Another abortion case is before the Supreme Court. The high court heard oral arguments Wednesday in June Medical Services v. Russo, involving a Louisiana law requiring that doctors who perform abortions at clinics must have admitting privileges at a nearby hospital. The Daily Signal’s Rob Bluey breaks down the case with Louisiana Attorney General Jeffrey Landry and Louisiana Solicitor General Liz Murrill, who argued it.
Rob Bluey: On Wednesday, the Supreme Court heard oral arguments in a case from Louisiana about a law requiring abortionists to have admitting privileges at local hospitals. You argued that abortion clinics do not have standing to sue on behalf of patients, so there’s a lot at stake in this case.
Let’s begin with today’s arguments. First, tell us what it was like to be in the court and what you told the justices.
Liz Murrill: It’s always pretty exciting to be in the court and to argue a case at the Supreme Court. It’s stressful, [but] it’s exciting at the same time.
This was a great case for us to have an opportunity to talk to the justices about the reality of the situation in our state and the ability to regulate abortion.
The case law on this promised that we could regulate abortion, that we could regulate clinics and doctors, and we could set standards. And that’s what we’re doing. And so I think it was a good opportunity to show them that when we do that, we need some leeway to uphold our regulations.
Bluey: Can we go back to where it all began? Tell our listeners how this started, why Louisiana decided to go down this path, and what it actually means for residents in your state.
Jeff Landry: First of all, I think it’s important to recognize that this case has a lot of important nuances to it. No. 1, it’s about sovereignty. That’s important to remember because it’s about state sovereignty.
When you say, “Where did the case begin?” Of course … the bill was authored by a black Democrat female, [state] Rep. Katrina Jackson, who’s now a state senator. So that’s an interesting part to it. And of course then it became law, and … we’ve been arguing it now for about five years as it made its way through the courts.
But this is a case that basically says, is the power to regulate health care a state’s right or a federal right? … Because that’s what this case is about because in Louisiana, what we did was we just folded abortion clinics into the state’s regulatory environment. We didn’t say, “We’re going to pick on the abortion industry.” No, we just said, “Listen, … patients who go to these types of clinics deserve the same types of protections as others who go into other clinics very similar to that.”
So this, to me, is a commonsense case. It should be easy, right? The fact that we have to argue this tells you how broken the system is.
Bluey: Why is it important for abortionists to have these admitting privileges at local hospitals? And tell us, is it really hard for them to get? Is this a burden that’s placed upon them?
Landry: I’ll let Liz follow up with this, but that’s a great question that I’ve been wanting someone to ask. Let me ask it instead of giving you an answer, let me give you a question. Do you think that admitting privileges are important?
Bluey: I would think so, yes.
Landry: Right, exactly. So, yes, it’s important. You got to cast aside the fact that there are abortions going on inside these clinics and focus on the fact that there are invasive procedures going on.
At the end of the day, those people, those patients, those women, those girls deserve the same level of protection as anyone else going through similar type procedures.
Murrill: Yeah, I think one of the narratives that I’ve had to fight against for months, not just for months, for years … in this case is just the presumption, which I think is certainly incorrect, that abortion is categorically safe.
But to the point about admitting privileges, generally we require that of doctors in our state who perform anything from cataract surgery to an appendix, a wide variety of procedures if they are working at an ambulatory surgery center.
So I think, if I was having a conversation with someone about a doctor who did 3,000 laparoscopic surgeries every year, then you probably wouldn’t think that it was stupid to have admitting privileges.
If somebody’s going to put you in a position where you might have a chance at a lot of different serious complications, you would think that was a pretty valuable thing. You would at least have some competence that your doctor was a little more credentialed because his peers have credentialed them.
Bluey: Certainly, if you’re a patient, I would think that you would almost have that expectation. Right?
Landry: I’ll tell you, I can remember having a conversation with a physician friend of mine who has small procedures done in his office, and he didn’t know about this case, had no idea this case was going on.
I just went in one day, he was doing a bunch of paperwork, and I was asking him what was going on, and he said, “Oh, no.” He said, “The insurance carrier, a major insurance in Louisiana, is now requiring me to have admitting privileges in order to continue to see patients with those policies.”
Now, step back for a minute. This is not the government. This is private insurance [that] is recognizing that admitting privileges are important for procedures that he’s doing, not in an ambulatory center, just in his office.
So I think it speaks volumes that the level of health care is increased when doctors have admitting privileges to hospitals. It’s safer for the patient. And it also speaks volumes for the credentials of the doctor.
Murrill: Yeah. And it helps ensure accountability. So I think doctors, if they’re being honest, they will acknowledge that it is a proxy for competency … if you cannot get privileges at a hospital.
We did show that the hospitals are not discriminating against these doctors solely on the basis of the fact that they do abortions. They’ve had privileges for decades while they … had an abortion practice. So I just think that part of it is a false claim.
But if you ask anybody, I think they think it’s a proxy for competency, and it provides accountability because these doctors now have to answer to their peers. And if they start a procedure, they shouldn’t start something they can’t finish. It’s pretty basic.
I don’t think that any doctor should be able to start a procedure that has known complications and not be able to manage the routine complications that can occur. It’s just irresponsible. And that’s not the standard of care anywhere, I don’t think.
Bluey: I believe it was Justice Samuel Alito who asked the question in the oral arguments about whether or not there was a burden that these abortion doctors would have to go through to get these privileges. From the sounds of it, there doesn’t seem like it would be that difficult for them to take this step. What can you tell us about that?
Landry: It’d be interesting to know if Justice [Elena] Kagan and [Justice Sonia] Sotomayor would go to a clinic … and have a procedure performed under which a doctor didn’t have admitting privileges to the hospital. At what level of care would they appreciate, as well.
Bluey: There was a case decided in 2016 involving a Texas law, which was similar. Back to what you were saying, Mr. Attorney General, at the beginning about states being able to determine their own policies. What can you tell us about that case and how that may factor into your law?
Landry: Well, No. 1, it wasn’t a similar case. That’s the confusing part.
Bluey: Thanks for clarifying.
Landry: Exactly. Amazingly, mainstream media gets it wrong. I mean, really? They report the truth 100% of the time, of course, but it’s exactly the point. This is not a similar case. It is not a similar law. We have different facts.
In Texas, and I’ll kind of boil it down … Liz, she’s the Einstein of law, so she can tell you all the little-bitty nuances. I’m a little country boy from small town Louisiana, so I’ll break it to you the way I understand it. It’s simple.
In Texas, they went out and specifically pointed to abortion clinics and said, “We are now going to make doctors there have admitting privileges.” In Louisiana, for a while, doctors in clinics, similar to abortion clinics, everywhere across Louisiana, were required to have admitting privileges. The legislature simply said, “We’re now going to fold you into our regulatory scheme.”
See, that’s a state sovereignty. That’s a state’s rights issue. And that’s why I think this case has tremendous implications across a wide variety of constitutional law.
Bluey: It certainly does. Liz, did you want to add anything on that?
Murrill: I certainly have tried to, and I don’t know that the media cares too much about that issue, I do. Legally I do. I think it matters a lot that our law is … a requirement that we require of other doctors doing other procedures. And in Texas, they didn’t.
They were only requiring abortion doctors to have admitting privileges, and they didn’t require that at ambulatory surgery centers like we do.
Their law also had required the the abortion clinics to meet the same physical plant standards as an ambulatory surgery center, which was an expensive proposition.
So the effect of it was kind of a double whammy. One piece of it took effect, and the other piece of it took effect, and it had an impact across the state. That’s just not true in our state. That didn’t happen.
The argument that they keep making that it’s going to close clinics is wrong. It’s not going to close clinics. And that they can’t get privileges is also wrong.
And we have a disturbing history of conduct arising from both the providers and the clinics themselves of noncompliance with the law. So we should be able to regulate. If we can’t regulate against the backdrop that we have, then we really can’t do anything to protect women. And that’s a problem.
Bluey: It seems that Chief Justice John Roberts and Justice Brett Kavanaugh may hold the key votes in this case, again, based on what media reports are indicating. What questions did they ask at oral arguments?
Murrill: They didn’t ask very much of me. They were asking questions of my friends on the other side a little more than they asked questions of me. I got a lot of questions from Justice [Ruth Bader] Ginsburg and Justice Sotomayor and Justice Kagan and Justice [Stephen] Breyer.
Bluey: And I want to get to those.
Murrill: I did get a question from the chief about whether I believed that a law can have benefits that are different from state to state. And, of course, I think the answer to that is yes, I do. I think it depends on what your regulatory structure is and what the facts on the ground [are].
There seemed to be such a commonsense response to that because people can earn the right to be regulated, and so, of course, it can have benefits in one state that are different from another state. It really depends on what’s happening in your state.
Bluey: That’s right.
Landry: It’s really why America is unique. It’s why it used to work fantastically. You think about it. If the answer to that was no, then why would we need state legislators? Why not just let Congress make all our laws? That’s not what’s unique about our system of government. It’s not what makes us a peaceful, prosperous nation.
We are a union of 50 sovereigns that have the opportunity to experiment, to determine what kind of policies are best fit for a free people.
Bluey: Yes. This laboratory of democracy, which makes our country the great country that it is. Now, you mentioned some of the other liberal-leaning justices. What were some of those questions you received from Justice Ginsburg and others?
Murrill: One of them is, is an abortion always safe? My answer to that is no. Obviously, it’s not always safe.
Just to kind of point back to the Hellerstedt case, the Texas case, Justice Breyer asked my counterpart in Texas, Scott Keller, [who was] at the time was arguing that case, if there is any woman who’s ever been helped by admitting privileges.
Just because of the way that case had been litigated, they didn’t have that evidence in their records. So he had to concede that that was not in the record.
We do have that evidence in the record, so I can answer that question and say, yes. … To the question of whether it’s safe, there were women who had hysterectomies, punctured uteruses. These are the things that require immediate transfer and attention that is in our record. So I can answer his question and say, no, I don’t think it’s always safe.
We know that there are known predictable complications even with doctors who are competent. In a facility that we can’t say where everyone is competent and that is always safe and sanitary, those risks go up dramatically. So certainly, I think that was a question that gave me an opportunity to try and, in my view, clarify the record.
Bluey: As I said at the top, [in] this case you also challenged the standing, as I understand it, of those who brought the lawsuit, the abortion clinics. That could have big implications as well if the Supreme Court decides that on those grounds. Tell us what that means, what happened, the facts, and then also what your argument was.
Murrill: I’ll tell you a little bit about why we raised it and how it came up. And part of it is simply because when … I started looking at the record in this case and in other cases that were litigating against the same plaintiffs, reading deficiency reports and reading the reports from the Louisiana State Board of Medical Examiners, and just the history of some of the providers’ conduct in our state, I just kept asking myself, “Why are the doctors representing women?”
These are health and safety regulations. They protect women. They protect us. That’s true of all health and safety regulations. And so the conflict that was just inherent in that relationship and that situation, these doctors’ interest is in being less regulated and having less oversight. Women have an interest in having safe, sanitary procedures by competent people. So they just are fundamentally at odds.
I think it’s wrong to assume that doctors, these doctors, any doctors always know what women want and … that their interests are always going to be aligned. That’s just simply not a correct assumption to ever make. So that’s why we raised it.
Bluey: In wrapping up here, I want to ask two final questions. First of all, probably a question you won’t want to give me the answer to because I know nobody wants to make any predictions, but any idea on where the justices might be leaning in here based on the arguments?
Landry: First of all, just to kind of go back to the third-party statement, I think it’s important for everyone to recognize that the court interprets standing in a very, very strict manner. And that they basically have, over these cases, carved out kind of an exception for the abortion industry. I think Liz refers to it as like abortion distortion in standing.
So … when I see the left starts saying things like, “I think the chief justice may have an off-ramp,” or “The court may have an off-ramp to a case,” it makes me feel good because it makes me think we’re going to win.
Of course, trying to determine what the court is going to do is extremely difficult. But certainly if the court ruled that they did not have third-party standing, and they like standing with it, the law would be upheld, and then it would basically start all over as to the other questions that may be an easy route for the court.
It was interesting, Justice Breyer seemed a bit agitated. … He made a comment of, “I don’t know why we’re not going to decide this case and these arguments right here.” … Which made me sense that he felt like he was moving up river without a paddle maybe. So it’ll be interesting.
Bluey: But, ideally, you would get a ruling on both fronts. On the facts of whether or not the law is constitutional, and also on standing. Or is one preferable over the other?
Murrill: Well, just if we were successful on standing, the case would be dismissed.
Murrill: So they would never get to the merits. If they found that we waived or forfeited that argument, they could potentially talk about it and then say that we forfeited it, and then get to the merits. There’s a number of ways this thing can get sliced or diced.
Or they could find that we forfeited the issue, and it may come up in later cases because it’s being litigated in other cases now and get to the merits and really address Hellerstedt and whether a case that has a law that has similar features but is in other ways very distinctly different and operates differently and has a very different set of facts and where states are regulating against a totally different backdrop can be distinguished.
Ultimately, in this space, I think this case has always presented a question to the court about … when you look at Hellerstedt and you look at our case, whether they’re going to decide whether they really are a national abortion regulatory review board. Because if they can’t look at our case and see the distinctions and the differences in our case, that’s a problem.
The court determines cases and controversies. That means every case will be different. And so the legislature is a policy board.
So in my view, this isn’t that complicated. We have cases. We have controversies. Our law is different. Our facts are different. Yes, you can have a different outcome. So that’s what I’m hoping for.
Bluey: I appreciate you sorting it out for myself and our listeners. This has been very educational in terms of understanding the case in more depth and the arguments that you made.
You also had outside the court, obviously, a lot of the pro-life movement there today to support the efforts of yourselves. What’s the one message for both of you that you’d like to leave our listeners as you walk away from the court today?
Landry: One of the messages is I think that people should understand that we are gaining ground. A lot of times, I believe, on the conservative side, [we] think we’re always losing.
This is a great example that elections have consequences, right?
My ability to get elected as the attorney general with a conservative mindset, headstrong, and making sure that we got great people like Liz Murrill creating a solicitor general’s office; bucking the governor of my state when he wanted to dismiss the case because he said it costs too much money; [taking care of] the budget when he said, “Well, then you’re going to have to pay for it”; working inside; being fiscally responsible.
I would say that this case has all the great things that The Heritage Foundation supports, but it shows you that we can win because we can make it all the way up to the Supreme Court. So my message is, “Hey, keep the faith.”
Bluey: Liz, any final thoughts?
Murrill: [I’m] just very grateful, and I thank all the people that have been out there supporting us and praying for us and feeding us. And it’s been a lot of hard work, and I’m glad to have kind of gotten through it today, but I’m grateful for all the help.
Bluey: Well, we appreciate you visiting The Heritage Foundation and talking to The Daily Signal moments after stepping out of the court for the arguments. It is great to see both of you, and we’ll be keeping a close eye on it. Probably a decision sometime in June.
Landry: Thank you.
Murrill: Thank you.