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Supreme Court Weighs Abortion Case; Schumer Remarks Draw Rebuke From Roberts

Senate Minority Leader Chuck Schumer speaks Wednesday at an abortion-rights rally outside the U.S. Supreme Court in Washington. Inside the court, justices heard argument in the first major abortion case of the Trump era. Schumer's remarks Wednesday critical of the court's two Trump-appointed justices drew a rare rebuke from Chief Justice John Roberts.
Jose Luis Magana
Senate Minority Leader Chuck Schumer speaks Wednesday at an abortion-rights rally outside the U.S. Supreme Court in Washington. Inside the court, justices heard argument in the first major abortion case of the Trump era. Schumer's remarks Wednesday critical of the court's two Trump-appointed justices drew a rare rebuke from Chief Justice John Roberts.

There were fierce clashes at the U.S. Supreme Court Wednesday and a fierce critique from Chief Justice John Roberts afterward upon learning about statements made by Senate Minority Leader Chuck Schumer outside while the arguments were taking place inside.

Addressing a crowd of abortion-rights demonstrators, Schumer, D-N.Y., referred to the court's two Trump appointees, Neil Gorsuch and Brett Kavanaugh, and said, "You have unleashed the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions."

Schumer's statement was apparently a reference to Kavanaugh's angry statement to Democratic senators at his 2018 confirmation hearing, "You sowed the wind. For decades to come, I fear the country will reap the whirlwind."

Late Wednesday Chief Justice Roberts responded to Schumer with a stern rebuke. "Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the court will continue to do their job, without fear or favor, from whatever quarter," he said in a written statement.

Schumer's office quickly replied with his own written statement, saying that his comments "were a reference to the political price Senate Republicans will pay for putting these justices on the court, and warning that the justices will unleash a major grassroots movement on the issue of reproductive rights...."

Schumer went on to criticize the chief justice for "remaining silent when President Trump attacked Justices Sotomayor and Ginsburg" late last month. That failure to stand up for two of the court's liberals, Schumer said, shows that Roberts "does not just call balls and strikes," as he promised he would do at his confirmation hearing in 2005.

Wednesday is not the first time Roberts has rebuked a political leader. In November 2018, he issued a statement critical of Trump for denigrating a judge as "an Obama judge" in an immigration case.

The statement Roberts issued then said, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them."

Trump immediately tweeted: "Sorry Chief Justice John Roberts, but you do indeed have 'Obama judges' and they have a much different point of view than the people who are charged with the safety of our country. ... These rulings are shocking. We need protection and security-these rulings are making our country unsafe! Very dangerous and unwise."

Facts of the Case

Wednesday's blast from the chief justice came after fierce arguments before the court in a case that tests whether the court should renounce an abortion ruling that is just four years old.

Back in 2016, the high court struck down a Texas law that required doctors at abortion clinics to have admitting privileges at a nearby hospital. At issue now is a nearly identical law coming out of Louisiana. But in the four years since the Texas case, the composition of the court has changed with the additions of two Trump appointees, Gorsuch and Kavanaugh.

With the change in the court's composition, anti-abortion groups have been pressing hard to get the court to backtrack on abortion rights, with an eye to the ultimate aim of overturning Roe v. Wade.

In the Louisiana case before the court Wednesday, the state defended an admitting privileges statute nearly identical to the Texas law that the court struck down in 2016. Supporters of the law argue that Louisiana passed it to protect patient safety.

"There is a long record in Louisiana as there are in other states of really gross violations of health and safety standards in the abortion industry, we have more than 20 years of documentation," said Louisiana Congressman Mike Johnson on the steps of the court following oral arguments Wednesday.

But Nancy Northup, president of the Center for Reproductive Rights, countered that if Louisiana's law is upheld, clinics across the state will shutter — leaving only one clinic and one doctor to serve the needs of 10,000 women seeking abortions each year in the state.

"It is not right that we have to be here re-fighting a legal battle that we have already won. But unfortunately we are here because the state of Louisiana is in open defiance of the Constitution and of the Supreme Court's ruling," Northup said.

The arguments

Inside the court chamber, lawyer Julie Rikelman, representing the Hope clinic in Shreveport, La., argued that the Fifth Circuit Court of Appeals, in upholding the Louisiana law, had disregarded the factual findings of the trial court and openly defied the Supreme Court's precedents.

Conservative Justice Samuel Alito, who has openly opposed abortion rights for decades, led the charge against Rikelman.

Why should the clinic be allowed to sue on behalf of its patients, he asked, suggesting that there is a "conflict of interest" with those patients.

Rikelman replied that the Supreme Court has repeatedly held that a plaintiff directly regulated by a law — as abortion providers are here — can challenge that law.

"Really," replied Alito, his voice rising. "That's amazing!"

But, Justice Ruth Bader Ginsburg interjected, is there, in fact, any conflict between doctors and patients here?

"No ... This court already held that admitting privileges served no medical benefit," answered Rikelman, and in fact, the trial court found it "would harm the health of women in Louisiana." Indeed, she said, "even the federal government" itself has found admitting privilege requirements to be "medically unnecessary" and burdensome, leading it to eliminate the requirement nationally for doctors performing outpatient surgical procedures on Medicaid and Medicare patients.

Moreover, said Rikelman, admitting privileges do not improve the standard of care for most women seeking abortions, particularly the 40% of women seeking abortions who do not have surgery, but use abortion pills instead.

Alito moved on to the facts in the case, seeking to show that the doctors at the clinics simply did not try hard enough to get admitting privileges.

Dr. Doe 3, he noted, did in fact have admitting privileges. Rikelman replied that he has those privileges, but they require that he admits at least 50 patients a year to the hospital. Doe 3, said Rikelman, can only meet that requirement because of his separate private practice delivering babies.

Alito moved on: Wasn't the Hope Medical Clinic "suspended for regulatory violations?"

"It was ... briefly in 2010," answered Rikelman, but after a court hearing the judge found the clinic had "an excellent safety record."

Admitting privileges

When Louisiana Solicitor General Elizabeth Murrill rose to make her argument on behalf of the state, she faced a wall of questions from the court's liberals, especially its three female justices.

Ginsburg: What sense does it make to require doctors to have hospital admitting privileges within 30-miles of a clinic when most complications arise after the patient is at home, usually far away from the clinic.

And what about a D&C, the procedure that doctors routinely do after a miscarriage and which is virtually identical to abortion procedures — are there hospital admitting privileges attached to those?

Murrill eventually conceded that such procedures, which are done in a doctor's office, do not require the doctor to have hospital admitting privileges.

When Murrill argued that the admitting privileges requirement serves to ensure that doctors are properly credentialed, Justice Sonia Sotomayor asked: Don't you have a medical licensing requirement in the state?

Justice Elena Kagan jumped in, pointing out that the record shows that hospitals deny privileges for many reasons. The decision "could rest on the number of patients a doctor has ... on whether a particular hospital needs more providers" and it can even "rest on a general view that they don't want abortion providers in that hospital." Given the discretion hospitals have when granting privileges, Kagan said, how can Louisiana argue that admitting privileges perform a credentialing function?

Ginsburg jumped in, "Is it not the fact that ... in Louisiana in order to get admitting privileges you have to admit a certain number of patients?" And because of how safe abortion is, clinics like Hope "will never qualify because their patients don't go to the hospital."

Is it right, Kagan continued,that the Hope clinic has treated some 70,000 patients over the past 23 years and "transferred only four patients ever to a hospital?"

Replied lawyer Murrill: "Only four that they know of."

But, "you don't dispute that ... first trimester abortion is among the safest" medical procedures, in fact "far safer than childbirth?" interjected Ginsburg. Murrill replied that regardless of safety, "the doctor should have the qualifications to ... handle the most likely complication[s]."

Justice Stephen Breyer interjected, "we're not going to solve this at oral argument." Which of the doctors is your "best case" for not having tried hard enough to get admitting privileges?

Doe 6, answered Murill.

Sotomayor, exasperated: But Doe 6 for the last 12 years has only done medical abortions with pills, not surgical abortions. So it was "guaranteed that he couldn't meet the requirement" for admitting privileges at any hospital.

Breyer: The state's own expert witness testified Doe 6 would "probably not" get admitting privileges.

"In the country, people have very strong feelings" about this issue, said Breyer. "A lot of people morally think it's wrong, and a lot of people morally think the opposite." So given that tension, why should the court depart from its repeated precedents over the last 40-plus years?

At the end of the day, of course, it was none of the avid questioners whose votes will count in this case.

It likely will be Chief Justice Roberts' vote that will be determinative, but he asked few questions and didn't tip his hand.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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