vote at caucuses being held around that state. >> host: joining us on "newsmakers" is the ranking member of the judiciary committee, senator patrick leahy, democrat of vermont. thanks very much for being with us. sen. leahy: happy to be here. host: and joining us with the questioning is john bresnahan. he is the congressional bureau chief for "politico." and david herszenhorn, who is "new york times" congressional reporter. thank you for being with us. senator, i want to begin with the crs report that said in 1992, the chair of the judiciary committee, your colleague, joe biden, now vice president, had blocked the nomination of 32 george herbert walker bush federal judicial nominations that year. is that accurate? sen. leahy: no, that is not accurate. in fact, he did 65 or 70 of

president bush's nominees, including a large number of district courts and courts of appeals, and it was actually confirming -- letting the senate confirm nominations right up through september of an election year. no, if there were then that did not go through -- that it was for other reasons. he set, really, a record. now, contrast that to what happened when george w. bush was in the last two years of his presidency. i was chairman. so there could be no question on fairness, i put through 68 of his nominees. the republicans have about only 16 of president obama's in the last two years of his presidency, as opposed to the democrats allowing 68 of republican presidents. use any standard you want, republican presidents were treated more fairly. host: your republican colleagues

would disagree. senator biden said they should not go forward with a nomination in 1992. nothing happened in 1992 -- sen. leahy: no. host: now they are calling it the biden rule. sen. leahy: yeah, we actually -- they raised that with president obama and vice president biden, and they said read the whole speech. it makes it very clear that if we got past the election, then it raised the question, but he was confirming -- and there was no supreme court nomination at that point -- but he was confirming the republican president's nominees right up through september. it is not dissimilar from when the democrats took back over control of the senate at the end of president reagan's term, and in the presidential election year, we brought onto the floor justice anthony kennedy, and every single democrat voted for justice kennedy.

host: let me turn over to john bresnahan. mr. bresnahan: senator leahy, i want to talk about some of the very personal nature of the fight now over the impending supreme court nomination. a number of democrats have gone to the floor, including minority leader harry reid, and personally criticized the chair of the committee, senator grassley, your old friend, colleague, saying he is capitulating to the republican leadership. they're calling him incompetent -- failed leadership. is it surprising -- the personal tone of the attacks on grassley? i want to get your reaction. sen. leahy: well, senator grassley and i have been friends for years. our wives are friends. but i think all of us were very, very surprised that almost immediately after the news came out that justice scalia died, he joined with republican leader mcconnell saying no matter what

the constitution says we are not going to have a nomination or a hearing on a supreme court nomination. as you know, you spend enough time on the hill, there are a number of his public and -- republican colleagues that are amazed at that and uncomfortable with that, especially some of those up for reelection. if you are the chairman of the committee, you're supposed to make decisions based on what you think is best. now, when i was chairman of last two years of president bush's term, sure, i had some democrats say "why are you putting through his nomination?" i said because they are there. it is what the constitution says, and i think it is a fair think to do. they obviously feel different. the heck with the constitution. the heck with fairness. i spoke on the floor thursday with senator grassley there, saying what he is doing is

totally unprecedented. i cannot see why -- turning it back to the constitution, you know, the president -- the constitution says the president shall nominate -- "shall," not maybe he should -- it said he shall nominate, which president obama intends to do. everyone of us puts up our hand. we take an oath of office under god saying we will uphold the constitution. all i'm saying is uphold the constitution. if they want to vote against a well-qualified man or woman for the supreme court, let them do it, but don't have this thing where we say we will not vote yes or no -- we will vote maybe. we do not have the guts to stand up and vote in an election year on who should be on the supreme court. vote yes, or vote no.

that is what you are paid to do. that is your job. that is what you are sworn to do. host: david herszenhorn. mr. herszenhorn: can i ask you, is there anything in the constitution -- this an easy yes or no -- is there anything in the constitution that guarantees a nominee hearings and a vote? sen. leahy: no, well the constitution says we shall advise and consent. that is usually interpreted to be you advise, and you can vote no, but there's never been a time -- never been a time -- mr. herszenhorn: but if the advice is wait until after the election, and the consent is not forthcoming -- sen. leahy: no -- well, then let's have the courage to do it, and have the hearings -- at least have the hearings. there has never been a time, never been a time that a supreme court nominee was denied a chance to have a hearing and a vote. we have even had supreme court nominees that were defeated with members of the president's own party voting against them in the committee so they did not have

the majority vote. the democrats still said let them go for it, have the vote of the whole senate, because we are not elected to vote maybe. we are elected to vote yes or no. this is a very critical position. i do not think the american people are going to take very kindly to the united states senate saying we're not going to do our job, we do not have the courage to vote yes or no. mr. herszenhorn: and if i can just follow up on the nastiness question -- one of the things minority leader harry reid says is senator grassley will go down as one of the most obstructionist judiciary committee leaders in history, comparing that to during the civil rights era, those blocking civil rights legislation. do you agree with that -- do you think that would be the worst performance by -- sen. leahy: i will let senator reid and senator grassley speak for themselves. i remember when i was chairman of the judiciary committee, i made a decision of one names -- when names would come up, and wouldn't, and come up for a vote

and i make sure they did. that's is not happening now. i cannot imagine if i was chairman, with a republican president, whether it was an election year or not, saying if you nominate someone for the supreme court, we are even going to have a hearing on it. if i did, certainly in vermont, people would say i was being totally irresponsible. i realize that senator mcconnell, who, after all, said his primary goal is that president obama fails, has said no. that is not what the constitution says. mr. bresnahan: you mentioned mcconnell. in the meeting with yourself, president obama, vice president biden, and senator reid, he said to you democrats that you are hypocrites on this, basically, that in this meeting, the only four that had filibustered a supreme court nomination were you four democrats.

what is your response? sen. leahy: easy response. he is talking about the alito nomination. there was a pro forma vote. that was more just show. mr. bresnahan: this is when he is saying you filibuster. sen. leahy: we disagree. he was not denied a vote. he was given a vote. mr. bresnahan: president obama did filibuster a nominee. sen. leahy: he did vote against -- the fact is everyone knows as well as mcconnell that we were going to have that vote up or down on alito, and there was not a person in either of the cloak rooms that thought we were not going to have a vote, and he was confirmed by well under 60 votes, but he was confirmed. this is very similar to the talk about robert bork. now, the fact is former judge

bork came in the confirmation hearing. he probably had a large majority of votes on his side. he did such a terrible job in that hearing that some of the press -- i think "the new york times" in one of the editorials referred to him as having a confirmation conversion. ultimately, the senate judiciary committee, the majority of them, voted against him, including some republicans, voted against him. the reagan white house was quietly asking him please withdraw your name. he said he wanted a vote. i, and a lot of other side whether we are for him or not, he wants a vote, he is entitled to one. he went on the floor. he had a vote. eight or more publicans voted against him. not every democrat did, but the majority did, and he was defeated.

host: let me ask about the meeting john bresnahan brought up -- what was the tone of the meeting? sen. leahy: we actually started throwing chairs. it was cordial. mr. herszenhorn: that is why they have couches. you couldn't throw them. sen. leahy: the couches were too big to throw. host: define cordial. sen. leahy: people were not -- the president made a case for why they would follow constitution. senator mcconnell said we do not want you to follow the constitution, but whether you do or don't, we're not going to allow a hearing or a vote. host: some in the white house said the president was pretty frustrated with senator mcconnell. sen. leahy: the president stated his position very clearly, and we went on to other things. i will let him speak to his

frustration. i have known president obama for a long time, long before he was in the senate -- i mean, was president. he does not lose his cool or his temper. it was outrageous -- we were in the senate together, and we used to work out in the gym. he is in a lot better shape than i am, and there would be all kind of outrageous comments, but in public, especially as president, he keeps a pretty calm demeanor. there is no question there was steely determination by president obama that he would follow the constitution and he would set a name, and he would do it soon. mr. herszenhorn: we know he will make a nomination, and when he does, it will be because of senator mcconnell's stance -- it

will be unlike any nomination in the past. this is a nominee that is looking at not weeks of a fight, potentially an open-ended in, and one that is a public relations battle as well, and there are some of your republican colleagues that suggested that this nominee will have to be prepared for being part of the messaging fight, and you have been through this many times. it is extremely rare that we get opportunity to talk to a nominee and hear from them before they appear before the committee, the hearings. do you envision that could happen -- there would be a nominee that would be engaging in interviews on television in public knocking on senator mcconnell's door? or do you think it will play out in more traditional fashion? sen. leahy: i do not think you will see a nominee on television. we have not seen that before. there will be a lot of senators talking about he or she -- what is happening, but the reflection will be on the senate.

if we are elected to do our job, if we say for the first time in history we are not going to have a hearing -- not even have a hearing -- say nothing about a vote on a supreme court justice, i would not want to be one of the senators who made that decision, because it would be so unprecedented, so opposed to what the constitution requires, and it would be irresponsible. now, i have cast more votes in the senate than any other senator. i say that only two point out this -- have they all than those i redo the same way today -- maybe, maybe not. but have some been very difficult -- politically very difficult? yes. some, i was told, if i voted a particular way i would lose reelection. i still voted that way because i thought it was my duty to vote and follow the constitution, but to vote maybe -- i am not going

to vote yes, i am not going to vote no -- i am going to vote maybe, and then to allow senators to go home and say it is a pretty good nominee, a pretty bad nominee, but i would like to know more -- come on. i do not think the american people will stand for that -- republicans or democrats. host: another 10 minutes remaining. john bresnahan. mr. bresnahan: can we cover some other issues? sen. leahy: no. [laughter] mr. bresnahan: we could stay on this issue if you want. i'm happy to do so. criminal justice reform -- it is something you have worked on. where does it stand out? what is going to happen next? sen. leahy: we actually raise this at the meeting with the president. all of us realize if we're going to get real criminal justice reform done, we should do it soon, and not right in the middle of the throes of the presidential election season. i mean, i have been working on this for several years. we have come close several times. we know one thing, it is going to be bipartisan.

two, no one is going to get everything they want, but as a former prosecutor, i have got to say that we dramatically need criminal justice reform. i think we should continue to make efforts. senator durbin has worked extremely hard on this. we have had a strong bipartisan coalition -- senator booker, senator lee -- we all understand we are not going to get everything we want, but we have got to do better. i met with the chairman of the house. we have had a number of private meetings in my office. mr. bresnahan: chairman good life -- sen. leahy: i have invited a number of senators, republicans and democrats, sometimes together, in my office, in the capitol, because it is a convenient spot to meet, and i hope we can do it. as i said to the president, and to my republican and democratic

colleagues, do it before we have a presidential nomination. i do not want to be tied up in the presidential election -- debate. mr. herszenhorn: speaking of the presidential election, we have seen your home state, the state of vermont become the wellspring of successful liberal presidential candidates. howard dean, now senator sanders. can you talk about what it is about vermont that makes it the bastion of american liberals in the 21st century, and there are a lot of people that say hillary clinton's running mate will have to be someone that can satisfy bernie sanders' followers. are you the right guy -- sen. leahy: no. mr. herszenhorn: that balances liberalism, with experience, prosecutorial moderation -- sen. leahy: my people should know vermont is the only state in the union that has elected one democrat to the senate, and that is me. since 1962 we have had a democratic governor, republican governor. democratic governor, republican

governor. it has gone back and forth. so, we are not -- i was going to say we are cranky. we are independent, and we like it that way. bernie sanders is highly respected in vermont, and he got, i think, his highest percentage in the country, in vermont, but he also has miles across the country because he has spoken to a lot of things people care about. now, secretary clinton has, too. she probably does not get quite the coverage, but she has spoken to the need of having to have great changes in everything from college tuition, to the ability to have jobs. mr. herszenhorn: any thoughts on who might be that person that can satisfy sanders rotors and join her -- voters and join her on that? sen. leahy: no. i have had some candidates ask my opinion, as well as others, who should be vice president. i can assure you it will not be

me. i do not want it. we have had some very good vice presidents. whoever -- if we elect a democratic president, what i would urge, they have somebody as vice president who can work well with the congress -- the house and the senate. i use two examples. the two vice presidents i have been there with that have done the best job working with the congress -- one was fritz mondale, and the other was george h.w. bush, which may surprise a lot of people, but they had the ability to work with members of congress. host: not vice president biden? sen. leahy: oh, no, he works with members of congress, too, but members of congress are less politicized. we spent more time in washington, and these two spent a lot of time -- it is nothing against -- joe biden is one of my closest friends and i do not hesitate to call and if i have a question, or vice versa.

[laughter] mr. bresnahan: quickly, a now for us -- cuba. the president is going to cuba. for years you pushed to open the relationship with cuba. you have to feel good about this, and talk about the historic nature of obama's visit. sen. leahy: i am very happy with this. i started years ago -- our dinners we had with fidel castro. we actually been to the baseball game with him that afternoon, and i have pushed and pushed. i helped get elian gonzalez back to his father. i am respected for that in cuba. we met a number of times with raul castro, and i have urged president obama right from the beginning, make this change. i know presidents have always had this memo -- hold tight, we will be rid of those castros. well, president eisenhower was the first one, and every

president since. i brought messages back and forth between president obama and president castro. i believe very strongly this is the right move. is there going to be a democratic society in cuba? no, but will it reflect what is best in us? yes, and i'm looking forward to going down there with president obama when he goes and the end of this month. i will tell you one quick story -- a number of times i have been down there, a number of times with ambassadors from other countries down to cuba. one was the ambassador to chile. when we were down there for the raising of the flight, he came to her and said we respect cuba and the united states, but your relationship has always been like a stone in our share. today, the stone came out of our shoe. i think that says it all. host: quick follow up?

sen. leahy: you want to come with us? [laughter] host: let me ask you about the opioid bill because i know that has been a big issue in vermont, new hampshire. we saw in the primary campaign. is it going to move through the senate next week. what is the latest? sen. leahy: i think we could have finished it week if we were to stay in session. i recommend it on the floor why don't we stay in session friday, saturday, and sunday, and finish it. i think we would have. yes, it will. of course we will finish it. now you actually have to put some money in it. it is one thing to feel good about saying we passed a good piece of legislation, but if you do not put money in it, it does not help. host: how much do you want? sen. leahy: we had a real problem all over our state and other states. our governor was brave in his state of the state a couple of years ago to speak out just on that. it is a real, real problem in this country. mr. bresnahan: can i ask you quickly -- you past senator stennis this week for the sixth longest serving senator. sen. leahy: yes.

[indiscernible] i do not know. mr. bresnahan: i think you have kennedy up next. byrd -- you are up for reelection. if you serve full-term, i think you will be the longest serving. you will be right there. sen. leahy: i never -- i am the only democrat elected in vermont history. when i came there, everybody told me i was a one-term senator. i said i will do my best for that one term. i never thought i would be here this long. mr. bresnahan: how long will he want to serve -- do you want to serve for -- sen. leahy: i hated the seniority system when i first came here, and now that i am the dean, the most senior one, i realize i can do a lot for vermont. i kind of like the system. host: one personal question -- will you appear in the next "batman" movie, and what is your role? sen. leahy: if you are a betting person, bet that i will be in

the next "batman" movie. host: there is some hesitation. you cannot talk about it? sen. leahy: i do not know -- actually, i can, because one of the trailers shows me as a senator in the senate hearing, but the reason i do those -- it is going to sound silly -- i give all the money from those movies to the children's library in vermont. i had my first library card there when i was four years old. when you are born blind in one eye as i was, to be able to read, and read, and read, it is one of the greatest pleasures i've ever had, so being in the "batman" movie has bought a lot of books for those kids, even if i do get bounced around, thrown around, and so on. host: but why "batman?" what is the fascination for you? sen. leahy: i started reading him when i was caught -- four.

i like the fact he did not have any super paros -- superpowers. he had to use his brain. he had a think think -- think things through. he had use his brain. when you are blind in one eye, you are not a natural athlete, but i liked using my brain, and that is why i like him. host: senator patrick leahy, thank you very much for being with us. we appreciate it. and we continue our conversation with john bresnahan and david herszenhorn. i want to consider the conversation about the election and who the president puts forth. mr. herszenhorn: this is a very theoretical fight until the president makes a nomination. once the president makes a nomination -- it is a different situation. it is unprecedented.

the republicans have been clear they will not move on this. some democrats think the nominee should be part of the messaging. you heard from senator leahy, who has been part of many of these, this is a risky business. he does not think that will happen at all. there is no doubt this will have more messaging around this nomination than any we have seen in the past. host: let's talk about timeline -- when you think the president will make a nomination? what are you hearing from the hill and on the white house -- and the white house? mr. bresnahan: the talk is the president is scheduled to go to cuba late in the month. there is a strong sense of monks senate democrats that he will release the name of the nominee before he goes to cuba, that he wants to get it done pretty quickly, and, as david just said, this is a nomination fight unlike any other, and that he wants to, you know, get it engaged, and get it going. if they are going to, you know, blockade actual nominee can -- block an actual nominee, who he

or she is, they want to get a face on it and say this is the person they are blocking. the sense on the hill is that they would do this before he goes to cuba. the white house is not saying he is reviewing nominees. they have a list of nominees. there is an extensive background check. that would only be the opening part of this if there are any hearings. nothing else happens, there would be no further investigation into that person. but, you know, there is going to be an fbi background check. host: and with all of this -- democrats say no, you have done it, back and forth -- are both sides at fault? mr. herszenhorn: there is no

question this is gone on for a long time, and both sides are at fault for the partisanship and rancor that is gripped and almost paralyzed washington, but we have to keep in mind this is among the most consequential decisions the president makes, appointing someone to a lifetime appointment to the supreme court, and even in the context of republican opposition, there is no rushing that. the white house has to carefully, deliver the nature wherever they push that put out there, even if you think the nomination will not succeed, is someone who will be a serious candidate. they are not going to find any

surprises that would embarrass the administration because there is something they have overlooked. host: and there have been a couple of trial balloons. mr. bresnahan: there have been. the republican governor of nevada was floated. that was more of a head fake. sandoval actually released a letter saying he was not interested. there was another candidate -- a federal judge from iowa who said there was some talk that she may be on the list. she has been mentioned before. there are a number of names that i wanted to follow-up on david's point -- both parties are guilty of this. you can physically see is they both keep raising the stakes on this on these fights. they both keep taking months to ratchet up the pressure on the other side, and that has been consistent in the last administration and in this administration. filibustering judges -- blocking all nominees. now we have a separate court nominee -- they are not even going to have a hearing. there is going to be -- let's say for instance a democrat won the white house, and their bookings block a democratic nominee -- and the republicans block a democratic nominee, in the next term there would be a

strong push to get rid of a filibuster on nominees. there will be a strong push among democrats to do that. so, i think we are headed into -- i'm not sure where this all ends up, but we are headed into a place where it is becoming more and more partisanship on judicial nominee fights, and i do not see where it is ever going to get any more reasonable. mr. herszenhorn: the stakes are very high, and the other thing that is interesting is not only have both sides been at fault for the judicial wars that have taken place, but the other thing to keep in mind is both sides often overwhelmingly vote to confirm judges because the judges put forward are usually overwhelmingly qualified. so, this complicated situation. it is one of the reasons why republicans do not even want to hold hearings because someone like jane kelly's was confirmed in 2016 -- 201390 6-0. any of the names you hear floated -- there are republicans who have come out and said action the positive things about them because they are very qualified.

once you begin the process, there is a danger that there is no way to stop it. host: bottom-line, does know me -- no mean no from senator mcconnell? mr. bresnahan: jesper. there will be no hearing, and no board. host: john bresnahan and david herszenhorn, to both of you, thank you for being with us on "newsmakers." we appreciate it. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] kaplan: so many of my books were horizontal, covering six countries. here, i look at one country in depth, and i use it to explore great themes -- i think, great themes. the holocaust, the cold war, the

challenge of vladimir putin. remember, romania and romanian speaking moldova have a longer border with the ukraine. in --ight, robert kaplan, shadow." "in europe was correctromania because it intimately had weak institutions. everything was based on bribes and doubledealing. nothing new.is was what is happening is the upanian population has grown and become more sophisticated. 8:00 eastern on

q&a. >> wednesday, the supreme court heard arguments on whole woman's health v. hellerstedt, and abortion case in texas. it forces clinics to meet itpital-like standards -- constitutes an undue burden on women seeking abortions. this is one hour, 25 minutes. chief justice roberts: we'll hear argument this morning in 74, whole woman's health v. hellerstadt. ms. toti. ms. toti: mr. chief justice, and may it please the court,the texas requirements undermine the careful balance struck in casey between states' legitimate and women's fundamental liberty to make personal decisions about

their pregnancies. they are unnecessary health regulations that create substantial obstacles to abortion access. justice ginsburg: ms. toti, there is a preliminary question -- would you address that that this claim is precluded. and let's take first the claim that was in the prior litigation. let's assume that they're separate claims, or let's take the admitting privileges. that was argued and decided. why isn't it precluded? ms. toti: your honor, it's not precluded because material facts relevant to the claim developed subsequent to entry of judgment in the abbott case. justice kennedy: but you could have amended -- you could have asked for supplemental briefing. i mean, the new action is filed six days after the supreme court issues its decision in this case. you could have asked for supplemental briefing. ms. toti: in abbott the

plaintiffs brought the the new facts to the attention of the court of appeals. the court of appeals said that it would only consider evidence in the trial record in rendering its decision, and it held that the evidence in the trial record was speculative, that there wasn't a sufficient basis to conclude that any doctor would be unable to obtain admitting privileges, or that any clinic would be forced to close as a result of the admitting privileges requirement. chief justice roberts: but you're asking you made allegations concerning those same claims. i mean, is your argument that when you have allegations on a facial challenge and a facial challenge is resolved against you, that all you have to do is come up with new evidence and then you can start over again? ms. toti: no, your honor. the the the evidence must be material, and it must be newly developed. so newly discovered evidence wouldn't be sufficient. if it was evidence that was available at the time of the first suit, but the plaintiffs merely hadn't discovered the evidence or didn't bring it forward, that wouldn't provide the basis for a subsequent suit. but evidence that develops after judgment in the first suit that is material to the claims does provide sufficient basis for a a

second. justice kennedy: and what's this key new evidence? ms. toti: the the evidence is the clinic closures that resulted from enforcement actual enforcement of the admittingprivileges requirement. so, the the first suit was a preenforcement challenge. it was before the law took effect, and the court concluded that there was not sufficient evidence that any doctor would actually be unable to obtain admitting privileges, or that any clinic would actually close. justice alito: well, there is very little specific evidence in the record in this case with respect to why any particular clinic closed. basically, your argument is that the law took effect, and after that point, there was a decrease in the number of clinics. so suppose you win here, and the state then examines what happened in each of these clinics and comes up with evidence showing that in quite a few instances, the closure was due to other factors.

and so then they would then could they take the position, well, the decision of this court holding that the law is facially unconstitutional is not binding on us by res judicata, and so you would have to sue them again, and they would be able to make the same argument you're making now. is that correct? ms. toti: no, your honor. justice alito: what's the difference? ms. toti: well, first of all, the state had an opportunity to bring forward evidence in this case about the reasons why. justice alito: was it that was that their burden? ms. toti: no, your honor. not in the first instance, but the plaintiffs came forward with evidence and and the state did not offer anything to to rebut the evidence, which was more than sufficient to support the

district court's finding that hb 2 was the cause of the clinic closures. chief justice roberts: what what evidence is that? ms. toti: there are a couple of things, your honor. prior to hb 2, in in the five years prior to hb 2, the number of clinics in the state remained fairly stable. in any given year, there may have been a one to twoclinic variance. following the enactment of hb, more than clinics closed within a very short period of time. the timing of the closures -- chief justice roberts: what? ms. toti: alone. chief justice roberts: i'm sorry. yeah. what is the evidence in the record that the closures are related to the legislation? ms. toti: the the the timing is part of the evidence, your honor, and the testimony of the plaintiffs about the reasons why their clinics closed. so that the plaintiffs testified that clinics closed in anticipation of enforcement in some cases, and in some cases because of actual enforcement of the requirements.

justice ginsburg: can we go on to the second piece, that is, the ambulatory surgical centers? that was not part of the last case. and your position on that is that that is a discrete claim, so it's not barred by a claim preclusion. is that is that your position? ms. toti: yes. that's correct. and the claims against the asc requirement weren't ripe at the time that the abbott case was filed, because the final implementing regulations for that statutory requirement hadn't yet been adopted. justice kennedy: well, certainly in the federal system, and i assume in many states as well, regulations sometimes take years to promulgate. i don't know of any rule that says we have to wait for regular --regulations to be promulgated unless it's something unanticipated. and the key objections you're making were clear in the statute, anyway. ms. toti: i would disagree that that the extent of the burden that the law would impose was clear on the face of the statute. until those implementing regulations were adopted and the statute provided a deadline for the adoption of those regulations. until they were adopted, the plaintiffs couldn't have known whether waivers or grandfathering would have been permitted. and if waivers or grandfathering were permitted, as they have been in every other asc

requirement that's been adopted for abortion providers, the burdens would have been much less, and the plaintiffs would have first attempted to get licensed and seek appropriate waivers before filing their suit. chief justice roberts: so you think you can separately challenge the admittingprivilege provision and the asc provision? ms. toti: yes, your honor. because those -- chief justice roberts: so if you can separately challenge them, if you challenge just the admittingprivileges provision, how would you factor in presumably, you would have to assume that the asc provision was not under challenge. so in assessing the burden, you would look at just the admission privilege. and vice versa, if you're challenging just the asc separately, you'd have to assume you'd assess the burden solely caused by that provision. it seems to me the separation of the two provisions makes would make your case much harder. ms. toti: i -- i would disagree

with that, your honor, because each of these requirements is extremely burdensome on its own. the admittingprivileges requirement, which is partially in effect, has been responsible for the closure of nearly half of all the abortion facilities in texas to date. and the asc requirement, if it took effect, the respondents have stipulated that it would close any remaining licensed abortion facility that was able to comply with the admittingprivileges requirement. so independently, each requirement is extremely burdensome, and and collectively, the onetwo punch of these requirements would be the closure of nearly 30. justice breyer: what i think the chief justice asked i don't want to take words out of his mouth but i think the question was, one of the two lines that's been asked, is that in the district

opinion at page 7, the district court has said that if the asc regulation goes into effect, there will be one facility left in austin, two in dallas, one in fort worth, two in houston, and either one or two in san antonio. and before that, he said that the enforcement of the appointment privileges, the privileges of admission, would reduce the number from down to 40 to about from down to about . -- 20. now, i think the question was, what evidence did those findings rest upon? as you've heard, the other side, i think, say there is no such evidence, or the court of appeals said there is no such evidence. so can you give a brief account or page numbers that will show that those findings, the diminishment of the number from about 40 to about eight, which is what the district court found, rested upon some

evidence? what was that evidence? ms. toti: yes, your honor. so initially, 20 clinics closed in the wake of hb 2. eight closed prior to initial enforcement of the admittingprivileges requirement, and 11 closed on the day that the admittingprivileges requirement first took effect. respondents quibble with the evidence concerning the first eight. even if we and and there is basis in the record for the district court to infer that those eight closed for the same reasons as all the others, but but even if we -- chief justice roberts: where i'm -- sorry to interrupt you. where in the record is that evidence? ms. toti: your honor, i can provide specific pin sites during my rebuttal, but the evidence is in the plaintiffs' testimony about the reasons why their clinics closed. each of the plaintiffs' class testified that their clinics closed either in anticipation of

enforcement of these requirements, knowing that that the clinic would not be able to continue operating once the requirements took effect, and as a result of that, either they needed to move resources to remaining clinics to ensure that some clinics would continue to operate in the state justice breyer: what'd they say? -- state. justice breyer: what'd they say? could you give us any record references later or on rebuttal? ms. toti: yes. justice alito: as to how many, of the total that you claim closed, do you have direct evidence about the reason for the closure? ms. toti: well, 11 of them, your honor, closed on the day that the admitting privileges took effect. justice alito: yeah. and as to how many how many are you claiming total closed as a result of the law? ms. toti: to to date, roughly 20 clinics have closed.

justice alito: and of the 20, how as to how many do you have direct evidence? ms. toti: i approximately 11, your honor, direct evidence. justice alito: because if if you go through this now we're not talking about a huge number of facilities. i really don't understand why you could not have put in evidence about each particular clinic and to show why the clinic closed. and as to some of them, there is there's information that they closed for reasons that had nothing to do with this law. now, maybe when you take out all of those, there still would be a substantial number, and enough to make your case. but i don't understand why you didn't put in direct evidence. i mean, i could give you examples -- planned parenthood center for choice, bryan, texas. is that one of the ones you're talking about? ms. toti: yes, your honor. justice alito: okay. there's a news report. planned parenthood and and the huffington post reported that this was closed as a result of the texas women's health program bill, which cut funding for family planning services. it's not the law that we're talking about here. ms. toti: well, your honor, that

evidence is not in the record. justice alito: well, i understand that. and you put quite a bit of evidence that's not in the record in your brief. but my point is why is there not direct evidence about particular clinics? justice ginsburg: you said you had direct evidence for clinics and you were going to supply us with that those record citations later. that's understood you to say? ms. toti: yes. yes, your honor. absolutely. but i think what's what's important to keep in mind here -- justice kagan: ms. toti, could i could i just make sure i understand it, because you said were closed on the day that the admittingprivileges requirement took effect, is that correct? ms. toti: that's correct. justice kagan: and is it right that in the twoweek period that the asc requirement was in effect, that over a dozen facilities shut their doors, and then when that was stayed, when that was lifted, they reopened again immediately, is that right? ms. toti: that that is correct, your honor. justice kagan: it's almost like the perfect controlled experiment as to the effect of the law, isn't it? it's like you put the law into effect, clinics closed. you take the law out of effect, they reopen. ms. toti: that's absolutely correct. and as the state had stipulated, that's exactly what the state stipulated would would happen. and that that stipulation is

certainly direct evidence of of the impact of the asc requirement. justice kennedy: the state, i think, is going to talk about the capacity of the remaining clinics. would it be a, proper, and b, helpful, for this court to remand for further findings on clinic capacity? ms. toti: i don't think that's necessary, your honor. i think there is sufficient evidence in the record that we have to support the district court's finding that the remaining clinics, which would number fewer than ten, don't have capacity to meet the statewide demand. justice kennedy: there there have been some changes, like a a major clinic -- i don't quite know the adjective they use for it in san antonio. but there suppose there were evidence that there was a a capacity and a and a capability to to build these kinds of

clinics, would that be of importance? and then it would show that this law has an effect, and a beneficial effect so far as the legislature is concerned. ms. toti: if the court had any doubts about the capacity of the remaining clinics, a remand would certainly provide the petitioners with with the opportunity to supplement the evidence already in the record. but the evidence in the record shows that supports the district court's finding that because the the asc requirement, the costs of it are so prohibitive, it will deter new clinics from opening to take the place of the ones that closed. justice alito: is it correct that the number of ambulatory surgical centers performing abortion has increased by 50% since this law went into effect? ms. toti: there have since this law has taken effect, three new ambulatory surgery centers have opened. and there is evidence about that at the trial, and the trial court knew that that was going to happen. the the trial court took that into account in in making its

finding. but nevertheless, there was substantial evidence, including texas's experience in following enactment of the asc law for later abortions, for post-16-week abortions, that shows that the the market never adjusted and the rate at which those procedures occurred in texas was drastically diminished following that enforcement of the law. justice alito: well, one one quick question about capacity. i don't want to take your rebuttal time. but your co-counsel put in is -- is also litigating a case like this in louisiana. and in that case, the plaintiffs were able to put in evidence about the exact number of abortions that were performed in all of the facilities. why could that not have been done here? why wasn't it done here? ms. toti: well, there there so i see that i'm getting into my rebuttal time, your honor, but there is evidence in the record about the the number of

abortions that were performed on an annual basis, the geographic distribution of of those abortions. texas collects those statistics, and those those statistics are part of the record in this case. justice ginsburg: you you had we have absorbed so much of your time with the threshold question. perhaps you can can she have some time to address the merits? chief justice roberts: why don't why don't you take an extra five minutes, and we'll be sure to afford you rebuttal time after that? ms. toti: thank you, mr. chief justice. so fundamentally, these laws impose heavy burdens on abortion access that are not medically justified. and for that reason, they impose an undue burden on the right to abortion. chief justice roberts: do you think there's a rational basis for the law based on the benefits that the legislature saw? ms. toti: i do not, your honor,

because -- chief justice roberts: well, i thought you expressly did not challenge the law as lacking a rational basis. ms. toti: we we did not preserve our rational basis claim. the the district court denied that claim, and and we haven't preserved it here. here we're focusing on on the undue burden. we wouldn't concede that the law has a rational basis because in fact, it undermines -- chief justice roberts: well, we have to assume it we have to assume it does since you're not raising that challenge, don't we? ms. toti: because the law actually undermines the state's interest in health rather than advancing it by causing an increase in later abortions and and self-induced abortions, we wouldn't concede that it's rationally related to the state's interest in health, but are -- justice ginsburg: you said "even if." the test is undue burden, not rational basis. ms. toti: that that's correct,

your honor. and in order to determine whether a law imposes an undue burden on the abortion right, we must first consider the magnitude of the burden that it imposes, and then compare that burden to what the law is intended to achieve to be -- chief justice roberts: i don't how is that logical? i mean, the question is whether there's an undue burden or a substantial obstacle. what what difference does it make what the purpose behind the law is in assessing whether the burden is substantial or or undue? it seems once you get past the the assumption that the law has a rational basis and you haven't challenged that, then you look at the burden or the obstacle. and the purpose that the law is directed to, i would think, doesn't make a difference. it's either a substantial obstacle or an undue burden or it's not. ms. toti: in order to determine whether a burden is undue, your honor, we we have to consider what the burden is in relation to. in casey, for example, in upholding the informed-consent requirements, the court first looked to the the state interests that was being served

by those requirements in that case, the state's interest in potential life, and concluded that the requirements were reasonably designed to serve that purpose by making the abortion decision more informed and that -- chief justice roberts: i thought the undue burden and substantial obstacle went to whether it was undue in light of the woman's right to exercise her right to an abortion, not with respect to the state interest that's asserted. ms. toti: well, your honor, it's it's both. casey sought to balance the state's legitimate interest in regulating abortion with the woman's fundamental right with her her liberty to access the procedure, and it it concluded that the state couldn't impose unwarranted burdens. so where the state had a good reason to impose a restriction and that restriction didn't impose burdens that were undue, then the restriction could stand. but where a a restriction is unreasonable or, in in the language of casey, "medically unnecessary," and it's going to

impose burdens on access to then -- then that restriction cannot be sustained under the fourteenth amendment. justice sotomayor: can i walk through the burden a moment? there's two types of early abortion at at play here. the medical abortion, that doesn't involve any hospital procedure. a doctor prescribes two pills, and the women take the pills at home, correct? ms. toti: under texas law, she must take them at the facility, but that is otherwise correct. justice sotomayor: i'm sorry. what? she has to come back two separate days to take them? ms. toti: that's correct, yes. justice sotomayor: all right. so now, from when she could take it at home, it's now she has to travel 200 miles or pay for a hotel to get those two days of treatment? ms. toti: that's correct, your honor.

justice sotomayor: all right. let me ask you something about that twoday wait, okay, or or that travel time. how many other states and how many other recognized medical people have testified or shown that there is any benefit from taking pills at the facility as opposed to taking the pills at home, as was the case? ms. toti: there is there's absolutely no testimony in in the record and and no evidence, you know, in in any of the amicus briefs that there is a medical benefit to having a medication abortion at a multimilliondollar surgical facility. the american medical association and every other mainstream leading medical association to consider these requirements has concluded that they are not medically justified for a variety of reasons, including that they impose these onerous burdens on medical abortion,

which is the earliest form of abortion, and that these burdens are also imposed on early surgical abortion, procedures prior to weeks. -- 16 weeks. and as a result, women are going to be delayed later in pregnancy. and there is evidence in the record that following implementation of the admitting-privileges requirement, in the sixmonth period following, there was an increase in both the number and the proportion of abortions being performed in the second trimester. so by delaying women's access to abortion, these requirements are actually increasing the risks that women face. justice sotomayor: if the chief may permit me to finish my two-part question? chief justice roberts: sure. justice sotomayor: the second is the d&c, the dilation and what's it called?

dilation and -- ms. toti: curettage. justice sotomayor: curettage. what is the risk factor for a d&c related to abortion and a nonabortion d&c? d&cs are performed in offices for lots of other conditions besides abortion. is there any evidence in the record that shows that there is any medical difference in the two -- in the in the procedures that would necessitate an abortion being in an asc or not, or are abortions more risky than the regular d&c? ms. toti: no, your honor. the evidence in the record shows that the procedures are virtually identical, particularly when d&c is performed to complete a spontaneous miscarriage. so when a woman miscarries and then follows up with her doctor, the doctor will typically perform a d&c. and that's virtually identical to an abortion, but it's not subject to the the requirements of hb 2. justice sotomayor: so your point, i'm taking, is that the two main health reasons show

that this law was targeted at abortion only? ms. toti: that's absolutely correct. yes, your honor. justice sotomayor: is there any other -- chief justice roberts: thank you, counsel. justice sotomayor: i'm sorry. is there any other medical condition by taking the pills that are required to be done in hospital, not as a prelude to a procedure in hospital, but an independent, you know i know there are cancer treatments by pills now. how many of those are required to be done in front of a doctor? ms. toti: none, your honor. there there are are no other other outpatient procedures that are required by law to be performed in an asc. chief justice roberts: thank you, counsel. general verrilli.

general verrilli: mr. chief justice, and may it please the court: the effects of the texas law at issue in this case are much more extreme than those of any abortion law that this court has considered since casey. this law closes most abortion facilities in the state, puts extreme stress on the few facilities that remain open, and exponentially increases the obstacles confronting women who seek abortions in the state. and it does all of that on the basis of a medical justification that cannot withstand any meaningful scrutiny that the american medical association has told you is groundless, and that the district court found will actually operate in practice to increase health risks to women and not decrease. justice alito: is this true of every provision of the of the asc law? general verrilli: no, i i don't think it is true about every provision in the regulations, justice alito. justice alito: not the justice alito: not the regulations -- yes, in the regulations. general verrilli: yes. justice alito: every single provision. then why was the whole thing

held to be unconstitutional? general verrilli: so i agree with the premise of your honor's question. there are some parts of the regulation that i think, operating alone, wouldn't have the substantial obstacle effect. in fact, some parts of the regulation actually restate and reauthorize regulations that were already on the books. and so i suppose one could say that with respect to that set of regulations, that the district court could have severed them one could say that. of course, they're already in the preexisting regulations -- justice alito: but there are there are things that go that go i haven't checked everything as compared the abortion the prior abortion clinic licensing law against the asc requirements, but there are some where there's an increase in what's required. it seems pretty reasonable. under the under the the old the old law, there had to be a nurse, but not necessarily a registered nurse. under the new law, there has to be a registered nurse who has a cpr certificate. so do you think that's unreasonable to say that there has to be a registered nurse who knows how to do cpr? general verrilli: so i -- i