In honor of Women’s History Month and International Women’s Day, on March 4, 2020, New York-based litigation associate and MoFo Women’s Strategy Committee member Katie Viggiani interviewed the esteemed New York University Law School Professor Melissa Murray.
A Yale Law School graduate and an award-winning scholar who frequently appears on major television networks, Melissa has been published in respected periodicals including The New York Times and The Washington Post. In MoFo’s New York office, she spoke with Katie about women in the legal profession and a major case over a Louisiana abortion law that was being argued before the U.S. Supreme Court on the very day of her visit.
An Abortion Law Being Argued Before the Supreme Court
In the hours before Melissa would take the stage to do a fireside chat with Katie, the Supreme Court was hearing arguments in June Medical Services v. Russo, an enormously impactful case over the constitutionality of a Louisiana law requiring abortion providers to obtain admitting privileges at local hospitals—an issue right in Melissa’s bailiwick.
“If this strikes you as legal déjà vu to you, it should,” Melissa remarked. “A very similar law was at issue in Whole Woman’s Health v. Hellerstedt, a case the Supreme Court heard in 2016. It was a 5-to-3 decision, with Justice Breyer writing for the majority. The Court struck the law down,” Melissa said, rattling off the case’s details with an ease that most people can display only when asked to recite something as familiar as their home address.
In Whole Woman’s Health, the Court made it clear that when abortion questions are at issue, the Justices must do more than accept the legislature’s explanation as to why they passed the law, Melissa explained. They must also deeply question whether the professed benefits of the law are commensurate with the burdens it imposes on the women affected.
“When the Court took this up in 2016 in Whole Woman’s Health they determined that the admitting privileges requirement actually did not have the professed correlation to increases in abortion patient’s health,” Melissa said. “They Court also noted that it’s often difficult for abortion providers to get admission privileges in Texas because obtaining admission privileges there requires an abortion provider to actually practice in the hospital system and admit a certain number of patients per year.”
Because abortions so rarely need to be performed in hospitals, abortion providers don’t usually send enough patients to the hospitals to qualify for these admission privileges.
Melissa also noted that “One of the really interesting things about the petition [for certiorari in the Louisiana case] is that the Court actually included an additional question that neither of the parties had raised: whether the abortion providers were the appropriate parties to be bringing this suit, as opposed to abortion patients.”
“I think the Court’s inclusion of the standing issue suggests the interest—by at least some members of the court—to have a kind of procedural exit ramp for this case,” Melissa said. “This is an election year. Abortion is certainly a hot-button issue that could incite women to go to the polls. And a way to prevent the Court from becoming a flashpoint in electoral politics would be to decide this case on a jurisdictional question, to say that the parties were not the appropriate parties, that they lacked the appropriate standing.”
The Louisiana case is currently stayed (i.e., temporarily suspended). If it passes, two of Louisiana’s three remaining abortion clinics would shutter.
Transcripts from the parties’ June Medical Services v. Russo arguments before the Supreme Court weren’t yet available when Melissa met with Katie, and the Supreme Court can take as long as three months after an argument to hand down a decision. Stay tuned.
Professor Melissa Murray (left) with MoFo’s Katie Viggiani (right).
Members of our New York office pose with Professor Melissa Murray to celebrate International Women’s Day.