JUNE MEDICAL SERVICES L.L.C., ET AL., Petitioners, v. STEPHEN RUSSO, INTERIM SECRETARY, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, Respondents
Interviewer(s): Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Brett M. Kavanaugh, Sonia Sotomayor
Interviewee(s): Jeffrey B. Wall, Julie Rikelman, Elizabeth Murrill

John G. Roberts, Jr.: We'll hear argument this morning in Case 18-1323, June Medical Services versus Russo, and the cross-petition, 18-1460, Russo versus June Medical Services. Ms. Rikelman.

Julie Rikelman: Mr. Chief Justice, and may it please the Court: This case is about respect for the Court's precedent.

Just four years ago, the Court held in Whole Woman's Health that the Texas admitting privileges law imposed an undue burden on women seeking abortions. 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 Woman's 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 women's health. In reversing the district court's 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 about-face.

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 state's eleventh-hour objection to third-party 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 Court's precedent in numerous areas of the law. In short, Petitioners have third-party standing, especially because Act 620 restricts abortion by regulating them, rather than their patients.

Ruth Bader Ginsburg: Would you have done anything different if it had been -- if the third-party standing had been timely raised?

Julie 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 third-party standing. This Court has squarely found third-party 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 Court's cases have been consistent in saying that a plaintiff who is directly regulated by a law has third-party standing.

Samuel A. Alito, Jr.: 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?

Julie Rikelman: No, Your Honor, not if that party is directly regulated by the law in question.

And, in fact, this Court has allowed third-party standing in cases where the state argued that the third parties were protected by the law and in a sense protected from the plaintiffs.

Samuel A. Alito, Jr.: Really? That's 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?

Julie Rikelman: If the plaintiff is directly regulated by the law.

This Court has allowed an attorney to bring third-party claims against a statute that capped attorneys' fees in favor of clients.

Samuel A. Alito, Jr.: Well, that's amazing. Let's -- 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. Let's say we're 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 there's no justification for them. Now, if they're 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?

Julie 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 they're -- it makes sense that they are the appropriate plaintiff.

Ruth Bader Ginsburg: And that --

Julie Rikelman: And that's clearly true --

Ruth Bader Ginsburg: That sounds -- that sounds like a direct standing, not third-party standing.

But in this case, is there anything like the conflict that Justice Alito had mentioned? Is there a conflict?

Julie 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.

Samuel A. Alito, Jr.: But, you know, your argument is using the merits to defeat -- to -- to support standing.

There's a serious problem with that.

Julie Rikelman: No, Your Honor.

I believe it's the state that's collapsing standing and merits.

And, again, this Court has allowed third-party 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 didn't get into traffic accidents.

Sonia Sotomayor: Counsel --

Julie Rikelman: That --

Sonia Sotomayor: -- is this -- I -- I'm just wondering, are these doctors in any different position than potential plaintiffs, women, who feel burdened by this law?

Julie 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 --

Sonia Sotomayor: So the point is you have standing on behalf of those women who feel burdened?

Julie Rikelman: Yes, Your Honor.

Sonia Sotomayor: To the extent that other women may not have brought a suit, that's irrelevant to the fact that there are some, those burdened, who could have and would have, if situations had permitted them to?

Julie Rikelman: That's absolutely right --

Samuel A. Alito, Jr.: Well, then --

Julie Rikelman: -- Your Honor.

Samuel A. Alito, Jr.: -- why can't -- why shouldn't they be the ones to bring suit?

Julie Rikelman: Your Honor, this is a law that restricts abortion by regulating the physicians, rather than their patients.

And so it's appropriate for them to be the plaintiffs here. Again, the --

Samuel A. Alito, Jr.: Well, but --

Julie Rikelman: -- state has pointed to --

Samuel A. Alito, Jr.: -- the -- the constitutional right at issue is not a constitutional right of abortion clinics, is it? It's a right of women.

Julie Rikelman: That's correct, Your Honor, but in order for women to access their right to abortion, they need to be able to access those services.

Samuel A. Alito, Jr.: Do -- do you think a party can have third-party -- there can be third-party standing if there is no hindrance whatsoever to the bringing of suit by the people whose rights are at stake?

Julie Rikelman: This Court has allowed third-party 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 doesn't need to reach these issues here because the state strategically and deliberately waived third-party standing.

Samuel A. Alito, Jr.: Well, I think that's highly debatable that they waived it.

They certainly didn't raise it in the district court, but whether they -- they affirmatively waived it is quite debatable.

Julie Rikelman: Your Honor at JA 45, the state explicitly conceded third-party 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.

Samuel A. Alito, Jr.: It's a -- it's a highly debatable interpretation of that passage, which I've 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 wouldn't 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 it's quite a stretch of the record for you to say there was an affirmative waiver.

Julie 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 wouldn't serve judicial efficiency.

Ruth Bader Ginsburg: It wasn't raised in -- in the district court or in the court of appeals.

It was -- it cropped up in a -- wasn't it a cross-petition for cert?

Julie Rikelman: That's correct, Your Honor.

Ruth Bader Ginsburg: And might you have, if you had a timely notice, just as insurance, joined a patient or two?

Julie 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 didn't 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 cross-petition for cert. And, again, at JA 45, it deliberately and strategically waived this issue.

Stephen G. 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 that's overstating it. How many abortion cases in this Court?

Julie Rikelman: At least eight, Your Honor.

And I believe at least four of them squarely allowed standing in precisely these circumstances.

Stephen G. Breyer: So if we didn't in this case, it would require either directly or indirectly overruling eight cases of this Court?

Julie Rikelman: That's 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 didn't further health and safety.

Samuel A. Alito, Jr.: In how many of those cases did the Court discuss the issue of conflict of interest?

Julie Rikelman: The Court in Danforth specifically said that the plaintiffs had standing.

It wasn't discussed in terms of the words conflict, Your Honor, but, again, the same types of arguments were in front of the Court --

Samuel A. Alito, Jr.: Was it --

Julie Rikelman: -- because the state --

Samuel A. Alito, Jr.: Was it a footnote in Danforth?

Julie Rikelman: I don't believe so, Your Honor.

I believe it was a foot -- footnote in Akron but in Danforth it was --

Samuel A. Alito, Jr.: Yeah, but --

Ruth Bader Ginsburg: You made a point about Craig against Boren, that the ostensible purpose of the law was to save the vulnerable young men from the evils of 3.2 beer?

Julie Rikelman: That's correct, Your Honor, and the Court allowed the saloon keeper to bring the third-party standing claim.

Again, in Triplet the Court allowed an attorney to challenge a law designed to cap attorneys' 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 third-party standing in many cases that are squarely on point.

John G. Roberts, Jr.: Counsel, do you agree that the inquiry under Hellerstedt is a factual one that has to proceed state-by-state?

Julie 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 --

John G. Roberts, Jr.: 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?

Julie Rikelman: Two points, if I may, Your Honor.

This Court held in Whole Woman's Health that the Texas admitting privileges law was medically unnecessary and its burdens were undue.

That holding should clearly apply to Louisiana's identical law, and certainly the Court's reasoning is applicable in Louisiana. Now, the burdens of a law may vary, but a law that has no benefits and doesn't serve any valid state interest is much more likely to impose an undue burden.

And --

Brett M. Kavanaugh: If a -- if a state passed an admitting privileges law therefor, and suppose a state had ten 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?

Julie Rikelman: That law may still be unconstitutional if it's restricting access because of the 30-mile limit, Your Honor, but that's very different from the situation here where the district court concluded --

Brett M. Kavanaugh: If it didn't -- I'm sorry to interrupt -- if it didn't, though, put aside the 30-mile, 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?

Julie 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 --

Samuel A. Alito, Jr.: 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 court's findings for clear error, was it not?

Julie Rikelman: Yes, Your Honor.

Clear error is the standard.

And we believe that the district court's findings are more than plausible under the standard here.

Samuel A. Alito, Jr.: Well, let's take one example.

Let's take Doe Number 2.

Doe Number 2 is a plaintiff in this case, right?

Julie Rikelman: Yes, Your Honor.

Samuel A. Alito, Jr.: So he had -- he didn't have -- it would be counter to his own interests for him to make a super effort to get admitting privileges, wouldn't it, because he'd be defeating his own claim?

Julie Rikelman: No, Your Honor.

Doe 2's -- 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 --

Samuel A. Alito, Jr.: 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?

Julie Rikelman: Yes, Your Honor.

Samuel A. Alito, Jr.: A predecessor of Christus Schumpert?

Julie Rikelman: Yes, Your Honor.

Samuel A. Alito, Jr.: He testified that he didn't apply for admitting privileges there because it's a Catholic hospital; isn't that right?

Julie Rikelman: That was part of the testimony.

But, in addition, the bylaws of that hospital showed that there would be admissions requirements that Doe 2 couldn't meet.

Samuel A. Alito, Jr.: All right.

Well, he testified directly: I did not apply there because it's a Catholic hospital.

Is that not correct?

Julie Rikelman: That's correct, Your Honor.

Samuel A. Alito, Jr.: All right.

Doe Number 3 performs abortions, does he not?

Julie Rikelman: Yes.

Samuel A. Alito, Jr.: Doe Number 3 has admitting privileges there?

Julie Rikelman: He has admitting privileges that require 50 admissions per year which he is able to satisfy because he has an obstetrics practice.

And that's why he was the only physician with privileges. The state's 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 --

Samuel A. Alito, Jr.: When Doe --

Julie Rikelman: -- including residency.

Samuel A. Alito, Jr.: -- 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?

Julie 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 wasn't even able to get privileges there.

Samuel A. Alito, Jr.: Did the district court mention any of these facts?

Julie Rikelman: Yes, Your Honor.

The district court's 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 state's key credentialing expert conceded that physicians who never intended to treat patients in the hospital will not get privileges.

Sonia Sotomayor: Footnote: That's Doctor Number 6.

Julie Rikelman: All of these physicians are outpatient physicians, Your Honor.

I think --

Sonia Sotomayor: No, but Number 6 is only a medical doctor.

Julie Rikelman: That's correct.

Sonia Sotomayor: He hasn't done any surgical procedures since 2004 and 2005.

Julie Rikelman: That's correct.

And the state's expert also conceded that a physician who provides only medication and counseling would never be able to get privileges. In addition, the district court's 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 10,000 people per year. And that would mean that hundreds of thousands of women would now live more than 150 miles from the closest provider.

And the burdens were actually more severe than this Court found in Whole Woman's Health.

Sonia Sotomayor: Can we go to Doe 3, the doctor who had the active OB-GYN practice? He's only a part-time doctor in Hope.

Julie Rikelman: That's correct.

Sonia Sotomayor: There's 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 -- I'm 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.

Julie Rikelman: That's 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 3's testimony, Hope would have to close because Doe 3 was providing fewer than 30 percent 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.

Brett M. Kavanaugh: Could I --

Sonia Sotomayor: There's no dispute here about Doe 1.

Julie Rikelman: That's correct.

Sonia Sotomayor: The other side, that finding it says it's right.

Now Doe 3, whether or not he would quit or not, the clinic would have to close because it wouldn't have a Doe 1?

Julie Rikelman: Correct.

Sonia Sotomayor: So, at least with respect to that.

With respect to Doe 6, that's a medical doctor only who hasn't 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 in-patient -- of receiving patients by the doctor, and he can't fulfill that under any circumstances, correct?

Julie Rikelman: That's correct.

Sonia Sotomayor: All right.

Brett M. Kavanaugh: Can I follow up on the Chief Justice's earlier question and mine as well? Are you saying that admitting privileges laws are always unconstitutional, such that we don't 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?

Julie 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 Woman's Health, is much more likely to be an undue burden.

Brett M. Kavanaugh: Could an admitting privileges law of this kind ever have a valid purpose, in your view?

Julie Rikelman: No, Your Honor.

The medical consensus against these laws is clear.

Brett M. Kavanaugh: So your view is that they're unconstitutional in any state, regardless of the facts?

Julie 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 didn't exist and would actually jeopardize this -- health and safety of people --

Sonia Sotomayor: Would this be --

Julie Rikelman: -- in Louisiana.

Sonia Sotomayor: -- different if -- if they did something as limited as, for example, you have to be admitted somewhere, because some -- being admitted somewhere does further 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?

Julie Rikelman: That's correct, Your Honor.

If credentialing were the true goal of this law, the 30-mile limit would make no sense. And one of the practical real-world 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 --

Sonia Sotomayor: How many --

Julie Rikelman: -- in Baton Rouge.

Sonia Sotomayor: -- miles from the northern -- from the Hope area?

Julie Rikelman: It's 320 miles, Your Honor, from Shreveport to New Orleans.

And from Baton Rouge back and forth, because of the two-trip law, it's 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 women's health.

It will only hurt their health, which is exactly what the district court found here.

Ruth Bader Ginsburg: You haven't mentioned, and it's odd, the 30 mile from the clinic, when most of these abortions don't have any complications and the patient never gets near a hospital, but if she needs a hospital, it's certainly not going to be the one near the clinic.

She will be home.

Julie Rikelman: That --

Ruth Bader Ginsburg: And so --

Julie Rikelman: That's exactly right, Your Honor.

That's what this Court recognized in Whole Woman's 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, it's 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 percent 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 Woman's 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 Woman's Health and instead the burdens of this law would be even more severe than the Texas law that this Court struck down in Whole Woman's Health.

Samuel A. Alito, Jr.: Hope is the -- the name under which June Medical does business; is that correct?

Julie Rikelman: Yes, Your Honor.

Samuel A. Alito, Jr.: Was -- was June Medical's license suspended for regulatory violations?

Julie Rikelman: It was briefly, Your Honor, in 2010.

And the court heard testimony about that and rejected the state's allegations after listening to the clinic's 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.

John G. Roberts, Jr.: Thank you, counsel. General Murrill.

Elizabeth 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. Louisiana's decision to require abortion providers to have admitting privileges was justified by abundant evidence of life-threatening health and safety violations, malpractice, noncompliance with professional licensing rules, legislative testimony from post-abortive 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 third-party 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 third-party 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. I'd 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 don't read them and they don't follow them.

Ruth Bader Ginsburg: What --

Elizabeth Murrill: They --

Ruth Bader Ginsburg: -- sense does the 30-mile limit make, considering that -- certainly for medication abortions and for the overwhelming number of other abortions?

Elizabeth Murrill: Justice Ginsburg --

Ruth Bader 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.

Elizabeth 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 --

Ruth Bader Ginsburg: What about --

Elizabeth Murrill: -- and he took care of them.

Ruth Bader 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?

Elizabeth Murrill: Under the ambulatory surgery center regs, yes.

Under the office practice regs which do not regulate abortion clinics, a doctor who doesn't 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 30-mile radius of -- of the clinic.

So it's the same requirement.

Ruth Bader Ginsburg: It is the same.

Elizabeth Murrill: Yes.

Ruth Bader Ginsburg: I thought there was something in the record suggesting there was no such requirement for D&C following a miscarriage.

Elizabeth 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 don't interpret it differently.

We're applying them consistently and we're reading those regulations the same.

John G. Roberts, Jr.: 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? I mean, I understand the idea that the impact might be different in different places, but as far as the benefits of the law, that's going to be the same in each state, isn't it?

Elizabeth Murrill: No.

I don't 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, we've demonstrated that the doctors don't 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 doesn't do credentialing for procedures. That's what the hospital would do. And that's what, if the clinic had --

Sonia Sotomayor: I'm sorry.

Elizabeth Murrill: -- robust policies, it would do.

Sonia Sotomayor: I'm 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're committed -- if they are convicted of a criminal act.

You're -- you're making it sound like there is no state licensing of these doctors.

They are licensed.

They are --

Elizabeth Murrill: Justice --

Sonia Sotomayor: -- regulated.

You --

Elizabeth Murrill: -- 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.

Sonia Sotomayor: But didn't --

Elizabeth Murrill: Our role is --

Sonia Sotomayor: -- they also --

Elizabeth Murrill: -- to licensing generally.

Sonia Sotomayor: -- testify that they -- but they did ensure that each of these doctors was skilled in the procedures that they were performing?

Elizabeth 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 --

Sonia Sotomayor: But he was --

Elizabeth Murrill: -- complying.

Sonia Sotomayor: -- supervising what they were doing.

That's what he testified to.

Elizabeth 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 --

Sonia Sotomayor: Was he doing --

Elizabeth Murrill: -- with our standard of care.

Sonia Sotomayor: -- a surgical procedure or was he doing a medical abortion?

Elizabeth Murrill: He was performing surgical abortions, to the best of my knowledge. There is no indication that he wasn't.

I believe that the testimony is that he was performing all -- there -- he wasn't restricting his practice. There's 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 --

Sonia Sotomayor: We're not even talking about them.

We're talking about these doctors and their credentials. And --

Elizabeth Murrill: Oh.

Sonia Sotomayor: And I don't -- and I'm sort of still at a mystery to me why, if what's important to you is the credentialing, why the 30-mile limit has significance?

Elizabeth Murrill: Because it's 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 --

Sonia Sotomayor: How can the --

Elizabeth Murrill: -- the non-compliance with health --

Sonia Sotomayor: If there is no --

Elizabeth Murrill: -- and safety regulations.

Sonia 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 it's 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 they're credentialed somewhere else, they have the skill level.

Elizabeth 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 --

Sonia Sotomayor: Was this all --

Elizabeth Murrill: -- part of what --

Sonia Sotomayor: -- before the district court?

Elizabeth Murrill: Yes.

Sonia Sotomayor: All right.

And the district court looked at it and found explanations that were adequate for each and didn't 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?

Elizabeth Murrill: The district court judge ignored all of the health and safety violations. He ignored an entire category of courtesy privileges if we're 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 --

Elena Kagan: General Murrill, before you --

Elizabeth Murrill: -- assumption from the beginning was --

Elena Kagan: -- do that -- before you do that, please.

On this credentialing point, which you've mentioned several times, and of course Whole Woman's Health discussed that and said a state can't say it's doing this for credentialing purposes if the hospital's reasons for denying admitting privileges have nothing to do with the doctor's quality. And that was true in Whole Woman's Health and it's true here, too, that there's 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 don't want abortion providers in that hospital. So given that that's all true, it was true in Texas and it's true here, it seems that Whole Woman's Health precludes you from making this credentialing argument, doesn't it?

Elizabeth Murrill: No, I don't 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.

Ruth Bader Ginsburg: Is it not --

Elizabeth Murrill: They were able to get privileges.

Ruth Bader 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 that's -- if they're not also doing obstetrics and gynecology, they will never qualify because their patients don't go to the hospital. There's one finding in that respect, and you can tell me if there's any dispute about it, but this circuit didn't 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.

Isn't that so?

Elizabeth 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 --

Ruth Bader Ginsburg: My question is --

Elizabeth Murrill: -- from zero to a dozen. I -- I --

Ruth Bader Ginsburg: -- is there anything inaccurate about this determination that access to a hospital --

Elizabeth Murrill: I think, yes.

Ruth Bader Ginsburg: -- was required far less than once a year, less than one per several thousand patients?

Elizabeth Murrill: Yes.

It is inaccurate because what the record demonstrated is that they don't know what their qualification -- what their complication rates are.

They all testified that they don't know because women don't follow up with them or they don't follow up with women. So they really don't know what their complication rates are.

And they did testify that they had direct transfers that resulted in women having hysterectomies --

Elena Kagan: Well is it right --

Elizabeth Murrill: -- and hemorrhaging.

Elena 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 that's around 70,000 women, and has transferred only four patients ever to a hospital?

Elizabeth Murrill: And there is evidence in the record that they really don't know that that's an accurate rate because they don't track their complications.

They really don't know what their numbers are.

Elena Kagan: Well, they know --

Elizabeth Murrill: So they testified --

Elena Kagan: 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.

Elizabeth Murrill: Justice Kagan, it's four that they know of --

Ruth Bader Ginsburg: You don't -- you don't --

Elizabeth Murrill: -- and that they don't track the numbers.

Ruth Bader Ginsburg: You don't dispute that, among medical procedures, first trimester abortion is among the safest, far safer than childbirth?

Elizabeth Murrill: Justice Ginsburg, a first-trimester abortion can be either medical or surgical.

And even if it's 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 it's a medical -- even if it's 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 --

Stephen G. 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 it's a little hard to see how this improves anything since you had to have a written transfer agreement anyway; isn't that true or not?

Elizabeth Murrill: Which Doe 1 did not comply with.

Stephen G. Breyer: Well, well -- all right.

But then I don't 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 isn't my question. My question is we're not going to solve this at oral argument.

I mean, what I've done, and I'm sure the others have, is I've 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 I'd like your opinion, your opinion, about which of these Does is your strongest? And I'll be sure to look very carefully at that.

Elizabeth Murrill: My -- Justice Breyer, I just want to understand your question.

Stephen G. Breyer: You don't understand --

Elizabeth Murrill: My strongest --

Stephen G. Breyer: I'm saying which is strongest -- by the strongest, I mean you're trying to make an argument, and you have four Does that you have to deal with.

Okay?

Elizabeth Murrill: So --

Stephen G. 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.

That's your argument. Now, you have to support that.

And I want to know in respect to which Doe you feel it's the strongest support for you?

Elizabeth Murrill: And I go in order?

Stephen G. Breyer: Yeah --

Elizabeth Murrill: Can I give you more than one?

Stephen G. Breyer: -- you can give me all of them if you want, but you don't have that much time.

Elizabeth Murrill: All right.

So --

Stephen G. Breyer: And if you have a -- if you want to say they're all equally strong, fine.

That's okay, you can say that because I have an opinion about Doe 2, at least, and -- and you can say what you want.

Elizabeth Murrill: Well, I mean -- I think that there's 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, asked 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 --

Stephen G. Breyer: They don't all agree. I mean, that's -- I don't think.

But we're 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 --

Elizabeth Murrill: Well, I --

Stephen G. Breyer: -- discussing with you Doe 2, 3, 4.

All I want to know is which should I look at specially hard?

Elizabeth Murrill: I would look at Doe 6 --

Stephen G. Breyer: All right.

Elizabeth Murrill: -- who applied to one out of nine hospitals in New Orleans.

Stephen G. Breyer: That's what I think.

Elizabeth Murrill: That's a -- that's a good example.

Stephen G. Breyer: All right.

Sonia Sotomayor: That -- that's a great example, because he's the doctor who does only medical abortions, not surgical.

He hadn't done a surgical procedure for over 12 years. And your state's 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 wasn't -- like in Tulane, even if there wasn't 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 couldn't meet that requirement.

So you talk about him applying to only one hospital in a situation where it was guaranteed that he couldn't meet the requirements of any hospital. My understanding of hospital practice today is you got to stay alive only if somebody sees patients --

Elizabeth Murrill: If --

Sonia Sotomayor: -- because if they don't see patients, they're of no value to the hospital.

If the patients aren't admitted and there's no circumstance in which this doctor is going to admit a patient because he does no surgical procedures --

Elizabeth Murrill: Justice Sotomayor, I think the record shows that the -- that they can get privileges, they did get privileges, and there's nothing in the bylaws that prohibits them from being --

Stephen G. 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 didn't have to apply to all the hospitals because there was no point because your expert said he probably could not get them.

And it's 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?

Elizabeth Murrill: Justice Breyer, the Fifth Circuit did a searching review of the record just as is -- it is instructed to do by Whole Woman's 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.

It's 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.

That's what we are doing with health and safety regulations.

Ruth Bader Ginsburg: How does that differ from Craig against Boren?

Elizabeth Murrill: Craig against Boren and -- first of all, had a beer buyer who was a first-party 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 --

Ruth Bader Ginsburg: Yes, but he didn't count.

The case rode on the owner of the Honk 'n Holler's standing.

Craig turned 21.

He was no longer subject to the law.

Elizabeth Murrill: Which is why I believe it's better characterized as a mootness case, but I would also point out the law at issue --

Ruth Bader Ginsburg: But the standing -- the Court went on to the merits solely on the basis of the beer seller's standing, and you've got a state regulation that is -- ostensibly was designed to protect these vulnerable boys from drinking beer and getting into accidents.

Elizabeth Murrill: May I?

Sonia Sotomayor: It's a dangerous --

John G. Roberts, Jr.: Very -- very, very briefly, counsel.

Elizabeth 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 --

John G. Roberts, Jr.: Thank you.

Elizabeth Murrill: -- really wasn't a health --

John G. Roberts, Jr.: Thank you, counsel. General Wall.

Jeffrey B. 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 Court's 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 Court's 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 Court's 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, that's not a clear error question.

Nobody disputes what the doctors did.

We're all agreed on the facts.

There's no factual dispute about what the doctors did and didn't do.

It's about how rigorously we -- we're going to --

Ruth Bader Ginsburg: But what sense --

Jeffrey B. Wall: -- review their fairly modest efforts.

Ruth Bader Ginsburg: What sense does this 30-mile -- that's what I don't understand. I think everybody also agrees that the most likely place the woman will be if she needs to be in a hospital, she'll be at home.

She won't -- and her home has no necessary relationship to 30 miles from a clinic.

Jeffrey B. Wall: So two points, Justice Ginsburg.

Again, that's going straight to the benefits and bypassing the burdens, not looking first to whether there's a substantial obstacle. But to go straight to your question, all admitting privileges requirements of which I am aware, and they're 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 isn't always a hospital right around the road, so whether you draw it 15 or 20 or 30 miles.

And with respect to credentialing, it makes sense to think --

Ruth Bader Ginsburg: But it just --

Jeffrey B. Wall: -- that the doctors --

Ruth Bader Ginsburg: -- it just supposed starting out from the clinic where she won't be. She's not going to be at the clinic.

Jeffrey B. Wall: Well, that's often true, Justice Ginsburg, but the record here, unlike in Hellerstedt, reveals that sometimes it's 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 don't know how often it happens and, Justice Kagan, I'm prepared to concede that it may not happen all that often. I don't think anybody knows the real rate.

But the point is that it does happen. And when it does it's very serious.

Ruth Bader Ginsburg: But it would --

Jeffrey B. Wall: And Louisiana --

Ruth Bader Ginsburg: It would never happen to the -- when you go to the clinic just to take two pills and go home.

Jeffrey B. Wall: Well, if you develop a complication at home, it's not -- the -- it's not clear that you won't call the clinic and say to your doctor I'm having a problem, and your doctor will say then go to the following hospital where I have privileges, I'll meet you there. Now, that's not to say as a patient that's necessarily what you would want.

But it's hard for me to believe that women in Louisiana wouldn't at least want the option to be treated by the doctor --

Sonia Sotomayor: Mr. Wall --

Jeffrey B. Wall: -- they saw at the clinic.

Sonia Sotomayor: -- are you taking the position that there is no woman in Louisiana who doesn't feel burdened by this law?

Jeffrey B. Wall: I -- I'm taking the position that --

Sonia Sotomayor: No, no.

Answer that question.

Jeffrey B. Wall: Well --

Sonia Sotomayor: Is there at least one potential woman you believe that could bring this lawsuit?

Jeffrey B. Wall: I assume that there are --

Sonia Sotomayor: All right.

Now --

Jeffrey B. Wall: -- but they have not sued --

Sonia Sotomayor: -- stop a moment. Assuming -- we assume, because it's logical, okay, the woman who lives 300 -- there is going to be some woman who lives 330 miles away, who's going to say that's 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, what's the potential conflict? She's going to come in and say you doctors could get credentialing so I really shouldn't sue? You doctors haven't really made an effort so I really shouldn't sue? What sane woman who's 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 -- I'm -- I don't see a conflict with that.

Jeffrey B. Wall: Well, I would say two things, Justice Sotomayor: Their interests are not necessarily aligned.

One is the interest of for-profit providers and not being regulated in particular ways.

The other is the interest of women in their own health and safety. Now, I don't know how those would have played out if the women had filed suit.

I don't know --

Sonia Sotomayor: Well, please tell me --

Jeffrey B. Wall: -- how they would have --

Sonia Sotomayor: -- what you imagine.

Jeffrey B. Wall: But to give you a couple of examples --

Sonia Sotomayor: Okay.

Jeffrey B. Wall: -- just to give you -- it's not clear to me that women would have brought facial challenge.

Maybe all of the current providers in Louisiana --

Stephen G. 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 it's 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 you've 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 Woman's Health picks that up.

Casey picks that up.

And you really want us to go back and reexamine this, let's go back and reexamine Marbury versus Madison. And -- and you have good arguments. But why depart from what was pretty clear precedent?

Jeffrey B. Wall: I -- I don't want to go back to 1789, Justice Breyer, but I -- I do --

Stephen G. Breyer: You want to go back for 40 years?

Jeffrey B. 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 don't think the Court now faced with it should accept it. And if --

John G. Roberts, Jr.: General, I know you have limited time.

And 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 -- they're not going to change from state-to-state.

Jeffrey B. Wall: So I -- I -- I disagree, Mr. Chief Justice.

I think the variance isn't 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 --

Elena Kagan: I mean, that wasn't this case, right?

Jeffrey B. 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 --

Elena Kagan: On -- on this record?

Jeffrey B. 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 don't really think it's a clear error standard, Justice Alito.

It's 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 didn't apply to Touro in New Orleans where Doe 5 has privileges.

So Doe 5 did the thing that Petitioners are here saying can't be done. And it's hard to figure out what the basis for distinction is, because the -- the cites they give in their brief, and it's 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.

Stephen G. Breyer: The answer -- each of those has an answer.

I mean, they say, look, the ones who didn't get the -- did get the privileges practice in OB-GYN practice, and so they had women who, in fact, were admitted to hospitals.

And the ones who don't are the ones who do medical abortion.

You've heard that.

Jeffrey B. Wall: And -- and --

Stephen G. 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, there's no point because I'm in Baton Rouge -- is that where he was, I think, Doe 2 -- and he said, look, it's a tougher climate here.

Really tough for people who perform abortions.

Quite different from New Orleans. And I was told by one that don't do it because you try to get the covering doctor and that doctor would be subject to picketing, dah-dah-dah.

Okay.

We have all seen that. So we have gone through it.

We'll go through it more.

What do you want to say?

Jeffrey B. Wall: So I -- I think Doe 2's in -- in Shreveport.

But far more importantly, what I would say is this: In a pre-enforcement setting, that sort of debate back and forth isn't 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 we'll find out, once they have applied to the full range of hospitals, whether they really can't, whether Doe 2 really can't at Christus, whether Doe 5 really can't find a covering doctor in Baton Rouge, whether Doe 6 really can't at Touro.

Brett M. Kavanaugh: Can that be done?

Ruth Bader Ginsburg: Is it not --

Jeffrey B. Wall: But on this record I'm very skeptical that they can't.

Ruth Bader 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 don't get -- if you don't send patients to the hospital, you don't get admission privileges.

John G. Roberts, Jr.: You may answer.

Jeffrey B. Wall: Justice Ginsburg, I think that's difficult to square with the fact that Doe 5, who does not have an OB-GYN 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 didn't.

These ought to play themselves out in a post-enforcement context, not as here.

John G. Roberts, Jr.: Thank you, General.

Jeffrey B. Wall: Thank you.

John G. Roberts, Jr.: Five minutes, Ms. Rikelman.

Julie Rikelman: Your Honor, the lack of benefits of these laws is not state-dependent. 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 Woman's 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 Woman's 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 court's supervision; the fact that the state's expert conceded that outpatient physicians who don't have a hospital-based 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, I'd like to point out that this is not, in fact, a pre-enforcement 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 pre-enforcement challenge. If there are no further questions.

John G. Roberts, Jr.: Thank you, counsel. The case is submitted.