THURSDAy, MARCH 5 , 2020. THE WASHINGTON POST EZ RE K A
Politics & the Nation
BY ROBERT BARNES
AND ANN E. MARIMOWChief Justice John G. Roberts
Jr. emerged Wednesday as the
pivotal, if inscrutable, key to
whether a more conservative Su-
preme Court is ready to reconsid-
er its precedents protecting abor-
tion rights.
The court’s four liberals ap-
peared convinced that the Louisi-
ana law at issue, requiring admit-
ting privileges at n earby hospitals
for abortion-clinic doctors, is
identical to one from Te xas that
the Supreme Court struck down
four years ago.
That appeared to leave Rob-
erts, now at t he court’s ideological
center, holding the deciding vote.
As the case was argued, he
asked a variation of the same
question to all three lawyers ad-
dressing the justices: Should the
court undertake a fact-dependent,
state-by-state analysis when re-
viewing such restrictions?
That could indicate he felt he
could distinguish Louisiana’s law
from the Te xas statute. Or it could
mean he agreed with challengers
that similar laws were doomed
because of the court’s precedent
from 2016. Roberts, a dissenter in
the Te xas case, did not indicate
what he believed was the proper
answer.
The justices’ examination of
the Louisiana law could be mo-
mentous if it signaled that the
court was ready to revisit past
decisions. And whatever it de-
cides before the end of June will
come in the midst of a heated
presidential election in which
Democrats have made abortion
rights a priority and President
Trump has said his ultimate goal
is to overturn Roe v. Wade.
Trump has said his judicial
nominees will oppose abortion,
and it was the first major abor-
tion case for his Supreme Court
choices, Neil M. Gorsuch and
Brett M. Kavanaugh.
Gorsuch did not ask a question
during the hour-long oral argu-
ments. Kavanaugh’s questioning
was similar to that of Roberts, as
he wondered whether different
conditions in states could afford
different outcomes than in the
2016 case, Whole Women’s Health
v. Hellerstedt.
“A re you saying admitting-
privileges requirements are al-
ways unconstitutional, such that
we don’t have to look at the facts
state by state?” Kavanaugh asked
attorney Julie Rikelman after
posing a hypothetical about a
state with 10 clinics and 20 doc-
tors, all with the necessary cre-
dentials. Kavanaugh had previ-
ously voted to allow the Louisiana
law to go into effect, saying it was
unclear whether doctors had
worked hard enough to secure
the privileges.
Rikelman, senior litigation di-
rector of the Center for Reproduc-
tive Rights, replied that “the bur-
dens 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” on a woman’s
right to abortion.
Kavanaugh pressed: “Could an
admitting-privileges law of this
kind ever have a valid purpose, in
your view?”
“No, your honor,” Rikelman re-
plied. “The medical consensus
against these laws is clear.” Later,
she noted that the federal govern-
ment has dropped such a require-
ment from its regulations of sur-
gery centers nationwide.
If the debate inside the court-
room was reminiscent of four
years ago, the atmosphere inside
and outside the court was em-
blematic of the decades that the
Supreme Court has wrestled with
one of the country’s most divisive
issues.
Members of Congress packed
the crowded courtroom, and law-
yers who have litigated the issue
from both sides filled the pews.
Among Wednesday’s spectators
was Roberts’s wife, Jane Roberts,
who before the chief justice
joined the court was legal counsel
for Feminists for Life of America,
a group that opposes abortion.
At a rally of abortion rights
supporters outside the court, Sen-
ate Minority Leader Charles E.
Schumer (D-N.Y.) called out Gor-
such and Kavanaugh by name.
“You have released the whirl-
wind, and you will pay the price,”
Schumer said. “You won’t know
what hit you if you go forward
with these awful decisions.”
Schumer’s remarks prompted
a rare public rebuke from Chief
Justice Roberts, who issued a
statement hours later calling the
criticism from the highest levels
of government in the midst of
arguments “inappropriate” and
“dangerous.”
Inside the courtroom, Justice
Stephen G. Breyer acknowledged
the contentious public divide.
“In the country, people have
very strong feelings and a lot ofpeople morally think it’s wrong
and a lot of people morally think
the opposite is wrong,” said Brey-
er, adding, “I think personally the
court is struggling with the prob-
lem of what kind of rule of law do
you have in a country that con-
tains both sorts of people.”
The justices were considering
whether Louisiana’s 2014 law un-
duly burdens women’s access to
abortion. Practitioners claim, and
a federal judge agreed, that the
law could force two of the state’s
abortion clinics to close, leaving
only one doctor at one clinic to
perform the procedures.
The question of whether the
abortion providers had legal
standing to bring the case was not
in the 2016 case. But Justice Sam-
uel A. Alito Jr. sounded highly
skeptical Wednesday that clinics
have legal grounds to sue, calling
such a claim “amazing” because
of the doctors’ potential conflict
of interest.
To reject the clinic’s right to
sue, Rikelman said, would re-
quire the court to overrule at l east
eight past abortion-related deci-
sions.
Liberals said the court would
be reversing decades of precedent
to make such a finding, and the
court’s other conservatives did
not ask about the issue.
The court could reaffirm or
overturn its 2016 precedent in the
Te xas case, or distinguish it in a
way that a restriction deemed
unconstitutional in one state is
allowed in another.
One change at the court: While
the Justice Department in 2016
urged the justices to strike down
the Te xas law, Trump administra-
tion lawyers argued that Louisi-
ana’s should be left in place, even
if it means overturning the opin-
ion in the Te xas case.
Jeffrey B. Wall, principal depu-
ty solicitor general, representing
the Trump administration, urged
the court to find that medical
providers do not have a legal rightto challenge the Louisiana regula-
tions on behalf of their patients,
because their respective interests
are not necessarily aligned.
“One is the interest of the for-
profit providers and not being
regulated in particular ways,” he
said. “The other is the interest of
women in their own health and
safety.”
Wall noted that a patient who
developed a complication at
home after an abortion might still
call the clinic to consult with her
initial doctor before going to the
hospital.
“It’s hard for me to believe that
women in Louisiana wouldn’t at
least want the option to be treat-
ed by the [same] doctor,” he said.
Hospitalization after an abor-
tion is rare, all sides agree, and
the lack of admitting privileges by
the doctor who performed theprocedure is not a bar to the
woman getting needed medical
care. In t he court’s Te xas decision,
the majority said there are nu-
merous reasons doctors might
not be able to attain admitting
privileges at a nearby hospital,
including the fact that it is so rare
for their clients to need hospital-
ization.
The court majority in that case
also said the admitting-privileges
requirement “provides few, i f any,
health benefits for women, poses
a substantial obstacle to women
seeking abortions, and consti-
tutes an ‘undue burden’ on their
constitutional right to do so.”
Justice Ruth Bader Ginsburg
stressed Wednesday that most
women who terminate their preg-
nancies never get near a hospital.
About 40 percent of abortions in
Louisiana are completed by tak-ing medication.
Elizabeth Murrill, Louisiana’s
solicitor general, said the state’s
2014 l aw i s intended to ensure the
health and safety of women seek-
ing abortions and distinct from
the Te xas law. Regulations for
abortion providers, she said, are
consistent with those for the
state’s surgery centers — both
require medical staffers to have
admitting privileges.
“Even if it’s a medication abor-
tion, the doctor should be able to
handle a surgical abortion and be
qualified to do that,” Murrill said,
asking the court to affirm a ruling
from the U.S. Court of Appeals for
the 5th Circuit.
A Louisiana federal judge held
a six-day trial on the law and
agreed with abortion providers
that the court’s decision in Heller-
stedt meant that the law was
unconstitutional.
But a panel of the 5th Circuit —
the same court that had upheld
the Te xas law — disagreed. The
panel, on a 2-to-1 vote, found
factual distinctions between how
the restriction played out in Te xas
and Louisiana.
Judge Jerry E. Smith, writing
for the majority, said that the
court complied with the Supreme
Court’s decision by taking a
painstakingly close look at the
details.
“Unlike in Te xas, the [Louisi-
ana law] does not impose a sub-
stantial burden on a large frac-
tion of women,” he concluded.
The full 5th Circuit declined to
reconsider the panel’s decision,
and dissenting judges said their
colleagues seemed more intent
on giving the Supreme Court a
chance to reverse its 2016 ruling
than complying with it.
“I am unconvinced that any
justice of the Supreme Court who
decided Whole Woman’s Health
would endorse our opinion,”
Judge Stephen A. Higginson
wrote in his dissent. “The majori-
ty would not, and I respectfully
suggest that the dissenters might
not either.”
The Louisiana case is June
Medical Services v. Russo.
[email protected]
[email protected]Louisiana abortion case may come down to chief justice
Roberts emerges as
pivotal vote as high court
considers precedentsASTRID RIECKEN FOR THE WASHINGTON POST
Chief Justice John G. Roberts Jr. and Sen. Lindsey O. Graham (R-S.C.) leave the Senate chamber last month the Senate voted to acquit
President Trump of two articles of impeachment. A new abortion case has again put Roberts at the center of a political maelstrom.BY JUSTIN JOUVENALThe Drug Enforcement Admin-
istration plans to return a man’s
life savings that the agency seized
from his daughter at an airport
over the summer, according to a
letter from the agency, but it pro-
vided little e xplanation a bout why
the m ore than $82,000 i n cash was
taken or why it was being given
back.
Rebecca Brown said that she
was never told she was under sus-
picion of a crime, that no drugs or
other contraband w ere found dur-
ing a search of her bag and that
neither she nor her father have
been charged w ith any crime since
a DEA agent took the money at
Pittsburgh International Airport
as she was on her way to Boston in
late A ugust.
Brown and her father, Terry Ro-
lin, filed a class-action lawsuit
against the DEA, the Transporta-
tion Security Administration and
government officials in January,
saying the agencies violate the
Constitution’s ban on unlawful
searches and seizures by confis-
cating cash f rom travelers w ithout
probable cause to suspect that a
crime has been committed. The
lawsuit claims the DEA’s only cri-
terion for confiscating cash is that
it exceeds $5,000.
It is legal to travel domestically
with a ny a mount of cash, b ut trav-
elers going abroad must declare
amounts of more than $ 10,000.
On Feb. 28, an attorney for
Brown and Rolin received a letter
from a DEA lawyer saying the
money was being returned. “After
further review, a decision has been
made to return the property,” the
letter read, but it provided no ad-
ditional explanation.
A DEA spokeswoman did not
respond t o a request for a dditional
comment.
Brown said in an interview
Wednesday she was relieved the
money w ould be r eturned b ecause
her father, who is 79, has had to
put off critical dental care and has
not been able to repair his pickup
truck. Still, she was angry the
agency did not shed more light on
the i ncident.
“There’s zero explanation and
zero apology,” Brown said. “It’s
unfortunate the government is
able to do this to people. It’s just
not f air.”
Dan A lban, a lawyer at t he I nsti-
tute for Justice, which is repre-senting Brown and Rolin, said the
lawsuit will continue because the
institute is still getting reports
that the DEA is seizing money at
airports on flimsy p retexts.
Alban said DEA’s returning the
money “confirms there was no
probable c ause for a seizure.”
Brown said the episode began
after a visit she made to her fa-
ther’s Pittsburgh-area home, dur-
ing which he asked her to open a
joint bank a ccount w ith him.
Brown said she got the money
on a Sunday n ight and was l eaving
the Pittsburgh area for her home
in the Boston area on a flight the
next morning, before banks
opened. Brown said she tucked
the money into her carry-on and
planned t o open t he account when
she g ot home.
After a security scan, a DEA
agent stopped her at the gate just
minutes before her flight was to
leave, she said. The agent quizzed
her a bout w hy s he was carrying s o
much cash. Brown put Rolin on
the phone to confirm the story
about opening a bank account, but
he was unable to confirm certain
details because he is experiencing
cognitive decline.
“He just handed me the phone
and said, ‘Your stories don’t
match,’ ” B rown r ecalled the agent
saying. “ ‘We’re seizing the c ash.’ ”
[email protected]DEA to return $82,000 cash seizure
Woman sued after her
father’s life savings were
confiscated at airport