In a major blow for women’s health care and the rights of children, the Supreme Court ruled in favor of abortion advocates by striking down common-sense provisions of a Texas law protecting both the health of women and babies born alive in botched abortions.
Spurred by horrific scenes from Kermit Gosnell’s abortion clinic where women seeking abortions were butchered and babies were born alive and then murdered by scissors severing their spinal cords, Texas enacted a law known as House Bill 2 (HB2). The law included the challenged provisions in this case that required physicians performing abortions to have admitting privileges to a hospital within a 30 mile radius and requiring abortion clinics to have facilities similar to outpatient surgical centers.
Texas has argued that such requirements are necessary to protect women's health, while abortion advocates claim the real purpose of the law is to make it difficult, if not impossible, for women in Texas to obtain an abortion.
In today’s 5-3 decision on Whole Woman’s Health v Hellerstedt, the Court reversed the 5th Circuit’s decision and held that both the admitting privileges and surgical center requirements place a substantial obstacle in the path of women seeking abortions and thus these provisions are unconstitutional.
The thrust of the Court’s majority opinion focused on the “undue burden” standard found in Planned Parenthood v Casey, which says that although a state has a legitimate interest in ensuring abortions are performed in safe settings, a law cannot have the “purpose or effect of presenting a substantial obstacle to a woman seeking an abortion [if it] impose[s] an undue burden on the right.” Both dissenting opinions took the majority’s analysis to task as radically rewriting the Casey standard in a way that returns the Supreme Court’s approach toward abortion to the days of Roe v. Wade. This could result in countless common-sense abortion safety standards to be questioned and overturned.
Previously, the lower court in this case determined that both the admitting privileges requirement and the surgical-center requirement “were rationally related to a legitimate state interest,” namely, “rais[ing] the standard and quality of care for women seeking abortions and . . . protect[ing] the health and welfare of women seeking abortions.” Yet today, the Supreme Court held that because half of all abortion clinics in Texas had closed their doors since HB2 went into effect, these provisions place an undue burden on a woman’s right to obtain an abortion.
Chief Justice Roberts, Justice Alito and Justice Thomas dissented from the majority, pointing out the absurdity of this conclusion. This decision provides the abortion industry the ability to defeat any health and safety regulation it doesn’t like simply by shutting its doors and going to federal court. If they don’t want to spend the hundreds of thousands of dollars necessary to bring their clinics up to code, they simply shut down and go to court.
Invoking the passion and flare of his late colleague Justice Scalia, Justice Thomas writes in his dissent:
Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplifies the Court’s troubling tendency “to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.”
The illegitimacy of using “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means” has long been apparent.
The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.
And in closing, Justice Thomas quotes from one of Justice Scalia’s canonical law review articles:
Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.
In essence, the dissenting justices argue that the majority bends and breaks its own rules when access to abortion is at issue.
Although today’s decision does not automatically invalidate other states’ common-sense abortion regulations, the jurisprudential precedent it sets will have a sweeping impact on other state’s laws protecting women and born-alive infants. For example, a legal challenge of similar abortion regulations in Mississippi was stayed by the Supreme Court pending this decision. The Court could apply today’s decision to invalidate some of those regulations in addition to others around the country.
The Court’s decision today causes us to ask some difficult questions as a society. How many more unborn lives must be lost? How many more women must face life-threatening situations because the abortion industry doesn’t want to spend the money to meet common-sense standards? Where does the pro-life community go from here?
As a mother with a young baby, I shudder at what this means for my vulnerable sisters in crisis pregnancies. The fact that they may enter abortion clinics that would rather shut down than pay for healthier clinics speaks volumes. If the abortion industry truly stood for the rights of women, they would be insisting abortion clinics meet ever-higher safety standards.
Today the Supreme Court once again showed its support for this heartbreaking and infuriating culture of death. But the fight to protect women and their unborn children cannot end here. Those of us who seek to stand hand-in-hand with the most vulnerable in our society—including women in crisis and unborn children—will continue to demand that their voices be heard on Capitol Hill and in courts and legislatures across America. And as we fight, we will continue to minister through crisis pregnancy centers to show these women and children they are cherished and made in the image of the living God.