michael barbaro

From The New York Times, I’m Michael Barbaro. This is “The Daily.”

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Today: A case now before the Supreme Court is the first major test of abortion rights since President Trump created a conservative majority on the court. Adam Liptak on what’s at stake. It’s Monday, March 9.

adam liptak It’s a rainy Tuesday morning in Shreveport, Louisiana, and I’m outside the Hope Medical Clinic, one of the three remaining clinics in Louisiana that perform abortions. And I’m about to head inside and see what’s going on. [vehicle door opens]

michael barbaro

Adam Liptak, tell us about Hope Medical Clinic.

adam liptak

It’s a nondescript building. It doesn’t have any windows. It’s got a sort of double-door vestibule. It’s been the subject of a variety of attacks — a guy with a sledgehammer, Molotov cocktails. And this clinic is at the center of a major Supreme Court case. And it involves a significant question that could put the clinic’s future at risk.

speaker Yes, sir. adam liptak Hi, I’m Adam Liptak. I’m here to see Kathaleen. I’m from The New York Times. speaker Yes, sir.

adam liptak

So I go in. I ask to see the director of the clinic, Kathaleen Pittman —

kathaleen pittman Hi. adam liptak Hello. kathaleen pittman Come on in. I’m Kathaleen. adam liptak Pleasure to meet you. kathaleen pittman You, too. adam liptak Thanks for seeing me. kathaleen pittman Certainly. I feel so badly for you and Kelly. We’ve had some beautiful weather, and now we don’t.

adam liptak

— who turns out to be a folksy, tough, charming, 62-year-old woman.

adam liptak Tell me about you. How did you find yourself here? What’s your background? kathaleen pittman That is a really long story. [LAUGHS] adam liptak That’s all right.

adam liptak

She’s been the director for a decade, but she’s worked there much longer.

adam liptak How long ago was that? kathaleen pittman ‘92. adam liptak So that’s 20 — kathaleen pittman I’ve been here for 27 years. adam liptak 27 years. kathaleen pittman Yeah. Personally, I worked here for two months before I told my mom. And I was a divorced mom living at home with her.

adam liptak

And she told me that, at first, it made her nervous to tell her mom — she comes from a big Catholic family — what it was she was going to do for a living.

kathaleen pittman And I worked here for two months before I finally told her. But when I told her, I said, you know, I’m counseling women, but I didn’t tell you the whole story. And her response was, women have always had abortions, darling. They always will. They need a safe place. And this is someone who — adam liptak Did that surprise you that you got that response? kathaleen pittman Yes. I had 15 siblings. To find my mom, after all this, was pro-choice, the phone lines burned up calling all my sisters. Do you know mother’s pro-choice? This is what she said. My mother was so funny. She said, darling, I would have still been having babies had your sisters not stepped in. The oldest sisters told the doctor, do something. And she was fine with it. She just couldn’t be the one to tell him to do it. adam liptak Wow.

michael barbaro

And why are you visiting this abortion clinic in this state and speaking to this director?

adam liptak

Well, Louisiana really is ground zero for state efforts to regulate, if not eliminate, abortion. Louisiana has enacted 89 different abortion restrictions.

kathaleen pittman But what I find really interesting — [thud] adam liptak Whoa. kathaleen pittman This just one, just one. But this is the form the physician and stenographer must review with the patient. I’m going to give you this as well.

adam liptak

So to be an abortion clinic in Louisiana means you have to literally, as Kathaleen showed me, leaf through a sheaf of regulations just to make sure you can stay open. And they cover things like 24-hour waiting periods, requirements that abortion providers read their patients’ descriptions of the fetus, the complications that might happen, show them sonograms — they can look away, if they wish — allow them to hear fetal heartbeats — they can cover their ears, if they wish. But most importantly, for my purposes, I was there to assess the impact of a law that requires abortion providers — doctors who provide abortions — to have admitting privileges at nearby hospitals.

michael barbaro

And tell me a little bit more about that law.

adam liptak

So this law, when you first hear about it, sounds perfectly sensible.

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archived recording Louisiana is the fifth state to adopt a law that requires abortion doctors to have admitting privileges at a nearby hospital.

adam liptak

It was enacted in 2014.

archived recording Supporters say they make health care safer.

adam liptak

Lawmakers say that it was an effort to protect women’s health, that it’s a kind of credentialing function. Opponents say the whole thing is a ruse — that abortion is a very safe procedure, that you’ll be admitted to the hospital under very rare occasions, that there are complications whether your doctor has admitting privileges or not, and that it’s hard to get admitting privileges. Many hospitals don’t want to give abortion providers admitting privileges for political reasons. And those conflicting views are at the center of a case that has reached the Supreme Court, which will decide whether this Louisiana abortion regulation is constitutional.

adam liptak If the Supreme Court rules against you, this clinic closes, you think? kathaleen pittman Very possibly. adam liptak And what does that mean for the women in this part of the state? How far away are we from whatever clinics might remain? kathaleen pittman Minimum four hours. And for some women, that puts it out of reach. But you have to understand, most of the women we work with here live at or below the federal poverty level. The whole reason they’re looking — seeking to terminate a pregnancy is they’re already trying to take care of the families they have. They can’t add to that anymore.

adam liptak

The clinic has said that although they have one doctor with admitting privileges, that doctor cannot carry the whole load of the clinic, and the clinic would very likely have to close.

michael barbaro

Adam, this question of admitting privileges and abortion and the Supreme Court, it has a very familiar ring to it.

adam liptak

And it should.

archived recording 1 We begin tonight with the most sweeping decision on abortion in a generation. Today, the Supreme Court struck down a Texas law that imposed strict requirements on clinics and doctors. archived recording 2 The Texas abortion law requiring doctors at abortion clinics to get admitting privileges at nearby hospitals.

adam liptak

The Supreme Court has already decided this question in the context of an identical Texas law in 2016. The court struck down the Texas law.

archived recording Jubilation from the pro-choice side, but despair from anti-abortion forces.

adam liptak

So it might be surprising to some that just a few years later, it’s taking a look at an identical law from a different state, from Louisiana.

michael barbaro

Yeah, why would the court be looking at the exact same question if there is a precedent, and the precedent is that that Texas law is unconstitutional?

adam liptak

Well, to the surprise of many —

archived recording A federal appeals court had upheld the law, even though a nearly identical statute from Texas was declared unconstitutional.

adam liptak

A federal appeals court sustained the Louisiana law, meaning the Supreme Court almost had no choice but to take this case. Because whatever the court might want to do itself about admitting privileges laws, it seems a little odd for a federal circuit court to be breaking new ground and, in the eyes of some, to disregard what looks like binding Supreme Court precedent in this area.

michael barbaro

And why would a lower court openly defy a four-year-old Supreme Court precedent on an identical law? That doesn’t make a whole lot of sense.

adam liptak

They said that they were able to discern differences between Louisiana and Texas. They say that the abortion providers didn’t try hard enough in Louisiana to get admitting privileges. And, more importantly, a lot has changed since 2016.

archived recording After the final day of the term, we have just learned that Justice Anthony Kennedy will be retiring. archived recording (donald trump) The Supreme Court — it’s what it’s all about. The justices that I’m going to appoint will be pro-life. They will have a conservative bent.

adam liptak

A lot has changed since President Trump put a lot of new judges on the courts, the lower courts and the Supreme Court.

archived recording (donald trump) We are here to celebrate history. The taking of the judicial oath by the newest member of the United States Supreme Court, Neil Gorsuch. The newest member of the United States Supreme Court, Justice Brett Kavanaugh. [CHEERING]

adam liptak

A lot has changed in state legislatures, which are enacting abortion restriction after abortion restriction. Folks opposed to abortion are very hopeful that we live in a different judicial climate and that this new Supreme Court might take a very different view of abortion rights than earlier ones had.

michael barbaro

We’ll be right back.

archived recording (john roberts) We’ll hear argument this morning, Case 18-1323, June Medical Services v. Russo, and the cross petition, 18-1460, Russo v. June Medical Services. Ms. Rikelman —

michael barbaro

OK. So Adam, tell us what happened inside the Supreme Court last week as this case opens up.

adam liptak

It was a little hard to make sense of what was going on at the court. You know for sure that the court’s four more liberal members are completely on board with striking down this law. They think the 2016 Texas case takes care of it. But they also think if they were looking at this fresh, this is a regulation that they say confers no medical benefits, but imposes enormous costs on women’s ability to obtain abortions. So you could hear this intense skepticism as the more liberal justices ask questions. Justice Elena Kagan, for instance —

archived recording (elena kagan) Is it right that there is evidence in the record that Hope Clinic has served over 3,000 women annually for 23 years — so that’s around 70,000 women — and has transferred only four patients ever to a hospital?

adam liptak

She did the math. She said it amounted to some 70,000 abortions. And they had complications necessitating trips to the hospital four times.

archived recording (elizabeth murrill) So they testified — archived recording (elena kagan) Well, they know whether they’ve transferred women to a hospital. And it’s four. I mean, I don’t know of a medical procedure where it’s lower than that of any kind.

michael barbaro

And so Kagan’s point is, women so rarely need to be admitted to hospitals that there’s no rationale for requiring admitting privileges for abortion practitioners in these clinics.

adam liptak

That was her point, if, indeed, having admitting privileges makes it more likely that you’ll be able to go to the hospital. But that itself is a contested proposition. There’s no real link between your doctor having admitting privileges and you getting the medical care you need at a hospital.

michael barbaro

Mm-hmm. What about the other liberal justices?

adam liptak

Justice Sotomayor raised a different question — whether some doctors, because of the nature of their practices, could ever get hospital admitting privileges. She talked about a doctor who doesn’t perform surgical abortions, but only so-called medication abortions, where patients are given pills. And that kind of doctor, she said, could never get admitting privileges in Louisiana, and so would be prohibited from performing abortions entirely.

michael barbaro

Adam, I have to imagine that some of these liberal justices also raised the simple question of precedent from that Texas case in 2016.

adam liptak

Yeah, Justice Breyer —

archived recording (stephen breyer) I have read the briefs. I understand there are good arguments on both sides. Indeed, in the country, people have very strong feelings. And a lot of people morally think it’s wrong. And a lot of people morally think the opposite is wrong. The court is struggling with the problem of, what kind of rule of law do you have in a country that contains both sorts of people?

adam liptak

He paused and said, listen, people have very strong feelings about the issue of abortion. People have moral objections to it. People believe that women have a right to it.

archived recording (stephen breyer) But why depart from what was pretty clear precedent?

adam liptak

And the job for the court is to hold the nation together under the rule of law. And the way to do that, he said, was to respect precedent.

michael barbaro

And what is the response from the lawyers defending the law to that question of precedent?

adam liptak

They say Louisiana is different. They basically say, our admitting privileges law — we have a different justification for it than the one put forward by Texas — this credentialing justification. And we also think the impact in Louisiana is going to be different. In Texas, the fear was that the state would go from 40 abortion clinics to 10 in an enormous, geographically-vast state. Here, they say, there’s no especial reason to think it should go from 3 to 1, because, they say, if only doctors tried harder to get admitting privileges, they probably could. So their point is, maybe the words of the law are the same, but the facts on the ground are different.

archived recording Thank you, counsel. [CLEARS THROAT]

michael barbaro

OK, that was the liberal side of the court. What did you see, Adam, from the conservative justices here, who, it seems, will ultimately decide this case?

adam liptak

The right side of the court was unusually hard to read.

archived recording (julie rikelman) — standard here. archived recording (samuel a. alito jr.) Well, let’s take one example. Let’s take Doe number 2. Doe number 2 is plaintiff in this case, right? archived recording (julie rikelman) Yes, your honor.

adam liptak

The only justice who asked consistently hostile questions of the lawyer representing the abortion providers was Samuel Alito.

archived recording (samuel alito) He testified that he didn’t apply for admitting privileges there, because it’s a Catholic hospital. Isn’t that right? archived recording (julie rikelman) That was part of the testimony, but in a —

adam liptak

And he came on strong.

archived recording — satisfy, including residency — archived recording (samuel alito) When Doe number 2 explained why he didn’t apply to this hospital, he said, in part, because it’s not a place where I would feel comfortable. Didn’t he say that? archived recording (julie rikelman) He did, your Honor. Doe 2 —

adam liptak

But he was the only one who came on strong. Clarence Thomas, as is his custom, asked no questions. Justice Neil Gorsuch, President Trump’s first appointee, is usually active at oral argument. And to my surprise, and the surprise of many, he said nothing at all during this argument.

michael barbaro

Hm, making it very difficult to know where he may be leaning.

adam liptak

That’s right. He’s quite conservative. I have to think he doesn’t think there’s a constitutional right to abortion. But there’s not a lot of judicial track record to pin that intuition on.

michael barbaro

Hm. What about President Trump’s second appointee on the court, Justice Kavanaugh?

adam liptak

Justice Kavanaugh asked questions that seemed to show an open-minded attempt to sort through the various issues in the case. He wanted to know, for instance, whether a regulation that maybe didn’t do anything to further women’s health, but also didn’t make it harder for them to have abortions, whether such a regulation would be possible.

archived recording (brett kavanaugh) If a state passed an admitting privileges law, therefore, and suppose a state had 10 clinics and two doctors for each clinic, but all 20 doctors could easily get the admitting privileges so that there’d be no effect on the clinics, no effect on the doctors who perform abortions, and therefore no effect on the women who obtain abortions, would a law be constitutional in that state?

adam liptak

So he asked, hypothetically, what if every doctor and every clinic was able to get admitting privileges? Would we still have to strike down that law? And that was a way of asking the question of, are we bound by that Texas decision, or can we find that the same law with the same words has a different impact in a different place? But as open-minded as Justice Kavanaugh sounded, there is some evidence in his judicial rulings, when he was a federal appeals court judge, that he is not comfortable with abortion rights — voting, for instance, to block a pregnant, undocumented teen from being able to get an abortion.

michael barbaro

So it sounds like there is reason to believe that these four justices you have mentioned — Alito, Thomas, Gorsuch, Kavanaugh — they may all support this Louisiana law. They might vote to uphold it.

adam liptak

Yeah, I think that’s the best information we have. That the four liberals are solid, that the four conservatives you mentioned are pretty solid. And that leaves one justice.

michael barbaro

Chief Justice John Roberts.

adam liptak

Yes, who, more and more, finds himself at the ideological center of the court in all kinds of cases.

michael barbaro

And what is John Roberts’s conduct during these oral arguments?

archived recording (john roberts) Do you agree that the benefits inquiry under the law is going to be the same in every case, regardless of which state we’re talking about?

adam liptak

So he’s very hard to read in this case. But here’s what you need to know. In the 2016 case, in the case involving Texas, he said the Texas law was fine. He voted to uphold the Texas law.

michael barbaro

Oh, interesting.

adam liptak

And now he’s looking at the identical Louisiana law. And for him, even to be open-minded about it might be a big surprise.

archived recording (john roberts) I understand the point that the impact of the laws varies from state to state. But why do you look at each state differently if the benefits of the law — they’re not going to change from state to state. archived recording So —

adam liptak

He asks a series of questions that seem a little skeptical about the Louisiana law. He seems to be buying the idea that it may not confer any medical benefits to women, it may not protect their health. And that casts the chief justice in a very interesting light.

michael barbaro

Hm. So Chief Justice Roberts was a vote in favor of this identical Texas law four years ago. And now, in his questions to the lawyers, he seems skeptical of the identical law in Louisiana, perhaps somewhat open to striking it down.

adam liptak

So Chief Justice Roberts often has conflicting impulses. He’s basically conservative. He’s a product of the conservative legal movement. But he’s also the steward of the court’s integrity and authority. And he may think that, listen, we’ve decided this question once. A federal appeals court seems to have ignored us. That’s not acceptable. And even though I might have voted differently the first time, there are other interests at play here.

archived recording (julie rikelman) There are no further questions. archived recording (john roberts) Thank you, counsel. The case is submitted.

michael barbaro

So how do you think this all will shake out? You have an almost startlingly good track record of predicting outcomes in Supreme Court cases.

adam liptak

I’m confused, Michael. I really don’t think that John Roberts wants to make it a habit of having 5-4 decisions in which he joins the court’s liberals. But I guess I do think that there’s a class of cases, and this may be one of them, where a conception of respect for the rule of law and for precedent and for judicial integrity might push him in that uncomfortable direction.

michael barbaro

Towards the liberals and striking down this law.

adam liptak

That’s right.

michael barbaro

Adam, I’m curious. What does Kathaleen say about what she thinks will happen here?

adam liptak

She is very, very nervous. She thinks that in the past couple years, the landscape — the legal, social, political landscape — has shifted against abortion rights. She’s nervous about the future of her clinic.

kathaleen pittman My one big hope is that the integrity of the Supreme Court means something — or that it still exists. Let me put it that way. I think — look, you know, anybody looking at the bigger picture would know that if we don’t win, and if the court reverses itself, or even qualifies its prior ruling, then it’s going to open up a Pandora’s box.

michael barbaro

Adam, thank you very much.

adam liptak

Thank you, Michael.

michael barbaro

A Supreme Court ruling on the constitutionality of Louisiana’s abortion law is expected by June. We’ll be right back. Here’s what else you need to know today. On Sunday, in an attempt to contain the coronavirus, Italy locked down much of the country’s north, restricting movement for about a quarter of the Italian population. It was the most sweeping effort outside of China to stop the spread of the disease, which has already infected more than 7,300 Italians and killed more than 365. But it was unclear how effective the lockdown would be. Hours before and after it began, people streamed out of the region on trains and planes. In the U.S., 21 passengers on a cruise ship off the coast of California have tested positive for the virus. New York has declared a state of emergency over its outbreak, and a top health official told Fox News that regional travel restrictions could become necessary.

archived recording 1 Italy just announced that it is going to lock down an entire region of northern Italy that includes Milan and Venice, with a quarter of the population. Could that happen here? archived recording 2 We have to be realistic. I don’t think it would be as draconian as “nobody in and nobody out.” But if we continue to get cases like this, particularly at the community level, there will be what we call mitigation, where you’ll have to do, essentially, social distancing — keep people out of crowded places, those kinds of things.

michael barbaro