The louisiana law at issue here, act 620, is identical to the texas law and was expressly modeled on it. After a trial, the District Court ruled act 620 unconstitutional, finding no material differences between this case and whole Womans Health. On burdens, it found that act 620 would leave louisiana with just one clinic and one doctor providing abortions. At the same time, it found that act 620 would do nothing for womens health. In reversing the District Courts decision, the fifth circuit committed two fundamental errors. First, it usurped the role of the District Court and disregarded nearly all of its factual findings. Second, the fifth circuit accepted legal arguments that this court rejected four years ago. Nothing, however, has changed that would justify such a legal aboutface. In fact, even more medical organizations have joined the ama and acog to say that admitting privileges impose barriers to abortion with no benefit to patients and that this impact is not state dependent. Finally, the states eleventhhour objection to thirdparty standing runs up against still more binding precedent. The court squarely held in craig versus boren that such objections are waiveable, and the state deliberately and strategically waived the issue in the District Court. And even if the state could get past waiver, denying standing here would contradict decades of this courts precedent in numerous areas of the law. In short, petitioners have thirdparty standing, especially because act 620 restricts abortion by regulating them, rather than their patients. Justice ginsburg would you have done anything different if it had been if the thirdparty standing have been timely raised . Ms. Rikelman your honor, we certainly could have submitted additional evidence in the court, but we believe that the evidence that is already there is sufficient to find thirdparty standing. This court has squarely found thirdparty standing in at least four abortion cases that are on point, as well as a number of other cases such as meyer, craig, carey, and the courts cases have been consistent in saying that a plaintiff who is directly regulated by a law has thirdparty standing. Justice alito would you agree with the general proposition that a party should not be able to sue ostensibly to protect the rights of other people, if there is a real conflict of interest between the party who is suing and those whose rights the party claims to be attempting to defend . Ms. Rikelman no, your honor, not if that party is directly regulated by the law in question. And, in fact, this court has allowed thirdparty standing in cases where the state argued that the third parties were protected by the law and in a sense protected from the plaintiffs. Justice alito really . Thats amazing. You think that if the plaintiff actually has interests that are directly contrary to those of the those individuals on whose behalf the plaintiff is claiming to sue, nevertheless that plaintiff can have standing . Ms. Rikelman if the plaintiff is directly regulated by the law. This court has allowed an attorney to bring thirdparty claims against a statute that capped attorneys fees in favor of clients. Justice alito well, thats amazing. Lets i mean i i suppose i know you think that the admitting privileges requirement serves no safety purpose, but suppose that the regulation that was being challenged was one that a lot of people might think really did serve a safety purpose. Lets say were in a state where physicians assistants can perform abortions, and a an Abortion Clinic wants to challenge the training requirements for physicians assistants. It just thinks those are too onerous and theres no justification for them. Now, if theyre wrong about that, it implicates the interests of the women who may want to get an abortion, but you would say the clinic nevertheless can sue on behalf of those women . Ms. Rikelman this court has squarely held in many cases that a plaintiff directly regulated by the law can sue, and those cases make sense for at least two reasons, your honor. First, because a plaintiff should not be subject to severe penalties under an unconstitutional rule. And, second, if the plaintiff is the one directly regulated, then theyre it makes sense that they are the appropriate plaintiff. Justice ginsburg and that sounds like a direct standing, not thirdparty standing. Is there anything like the conflict that Justice Alito had mentioned . Is there a conflict . Ms. Rikelman no, your honor, there is not even a plausible conflict in this case because this court already held that admitting privileges served no medical benefit, and the District Court here, after a trial, specifically found that this law would serve no benefit and, in fact, would harm the health of women in louisiana. Justice alito but, you know, your argument is using the merits to defeat to to support standing. Theres a serious problem with that. Ms. Rikelman no, your honor. I believe its the state thats collapsing standing and merits. And, again, this court has allowed thirdparty standing in cases where one could argue that the state law in question was protecting third parties from the plaintiffs. In addition to triplett, that was the issue in craig versus boren. The law there was a state law in oklahoma, and the state claimed that it was designed to protect young men from buying beer in order to make sure that they were safe and didnt get into traffic accidents. Justice sotomayor counsel, is this i im just wondering, are these doctors in any different position than potential plaintiffs, women, who feel burdened by this law . Ms. Rikelman no, your honor. And, in fact, the state has not pointed to a single thing that would have been different if one woman had been joined in this lawsuit. To the contrary, the issues that the state says are the key issues in this case, whether this law serves health and safety benefits and how difficult it is for physicians to obtain privileges, are issues that the physicians are particularly well suited to litigate. And, again, this is a law Justice Sotomayor so the point is you have standing on behalf of those women who feel burdened . Ms. Rikelman yes, your honor. Justice sotomayor to the extent that other women may not have brought a suit, thats irrelevant to the fact that there are some, those burdened, who could have and would have, if situations had permitted them to . Ms. Rikelman thats absolutely right, your honor. Justice alito well, then why cant why shouldnt they be the ones to bring suit . Ms. Rikelman your honor, this is a law that restricts abortion by regulating the physicians, rather than their patients. And so its appropriate for them to be the plaintiffs here. Again, the Justice Alito well, but ms. Rikelman state has pointed to Justice Alito the the constitutional right at issue is not a constitutional right of Abortion Clinics, is it . Its the right of women. Ms. Rikelman thats correct, your honor, but in order for women to access their right to abortion, they need to be able to access those services. Justice alito do do you think a party can have thirdparty there can be thirdparty standing if there is no hindrance whatsoever to the bringing of suit by the people whose rights are at stake . Ms. Rikelman this court has allowed thirdparty standing in cases where the law directly regulates the plaintiff without a showing of hindrance. For instance, in craig versus boren, there was clearly no hindrance. But i would also say that the court doesnt need to reach these issues here because the state strategically and deliberately waived thirdparty standing. Justice alito well, i think thats highly debatable that they waived it. They certainly didnt raise it in the District Court, but whether they they affirmatively waived it is quite debatable. Ms. Rikelman your honor at ja 45, the state explicitly conceded thirdparty standing and urged the District Court to reach the undue burden claim, saying that it had a keen interest in removing any cloud upon the validity of its law, that this case was the proper vehicle for doing so. Justice alito its a its a highly debatable interpretation of that passage, which ive read numerous times. What the state was saying was that the while the temp if a temporary restraining order was issued, the lawsuit should continue to go forward. And they said there wouldnt be an impediment to the lawsuit going forward, because the doctors would have standing. And what i think they may have been saying in that instance is that they would have standing under the law that was applicable at that time. We and we could debate what was actually said, but i think its quite a stretch of the record for you to say there was an affirmative waiver. Ms. Rikelman your honor, at ja 45 there was a deliberate waiver. And the and the state did it strategically because it was attempting to take advantage of favorable fifth circuit precedent at the time because the fifth circuit had just upheld the texas admitting privileges law. Again, the state specifically urged the District Court to decide the undue burden claim, saying that this case was the proper proper vehicle for resolving the constitutional issues and that any delay wouldnt serve judicial efficiency. Justice ginsburg it wasnt raised in in the District Court or in the court of appeals. It was it cropped up in a wasnt it a crosspetition for cert . Ms. Rikelman thats correct, your honor. Justice ginsburg and might you have, if you had a timely notice, just as insurance, joined a patient or two . Ms. Rikelman yes, your honor. And, in fact, it would be profoundly unfair to allow the state to raise the objection for the first time five years into this litigation after it urged the District Court to decide the undue burden claim and then pursued the undue burden claim through multiple rounds of appeals. It didnt even raise the issue when this case came before the court in 2016 on the stay. The first time that it raised an objection was when it filed its crosspetition for cert. And, again, at ja 45, it deliberately and strategically waived this issue. Justice breyer how many abortion cases has has the court either expressly or silently allowed the doctors to sue on behalf of the women . I i counted eight, but maybe thats overstating it. How many abortion cases in this court . Ms. Rikelman at least eight, your honor. And i believe at least four of them squarely allowed standing in precisely these circumstances. Justice breyer so if we didnt in this case, it would require either directly or indirectly overruling eight cases of this court . Ms. Rikelman thats correct. And, in fact, in danforth and akron the same type of law was at issue. It was a law that the state claimed was designed to protect the health and safety of women but the Court Allowed the physicians to bring the claim and to show that, in fact, the law didnt further health and safety. Justice alito in how many of those cases did the court discuss the issue of conflict of interest . Ms. Rikelman the court in danforth specifically said that the plaintiffs had standing. It wasnt discussed in terms of the words conflict, your honor, but, again, the same types of arguments were in front of the court Justice Alito was it ms. Rikelman because the state Justice Alito was it a footnote in danforth . Ms. Rikelman i dont believe so, your honor. I believe it was a foot footnote in akron but in danforth it was Justice Alito yeah. Justice ginsburg you made a point about craig versus boren, that the ostensible purpose of the law was to save the vulnerable young men from the evils of 3. 2 beer . Ms. Rikelman thats correct, your honor, and the Court Allowed the saloon keeper to bring the thirdparty standing claim. Again, in triplet the Court Allowed an attorney to challenge a law designed to cap attorney fees. And in carey the Court Allowed a mail order contraceptive company to challenge a law that was designed to limit the prescription of contraceptives to pharmacists, again, claiming that that was about protecting the health and safety of people. So the court has allowed thirdparty standing in many cases that are squarely on point. Chief Justice Roberts counsel, do you agree that the inquiry under hellerstedt is a factual one that has to proceed statebystate . Ms. Rikelman your honor, i think that facts may vary, but what we know is that the District Court held a trial here and found that there were no material differences between this case and chief Justice Roberts no, no, i know, but if if the issue, the statutes are on the books in other states, and if the issues are raised there, is the same inquiry required in each case . You have to have the District Court examine the availability of specific clinics and the admitting privileges of doctors so that the litigation could be the results could be different in different states . Ms. Rikelman two points, if i may, your honor. This court held in whole Womans Health that the texas admitting privileges law was medically unnecessary and its burdens were undue. That holding should clearly apply to louisianas identical law, and certainly the courts reasoning is applicable in louisiana. Now, the burdens of a law may vary, but a law that has no benefits and doesnt serve any valid state interest is much more likely to impose an undue burden. And Justice Kavanaugh if a if a state passed an admitting privileges law therefor, 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 would 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 . Ms. Rikelman that law may still be unconstitutional if its restricting access because of the 30mile limit, your honor, but thats very different from the situation here where the District Court concluded Justice Kavanaugh if it didnt im sorry to interrupt if it didnt, though, put aside the 30 miles, 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 . Ms. Rikelman that law would have no benefit, your honor, and it may pose a much harder question than this case. But in this case the District Court after a trial explicitly found that 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. And the Justice Alito well, 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 for clear error, was it not . Ms. Rikelman yes, your honor. Clear error is the standard. And we believe that the District Courts findings are more than plausible under the standard here. Justice alito well, lets take one example. Lets take doe number 2. Doe number 2 is a plaintiff in this case, right . Ms. Rikelman yes, your honor. Justice alito so he had he didnt have it would be counter to his own interests for him to make a super effort to get admitting privileges, wouldnt it, because hed be defeating his own claim . Ms. Rikelman no, your honor. Doe 2 brought this lawsuit to protect the rights of his patients. And the District Court found that he was competent and qualified and that he made good faith efforts to obtain Justice Alito all right. So if all right. We can argue about whether he had a conflict of interest or not. He previously had admitting privileges at a hospital in the shreveport area, did he not . Ms. Rikelman yes, your honor. Justice alito a predecessor of Christus Schumpert . Ms. Rikelman yes, your honor. Justice alito he testified that he didnt apply for admitting privileges there because its a catholic hospital, isnt that right . Ms. Rikelman that was part of the testimony. But in addition, the bylaws of in that hospital showed that there would be admissions requirements that doe 2 couldnt meet. Justice alito all right. Well, he testified directly, i did not apply there because its a catholic hospital. Is that not correct . Ms. Rikelman thats correct, your honor. Justice alito all right. Doe number 3 performs abortions, does he not . Ms. Rikelman yes. Justice alito doe number 3 has admitting privileges there . Ms. Rikelman he has admitting privileges that require 50 admissions per year which he is able to satisfy because he has an obstetrics practice. And thats why he was the only physician with privileges. The states own credentialing expert in this case conceded that outpatient physicians like these who 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 Justice Alito when doe number 2 explained why he didnt apply to this hospital, he said, in part, because its not a place where i would feel comfortable. Didnt he say that . Ms. Rikelman he did, your honor. Doe 2 focused his efforts on hospitals where he thought he had the best chance of obtaining privileges. He had had privileges at lsu and wasnt even able to get privileges there. Justice alito did the District Court mention any of these facts . Ms. Rikelman yes, your honor. The District Courts opinion was very careful, and its its decision and finding that these physicians would not be able to get privileges was based on at least four points. One, the fact that they applied and attempted to get privileges at 15 hospitals over one and a half years. Two, that the states key credentialing expert conceded that physicians who never intended to treat patients in the hospital will not get privileges. Justice sotomayor footnote, thats doctor number 6. Ms. Rikelman all of these physicians are outpatient physicians, your honor. Justice sotomayor no, but number 6 is only a medical doctor. Ms. Rikelman thats correct. Justice sotomayor he hasnt done any surgical procedures since 2004 and 2005. Ms. Rikelman thats correct. And the states expert also conceded that a physician who provides only medication and counseling would never be able to get privileges. In addition, the District Courts burdens findings were supported by what happened when this law actually took effect for a brief time in 2016 and Abortion Access in louisiana was devastated. And of course, the finding of every District Court that has held a trial on a similar law has been that these laws will restrict access to abortion. And here the District Court found that this law would leave louisiana with just one clinic in one state to serve about in 10,000 people per year. And that would mean that hundreds of thousands of women would now live more than 150 in miles from the closest provider. And the burdens were actually in an more severe than this court found in whole Womans Health. Justice sotomayor can we go to doe 3, the doctor who had theac . Hes only a parttime doctor in hope. Ms. Rikelman thats correct. Justice sotomayor theres 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 that in hope if this law goes into effect because he would be the only doctor. But putting that aside, he also testified im 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. Ms. Rikelman thats absolutely right, your honor. The District Court found that without doe 1, the primary provider at hope, hope would not be a viable going concern. So regardless of doe 3s testimony, hope would have to close because doe 3 was be a viable going concern. Providing fewer than 30 of the Abortion Services of that clinic. The primary provider was unable to get privileges, and hope would close, meaning that women living in northern louisiana would now have to travel hundreds of additional miles, for a law that has no benefit, in order to access Abortion Services. Justice kavanaugh could i Justice Sotomayor theres no dispute here about doe 1. Ms. Rikelman thats correct. Justice sotomayor the other side, that finding it says is right. Now doe 3, whether or not he would quit or not, the clinic would have to close because it wouldnt have a doe 1 . Ms. Rikelman correct. Justice sotomayor so, at least with respect to that. With respect to doe 6, thats a medical doctor only who hasnt been in a 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 inpatient of receiving patients by the doctor, and he cant fulfill that under any circumstances, correct . Ms. Rikelman thats correct. Justice sotomayor all right. Justice kavanaugh can i follow up on the chief justices earlier question and mine as well . Are you saying that admitting privileges laws are always unconstitutional, such that we dont have to look at the facts in state by state . Or are you saying that actually you do look at the facts state by state, and in some states, admitting privileges laws could be constitutional, if they impose no burdens . Ms. Rikelman your honor, the burdens may vary, but a law that has no benefit and serves no valid state interest, which is what this court held in whole Womans Health, is much more likely to be an undue burden. Justice kavanaugh could an admitting privileges law of this kind ever have a valid purpose, in your view . Ms. Rikelman no, your honor. The medical consensus against these laws is clear. Justice kavanaugh so your view is that theyre unconstitutional in any state, regardless of the facts . Ms. Rikelman they certainly serve no valid state interest. And, in fact, the District Court here found that this law was a solution for a problem that didnt exist and would actually jeopardize this health and safety of people in louisiana. Justice sotomayor would this be different if if they did something as limited as, for example, you have to be admitted somewhere, because some being admitted somewhere does further the credentialing benefits . But this was you have to be admitted within 30 miles. Some of these doctors were admitted further away, but they still were credentialed by someone, correct . Ms. Rikelman thats correct, your honor. If credentialing were the true goal of this law, the 30mile limit would make no sense. And one of the practical realworld impacts, if this law were to take effect, is that women in the baton rouge area would now have to travel 320 miles back and forth to new orleans to see the same exact physician that they previously could have seen Justice Sotomayor how many ms. Rikelman in baton rouge. Justice sotomayor miles from the northern from the hope area . Ms. Rikelman its 320 miles, your honor, from shreveport to new orleans. And from baton rouge back and forth, because of the twotrip law, its 320 miles. And, again, they would be making that trip to see the same exact physician who had been previously providing services in baton rouge. And that has no benefit to womens health. It will only hurt their health, which is exactly what the District Court found here. Justice ginsburg you havent mentioned, and its odd, the 30 mile from the clinic, when most of these abortions dont have any complications and the patient never gets near a hospital, but if she needs a hospital, its certainly not going to be the one near the clinic. She will be home. Ms. Rikelman that Justice Ginsburg and so ms. Rikelman thats exactly right, your honor. Thats what this court recognized in whole Womans Health and one of the reasons why it concluded the law is medically unnecessary, because the the complication rate is extremely small to begin with, but when complications do occur, its almost always after the woman has been left the clinic. And the standard of care at that point is for her to go to the hospital closest to her home. And of course, about 40 of abortions in louisiana are medication abortions, and any complication from those abortions will always happen when the patient is at home, which, again, is what this court recognized in whole Womans Health. And that is one of the reasons why the ama and acog are clear that these laws have no medical benefits whatsoever and only impose barriers to abortion. And that is true in every state, regardless of the state circumstances. These laws will always put barriers to abortion while serving no health and safety benefits. And in fact, the District Court here found that abortion in louisiana in the years before the law was extremely 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. And again, it concluded that there is no basis to distinguish this case from whole Womans Health and instead the burdens of this law would be even more severe than the texas law that this court struck down in whole Womans Health. Justice alito hope is the the name under which june medical does business, is that correct . Ms. Rikelman yes, your honor. Justice alito was was june 31 medicals license suspended for regulatory violations . Ms. Rikelman it was briefly, your honor, in 2010. And the court heard testimony about that and rejected the states allegations after listening to the clinics administrator and looking at the evidence in the record. It concluded that hope has an excellent Safety Record and that its physicians are qualified and competent. Chief Justice Roberts thank you, counsel. General murrill. Ms. Murrill thank you, mr. Chief justice, and may it please the court, the fifth circuit correctly held that the plaintiffs in this case failed to carry their burden their heavy burden of proof that is required to facially invalidate a state law. Louisianas decision to require abortion providers to have admitting privileges was justified by abundant evidence of lifethreatening health and safety violations, malpractice, noncompliance with professional licensing rules, legislative testimony from postabortive women, testimony from doctors who took care of abortion providers abandoned patients. The substantive due process claim that plaintiffs assert on their patients behalf hinged upon their assertion that they would not be able to get privileges, but they can and they did. Their claims also fail for an independent reason. So they do not meet the modern, rigorous rule for thirdparty 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 reaffirm 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. And in this context, the conflict between the plaintiffs and the individuals that the law seeks to protect should defeat the close relationship prong of thirdparty standing. Apart from that conflict, the record shows that they do not have a close relationship with their patients and individual women have litigated abortion cases on their own for decades. Id like to first address why this case is different from hellerstedt and then address standing and waiver. The the 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 dictated a different result. So the fifth circuit focused on one of the things that the fifth circuit focused on was credentialing. The record in this case demonstrates that there is no credentialing that is performed by these facilities. They alleged that they had robust policies, but they dont read them and they dont follow them. Justice ginsburg what sense does the 30mile limit make, considering that certainly for medication abortions and for the overwhelming number of other the overwhelming number of other abortions . Ms. Murrill Justice Ginsburg Justice Ginsburg if the woman has a problem, it will be her local hospital that will 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. Ms. Murrill Justice Ginsburg, that regulation is consistent with the regulation that we have in our Office Surgery regulations and our ambulatory surgery regulations, so it is consistent with our regulatory structure. We also had evidence in the record of women who did require transfers. I think there is at least doe 3 testified unambiguously that he had to transfer four patients who had punctured uteruses and were hemorrhaging Justice Ginsburg what about ms. Murrill and he took care of them. Justice ginsburg what about a d c after a miscarriage . As i understand it, these two procedures are very much alike. Are similar regulations, about 30 miles, and admitting privileges applicable to a d c following a miscarriage . Ms. Murrill under the ambulatory Surgery Center regs, yes. Under the Office Practice regs which do not regulate Abortion Clinics, a doctor who doesnt have a have a residency in the proper scope of care would have to have admitting privileges and would have to have them within a 30mile radius of of the clinic. So its the same requirement. Justice ginsburg it is the same. Ms. Murrill yes. Justice ginsburg i thought there was something in the record suggesting there was no such requirement for d c following a miscarriage. Ms. Murrill 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 are ambulatory Surgery Centers. And both require all the medical staff to have admitting privileges. The the requirement under asc says geographically close, and it is interpreted under the regs as the same way. So we dont interpret it differently. Were applying them consistently and were reading those regulations the same. Chief Justice Roberts do you agree that the benefits inquiry under the law is going to be the same in every case, regardless of which state were talking about . I mean, i understand the idea that the impact might be different in different places, but as far as the benefits of the law, thats going to be the same in each state, isnt it . Ms. Murrill no. I dont think the benefit i mean, i think that a state could certainly show greater benefits, depending on what their regulatory structure is and what the facts are on the ground in that state. I think we absolutely could show that we that it serves a greater benefit. In our situation, for example, weve demonstrated that the doctors dont do credentialing, that the the lsbme testimony from the executive director from dr. Mutah in the record, at ja 1373, she testified specifically that the lsbme doesnt do credentialing for procedures. Thats what the hospital would do. And thats what, if the clinic had Justice Sotomayor im sorry. Ms. Murrill robust policies, it would do. Justice sotomayor im 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. And they also the license is suspended if they are committed if they are convicted of a criminal act. Youre youre making it sound like there is no state licensing of these doctors. They are licensed. They are regulated. Ms. Murrill Justice Sotomayor, they are they are licensed by the state as and doctor dr. Cecllia mouton testified specifically at ja 1373 that the board does not do credentialing. That is not our role. Justice sotomayor but didnt they also ms. Murrill our role is licensing generally. Justice sotomayor testify that they but they did ensure that each of these doctors was skilled in the procedures that they were performing . Ms. Murrill no. In fact, doe 3 hired a radiologist and an ophthalmologist to perform abortions at one point in time. So they clearly were not Justice Sotomayor but he was ms. Murrill complying. Justice sotomayor supervising what they were doing. Thats what he testified to. Ms. Murrill that is not within the scope of care. And our record clearly demonstrates that you should have a residency and you should have training in the area in which you are performing surgical procedures. So it would not comply even with our Office Practice regs for a doctor to a radiologist to perform abortions. That would not comply with our standard of care. Justice sotomayor was he doing a surgical procedure or was he doing a medical abortion . Ms. Murrill he was performing surgical abortions, to the best of my knowledge. There is no indication that he wasnt. I believe that the testimony is that he was performing all he wasnt restricting his practice. Theres not a lot of testimony in the record about what he those doctors were doing, other than he hired them. But to your to your question Justice Sotomayor were not even talking about them. Were talking about these doctors and their credentials. Ms. Murrill oh Justice Sotomayor and and i dont and im sort of still at a mystery to me why, if whats important to you is the credentialing, why the 30mile limit has significance . Ms. Murrill because its not just credentialing. It is all of the other factors that also play into it. It does provide continuity of care. It does cover for it does address Justice Sotomayor how can the ms. Murrill the noncompliance with health Justice Sotomayor if there is no ms. Murrill and safety regulations. Justice sotomayor continuity of care, this law itself permits a doctor to either have admitting privileges or to be in contract with someone who does. So its not necessary that there be continuity of care in a hospital. The the only thing is the credential, you said, is to make sure that they have the skill level. But if theyre credentialed somewhere else, they have the skill level. Ms. Murrill Justice Sotomayor, they did not even comply with the transfer requirement. They did not comply with multiple Health Health and safety requirements in the state. So part of what the credentialing Justice Sotomayor was this all ms. Murrill part of what Justice Sotomayor before the District Court . Ms. Murrill yes. Justice sotomayor all right. And the District Court looked at it and found explanations that were adequate for each and didnt come to the conclusions you did or the legislature did. I thought the standard of review for the fifth circuit here was whether there was a plausible basis in the record for the conclusions the District Court reached . Ms. Murrill the District Court judge ignored all of the health and safety violations. He ignored an entire category of courtesy privileges if were talking about compliance. I mean, i would i would like to take us back to the point that they could and did get privileges. And their primary Justice Kagan general murrill, before you ms. Murrill assumption from the beginning was Justice Kagan do that before you do that, please. On this credentialing point, which youve mentioned several times, and of course whole Womans Health discussed that and said a state cant say its doing this for credentialing purposes if the hospitals reasons for denying admitting privileges have nothing to do with the doctors quality. And that was true in whole Womans Health and its true here, too, that theres a great deal of evidence in the record that indicates that admissions privileges rest on many things. It could rest on qualifications, but it could rest on the number of patients a doctor has. It could rest on whether a doctor whether a particular hospital needs more providers. It could rest, too, it could rest on a general view that they dont want abortion providers in that hospital. So given that thats all true, it was true in texas and its true here, it seems that whole Womans Health precludes you from making this credentialing argument, doesnt it . Ms. Murrill no, i dont think that it does at all. I mean, in our case it was demonstrably different. They could and did get privileges. So all of the the the conjecture and the speculation about the reasons why they might be denied privileges were proved to be untrue. Justice ginsburg is it not ms. Murrill they were able to get privileges. Justice ginsburg 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 thats if theyre not also doing obstetrics and gynecology, they will never qualify because their patients dont go to the hospital. Theres one finding in that respect, and you can tell me if theres any dispute about it, but this circuit didnt seem to contest this finding of the District Court, that a 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. Isnt that so . Ms. Murrill Justice Ginsburg, to your first point about the the privileging and the minimum requirements, every every set of bylaws in our record shows that there is a category of courtesy privileges that permits low admit from anywhere Justice Ginsburg my question is ms. Murrill from zero to a dozen. I Justice Ginsburg is there anything inaccurate about this determination that access to a hospital ms. Murrill i think, yes. Justice ginsburg was required far less than once a year, less than one per several thousand patients . Ms. Murrill yes. It is inaccurate because what the record demonstrated is that they dont know what their qualification what their complication rates are. They all testified that they dont know because women dont follow up with them or they dont follow up with women. So they really dont know what their complication rates are. And they did testify that they had direct transfers that resulted in women having hysterectomies Justice Kagan well is it right ms. Murrill and hemorrhaging. Justice kagan is it is it right that there is evidence in the record that hope clinic has served over 3,000 women annually for 23 years, so thats around 70,000 women, and has transferred only four patients ever to a hospital . Ms. Murrill and there is evidence in the record that they really dont know that thats an accurate rate because they dont track their complications. They really dont know what their numbers are. Justice kagan well, they know ms. Murrill so they testified Justice Kagan they know whether they have transferred women to a hospital, and its four. I mean, i dont know of a medical procedure where its lower than that of any kind. Ms. Murrill Justice Kagan, its four that they know of Justice Ginsburg you dont you dont ms. Murrill and that they dont track the numbers. Justice ginsburg you dont dispute that, among medical procedures, first trimester abortion is among the safest, far safer than childbirth . Ms. Murrill Justice Ginsburg, a firsttrimester abortion can be either medical or surgical. And even if its medical, the doctor should have the qualifications to to be able to handle the most likely complication of that procedure, which is a surgical abortion. So under the standard of care in louisiana, even if its a medical even if its a medication abortion, the doctor should be able to handle a surgical abortion and be qualified to do that. I think the record is questionable about whether doe 1 can even do that because Justice Breyer oh, doe 1, everybody agreed, including the fifth circuit, that doe 1 is barred by this new law. The old law said that you have to have admitting privileges or a written transfer agreement. So its a little hard to see how this improves anything since you had to have a written transfer agreement anyway, isnt that true or not . Ms. Murrill which doe 1 did not comply with. Justice breyer well, well why all right. But then i dont know why the fifth Circuit Court of appeals, which seemed to have problems with the District Court, agreed with the District Court as to doe 1, but that isnt my question. My question is were not going to solve this at oral argument. I mean, what ive done, and im sure the others have, is ive gone through the District Court findings and i have 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 2 is your weakest case. I think there are others that are stronger. But id like your opinion, your opinion, about which of these does is your strongest . And ill be sure to look very carefully at that. Ms. Murrill my Justice Breyer, i just want to understand your question. Justice breyer you dont understand ms. Murrill my strongest Justice Breyer im saying which is strongest by the strongest, i mean youre trying to make an argument, and you have four does that you have to deal with. Okay . Ms. Murrill so Justice Breyer and so i want to know, of your opinion, in respect to which doe is your argument the strongest. Your argument is that the fifth circuit was right to overturn a fact finding and with doe 3, a credibility finding of the District Court. Thats your argument. Now, you have to support that. And i want to know in respect to which doe you feel its the strongest support for you . Ms. Murrill and i go in order . Justice breyer yeah ms. Murrill can i give you more than one . Justice breyer you can give me all of them if you want, but you dont have that much time. Ms. Murrill all right. So Justice Breyer and if you have a if you want to say theyre all equally strong, fine. Thats okay, you can say that because i have an opinion about 2 at least, and and you can say what you want. Ms. Murrill well, i mean i think that theres evidence in virtually all of them that they sabotaged their own applications and that doe 5 was and doe doe 5 obtained privileges in baton rouge and new orleans, as to only one doctor to back him up in baton rouge, and all of the doctors agreed that is not difficult to satisfy. Doe 2 simply Justice Breyer so they dont all agree. I mean, thats i dont think. But were not going to get all i want to know is a number. And the reason is we have limited time and i could spend two hours ms. Murrill well, i Justice Breyer discussing with you doe 2, 3, 4. All i want to know is which should i look at specially hard . Ms. Murrill i would look at doe 6 Justice Breyer all right. Ms. Murrill who applied to one out of nine Justice Breyer all right. Ms. Murrill hospitals in new orleans. Justice breyer thats what i think. Ms. Murrill thats a thats a good example. Justice breyer all right. Justice sotomayor that thats a great example, because hes the doctor who does only medical abortions, not surgical. He hadnt done a surgical procedure for over 12 years. And 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 the hospitals, if not all of them, even if there wasnt like in tulane, even if there wasnt a minimum number of patients that had to be admitted before you got privileges, you had to see a certain number of patients in the hospital per year to maintain your privileges. And he couldnt meet that requirement. So you talk about him applying to only one hospital in a situation where it was guaranteed that he couldnt meet the requirements of any hospital. My understanding of hospital practice today is you got to stay alive only if somebody sees patients ms. Murrill yep. Justice sotomayor because if they dont see patients, theyre of no value to the hospital. If the patients arent admitted and theres no circumstance in which this doctor is going to admit a patient because he does no surgical procedures ms. Murrill Justice Sotomayor, i think the record shows that the that they can get privileges, they did get privileges, and theres nothing in the bylaws that prohibits them from being Justice Breyer your your own expert, dr. Marier, testified, it is unlikely that a doctor who, like doe 6 does does what Justice Sotomayor said, would probably not be able to obtain active admitting and surgical privileges. Now, that was your expert. And the basis of that and various other things the District Court finds that he didnt have to apply to all the hospitals because there was no point because your expert said he probably could not get them. And its on the basis of that kind of thing 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 . Ms. Murrill Justice Breyer, the fifth circuit did a searching review of the record just as is it is instructed to do by whole Womans Health. And and in the brief amount of time that i have left, i would like to say just one thing about standing. I think that the record is the reason why it demonstrates that these doctors should not be able to challenge a regulation that protects people that that is intended to protect a class of people from a certain type of activity. Its health and safety regulations. As a practical matter and and even yesterday this court was talking about the fact that consumers are protected by certain body of laws. Thats what we are doing with health and safety regulations. Justice ginsburg how does that differ from craig against boren . Ms. Murrill craig against boren and first of all, had a beer buyer who was a firstparty plaintiff in the beginning of the case all the way through until it became got until it was on appeal. In addition to that, the state Justice Ginsburg yes, but he didnt count. The case rode on the owner of the honk n hollers standing. Craig turned 21. He was no longer subject to the law. Ms. Murrill which is why i believe its better characterized as a mootness case, but i would also point out the law at issue Justice Ginsburg but the standing the court went on to the merits solely on the basis of the beer sellers standing, and youve 54 got a state youve got a state regulation that is ostensibly was designed to protect these vulnerable boys from drinking beer and getting into accidents. Ms. Murrill may i . Chief Justice Roberts very very, very briefly, counsel. Ms. Murrill Justice Ginsburg, my my answer to that is that the the buyer in that case was much more just it was much more just a financial transaction. Their interests were better aligned because he was not prohibited from consuming or possessing the alcohol. So it chief Justice Roberts thank you. Ms. Murrill really wasnt a health chief Justice Roberts thank you, counsel. General wall. Mr. Wall mr. Chief justice, and may it please the court, petitioners counsel began this morning by saying that this case is about respect for the courts precedents, but she went on to acknowledge two rather remarkable propositions that flow from the logic of petitioners position and that are nowhere to be found in the courts cases. To you, Justice Alito, that the plaintiffs may bring this suit even if there is a potential or actual conflict of interest with louisiana women. And to you, Justice Kavanaugh, that this law would be unconstitutional even if all providers in louisiana already had admitting privileges or could easily get them. I do think, though, petitioners did acknowledge what is in the courts cases, which is, to your question, mr. Chief justice, that the burdens may vary by state. At that point under the substantial obstacle test, we ought to be talking about does 2, 5, and 6, and how much of a burden there actually was on them, instead of pivoting to the benefits. And to to you, Justice Alito, thats not a clear error question. Nobody disputes what the doctors did. Were all agreed on the facts. Theres no factual dispute about what the doctors did and didnt do. Its about how rigorously we were going to Justice Ginsburg but what sense mr. Wall review their fairly modest efforts. Justice ginsburg what sense does this 30mile thats what i dont understand. I think everybody also agrees that the most likely place the woman will be if she needs to be in a hospital, shell be at home. She wont and her home has no necessary relationship to 30 miles from a clinic. Mr. Wall so two points, Justice Ginsburg. Again, thats going straight to the benefits and bypassing the burdens, not looking first to whether theres a substantial obstacle. But to go straight to your question, all admitting privileges requirements of which i am aware, and theyre fairly uncontroversial in the medical field, have some distance limitation. And i think the the benefits that they go to, the most obvious is the continuity of care, right, because you want the doctor to be able to admit them at some nearby hospital, and at least in some rural areas, there isnt always a hospital right around the road, so you draw it 15 or 20 or 30 miles. And with respect to credentialing, it makes sense to think Justice Ginsburg but it just mr. Wall that the doctors Justice Ginsburg it just supposed starting out from the clinic where she wont be. Shes not going to be at the clinic. Mr. Wall well, thats often true, Justice Ginsburg, but the record here, unlike in hellerstedt, reveals that sometimes its not true, that sometimes women develop complications in the clinic and in fact, doe 3, who i think on this record is probably the most competent of the does and is the medical director at hope, said that he has on occasion had a patient who develops a problem like a perforated uterus and admitted into the hospital and treated it. So even doe 3 thinks of that as a best medical practice. Now granted, we dont know how often it happens, and Justice Kagan, im prepared to concede that it may not happen all that often. I dont think anybody knows the real rate. But the point is that it does happen. And when it does, its very serious. Justice ginsburg but it would mr. Wall and louisiana Justice Ginsburg it would never happen to the when you go to the clinic just to take two pills and go home. Mr. Wall well, if you develop a complication at home, its not the its not clear that you wont call the clinic and say to your doctor im having a problem, and your doctor will say then go to the following hospital where i have privileges, ill meet you there. Now, thats not to say as a patient thats necessarily what you would want. But its hard for me to believe that women in louisiana wouldnt at least want the option to be treated by the doctor Justice Sotomayor mr. Wall mr. Wall they saw at the clinic. Justice sotomayor are you taking the position that there is no woman in louisiana who doesnt feel burdened by this law . Mr. Wall i im taking the position that Justice Sotomayor no, no. Answer that question. Mr. Wall well Justice Sotomayor is there at least one potential woman you believe that could bring this lawsuit . Mr. Wall i assume that there are, but they have not sued Justice Sotomayor lets stop a moment. Assuming we assume, because its logical, okay, the woman who lives 300 there is going to be some woman who lives 330 miles away, who is going to say thats an unusually long period of time for me to have to drive and then drive back the same day. All right . But putting or or 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, whats the potential conflict . Shes going to come in and say you doctors could get credentialing so i really shouldnt sue . You doctors havent really made an effort so i really shouldnt sue . What sane woman whos a plaintiff is going to have a conflict with a doctor who wants 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, that this law unduly burdens her right to abortion. The i i im i dont see a conflict with that. Mr. Wall well, i would say two things, Justice Sotomayor, their interests are not necessarily aligned. One is the interest of forprofit providers and not being regulated in particular ways. The other is the interest of women in their own health and safety. Now, i dont know how those would have played out if the women had filed suit. I dont know Justice Sotomayor well, please tell me mr. Wall how they would have Justice Sotomayor what you imagined. Mr. Wall but to give you a couple of examples Justice Sotomayor okay. Mr. Wall just to give you its not clear to me that women would have brought facial challenge. Maybe all of the current providers in louisiana Justice Breyer how do you deal with this . I mean, i 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 its wrong, and a lot of people morally think the opposite is wrong. And in casey, and the later cases, i think personally 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. Not all right. So, therefore, i take casey as given. And i think eight cases where youve given standing, i mean, we could go back and reexamine marbury versus madison, but really we have eight cases in the abortion area, we have several cases in other areas, and whole Womans Health picks that up. Casey picks that up. And you really want us to go back and reexamine this, lets go back and reexamine marbury versus madison. And and you have good arguments. But why depart from what was pretty clear precedent . Mr. Wall i i dont want to go back to 1789, Justice Breyer, but i i do Justice Breyer you want to go back for 40 years . Mr. Wall well, i think what we want to say is that in none of those cases has the court ever considered and and signed off in the face of a potential or actual conflict of interest. So, yes, this is an argument that has never been in front of court, and we dont think the court now faced with it should accept it. And if chief Justice Roberts general, i know you have limited time. I understand the point that the impact of the the law varies from state to state, but why do you look at each state differently if the benefits of the law theyre not going to change from statetostate. Mr. Wall so i i disagree, mr. Chief justice. I think the variance isnt going to be as wide as on the burden side. But take credentialing, for instance. I think the petitioners would have to say that if you had a state that really did focus on competence and the hospitals really were vetting for competence, now, they can dispute whether that happens here Justice Kagan i mean, that wasnt this case, right . Mr. Wall well, i i i would say that competence is, i think, a pretty key factor in what the hospitals do. And if you look at the joint Justice Kagan on this record . Mr. Wall i think if you look at the joint Commission Standards that are in the record, but my only point to the chief justice was that however we however we think about that, they can vary depending on how the credentialing system works in a particular state. If i can just make one last point on the merits. I i dont really think its a clear error standard, Justice Alito. Its how rigorously are we going to review pretty modest efforts. Doe 2 did not apply to a hospital where he used to have privileges and doe 3 currently has privileges. Doe 5 got privileges at touro hospital in new orleans and just needed to get a covering doctor in baton rouge. And doe 6 didnt apply to touro in new orleans where doe 5 has privileges. So doe 5 did the thing that petitioners are here saying cant be done. And its hard to figure out what the basis for distinction is, because the the cites they give in their brief, and its pretty general and pretty thin, to be honest, but when you really trace it back, it seems to be the hospital bylaws. And touro, as best we can tell, seems to have bylaws that look like the ones that they say would keep people from getting privileges. Justice breyer the answer each of those has an answer. I mean, they say, look, the ones who didnt get the did get the privileges practice in obgyn practice, and so they had women who, in fact, were admitted to hospitals. And the ones who dont are the ones who do medical abortion. Youve heard that. Mr. Wall and and Justice Breyer okay. And on the other one, as far as, i mean, doe 2, doe 2 says i i i tried to get a covering doctor. He said no. The other covering doctors, theres no point because im in baton rouge is that where he was, i think, doe 2 and he said, look, its a tougher climate here. Really tough for people who perform abortions. Quite different from new orleans. And i was told by one that dont do it because you try to get the covering doctor and that doctor would be subject to picketing, dahdahdah. Okay. We have all seen that. So we have gone through it. Well go through it more. What do you want to say . Mr. Wall so i i think doe 2s in in shreveport. But far more importantly, what i would say is this, in a preenforcement setting, that sort of debate back and forth isnt enough to carry the burden. What ought to have to happen is these physicians ought to have to put their applications where their mouths are and then well find out, once they have applied to the full range of hospitals, whether they really cant, whether doe 2 really cant at christus, whether doe 5 really cant find a covering doctor in baton rouge, whether doe 6 really cant at touro. Justice kavanaugh can that be done . Justice ginsburg is it not mr. Wall but on this record im very skeptical that they cant. Justice ginsburg is it not is it not a reality, is it not really the fact, that almost all hospitals in the state of louisiana do 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 you you dont get if you dont send patients to the hospital, you dont get admission privileges. Chief Justice Roberts you may answer. Mr. Wall Justice Ginsburg, i think thats difficult to square with the fact that doe 5, who does not have an obgyn practice, got privileges at touro. I think petitioners acknowledge that there are not explicit patient minimums. They call them implicit. But the kinds of requirements that they are pointing to are the sorts of things that look like they would have precluded doe 5 and didnt. These ought to play themselves out in a postenforcement context, not as here. Chief Justice Roberts thank you, general. Mr. Wall thank you. Chief Justice Roberts five minutes, ms. Rikelman. Ms. Rikelman your honor, the lack of benefits of these laws is not statedependent. The medical consensus is clear that in no state do they serve health and safety benefits. And in fact, even the federal government a few months ago removed an admitting privileges requirement from its regulations of Surgery Centers nationwide, finding that the requirement is medically unnecessary and imposes burdens. And as Justice Kagan asked, this court rejected an alleged credentialing benefit in whole Womans Health. And after holding a trial, the District Court rejected that this law would serve a credentialing benefit in louisiana. With respect to burdens, the District Court found that this law would be extremely burdensome, more so than the texas law in whole Womans Health. And its finding that these physicians would not be able to get privileges is supported by at least four aspects of the record. The fact that they tried to get privileges at 15 hospitals over one and a half years under the courts supervision, the fact that the states expert conceded that outpatient physicians who dont have a hospitalbased practice are unlikely to get privileges, the fact that Abortion Access was thrown into chaos when this law actually took effect, and the hospital bylaws themselves, which included a variety of criteria that these physicians could never meet, including residency requirements. And finally, id like to point out that this is not, in fact, a preenforcement challenge. The state has recognized that, including in its state papers before this court. The District Court allowed the law to take effect but enjoined its penalties and supervised the physicians efforts to get privileges over a year and a half. Again, the state has previously acknowledged that this is not a preenforcement challenge. If there are no further questions. Chief Justice Roberts thank you, counsel. The case is submitted. [captions Copyright National cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] announcer 1 this week newsmakers interviews the Top Republican on the committee on climate crisis. He talks about new republican approaches to addressing climate issues. That is on cspan at 6 00. You can watch it online at cspan. Org. Tonight on q and a, Peggy Wallace kennedy. She talks about her fathers controversial career and what inspired her to write her book, the broken road. Back in 1996 we took our young son, who was nine at the time, to the Martin Luther king Museum Historical site in atlanta. And we went to his church and to his grave and we went over to the museum. It was being newly constructed at that time. And we were going through the exhibits and we came to the exhibit, alabama exhibit. It showed the admin post bridge, the bombed out 16th street church, fire hoses and dogs and George Wallace standing in the schoolhouse door. And he looked up at me, and he said, he was so sad. Why did poppa do those things to other people . And it broke my heart. Me i said, poppa never told what he did those things to other people, but i know he was wrong so maybe it will just have to be up to you and me to help make things right. Announcer 1 watch tonight at 8 00 eastern on cspans q and a. Announcer 2 on friday president n 8. 3signed into law a billion emergency spending bill to combat the coronavirus. Afterwards he answered reporters questions about the spread of the disease, Economic Impact and the election. Pres. Trump good morning, everybody. Good morning. We are going to tennessee to meet with the governor and a lot of people
vimarsana.com © 2020. All Rights Reserved.