The Fight for Our Lives: How to Beat SCOTUS on Abortion
No one should underestimate just how severe the loss was in Whole Woman’s Health v. Hellerstedt, Monday’s appalling decision by the U.S. Supreme Court. Five members of the Court, over the strenuous dissents of Justices Clarence Thomas, Samuel Alito and Chief Justice John Roberts, didn’t just create a new and far stricter standard for abortion regulations. They threw out the minimal standards that Texas had imposed on abortion clinics to improve their quality and cleanliness and reduce the health risks of women undergoing abortions.
The question now is whether states are going to be able to do anything to get around this abysmal ruling and implement regulations to prevent what the Texas legislature was trying to make sure would not happen in Texas: a repeat of the horrific conditions in the Gosnell abortion clinic in Philadelphia, which led to the “irreparable” injury (and even the death) of women and the murder of children born alive.
To answer that, one must first understand just how extreme this decision was. Without explicitly saying so, the Court rejected its own precedent in Planned Parenthood v. Casey that allows a state to act “where it has a rational basis” to regulate abortion “in furtherance of its legitimate interests in regulating the medical profession” and without placing an undue burden on women. Now, apparently, state legislators will no longer be given deference. They will have to prove to judges that such regulations are absolutely necessary. As Justice Clarence Thomas said in his dissent, the five-member majority has transformed the applicable test “to something much more akin to strict scrutiny,” which is the highest and strictest form of judicial review the Court applies.
The Texas legislature, which has the sole authority to regulate the practice of medicine in the state (something outside the purview of the federal government) had passed two common-sense reforms: requiring abortion clinics to meet the minimum health and safety standards that other ambulatory surgical centers have to meet, and requiring abortion doctors to have hospital admitting privileges within 30 miles of the clinic. The majority held that these requirements placed an “undue burden” on abortion clinics, and were therefore unconstitutional.
The majority’s reasoning was often bizarre and ignored evidence produced in the case. For example, Justice Stephen Breyer, who almost always seems in favor of more government regulation, acknowledged the “terrible” behavior at the Gosnell clinic. But then he claimed that there was “no reason to believe that an extra layer of regulation would have affected that behavior” because that is unlikely to change “determined wrongdoers.” Of course, under that analysis, one could dismiss the usefulness of almost any law or regulation that prohibits wrongful behavior.
Breyer added that there was no evidence that the new Texas requirements would be “more effective” than prior law, ignoring evidence that the plaintiff in the case, Whole Women’s Health, had appalling conditions at its clinic, including “the lack of any equipment to adequately sterilize instruments.” The grand jury report on the Gosnell clinic also described it as a “filthy space” with “unsanitary instruments.” Given the fact that Whole Women’s Health was claiming the new law would force it to shut down, it seems obvious that Texas’s “extra layer of regulation” would, in fact, have a salutatory effect – preventing the operation of a dirty clinic with all of the medical risks that entails.
Similarly, Justice Ruth Bader Ginsburg seemed to claim that abortions are completely safe for women and almost completely risk free, ignoring evidence that more than 200 women a year end up in hospitals in the state because of complications from both surgical and chemical abortions.
On the requirement of admitting privileges, which the majority also said was an undue (and unnecessary) burden, the justices ignored a crucial fact pointed out by Texas: that before it changed its mind, in 2000 the National Abortion Federation itself had recommended that doctors have admitting privileges. Otherwise, patients experiencing post-abortion complications arrive at a hospital with no medical records, no history and no information about the procedure performed by the abortion doctor. That can slow down and degrade the quality and effectiveness of any subsequent medical treatment.
The bottom line is that a majority of the Court – five lawyers with absolutely no medical experience or education – have set themselves to be the judge of what is appropriate medical care. Or as Justice Thomas said in his dissent, they have appointed themselves as “the country’s ex-officio medical board with powers to disapprove medical and operative practices and standards throughout the United States.”
One of the most embarrassing aspects of this case, ignored by all of the media analysts and supporters of abortion, is what appalling misers some of these abortion organizations are when it comes to the patients they treat. The crux of their case was a claim that they could not afford to meet the minimum medical standards required by Texas and a number of other states. Yet Planned Parenthood’s 2014-2015 annual report shows that Big Abortion is Big Business. Planned Parenthood had $1.3 billion in revenue, including government revenue of $553.7 million, and lists revenue in excess of expenses (i.e., profit) of $58.8 million in 2015, and $127.1 million in 2014. And yet supposedly the abortion industry can’t afford to improve medical conditions for its patients to increase their health and safety.
The key to getting around these five justices is for states to tailor their medical regulations to apply generally, and not just to abortion clinics. In other words, apply stricter medical standards to all clinics that provide particular types of medical services – such as any invasive surgical medical practices or chemical treatments that can cause substantial potential reactions that may require hospitalization. Making such regulations generally applicable will undermine the under inclusiveness critique that Ginsburg made when she claimed that many other medical procedures that “are far more dangerous to patients” are not subject to the Texas requirements.
Legislatures will have to do a much better job beefing up the legislative record when considering any such regulation. They are going to have show that regulations are “necessary” to reduce risk and provide evidence of tangible medical benefits to patients.
That will then put the burden on challengers – and the five justices who issued this terrible decision – to explain and justify why abortion practices should be somehow exempted from the usual practices required for other medical procedures. They must be put in the indefensible position of arguing that substandard medical care for women is constitutionally justified for abortion.
It may still be difficult for states to prevail. But such broader regulations will be tougher for the justices to circumvent. And it will have the effect of generally raising the quality of all medical care provided in a state. (For more from the author of “The Fight for Our Lives: How to Beat SCOTUS on Abortion” please click HERE)
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