Abortion in America – Louisiana: "These laws have literally nothing to do with safety"
As access to abortion has dried up across the South and Midwest, nowhere is it less secure than Louisiana, where a looming Supreme Court decision has the potential to leave the state with just one abortion clinic. While one side says the law in question makes the procedure safer for women, pro-abortion rights advocates argue the regulation is designed with one goal: to regulate abortion out of existence.
To better understand the law and the people behind it, CBS News is traveling through Louisiana this week, speaking to patients, doctors, advocates and politicians on all sides of the abortion issue. In this series, "Abortion in America: Louisiana," expect a new report each morning on CBSN and CBSNews.com.
The Supreme Court announced this month it would hear arguments in the case of June Medical Services v. Gee, which challenges one of Louisiana's many restrictions on abortion. For those on both sides of the abortion debate, the court's decision to take up the case was vitally important: It's the first abortion-related case since the high court's ideology shifted conservative with the confirmation of Justice Brett Kavanaugh.
For the first installment of "Abortion in America: Louisiana," CBS News reporter Kate Smith spoke to T.J. Tu, senior counsel for litigation at the Center for Reproductive Rights and the lead counsel for June Medical Services v. Gee. Tu told CBS News the Louisiana law at the center of the Supreme Court case – the "Unsafe Abortion Protection Act" – isn't about safety, but rather is a way for the state to eliminate abortion access without having to overturn Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide.
"[Anti-abortion rights politicians] understand full well that these laws are a very surgical strike on abortion clinics and will force them to close," Tu told CBS News in an interview on October 10. "And if they can do that with bogus laws like this one, then the Supreme Court never even has to consider whether Roe v. Wade is good law, they can just make abortion inaccessible for women throughout the state."
In June Medical Services v. Gee, the Supreme Court will consider a Louisiana state law that requires doctors who provide abortions to have admitting privileges at a hospital no less than 30 miles away. Tu, who's arguing to strike down Louisiana's law, explained to CBS News why that specific requirement has been so effective in shutting down abortion access. Tu said that if the Supreme Court upholds the law, he expects even more anti-abortion regulations to be introduced and more clinics to close.
Below is a transcript of the interview with Tu. It has been edited lightly for clarity.
Kate Smith: What's at the heart of the Supreme Court case?
T.J. Tu: At the heart of this case is whether states like Louisiana can regulate abortion providers out of the practice of medicine. In this particular case, the law requires admitting privileges, which is a law that the Supreme Court already looked at only three years ago, out of Texas, where they struck down the law. And the question is whether the Louisiana law should meet the same fate.
Smith: Whole Woman's Health [the case that considered the admitting privileges requirement in Texas] is extremely similar to this June Medical Services case. What's the difference?
Tu: There is no difference. The law is identical. And it's not identical by coincidence. It's identical on purpose. So the legislators in Louisiana saw Texas passed the same law that closed half the clinics in that state and said, 'We want to do that, too.'
So the law is word for word the same. In Louisiana, like Texas, it has no medical benefit for patients and the disastrous effect would actually be worse in Louisiana. In Texas, the law closed half the clinics. In Louisiana, it would close all of the clinics except one and leave only one doctor for roughly a million women.
Smith: So if this law is so similar, why did the Supreme Court take this case?
Tu: The Supreme Court had to take the case. They had to take it because the lower court in our case actually upheld the law, despite the fact that the Supreme Court only three years ago struck the same law down. And that's really untenable. The Supreme Court can't stand back and let lower courts violate their own precedents. So they had to jump in and look at this because it's very clear that the law is identical.
Smith: There is one major difference between three years ago and today. There's an ideological shift on the Supreme Court. Is that something that concerns you?
Tu: The makeup of the court is different, but the Constitution is the same. A law that the Supreme Court struck down only three years ago in Texas has to be unconstitutional. In [the case out of] Louisiana today, the Supreme Court, many of the justices have said that they believe in precedent. And that means following the rulings that have been laid down before. If that concept of precedent has any meaning, it means that this law has to meet the same fate as the Texas law.
Smith: I'd love to get in a little bit more about the law in question. What are admitting privileges?
Tu: Admitting privileges give doctors the right to actually admit patients to a local hospital. And what people really need to understand is, they're totally medically unnecessary when it comes to abortion care. Abortion today is an extremely safe procedure. So the likelihood that a patient is ever going to need to be admitted to a hospital is pretty much near zero. So doctors who perform abortions don't need admitting privileges.
But here's the kicker: they also can't get admitting privileges for a whole host of reasons. Doctors who perform abortions are excluded from admitting privileges. Many hospitals only give privileges to doctors who send them lots of patients. Abortion providers don't send lots of patients to a hospital, precisely because abortion care is so safe. So when you outlaw abortions unless doctors have admitting privileges, you basically put a lot of really good doctors out of the practice of medicine, you close clinics, and you leave patients with literally nowhere to go.
Smith: You're representing Hope Clinic, one of the three clinics left in the state. Can you tell me a little bit about the doctor's experience trying to get admitting privileges?
Tu: Absolutely. So let's just take one of the doctors who's actually a plaintiff in this case – ob gyn, decades of experience, he went to a hospital to try and get admitting privileges where he actually had been on faculty for 18 years. And they said, 'You know, now that you're providing abortion care, we'd really not like to get involved.'
Then he went to a second hospital. And that hospital said, 'We'll consider your application, but only if you give us a list of all the patients you've seen in a hospital in the last year.'
But of course, he hasn't seen any patients in a hospital because none of his patients had any complications. So they refuse to even consider his application.
So then he goes to a third hospital. And he says, 'I'm really out of options. I need admitting privileges.' And they say to him, 'There's some people on staff who think giving you admitting privileges given the nature of your work would be bad for hospital business.' So through no fault of his own, he doesn't have admitting privileges, and he has to tell his patients, 'I'm sorry, I can no longer be your doctor.'
Smith: What you're describing doesn't seem to have anything to do with safety.
Tu: These laws have literally nothing to do with safety. And you don't have to take my word for it. Leading medical organizations like the American Medical Association, the American College of Obstetrics and Gynecology - they all oppose these laws. And even more than that, the Supreme Court only three years ago said these laws are unnecessary for women's health and safety because abortion care today is already so safe. In fact, the Supreme Court said there's not even a single woman in the entire state of Texas who would have had a better result if her doctor had admitting privileges. And the same is true in Louisiana. We have been litigating this case now for five years, and Louisiana has never been able to point to even a single woman in the state whose care would be better if the doctor had admitting privileges.
Smith: There has to be another side to this, there has to be a reason why someone in a state house would believe that admitting privileges would help someone seeking an abortion.
Tu: I don't think so. We're talking about a state like Louisiana, that has gone on record saying that its end goal is to ban abortion. Just this past year, it passed a six-week ban on abortion. Next year, they're going to consider a constitutional amendment to ban all abortions. We know what the end goal is. And admitting privileges laws are just a short circuit to get there.
They understand full well that these laws are a very surgical strike on abortion clinics and will force them to close. If they can do that with bogus laws like this one, then the Supreme Court never even has to consider whether Roe v. Wade is good law. They can just make abortion inaccessible for women throughout the state.
Smith: So you're saying through all of these new smaller regulations, you can effectively overturn Roe v. Wade in a completely different way.
Tu: Absolutely. And they've been at this now for over 10 years. If you look across the country, we have seen over 400 of these laws, restrictions on abortion providers that basically make it impossible for them to continue providing good quality, cost-effective care to patients. So they shut their doors. And if you're a patient in Louisiana, what does it matter if Roe v. Wade is still good law if you literally can't find a single doctor to provide the care that you need.
Smith: On the other side, people believe that there is a moral problem with abortion, and some people believe it is akin to murder. What does that mean for you? If someone truly believes that, is that problematic to you?
Tu: I understand that we live in a country where people's views are very diverse, especially on this issue. But we also live in a country where women are allowed to make this decision for themselves, in consultation with their families and with their physicians. And as long as that's the law, I'm here to defend their right.
Smith: This law would not only impact access to abortion in Louisiana, it could impact nationally how women access abortion. Can you speak to what women outside of Louisiana might see if the Supreme Court upholds this law?
Tu: Absolutely. If the Supreme Court does not strike down this bogus Louisiana law, you are going to see anti-abortion activists double down, triple down on these types of restrictions. And it won't just be admitting privileges laws. It'll be any number of sham restrictions that are nominally about women's health, but of course, are really just designed to shut down clinics.
We've already seen over 400 of these laws in the last decade and we're going to see tons more unless the Supreme Court does what it did three years ago and says, 'Not so fast, you can't just run roughshod over women's constitutional rights.'
Smith: We've seen an unprecedented wave of anti-abortion restrictions just this year. Do you think that's a response to a new ideological makeup of the Supreme Court?
Tu: I don't think there's much mystery about that, because the anti-abortion activists have said that's what they're doing. They see the change in the court as an opportunity for them to do things that even a couple of years ago would have been considered really unconstitutional.
The makeup of the Supreme Court is not supposed to radically change our underlying fundamental constitutional rights. But of course, it's inspired them to have a go at it. And that's where the country finds itself today.
Smith: If the Supreme Court does uphold this law, Louisiana would go down to one clinic for all of the women in the state. What kind of burden does that put on people seeking abortion?
Tu: It puts a tremendous burden on patients. For many of them, that will mean that there's literally nowhere to go in the state, because of course, one doctor cannot possibly treat all the women in the state. So plenty of women will have no doctor at all.
Women who actually can find their way to this doctor are going to face longer wait times. They're going to push their procedures later into pregnancy. It's going to be more expensive. Overcrowded clinics, less time with the doctor, and many women will have to go out of state.
And you have to realize that the campaign to restrict abortion access in the south has been ruthless, so there are very few clinics even in the neighboring states. What we have to worry about also is that when women have diminished options, some may take matters into their own hands and pursue things that are really unsafe, or even illegal.
Smith: Louisiana wouldn't be the only state with one clinic left. Nationally, how might this impact access?
Tu: Louisiana could [join] six states down to only one clinic. And really, that's remarkable. But it's a sign of what anti-abortion activists have been up to for the last decade. While much of the public has been talking about Roe v. Wade, anti-abortion activists have been steadily passing laws that put clinics out of business. So Roe v. Wade stays on the books, but abortion access goes away. Think about Louisiana: In 2001, that state had 11 clinics. Since then, year after year, they've passed regulation after regulation after regulation culminating in the admitting privileges law that we're talking about today. And now we're down to only three clinics, and this law would reduce it down to one.
Smith: How many other states might go down to one clinic, or even none?
Tu: Only time will tell, but I'm worried it may be plenty, because it's not just admitting privileges laws. Anti-abortion activists have come up with loads of ways to put clinics out of business. And the Supreme Court's decision three years ago was a real push on the brakes to say, 'Hold on a minute, you can't get away with this.'
If the Supreme Court takes its foot off the brake, we're just going to see a whole bunch of the same bogus restrictions that are going to close clinics overnight.
Smith: Are you saying that if a Supreme Court upholds Louisiana's law, politicians would pass even more anti-abortion restrictions than we've seen?
Tu: Absolutely. This past year was a terrible year when it comes to women's constitutional rights. If the Supreme Court doesn't stick by its precedent, it's only going to take the lid off things. And I worry the country may be consumed with ridiculous laws that are meant to close clinics.
