get credentialing so i really shouldn't sue? you doctors haven't really made an effort so i really shouldn't sue? what saying woman who's a plaintiff is going to have a conflict with the doctor who wants to protect her rights by doing what they can to comply with the law or not but their interests are not misaligned they want to achieve the same holding that this law unduly burdens her right to abortion. i don't see a conflict with that. >> i would say two things. the interests are not necessarily want one is the interest of for-profit providers and not being regulated in particular ways. the other is the interest of women in their own health and safety. i don't know how those would've played out if women had filed suit. but to give you a couple examples, it's not clear to me women would face a challenge maybe all current providers
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louisiana. >> you deal with this. i read the briefs. i understand they are good arguments on both sides. indeed in the country people have very strong feelings and a lot of people morally think it's wrong and a lot of people morally think the opposite is wrong. and in case he and the later cases i think personally the court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people. therefore i take casey as given and i think eight cases where you given standing, we could go back and re-examine marbury pulses madison but really we have eight cases in the abortion area, we have several cases in other areas handhold women's health fix that up casey picks it up and you want us to go back and re-examine this, let's go back and re-examine marbury versus
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madison. you have good arguments. but why depart from what was pretty clear precedent? >> i don't want to go back to 1789 but ã >> you want to go back for 40 years? >> i think what we want to say is that in none of those cases as the court never considered and signed off in the face of potential or actual conflict of interest. yes those arguments never in front of the court we don't think the court should accept it. >> i know you have limited time. i understand the point that the impact of the law is varies from state to state but why do you look at each state differently if the benefits of the law that there is a change from state to state. >> i disagree. i think the variance it is and can be as wide as the burden side but to credentialing, i think the petitioners would have to say that if you have a state that really did focus on competence and the hospitals really were betting for
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competence they could dispute whether that happens here. >> that wasn't what this case, right? >> i would say competence is a pretty key factors in what the hospitals do. >> on this record? >> you look at the commission standards in the record but my point to the chief justice is that what you think about they can vary depending on how the credentialing system works in a particular state. i don't think it's clear, it's how rigorously are we to review pretty modest efforts. doe 2 did not apply to a hospital he used to have privileges and doe 3 currently has privileges. doe 5 just needed covering doctor in baton rouge and doe 6 didn't apply to torah in new orleans where trance 10 has
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privileges. it's hard to figure out what the basis for distinction is because the sites they give in the brief and it's pretty general and firm but when you trace back it seems to be the hospital bylaws and tauro as best we can tell seems to have bylaws that look like the ones they say would keep people from getting privileges. >> the answer to each of those has an answer. they say, look, the ones who didn't get did get the privileges practice in ob/gyn practice so they had women who in fact were admitted to hospitals. the ones who don't have the ones who do medical abortions. the other one, as far as doe 2, doe 2 says i try to get a covering doctor he said no the other covering doctors, there's no point because i'm in baton rouge. he says it's a tougher climate here. quite different from new orleans and i was told by one don't do it because you try to get the covering doctor and that doctor would be subject to picketing. we've gone through it, we will go through it more. what you want to say? >> i think doe 2 is in
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shreveport, more importantly, in a pre-enforcement setting that sort of debate back and forth isn't enough to carry the burden. what ought to have to happen is these physicians ought to have to put their applications where their mouths are and then we will find out once they apply to the full range of hospitals whether they whether doe 2 really can't at christus. whether doe 5 really can't find a covering doctor in baton rouge. [multiple speakers] >> this is not a reality is that not really the fact that almost all hospitals in the state of louisiana do have ended mission, you have to habited mission record in order to admit patients. something in the record to that effect you don't get. if you don't send patients to the hospital, you don't get
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admission privileges. >> i think that's difficult to square with the fact that doe 5 who doesn't have an ob/gyn practice got privileges at tauro. petitioners acknowledged in the explicit patient minimums. they call them implicit.the good requirements they are pointing to the sorts of things that they would preclude doe 5 ended it. it is not to play themselves out in post enforcement context. ....... from its regulations, surgery centers nationwide, the buying requirement is medically
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unnecessary and imposes burdens. and if the justice ask if the credentials and benefits, after holding a trial, district court, this law would serve a benefit in louisiana with respect to burdens, the district court found that this law would be extremely burdensome more so than the texas law. in its finding that these physicians would not be able to get privileges . and supported by more aspects of the record. in fact we tried to get privileges, and 15 hospitals number one and a half years under the court's supervision. in the health experts, the outpatient physicians who don't have a hospital-based are unlikely to get privileges. and the abortion access, this chaos with this actually is law took effect. in the bylaws themselves which included a variety of criteria that these physicians can never meet including residency requirements and finally i would like to point out that this is
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not a pre- enforcement challenge. the state has recognized that including before this care court that the district court allows this to take in effect, and the penalties and supervise the physicians efforts can privileges over your behalf. and this is previously acknowledged visit this is not a pre- enforcement challenge. >> thank you counsel. case is submitted. this week and former vice president joe biden holds a community event in st. louis, and missouri's democratic missouri's democratic primary. on c-span. then coming up on sunday, vermont senator bernie sanders campaigns in the grand rapids, michigan ending was that life starting at 1230 eastern also cspan. it is available online at or listen with the free c-span radio app.
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washington journal, live every day with news and policy issues that impact you. coming up saturday morning, we will discuss the u.s. response to the coronavirus . and potential impact on children. doctor, a children's national hospital, and then the slip shortage of the lifesaving drugs. and its impact with the coronavirus outbreak. with rosemary gibson, author of china rx exposing the rest of americans dependence on china for medicine british watch c-span's washington journal live at 70 * and morning. join the discussion. acting homeland security secretary chad wolf, testified and capitol hill this week about president trump, 2021 homeland security department budget request. during the hearing, the acting secretary was asked about border security, cybersecurity, disaster preparedness and the


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