tv Supreme Court Oral Argument on Louisiana Admitting Privileges Law for... CSPAN March 9, 2020 9:51am-10:52am EDT
>> on wednesday, the supreme court heard a challenge to a louisiana law requiring doctors who perform abortions to have admitted privileges at a hospital within 30 miles of the facility where they perform abortions took the oral argument from the cases up next here on c-span2. >> we will hear argument this morning kasey kahne 1323, june medical services versus russo in the petition 181460 russell versus medical services. >> mr. chief justice and may it please the court, this case is about respect for the courts precedents. four years ago the court held in whole women felt that the texas admitting privileges law imposed an undue burden on women seeking abortions. the louisiana law at issue here act-- act 620 is identical to the texas law and was expressly
modeled on it. after trial, the district court ruled act 620 unconstitutional finding no material differences between this case and hold women's health. on burden it found that act 620 would leave louisiana with just one clinic and one doctor providing abortion. at the same time, if found act 620 would do nothing for himself in reversing the district court's decision, the sixth circuit to fundamental errors, first it usurped of the role of the district court and disregarded nearly all of its factual finding. second, accepted legal argument that this court rejected four years ago. nothing, however, has changed that would justify such a legal about-face. in fact, even more medical organizations have joined the ama and a cog to say admitting
privileges imposed barriers to abortion with no benefit to patients and that this impact is not state dependent. finally, the states 11th hour objection to third-party standing runs up against still more binding precedents. of the court squarely held in craig versus moran at such objections are waivable and the state delivered late as strategically waved of the issue in the district court. even if the state passed waiver denying standing here would contradict decades of this courts precedents in numerous areas of the law. in short, petitioners have a third-party standing especially because act 620 restricts abortion by regulating them rather than their patients. >> would you have done anything different if the third-party standing have been timely raised >> your honor, we could have submitted additional evidence in
the court, but we believe the evidence that is already there is sufficient to find a third-party standing for this court has squarely found third-party standing in at least four abortion cases that are on point as well as a number of other cases such as meyer, craig , perry and of the courts cases have been consistent in saying that the plaintiffs would directly regulated by law has third-party standing. >> would you agree with the general proposition that a party should not be able to sue extensively to protect the rights of other people if there is a real conflict of interest between the parties who is suing and those whose rights the party claims to be attempting to defend? >> no, your honor, not at that party is directly regulated by the law. in fact, the court has allowed third-party standing in cases where the state argued that the third parties were protected by the law and incense protected
from the plaintiffs. >> that's amazing, you think if the plaintiff actually has interests directly contrary to those of the-- those individuals on whose behalf the plaintiff is claiming to sue nevertheless that plaintiff can have standing to make if the plaintiff is directly regulated by the law this court has allowed attorney to bring third-party claims against the statute that limited attorney fees. >> that's amazing. let's, i mean, suppose-- i know you think that the 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. 's let's say we are in a state where physicians assistants can perform abortions and an abortion clinic wants to challenge the training requirements for physician assistants, just thinks those
are too onerous and there is no justification for them. now, if they are wrong about that it implicates the interest of the women who may want to get an abortion but you would say the clinic nevertheless can sue on behalf of those women limit this court has squarely held in many cases a plaintiff directly regulate by the law can sue in those cases make sense for at least two reasons, your honor. first a plaintiff should not be subject to severe penalties under an unconstitutional rule and second, if the plaintiff is the one directly regulated then there's extensive, they are the appropriate plaintiff-- >> that sounds like direct to standing, not third-party standing, but in this case, is there anything like the conflict that the justice mentioned? is there a conflict? >> no, your honor. there's not even a possible conflict because this court
already held the admitting privilege serve no medical benefit in the district court after a trial specifically found that this law would serve no benefit and in fact would harm the health of women in louisiana. >> you know, your argument is using the merits, the defeats to support standing. there's a serious problem with that. >> no, your honor, i believe it is the state collapsing standing american this court has allowed third-party standing in cases where one could argue that the state law in question was protecting third-party from the plaintiff in addition to triplet that was the issue in craig versus moran, the law was a state law in oklahoma and the state claimed it was designed to protect the young men 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 fate-- state has not pointed to anything that would've been different if one woman had been joined in the lawsuit. to the contrary the issue the state says are the key issues in this case, whether the law serves health and safety benefits and how difficult it is for a position to obtain privileges are issues the physicians are well-suited to litigate and again, this is-- >> the point is you have standing on behalf of of those women who feel burdened. >> yes your honor. >> to the extent that other women may have not brought a suit is a relative to the fact that there are some-- some, those burdened, who would have if situations have permitted them to. >> absolutely right. >> why shouldn't they be the ones to bring suit? >> your honor, this is a law that restricts abortion by regulating the physician rather
than their patients so it's appropriate for them to be the plaintiff. again, the state-- >> constitutional right at issue is not a constitutional right of abortion clinics is it, is the right of women? >> correct, but for women to access the right to abortion they need to be able to access those services. >> do you think a party can-- that there 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 the law directly regulates the plaintiff without a showing of hindrance, in craig versus boren there was no hindrance, but also the court doesn't need to reach these issues here because the state strategically and deliberately waved third-party standing. >> i think that's highly debatable they certainly didn't raise it in the district court, but whether they affirmatively waived it is quite debatable. >> your honor, j45 the state explicitly conceded third-party standing and urged the district
court to restate-- reach the undue burden saying it had a keen interest in removing any cloud upon the validity of its law, the fifth case proper vehicle for doing so-- >> highly debatable interpretation of that passage with eye-- which i read numerous times. the state was saved that while-- if a temporary restraining order was issued the law shoot should continue to go forward and there wouldn't be an impediment to the lawsuit going forward because the doctors would have standing. [inaudible conversations] >> that they would have standing under the law applicable. ..
the first time it raised an objection was when it filed its cross petition and again at ja 45 it deliberately and strategically waived this issue. >> how many abortion cases as the court either expressly or silently allowed the doctor to sue on behalf of of the women? i counted eight but maybe that's overstating it. how many abortion cases in this court? >> at least eight. i believe at least four of them squarely of outstanding in precisely the circumstances. >> if we didn't in this case it would require either directly or indirectly overruling a cases? >> that's correct. in danforth and act when the same type of law was that issue. it was a law that the state claim was designed to protect the health and safety of women but the court allowed the physicians to bring the claim and to show that the law didn't further health and safety. >> in how may of those cases did the court discussed the issue of conflict of interest? >> the court in danforth
specifically said the plaintiffs had standing. it wasn't discussed in terms of the words conflict but again the same types of arguments were in front of the court because -- >> was it a footnote? >> i don't believe so. i believe it was a footnote in akron. >> you made a point about craig against born, that guest and spoke purpose of the law was to say the vulnerable young man from the evils of 3.2 beer? >> that's correct and the court allowed the saloon keeper to bring the third-party standing claim. in carey the court allowed and a mail order contraceptive company to challenge a law that was designed to limit the prescription of contraceptive to pharmacists, again claiming that was not protecting the health and safety of people. the court has allowed third-party standing in many cases that are squarely on . >> do you agree the inquiry
under hellerstedt is a a factul and that has to proceed state-by-state? >> i think facts may vary but what we know is that this the court held a trial here and found there were no material differences. >> i know but if the issue, the statues are on the books in other states, and if the issues are raised their come is the same inquiry required in each case? you have to district court examine the ability a specific clinics and the admitting privileges of doctor so that the litigation, the results could be different in different states? >> two-point if i may. this court held in whole woman's health that the taxes of admitting privileges law was medically unnecessary and its burdens were undue. that should include apply to louisiana's identical law and the courts reasoning is applicable. the burdens of a 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 burde
burden. >> is the state passed and admitting privileges law therefore, and suppose a state at ten clinics and two doctors for each clinic but all 20 doctors could easily get the admitting privileges, so that there would be no effect on the clinics, no effect on the doctors who perform abortions and, therefore, no effect on the women who obtained abortions, with a lobby constitutional in that state? >> the outlaw may still be unconstitutional if it's restricting access because of the 30-mile limit. that's very different from the situation here where the district court concluded -- >> i'm sorry to interrupt. if the didn't though, put aside the 30-mile, assume all the doctors who currently perform abortions can obtain admitting privileges, could you say that the law still imposes an undue burden, even if there were no effect? >> outlaw would have no benefit and it may pose a a much harder question than this case.
but in this case the district court after a trial explicitly found the burdens of this law would be severe and it 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 and it was proper for the fifth circuit to review the district courts findings were clear error, was it not? >> yes, your honor. clear error is a standard and we believe the district courts findings are more than probable under the standard. >> let's take one example. take doe two. doe two is a plaintiff, so he had come he didn't have come to be counter to his own interests for him to make a super effort to get admitting privileges because he would be defeating his own claim? >> no. doe two brought this lawsuit to protect the rights of the
stations. the district court found he was competent and qualified any make good faith efforts. >> we can argue whether he had a causative interest or not. he had admitting privileges at a hospital in the shreveport area, did he not? >> yes, your honor. >> a predecessor of krista shumpert? >> yes, your honor. >> he testified he didn't imply for admitting privileges because it's a catholic hospital, isn't that right? >> that was part of the testimony by didn't edition the bylaws of the hospital showed the would-be admissions requirements that doe two couldn't be. >> he testified directly, i did not apply to because it's a catholic hospital. is that not correct? >> that's correct, your honor. >> doe three performs abortion, does not? >> yes. >> doe three has admitting privileges there? >> he has admitting privileges that require 50 admissions per year which is able to satisfy because he has an obstetrics practice. the states own expert in this
case conceded that outpatient physicians like these never intend to treat patients in the hospital will not be able to get privileges and the hospital bylaws included many criteria that these physicians could never satisfy including residency. >> number to explain why didn't apply to this hospital picky set in part because it's not a place where i would feel comfortable. didn't he say that? >> he did, your honor. doe two focus his efforts and hospitals without it the best chance of obtaining privileges. yet privileges at lsu and wasn't able to get privileges in there. >> did the district court mentioned any of these faqs? >> yes, the district courts opinion was very careful and its decision in finding that these physicians would not be able to get privileges is based on at least 4.1, the fact they applied an attempt to get privileges at 15 hospitals over one half years. two, the state states key credentialing expert conceded
that physicians and never intended to treat patients in the hospital will not get privileges. >> footnote, that's doctor number six. >> all these physicians are outpatient physicians. >> no, but number six is only a medical doctor. >> that's correct. >> hasn't been any surgical procedure since 2004, 2005. >> that's correct and the state expert conceded a physician who provide only medication and counseling would never be able to get privileges. the district courts burdens findings were supportive of what happened when this law took effect for brief time in 2016 and abortion access louisiana was devastated. of course the finding of every district court that is held a trial on a similar law has been that these laws will restrict access to abortion. the district court found that this law would leave louisiana with just one clinic in one state to serve about 10,000 people per year. that would mean that hundreds of
thousands of women we now live more than 150 miles from the closest provider. the burdens were actually more severe than this court out in whole woman's health. >> can we go to doe three, the doctor that the active ob/gyn practice? he's 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 because he on his own will not practice in hope if this law goes into effect because he would be the only doctor period but putting that aside, he also testified -- i'm sorry, the hope manager testified that he only does a limited number of abortions, and without the other doctor, that clinic would have to close. >> that's absolute right, your
honor. the district court found that without doe one, the primary provider hope, hope would not be a viable going concern. regardless of doe three testimony hope would have to close because doe three was providing fewer than 30% of the abortion services of that clinic. the primary provider was unable to get privilege and hope would close the meaning that women living in northern louisiana would have to travel hundreds of additional miles for a law that has no benefit in order to access abortion services. >> there's no dispute here about doe one. >> that's correct. >> the other side, that isis is right. now doe three whether or not he would quit or not, the clinic would have to close because it wouldn't have a doe one? >> that's correct. >> so at least with respect to that. with respect to doe six, that's a medical doctor only who hasn't been an hospital for over ten years. so it seems implausible given
that every single hospital mentioned by the district court in that area has requirements of receiving patients by the doctor, and he can't fulfill that under any circumstances, correct? >> that's correct. >> can i follow up on the chief justices earlier question and mine as well? are you saying admitting privileges are always unconstitutional such that we don't have to look at the facts state-by-state, or are you saying that actually you do look at the back state-by-state, and in some states, admitting privileges law could be constitutional if the impose no burdens? >> the burdens may vary but a law that has a benefit answer is no valid state interest, which is what this court held in whole woman's health, is much more likely to be an undue burden. >> could and admitting privileges law of this kind ever have a valid purpose? >> no, your honor. the medical consensus against
these laws is clear. >> your view is that they are unconstitutional in any state regardless of the faqs? >> they serve no valid to interest. the district court found this law was a solution for problem that didn't exist and would jeopardize the health and safety of people in louisiana. >> 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? some of these doctors were admitted further away but they still were credentialed by someone, correct? >> that's correct. if credentialing with a true goal of this law, the 30-mile limit would make no sense. one of the practical real-world impacts if this law were to take effect is that women in the baton rouge area when you have to travel 320 miles back and forth to new orleans to see the
same exact position that they previously could've seen in baton rouge. >> how many miles from the hope very? >> 320 miles from shreveport to new orleans. from baton rouge back and forth, because of the two trip law, it's 320 miles. they would they would be making that trip to see the same exact position have been praised as a providing services in baton rouge. that has no benefit to women's health. it will only hurt their health which is exact with the district court found. >> you haven't mentioned, it's odd, the 30-mile from the clinic, most of these abortions don't have any complications and the patient never gets near a hospital, but if she needs a hospital, certainly not going to be the one near the clinic. she will be home. >> that's exactly right, your honor. that's what this court recognized in whole woman's health and one of the reasons want why a conclude the law is medically unnecessary.
the complication rate is extreme and small to begin with but when complications do occur it's almost always after the woman has left the clinic. the standard of care at the point is for her to go to the hospital closest to her home. about 40% of abortions in louisiana are medication abortions and in the complication from those abortions will always happen when the patient as a film which again is what this court recognized in whole woman's health. that's one of the reasons the ama and acog are clear these laws have no medical benefits whatsoever and only pose barriers to abortion. that is true in every state regardless of state circumstances. these laws i was put barriers to abortion while serving no health and safety benefits. the district court found abortion in louisiana in the years before the law was extremist safe, with a very low rate of complications, that hope had an excellent safety record and that its physicians were competent and qualified to
provide abortion services. it concluded there is no basis to distinguish this case from whole woman's health and instead the burdens of this law would be even more severe than the texas law that this court struck down in whole woman's health. >> hope is the name under which jude medical does business, correct? >> yes to honor. >> was their license suspended for regulatory violations? >> it was briefly in 2010. the court heard testimony about that and rejected the states allegations after listening to the clinics administrator look at the evidence in the record. it concluded hope has an excellent safety record and its physicians are qualified and competent. >> thank you, counsel. general murrill. >> thank you, mr. chief justice, and may it please the court. the fifth circuit correctly held that the plaintiffs failed to
carry their heavy burden of proof that is required to facially 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, post-abortive women, testimony from doctor who took care of abortion providers abandoned patients. the substantive due process claim that plaintiffs assert on their patients be hinged upon their assertion that would not be able to get privileges, but they can't and they did. their claims also fail for an independent reason. they do not meet the modern rigorous rule for third-party standing. so instead they invite this court to exempt them from the rule. this court should decline to make abortion providers unique among federal plaintiffs and
reaffirmed 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 plaintiff and the individuals that the law seeks to protect should defeat the close relationship prong of third-party standing. apart from that conflict, the record shows they do not have a close relationship with their patients and individual women have litigated abortion cases on their own for decades. i'd like to first address why this case is different from hellerstedt and then address standing and waited. the state presented abundant evidence of how this case is different. the law was different, the facts are different, the regulatory structure is different and the record is different. and all of those things dictator a different result. the fifth circuit focused on one
of the things the fifth circuit folksong was credentialing. the record in this case demonstrates there is no credentialing that is performed by the facilities. they alleged they have robust policies but they don't read them and they don't follow them. >> what sense does the 30 my limit make, considering certainly for medication abortions and for the overwhelming number of other abortions? >> justice ginsburg -- >> if the woman has a problem, it will be her local hospital that she will need to go to for the care, not something 30 miles from the clinic, which does have 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 are ambulatory surgery
regulations. it is consistent with the regulatory structure. we have evidence in the record of women who did require transfers. i think there's at least -- doe three testified he had to transfer four patients who had punctured uteruses and were hemorrhaging and he took care of them. >> what about a dnc after a miscarriage? as i understand it, these procedures are very much alike. similar regulations about 30 miles and admitting privileges applicable to a d&c following a miscarriage? >> under the mandatory surgery center regulation comes yesterday under the office practice rags which do not regular abortion clinics, under the proper scope of care would have to have admitting privileges and have to have them within 30-mile radius of the clinic so it's the same
requirement. >> it is the same. >> yes. >> i thought there was something in the record suggesting there was a such requirement for d&c following a miscarriage. >> the office practice regulations are not as tightly regulated as ambulatory surgery centers, which are facility licensing. these are separate licensing constructs. facilities are licensed by the louisiana department of health. as our amatory surgery centers and both who are all medical staff to have admitting privileges. the requirement under asc says and it is interpreted under the ranks as the same way. >> do you agree the benefits inquiry under the law is going to be the same in every case,, regardless of which state we talking about? i mean, i understand the idea the impact might be different, but as far as the benefits of the law, that's going to be the same in each state, isn't it? >> no. i don't think the benefit -- i
mean, i think estate and show greater benefits to thinning of what the regulatory structure is and what the facts on the ground in in the state. we absolutely could show that it serves a greater benefit. in a situation we have demonstrated the doctors don't to credentialing, that the lsbme testimony from executive director from dr. mouton in the record, at ja 1373, she testified specifically that the lsbme does the credentialing for procedures. that's what the hospital would do and that's what if the clinic has -- >> 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 and they have to have certain competencies to get the license. the license is suspended if they are convicted of a criminal act. you're making it sound like there is no state licensing of
these doctors. they are licensed. the unregulated. >> justice sotomayor, they are licensed by the state, and dr. cecilia mouton testified specifically at ja 1373 that the board is not to credentialing. that is not our role. our role is -- >> but they did ensure that each of these doctors with skilled in the procedures that they were performing? >> no. in fact, doe three hired a radiologist at an ophthalmologist to perform abortions at one point in time. they clearly were not complying. >> but he was supervising what they were doing. that's what he testified to. >> that is not within the scope of care, and our record clearly demonstrate you should have a residency and you should have training in the area which your performing surgical procedures. it would not comply even with our office practice regs for fa doctor, a radiologist to perform abortions.
that would not comply with our standard of care. >> was he doing a surgical procedure was he doing a medical abortion? >> he was performing surgical abortions to the best of my knowledge. i would the testimony is is he was performing, he was restricting his practice. there's not a lot of testimony in record about what those doctors were doing, , other than he hired them. >> were not even talking about them. were talking about these doctors and their credentials. i'm sort of still at a mystery to me why, if what's important to you is their credentialing, why the 30-mile limit has significant? >> because it's not just credentialing. it is all of the other factors that also play into it. does provide continuity of care. it does cover for -- >> if there is no continuity of care, this law itself permit a doctor to either i've admitting
privileges or to be in contract with someone who dies. so it's not necessary that there be continuity of care in a hospital. the only thing is the credential, you said, is to make sure they have the skill level. if they are credentialed somewhere else, , they have the skill level. >> justice sotomayor, they did not even comply with the transfer orbit. they did not complete with multiple health and safety requirements in the state. part of what -- >> was this all before the district court? >> yes. >> all right. the district court looked at it and found explanations that were adequate for each and didn't come to the conclusions you did or the legislature did. i thought the standard of review for the fifth circuit was whether there was a plausible basis in the record for the conclusions the district court reached? >> that district court judge ignored all of the health and safety violations. he ignored and a parent category
of courtesy privileges if were talking a 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 was -- >> before you do that, please. on this credentialing point which it may can someone times and, of course, whole woman's health discuss that and said i state can say it's doing this for credentialing purposes if the hospitals reasons for denying admitting privileges have nothing to do with the doctors quality. that was true and whole woman's health and it's true here. that is a great deal of evidence in the record that indicates that additions privileges rest on many things. it could rest on qualifications but it could rest on a number of patients a 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.
so given that that's all true, it was true in texas and it is true here, it seems that whole woman's health preclude you from making this credentialing argument, doesn't? >> no, i don't think that it does at all. in our case it was demonstrably different. they could and did get privileges. all of the conjecture and speculation about the reasons why they might be denied privileges were proved to be untrue. they were able to get privileges. >> is it not the fact that most hospitals in louisiana, in order to get admitting privileges, you 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 there's one find in that respect, and you can tell me if there's any dispute about it, but this circuit didn't seem to
contest the signing of the district court, that the 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 so? >> justice ginsburg, to your first point about the privileging and then minimum requirements, every set of bylaws in our record shows that there is a category of courtesy privileges that permits low admit from anywhere -- >> my question is -- >> from zero to a dozen. >> -- is a thing in i could about access to a hospital was required far less than once a year, less than one per several thousand patients? >> yes. it is an accurate because what
the record demonstrated is that they don't know what their qualification -- what the complication rates are. they all testified 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. they did testify at the have direct transfers that resulted in women having hysterectomies and hemorrhaging. >> is it right there is evidence in the record that hope clinic has served over 3000 women annually for 23 years, so that's around 70,000 women, and this transfer only four patients ever to a hospital? >> and there is evidence in the record that the really don't know the fast and i could wait because they don't track the complications. they really don't know what the numbers are. >> they know whether they transfer window hospital, and it is four. i don't know of a medical procedure where it's lower than that of any kind.
>> justice kagan, , it's four tt the note of and that they don't track the numbers. >> you don't dispute that among medical procedures, first trimester abortion is among the safest, far safer then childbirth? >> justice ginsburg, a first trimester abortion can be either medical or surgical. even if it's medical, the doctor should have the qualifications to be able to handle the most likely complication of the procedure, which is a surgical abortion. under the standard of care in louisiana, even if it's a medication abortion, the doctor should be able to handle a surgical abortion and qualified to do that. the record is questionable about whether doe one can even do that because -- >> doe one, but he agreed including the fifth circuit, that doe one is barred by this new law. the old law said you have to
have admitting privileges or a written transfer agreement. so 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 or not? >> which doe one did not comply with. >> all right, but then i don't know why the fifth circuit court of appeals, which seem to have problems with the district court, agreed with the district court as to doe one, but that is a my question. my question is we're not going to solve this at oral argument. i mean, what i've done, and ensure the others have come is i've gone through the district court findings and i've gone through the court of appeals findings, and i have looked at the relevant bits of the record through my office and will do more of that. so i think doe two is your weakest case. i think there are others that are stronger. but i would like your opinion, your opinion, about which of these is your strongest?
i'll be sure to look very carefully at that. >> justice breyer, i just want to understand your question. >> you don't understand? i'm saying which is a strongest, you're trying make an argument so want to know of your opinion, and respect to which doe is your argument the strongest. you have to support that. i want to know and respect to which doe you feel it's the strongest support for you? >> and i go in order? >> you can give me all then if you want but you don't have that much time. if you want to say our all equally strong, fine.
that's okay, you can say that because i have an opinion about doe two at least and you can say what you want. >> i think there's evidence and virtue all of them that this sabotage their own applications and that doe five octane privileges in baton rouge and new orleans, asked on the one doctor to back them up in baton rouge, and all the doctors agreed it's that difficult to satisfy. doe two simply -- >> they don't all agree. i don't think. we're not going to get -- all the want to know is a number. the reason is with limited time and i could spend two hours discussing with you doe two, three, four. i want to know is which should i look at at a special art? >> i would look at doe six who applied to one at a nine hospitals in new orleans. >> that's a great example. >> 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. your states own expert testified that it was not likely that he was going to get privileges anywhere because he only did medical procedures, never saw a patient. in virtually all of hospitals, if not all of them, even like into lincoln even 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. 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 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 are not admitted and there is no circumstance in which this doctor is going to admit a patient because he doesn't surgical procedures -- >> justice sotomayor, i think the record shows that they can get privileges, they did get privileges, , and is nothing in the bylaws that prohibits them from being -- >> your own expert testified, it is unlikely that a doctor who, like doe six does what justice sotomayor said, would quote, probably not, end quote, be able to obtain quote, i could admitting an surgical privileges, end quote. that was your expert. the basis of that and various other things, the district court finds that he didn't have to apply to all hospitals because there was no point because your expert said he probably could not get in. it's on the basis of that 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 search and review of the record just as it is instructed to do by whole woman's health. in the brief amount of time that i've left, i would like to say just one thing about standing. i think that the record, the reason why it demonstrates that these doctors should not be able to challenge a regulation that protects people that is intended to protect a class of people from a certain type of activity. it's healthy and safety regulations. as a practical matter, and even yesterday this court was talking about the fact that consumers are protected by certain oddity of loss. that's what we are doing with health and safety regulations. >> how does that differ from craig against boren.
>> first of all, there was a beer buyer who is a first party plaintiff in the beginning of the case with her until it was on appeal. in addition to that, the state -- >> yes, but he didn't count. they case wrote on the owner of the harkin hauler standing. craig turned 21. he was no longer subject to the law. >> which i believe it's better characterize as a mootness case but i would also point out -- >> but the stanza, the court went on to the mayor's solely on the basis of the beer cellar standing, and you've got a state regulation that is ostensibly was designed to protect these vulnerable boys from drinking beer and getting into accidents. >> may i? >> it's a dangerous -- >> very, very briefly, counsel. >> justice ginsburg, my answer to that is the buyer in that case was much more just, it was much more just a financial transaction.
their interests were better ally because is not prohibited from consuming or possessing the alcohol. >> thank you. >> so it really wasn't a health -- >> thank you, counsel. >> general wall. >> mr. chief justice, and may it please the court. petitioners counsel began by saying this case is about respect for the courts precedents, but she went on to acknowledge to back rather remarkable propositions that flow from the logic of petition position at their nowhere to be found in the courts cases. the plaintiffs may bring vista even if there is a potential or actual competent ventures with louisiana women. this law would be unconstitutional even if all provided in louisiana already had admitting privileges or could easily get them. i do think petitioners did acknowledge what is in the courts cases which is that the burdens may very bistate. at that point we ought to be
talk about doe two, five and six and how much of a burden there was in them. that's not a clear error question. nobody disputes with the doctors did. we are all agreed on the facts. there's a factual dispute about what the doctors did and didn't do. it's about how rigorously we review their fairly modest efforts. >> what sense does this 30-mile -- that's what i don't understand. i think everybody also agrees that the most likely place the woman will be a she needs to be in a hospital, shall be at home. home has no necessary relationship to 30 miles from a clinic. >> so two points, justice ginsburg. that's going straight to the benefits and bypassing the burdens, not looking first whether there's a substantial obstacle. all admitting privileges requirements and their fairly
uncontroversial in medical field have some distance limitation. that benefits that they go to, the most obvious is the continuity of care. because you want the doctor be able to admit them at some nearby hospital and a lease in some rural areas there isn't always a hospital right around the road so we need to draw at 15, 2030 miles. >> but it was supposed to start up from the clinic where she will be. she's not going to be at the clinic. >> that's often true but the record here unlike in hellerstedt, reveals sometimes it's not true that sometimes women develop complications in the clinic and, in fact, doe three who i think is probably the most competent and is a a medical director at home, said he has had a patient who develops a the problem like a perforated uterus and admitted into the hospital and treated it. even doe three things of that as a best medical practice. we don't know how often it happens and i'm prepared to concede that it may not happen
all that often. i don't anybody knows the real rate but the point is it does happen and what it does is very serious. >> it would never happen when you go to the clinic just to take two pills and go home. >> well, if you develop the competition at home, it's not clear that you won't call the clinic and take your doctor i'm having a problem and your doctor will say, go to solve following hospital where i privileges, i'll meet you there. that's not to say as a patient that's nested what you want but it's hard to believe women in louisiana with a lease with option to be treated by the doctor they saw at the clinic. >> are you taking the position that there is no women in louisiana who doesn't feel burdened by this law? >> i am taking the position that -- >> no no. after that question. is at least one potential women unity i could bring this lawsuit? >> i assume that there are but they have not sued -- >> stop a moment.
it's logical, okay, there's going to be some woman who lives 330 miles away who's going to say that an unusually long time for me to have to drive and drive back the same day. for this 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? 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 sane woman who's a plaintiff is going to have a conflict with a doctor who once 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, at this law unduly burdens her right to abortion. i don't see a conflict without. >> i would say two things, justice sotomayor. their interests are not necessary a line. one is the interest of profit providers and not being regulated in particular ways. the other is the interest of women in all health and safety. i don't know how those what a played out if the women have filed suit. i could give it a couple of examples. it's not clear to me that women would've brought facial challenge. >> how do you deal with this? i have read the briefs. i understand there are good arguments on both sides. indeed come in the country people a 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 casey, i think personally the court is talking with the problem of what kind of rule of
law do you have any country that contains both sorts of people. so, therefore, i take casey as given. i think eight cases where you've given standing, i mean, we could go back in re-examine marbury v. madison, but really we have eight cases in the abortion area. with several cases in other areas, and whole woman's health the ecstatic. casey takes that up, and you really want us to go back and re-examine this, let's go back in re-examine marbury v. madison. you have good arguments. why depart from what was pretty clear precedent? >> i don't want to go back to 1789, justice barr, but i -- >> you -- >> you want to go back for 40 years. >> what we want to say is in none of those cases has a court ever considered and signed off in the face of the potential or actual conflict of interest. so yes, this is an argument that's never been front of the
court and we don't think the court now faced with a should accept it. >> i know yet limited time. i understand the point that 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 are not going to change from state to state. >> i disagree, mr. chief justice. i think the variance isn't going to be as wide as on the burden side. i take credentialing, for instance. i think the petitioners would have to say if you had a state that didn't focus on competence and hospitals really were betting for competence, so they can dispute whether that happens here -- >> that was in this case, right? >> i think it's a key factor in what hospitals do. >> on this record? >> i think you can look at the joint commission standards that in the record bob mueller . is however we think about that, they can very depend on how the credentialing system works in a particular state. if i can make one less point on the merits. i don't think it's a clear error
standard. it's how rigorously of are goio review pretty modest efforts. doe two did not apply to hospital where he used have privileges and doe three have privileges. doe five got privileges and just need to get a covering doctrine baton rouge. and transixteen apply. it's hard to figure out what the basis for distinction is because the sites they given a brief, and it's pretty general and pretty thin but when you traced back a seems be the hospital bylaws. >> each of those has an answer. i mean, they say look, the ones that didn't get, did get the privileges act as an ob/gyn practice and so they have women who, in fact, were admitted to hospitals. the ones who don't are the ones who do medical abortion. you've heard that. >> okay. the other one, doe two says i
try to get a covering doctor picky set over the other covering doctors, , there still point because i'm in baton rouge, is that we was i think? he said look, it's a tougher climate here. really tough for people who perform abortions. quite different from new orleans. i was told by one that don't do it because you try to get the covering doctor and the doctor would be subject to picketing. we've all seen that. we've got through it. will go to it more. what do you want to say? >> i think doe 2's is in shreveport before more poorly i would say this. and a reinforced the setting that sort of debate back and forth isn't enough to carry the burden. what ought to have to happen is these physicians to have to put their applications with amounts are and then will find that once they've applied to the full range of hospitals whether doe two really can't, whether --
>> is it not a reality, is it not really the fact that almost all hospitals in the state of louisiana you have an admission, you have to have an admission record in order to admit patients? there is something in the record to that effect that if you don't send patients to the hospital, you don't get admission privileges. >> you may answer. >> justice ginsburg, i think that's difficult to square with the fact that doe five got privileges. i think petitioners acknowledge they are not explicit patient minimus. they call the implicit. the kinds of requirements there .2 other things that look like they would've precluded doe
five a didn't. these how to play themselves out in a post-enforcement context, not not as here. >> thank you, general. five minutes, ms. rikelman. >> your honor, the lack of benefits of these laws is not statement. the medical consensus is clear that in no state do they serve health and safety benefits. even the federal government a few months ago removed and admitting privileges required its regulations of surgery centers nationwide, finding that the requirement is medically unnecessary and imposes burdens. this court rejected an alleged credentialing benefit in whole woman's health. after holding a a trial that ia court rejected this law was circa credentialing benefit in louisiana. with respect to burdens, the district court found this law would be extremely burdensome, more so than the texas law in whole woman's health. it's finding that these
physicians would not be able to get privileges is supported by at least four as sticks of the record. the fact to try to get privileges at 15 hospitals over one and half years under the courts supervision. the fact the states expert conceded that outpatient physicians who don't have a hospital-based practice are unlikely get privileges. the fact that abortion access was thrown into chaos when this law actually took effect. and the hospital bylaws themselves which include a variety of criteria that these physicians could never meet, including residency requirements. and finally i'd like to point out this is not a pre-enforcement challenge. the state has recognize that, including in its state papers before this court, the district court allowed the law to take effect but enjoined its penalties and supervised physicians efforts to get privileges over a year and half. again, the state has previously acknowledged that this is not a pre-enforcement challenge. if if there are no further
questions. >> thank you, counsel. the case is submitted. >> 2020 makati presidential candidate senator bernie sanders all to get out the vote even in st. louis today. watch live at 12 p.m. eastern on c-span2 online the c-span.org or listen live on the free c-span radio lap. >> tonight on "the communicators" former fcc commissioner talks about ways to reduce same speech online. >> companies when you find terrorist content, they will tag so that others don't copy it. there's a much greater cooperation that we had even two years ago but they're still tremendous amount that needs to be done. >> watch "the communicators" tonight at eight eastern on c-span2.