Courthouse Steps Oral Argument: June Medical Services v. Russo

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This teleforum addresses the March 4, 2020, Supreme Court oral argument in consolidated cases June Medical Services v. Russo and Russo v. June Medical Services (formerly June Medical Services v. Gee and Gee v. June Medical Services), which involve the constitutionality of Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana's admitting privileges law, on behalf of their patients.

This teleforum features Steven Aden, Chief Legal Officer & General Counsel at Americans United for Life, which filed an amicus brief on behalf of 207 members of Congress in support of the respondent in June Medical Services v. Russo. Mr. Aden was formerly co-counsel to the Louisiana Department of Health in June Medical v. Russo.

Featuring: 

Steven Aden, Chief Legal Officer & General Counsel, Americans United for Life

 

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Religious Liberties Practice Group, was recorded on Wednesday, March 4, 2020, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Oral Argument Teleforum on June Medical Services v. Russo. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us Steven Aden, who is the Chief Legal Officer and General Counsel for Americans United for Life. After our speaker give his opening remarks, we will then go to audience Q&A.

 

Thank you sharing with us today. Steven, the floor is yours.

 

Steven Aden:  Thanks very much, Micah. I am, as Micah said, general counsel and chief legal officer at Americans United for Life, and I had the honor of participating in the trial of this case about four years ago, I think in Baton Rouge. I've also worked on it in other capacities. AUL filed a friend of the court brief on behalf of 207 members of Congress supporting the respondent in Louisiana.

 

      But the argument this morning was fast and furious. There was a lot of back and forth, as there often is, but I guess the first takeaway that I had was it felt like déjà vu all over again. It felt like they were re-arguing the Supreme Court's case three years ago in Whole Woman's Health v. Hellerstedt because they kept repeating the same facts that had come up in Hellerstedt. They kept making the point that the law, Act 620 in Louisiana, is substantially identical to the law that was struck down by the Supreme Court in Whole Woman's Health.

 

      So that was kind of the backdrop to the whole thing. It felt like Groundhog Day, to extend the metaphor. The conservatives had their view of the facts. The liberal side had their view of the facts, and almost never the twain would meet, at least on the merits.

 

There was the merits and the question of standing, which was the subject of the cross petition that Louisiana brought. Both the petition and the cross petition were heard this morning. The question of the merits and the question of standing kind of morphed into each other, as you might expect, because the question of standing had to do chiefly with whether abortion providers have sufficiently close interest, close relationship with their patients to be able to represent their interests in federal court.

 

So with that backdrop, what I'm just going to do is dive into a highlight reel, if you will, of the arguments, and then I will turn it back over to Micah for Q&A.

 

      Petitioner was represented by Julie Rikelman, very ably. She argued well. She started by hitting very hard June Medical's theme, which is that the case is about respect for precedent and specifically Whole Woman's Health v. Hellerstedt. She said Act 620 in Louisiana is identical to the statute in Whole Woman's Health. In fact, it was based upon it. If 620 goes into effect, there will be one clinic in Louisiana with one abortion doctor left, and that is a substantial impact on access to abortion.

 

She said the Fifth Circuit decision that upheld Act 620 imposed barriers on access to abortion but allowed a statute that would not benefit women's health in any way, repeating once again a theme from Hellerstedt. And then in terms of standing, she said the standing is waivable and, in fact, was waived by Louisiana.

 

That's where Justice Ruth Bader Ginsburg dove in with the first question which related to standing, and she said would you have done anything different if standing had been raised properly below? Rikelman said well, the evidence was sufficient below to find there was a close enough relationship, and in fact, the law directly regulates abortion providers. And she kept reinforcing that theme, that this act, 620, actually directly regulates abortion doctors.

 

      So Justice Ginsburg later, about five minutes later, came back to that, and she said on the cross petition, could you have joined a patient or two as plaintiffs if you had had more advanced notice of the standing issue? And Rikelman said well, yes. It was profoundly unfair to the plaintiffs because they didn't get that opportunity, hitting the softball that Justice Ginsburg tossed to her out of the park.

 

      Then Justice Sam Alito dove in, and he took strong issue with the notion that there was a close relationship between abortion providers and the women they represent. He said, in fact, that it was "amazing" if the petitioners had standing to represent their patients when it appeared, to him at least, that their interests were directly contrary. This is a health and safety law designed to protect patients from providers that operate under the standard of practice, so why would providers that allegedly operate under the standard of practice have standing to challenge those laws?

 

      And Rikelman's answer was, once again, they are directly regulated, and there are severe penalties, as she put it, on providers that don't comply. In her way of thinking, that's enough for the providers to assert the Fourteenth Amendment rights of their patients.  

 

      So Justice Alito came back and said well, why shouldn't the patients bring suit? After all, we're talking about the right of the woman here, the abortion right of the woman. And Rikelman's answer was yes, we are, but they have to have a doctor help them access that right, that right to abortion. It's a little bit like the issue of did you pay for a room? Did you pay for a room with a view? Did you pay for a room with a view of the coronation?

 

Apparently, Rikelman is arguing that Roe and Casey provide for a right of access, and perhaps, Justice Alito is alluding to Louisiana's argument that it's a right that’s recognized in securing abortion that is consistent with medical practice. In other words, as the Court in Roe put it, an abortion is a decision between a woman and her doctor.  

 

      And then, of course, Rikelman went back to Craig v. Boren, the standing case that established standing on the part of a young man who challenged under equal protection, a law that had a different age for the drinking age between men and women. They pointed out that in Craig v. Boren, the young man had actually aged out. He was over 21, so he no longer had an interest, essentially. But the Court, nonetheless, went to the merits on the case.  

 

Later on, General Murrill from Louisiana would say well, in her mind, that made it more of a mootness case, but I don't think that was going to fly well with the Supreme Court. She had some other better answers, I think, that I'll get back to later, but Justice Alito said that, in response to Rikelman's Craig v. Boren argument, that it seems debatable that Craig v. Boren applies and furthermore, highly debatable that Louisiana waived any assertion against standing, which is what the petitioner June Medical asserts it did.

 

      Rikelman tried it to the State's concession below, J45, for the record, if you're interested, where she says the state admitted that the doctors had standing to challenge Act 620. And Sam Alito came back and said well, no it's highly debatable that the state intended to waive that argument for all purposes in the whole case. It was within the context, a limited jurisprudential context, of a TRO. They were going forward at an early part in the case. So he said, you know, it's "quite a stretch" to make the argument that they waived standing.   

 

      He didn't mention this, but the Fifth Circuit had said in a previous case that abortion doctors have standing, and so it's Louisiana's position that because there was circuit precedent, controlling circuit precedent, establishing standing, it would've been futile to raise it below. And they appropriately raised it for the first time on the cross petition.

 

Justice Stephen Breyer jumped in in this part of the argument and later on argued rather vociferously that in order to deny standing to the doctors, you'd have to overturn precedent. He said to Rikelman how many abortion cases that the Supreme Court has decided had some form of third party standing on behalf of patients? And she said well, eight. He said well, are we going to overrule eight cases?

 

      Later on, he, in his inimitable style, said well, you know, are we going to all the way back to Marbury v. Madison? This is 40 years of precedent we have here. From Singleton v. Wulff, most of the cases simply acknowledging that standing exists. And Rikelman responded, once again, to that softball by saying that the Supreme Court had specifically held standing applied in the Danforth case, also in Triplett. Carey v. Population Services involved a male order contraceptive company that was held to have standing on behalf of its patients.

 

      At this point, the Chief Justice, rather abruptly, changed course to the merits and interjected and said well, was the holding in Hellerstedt factual, or do results vary in terms of the Supreme Court's finding in that case that there was no benefit to the admitting privileges law? And Rikelman said no, Whole Woman's Health applies here. The law's identical. The burdens may vary from state to state, but there's no benefit wherever you are.

 

      Justice Kavanaugh came in and said well, what if all the abortion doctors in a given state could get privileges? Is there still a substantial burden? She said well, maybe not, but there's no benefit, so there's no different result in Louisiana from Texas. Between the Chief Justice and Justice Kavanaugh, they must've asked that same question probably five times. Is Hellerstedt controlling in its finding, in its holding that there was no benefit to admitting privileges laws?

 

      At that point, Justice Alito jumped back in. He started to get into the weeds of which of these Does 1-6 had privileges? Which couldn't get them, etc.? As he wanted to go, apparently, into the factual record, apparently attempted to distinguish Hellerstedt to some degree. He said didn't Doe number 2 decline to apply to a certain hospital because the hospital is a Catholic hospital? And Rikelman said, well, yes. How about Doe number 3? Doe number three had privileges, right? Yes. And then he said did the district court mention any of these facts?

 

Apparently to him, the facts were all against the abortion providers. And she insisted yes, it did. In fact, the abortion doctors applied to 15 different hospitals. And this colloquy between the conservatives, led principally by Justice Alito, and the liberal justices, led principally by Stephen Breyer, over the facts would continue. Stephen Breyer would come back later, and he said well, look, Doe 1 was ineligible. Doe 6 was chemical abortion only, and even your Louisiana's expert said that it was unlikely she could get -- or rather he, could get privileges.

 

So he said, in his usual fashion, I've gone through the entire findings and the record of the district court, all of the other justices and their clerks have too. You see, which is your strongest case? This was, at this point, the argument by General Liz Murrill, and she said well, every single one of them sabotaged their applications. Number 5 got them. Number 6 applied to only one out of nine available hospitals.

 

So you get a real strong sense that the two different sides, if you will, on abortion in the Court really deeply see the facts very differently. The liberals see the facts consistently with the way the district court saw them, and the conservatives see the facts pretty consistently with the way the Fifth Circuit saw them.

 

      Going into General Murrill's argument, she started off by saying that the Fifth Circuit had, of course, correctly held that Act 620 was constitutional, that the admitting privileges law was justified by what she called life-threatening health and safety violations, medical malpractice, and a situation in Louisiana that was risky for women and substandard for doctors.

 

      Then she said -- she pointed out that in terms of standing, the substantive due process argument that the doctors were making on behalf of their patients doesn't wash because in fact, in her view, many of them did get privileges. She kept going back to her assertion that the district court just got it wrong, that there wouldn't be one clinic, one doctor doing 10,000 abortions a year but that there would remain open at least two and possibly three abortion faculties and probably three abortion doctors.

 

      She said it was different from Hellerstedt. She distinguished it in terms of the law was different, the regulatory structure was different, and the facts, once again, were different. But the principal distinction she was relying on was the fact that unlike Texas, Louisiana was imposing an admitting privileges requirement on abortion practitioners because it was trying to raise them to the same standard as other outpatient medical providers have to follow. They have ambulatory surgical center regulations. They have office practice regulations.

 

At one point, I think it was Justice Ginsburg said well, does this apply to office-based procedures? And, in effect, she said yes. They are consistent. They operate the same way for this kind of -- this level of outpatient surgery, they require that the doctor have admitting privileges.

 

Justice Sotomayor came in at this point. She pointed out that the state actually credentials doctors. She said, doesn't the state credential them? And if it does, why is that not enough? General Murrill responded by saying well, apparently, it's not enough in essence because there was a radiologist and an optometrist doing abortions, and that's not within the scope of care.

 

I think it was Justice Sotomayor who came back in and said well, were they doing chemical abortions or were they doing surgical? And she said well, we don't have anything on the record that indicates they were only doing chemical, so the safe assumption, they were doing surgical.

 

Justice Sotomayor took issue with the continuity of care argument. She said well, look, your law currently, before 620, allows an abortionist to have a contract with a doctor that has admitting privileges. You don't have to have admitting privileges yourself to do abortions, you have to just have a contract with a doctor that has them. And General Murrill's response was they didn't even comply with that emergency transfer requirement so, once again, urging that they were holding them to the same standard as others.

 

Justice Ginsburg jumped in, once again, and said you know, these hospitals in Louisiana, they require a certain number of patients that a doctor has to demonstrate they've had, a certain number of admissions into the hospital annually. And abortionists can't comply with that because abortion is, in Justice Ginsburg's view and according to the petitioner's, relatively safe. And General Murrill said well, there are courtesy privileges. One of the Does got those.

 

Justice Ginsburg said well, could they get privileges based on a once a year admission? A rare emergency, in other words, and General Murrill said well, the problem is they don't know their complication rates. They don't even track them, so there's no way of knowing what their complication rates are. We know what they've said. We know that one abortion center had four direct transfers to the hospital, but we don’t know what the actual track record is.

 

At that point, argument was taken up by Solicitor General Jeff Wall. He did also a very able job. He said that there should be respect for precedent, like Hellerstedt, but on the other hand, there isn't a close enough relationship here between the abortionists and their patient. And he asked well, if you look at of the six Doe doctors, there is no burden on them because most of them either have or could get privileges, apparently.

 

He said, it's very interesting, he said this is not a factual dispute. It's not something that the district court found as a fact that bears respect and deference on the part of the appellate courts, but it has to do with the rigorousness of review. Apparently, General Wall thought that is was a mixed question of fact and law that goes to the rigorousness of the review and was not a strictly factual determination, whether and to what extent they could get privileges.

 

And then Justice Ginsburg, once again, came in and said but the woman is at home. She's not probably going to the same hospital that the abortionist would have admitting privileges at. What good is the statute? And General Walls's response was well, admitting privileges requirements are common in outpatient surgery. All admitting privileges laws have some distance limits because of the continuity of care and the credentialing function. And in fact, sometimes the complications occur at the clinic. And he pointed out that Doe 3 had actually used them, as he testified.

 

Justice Sotomayor jumped in one more time and asked an interesting question. She said is there no woman in Louisiana out in the country, maybe, who could bring a lawsuit to challenge this law? I'm not sure that's the standard, the no woman standard, but Jeff Wall's response was well, the issue here is that we have a for-profit provider with an interest in avoiding the kinds of regulations that drive up the cost of practice, and you have women's health and safety laws, which are central to the interest of the state.

 

Justice Breyer gave a short but rather eloquent plea for unity. In essence, he said you have people in the country, in this country, in this nation, who believe one way morally about abortion. And then you have people elsewhere, principally in the cities, who maybe think that it's okay. And he said I thought that the standing on the part of abortion doctors to challenge these kinds of laws limiting access have been established for 40 years. He said he wouldn't go back to Marbury v. Madison, he assured them, but it did seem to him that given the lack of clarity in the cases in Singleton, the lack of a firm decision having examined a potential real conflict between practitioners and their clients, like their patients, like we have in this case, that perhaps that case had not been presented yet.

 

And finally, on rebuttal, Julie Rikelman came back up and she reiterated that there is a lack of benefits here per Hellerstedt, not that it doesn't change from state to state. She pointed out that the federal government recently removed its requirement for admitting privileges for certain kinds of Medicaid providers, which is true. She asserted that the admitting privileges requirement is actually more burdensome in its application than Hellerstedt.

 

And finally, in response to what I thought was a rather oblique assertion, she said this is not a pre-enforcement challenge. She seemed to be angling toward the argument that this is not facial but rather as-applied, for obvious reasons after Gonzalez v. Carhart and the Hellerstedt decision. She said well, you know, this went into effect. It's not a pre-enforcement challenge. We have some idea of the impact it will have. And with that, she wrapped up.

 

In closing, I really felt that the two sides of the Court had two very different views of the facts on the merits, the question of the benefit of admitting privileges laws. And in terms of standing, you had one side of the Court that I think was quite willing to accept June Medical's assertion that because there's an impact on the providers themselves, that's sufficient. And perhaps, the other side, the conservatives, wanting more than that, wanting there to be some kind of showing that there's a close relationship and not seeing that here.

 

So with that, I'll turn it back to you, Micah.

 

Micah Wallen:  All right. Thank you, Steven. We will now go to our first caller.  

 

Teresa Collett:  Hi, Steve. This is Teresa Collett up in Minnesota. I thought your summary was excellent. I just finished reading the transcript, and at the very outset, it looks like June Medical's lawyer argued that third-party standing is a -- as the directly related entity, should be recognized even with conflicting interests.

 

      And I was pleased that even Justice Ginsburg basically said woah, woah, we don't need to go there. Let's not go there. Do you think that the liberal side of the Court, the side of the Court that believes abortion is a necessary pre-condition for women’s equality, whatever, that they would be willing to go so far as to say third-party standing, we've got eight cases where we've granted it. We're not going to review it, but if we were to review it, we stand by it is almost an irrebuttable presumption that providers have third-party standing.

 

Steven Aden:  Thanks, Professor Collett. That's a good question. I did feel that Julie Rikelman was relying on her one true thing with relation to standing, which, as an advocate, is not a bad position to take. She said look, the doctors are impacted. It operates upon them, and that's all that's been required since Singleton. General Murrill was making a bit of a more nuanced argument.

da

      If you look at the different views on standing, it's quite interesting. For example, the states argued that standing in every case -- I think it was the state's argue -- that standing in every case is an Article III jurisprudential requirement that the Court has to satisfy itself of and which cannot be waived, thereby, avoiding the question of whether Louisiana had waived the argument.

 

      The United States' Solicitor General's argument was that it is prudential, but it's not established here. And I think that it's a good argument because you can make it quickly and move on, which is helpful, but it's also easy to understand. But I think General Murrill's argument was it's not waived in this case, and even if it was waivable, whether it's prudential or jurisprudential, it's close enough to the core of Article III, is what their briefing said, that it shouldn't be considered waivable.

 

      I don't have expertise in this area, so I really wouldn't surmise what a majority of the Court might say in terms of the distinction between Article III requirements and prudential standing. And none of the justices that I recall really camped on that distinction today. Although, there were, as I said, a couple that were interested in the question whether there was a close enough relationship here. Justice Alito came out of the box really presuming that it wasn't close enough and citing the record to the contrary.

 

Micah Wallen:  All right. We'll now move to our next caller.

 

Patrick Hofer:  Hey, Patrick Hofer from Americans United for Life. What do you make of the Chief Justice's question regarding whether the benefit to women of the statute would apply in every state and General Murrill's response that the benefit varies by state?

 

Steven Aden:  Yes. Thanks, Pat. I think that he -- as I recall, that was the question that abruptly pivoted the Court from standing over to the merits. I don't know if that meant that the Chief Justice was just not interested in the standing issue or if he felt like the Court had heard a sufficient quantity of that issue and needed to move on time-wise, but I think that he was looking for a way to get this case out from under the rule of Hellerstedt.

 

      Since Hellerstedt, there's been a lot of debate about whether the Court issued a blanket decree that admitting privileges requirements are unconstitutional everywhere or if it issued a decision for the day relating to Texas. And there's language that you could pull from Hellerstedt that suggests either one, but I do think he wanted to get to that issue because he and Justice Kavanaugh in particular are interested in possibly distinguishing the Louisiana case from Hellerstedt, either in the benefits applied by the statute given the regulatory burden, the benefit of raising abortionists up to the same level as other outpatient medical providers, the benefiter providing continuity as General Murrill said, the benefit of providing credentialing that the Louisiana State Board of Medical Examiners did not. They license, but they had no say in whether an optometrist should be doing abortions.

 

      It's possibly a suggestion. I talked to several experienced practitioners afterward who felt that if that's where the majority goes in this case, they might be interested in distinguishing this case from Hellerstedt on the basis of a lack of burden, that whether or not the benefit is comparable to what we saw in Hellerstedt. And in this case, because it appears that most of the Does either have privileges or could get them, there isn't a cognizable constitutional burden established.

 

      They didn't talk much about the one provider. Initially, he said if he were the only provider left in Louisiana, he would quit because he feared the consequences. And then when another Doe got privileges, he changed his position and he said well, if I were the only provider left in Northern Louisiana, I would have to quit. So you have to wonder about the real position or the real motivation, but thanks for the question, Pat.

 

Micah Wallen:  All right. We'll now move to our next caller.

 

Luke Saha (sp):  Hi, Luke Saha from Michigan here. I'm actually in Washington right now. I was fortunate enough to at least see three to five minutes of the case today. I was wondering if you could touch upon the mileage component in regards to the case, because I know that was an issue that was raised by one of the justices.

 

Steven Aden:  Yes, thank you. I believe it was Justice Sotomayor who pointed out on a couple of occasions that if you're traveling -- if they're shut down in Northern Louisiana, she pointed out that if you're traveling from Northern Louisiana and you have to go all the way down to New Orleans, even from Baton Rouge, that's functionally a 320-mile trip, because they're thinking of what abortion rights advocates call the two-trip requirement. There has to be a 24-hour notice informed consent and contemplation period. So it's two trips. Since they tally it up that way, that seems to be an excess of what the Court regarded as might be a reasonable trip. I think it was 175 miles in the Casey decision.

 

      I don't know how the Court will see that. It probably depends on which of the abortion providers in the state they consider to be still available, still open for business after Act 620 would come online. And it also depends on something that wasn't discussed today, which is the large fraction question. Even Justice Alito didn't raise the issue of the large fraction despite his unforgettable footnote in Hellerstedt, I think putting a large fraction test a hard time.

 

      So who knows? Maybe it depends on how they do the math. I think at the end of the day though, to answer the caller's question, if the majority goes to the merits to uphold the Fifth Circuit, my instinct is that they will find that there are at least two providers left, one in Northern Louisiana and one in New Orleans or Baton Rouge and probably thereby not have to address the mileage requirement.

 

Micah Wallen:  We'll now move to our next caller.  

 

Jeff Pauly (sp):  This is Jeff Pauly from Raleigh, North Carolina. I know you mentioned at least one question from the Chief, but I guess he's widely seen as the swing justice here. Any indications from you on which way he might be leaning?

 

Steven Aden:  Thank you. He's also regarded as one of the justices that holds his cards closest to the vest, and there was no difference there today. As I mentioned, he did seem more interested in the merits question of the constitutionality of the benefit and burden imposed by admitting privileges laws than in the standing question. I don't know whether that augurs one way or another, but he didn't really tip his hand in any way. So, sorry, I can't help you there.

 

Micah Wallen:  We'll now move to our next caller.  

 

Jordan Lorence:  Hey, Steve. This is Jordan Lorence from ADF. I was in the courtroom too. I am much less familiar with the background of this case than you are. But my reaction when the Chief asked both the Solicitor General of Louisiana and then the U.S., the Deputy, aren't the benefits all the same? My reaction was -- and now, you seem to have a more benign one, and I just wanted you to react to this. I was alarmed by that because of the abortion clinic's lawyer arguing that there's no benefit to this, so if the benefits are all the same, then we ruled that -- we upheld -- struck down the law in Hellerstedt, so therefore, this one goes down too.

 

      And now, Liz Murrill had a great, a courageous response, but I just felt like he was exhibiting a mindset there that was detrimental to the law. You seem to be more sanguine about it. I just -- curious what your reaction is to what I'm saying.  

 

Steven Aden:  All I have to say is if you're less sanguine, that makes me a little nervous, but on the other hand, her response I thought was good. She said no, the benefits are not the same in each state. It depends on the regulatory structure, and she went back to the fact that it's different in Louisiana. As she had pointed out, they had previously exempted abortionists from basic outpatient health and safety requirements that they were now bringing them under.

 

And she also said look, the Louisiana State Board of Medicine, the medical examiners, don’t credential these kinds of abortion providers. So you get different benefits factually in Louisiana that you do in Texas. And I thought it would've been better if she had been able to tease that out more, but perhaps, they can pull it from her briefing. But I do believe that both on the benefits and the burden side, Louisiana is very different from Texas. So yeah, thanks for your question.

 

Micah Wallen:  We have one more question in the queue. We'll go ahead and move to that caller now.

 

Caller 6:  What prevents them using a statute like this for any other medical procedure?

 

Steven Aden:  Actually, in a lot of states, I haven't done a survey, but one of the principal accrediting organizations for outpatient surgeons has admitting privileges as a requirement or accreditation. So it's very common. As I often say in media, if you go and have a colonoscopy, LASIK, knee repair, anything like that in outpatient surgical context, your doctor is very likely to have admitting privileges because ordinarily, nothing goes wrong, but if something does, you want them to have the ability to transport you to the hospital to admit you so you don't have to sit in the E.R. for six hours while they figure out what's wrong with you and to follow up with your care there.

 

      That’s not the way abortion's practiced anywhere in America. That's all Louisiana, in my view, wants to do is require that abortion providers adhere to the same general standard for outpatient care that other outpatient providers do.

 

Micah Wallen:  All right. We'll move on to our next question.

 

Caller 7:  So I was curious, as a matter of strategy, why would the challengers not bring in a couple of women as plaintiffs?

 

Steven Aden:  Excellent question. Maybe they didn't think they had to. Maybe they thought that Singleton v. Wulff was very clear, and the Supreme Court had given a pass on this kind of third-party standing for so long that they could get away with it. They started the lawsuit before Justice Scalia passed away and Justice Kennedy retired, so maybe they thought it was simply unnecessary.

 

      In other context, especially when there's a challenge to state exclusions of elective abortion providers from the Medicaid program, there's been several cases where they have added patients. It doesn't seem to be hard to them, and that was the tenor of Justice Ginsburg's question to Julie Rikelman where she said well, if we started all over again and standing had been raised immediately, could you have brought in a couple of party patients? And she said absolutely.

     

      I think they probably could have. Some folks think that that might give the Supreme Court an opportunity to send the case back down once more, but I do not think they will do that. It was a final judgment on the merits. It would be the third time it's gone back down, and I just don't think that the Chief Justice will dispose of the case that way.

 

Micah Wallen:  Not seeing any of the other questions right away. Steven, did you have anything else you wanted to cover about the case or any closing remarks?

 

Steven Aden:  Just this. Obviously, if you were anywhere near the Court, outside the Court or saw the rallies on both sides of the issue in front of the Court today, you'd know that this is a very passionate issue for a lot of Americans. And it seems to me that the Court has put itself in this situation by finding in substantive due process a right of access to abortion. And as Justice Clarence Thomas has said, the Court decreed this right. The Court has to determine its scope, or the Court needs to get out of the business.

 

      My personal judgment, ultimately, the Court needs to get out of the business and send it back to the states and the people where it belongs. But until it does, it's going to keep having to revisit these difficult questions related to whether one kind of medicine, medical practice, medical rule or another is unconstitutional. Look, the plaintiffs in Hellerstedt managed to persuade the Supreme Court that, as far as I can tell, the entirety of House Bill 2 was unconstitutional. And while the Court declined the opportunity to go provision by provision and decide, for example, whether sufficiently wide hallways for gurneys or antiseptic conditions were an undue burden on abortion, it could have.

 

In fact, there are about 60 abortion cases going on in courts across the country. The Supreme Court could be in the business of taking dozens of these cases every year and deciding whether one provision or another was unconstitutional because it imposed an undue burden on women. The fact that they only take one every few years perpetuates the myth that they give sufficient guidance on abortion. They don't. And it's time for them to get out of the business.

 

So I'll get down off my stump. Thank you for the opportunity to preachify a little bit, but that's the way I see it. And thank you for this opportunity and for your listeners' interest.

 

Micah Wallen:  And on behalf of The Federalist Society, I'd like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.