Abortion ruling

Very pleased to see, of course, that the Supreme Court got it right on the recent abortion ruling.  The Texas law and similar TRAP laws are so amazingly, transparently designed to close abortion clinics and yet all these pro-life supporters pretend that they are actualy designed for women’s health.  Please!  These laws so clearly present a substantial obstacle (i.e., an “undue burden”) to the right of a woman to obtain an abortion without any evidence whatsoever of improved health for women.  The New Yorker’s Margarat Talbot:

As my colleague Jeffrey Toobin noted, in 2014, “The key phrase did not have a fixed, self-evident definition. And as the Court moved to the right, following O’Connor’s resignation, the scope of the constraints on state power began shrinking.” There was always the possibility, though, that the undue-burden concept could be applied more rigorously. In a law-review article called “GivingCasey Its Bite Back,” published in 2013, Emma Freeman, then a law-school student, argued that good “undue burden” analysis would mean evaluating a law for “the weight of the burden, the legitimacy of the state’s regulatory purpose, and the sufficiency of the relationship between them.” In other words, it was legitimate to look at the nexus between the purpose and the effect of an abortion law. Were the state’s ostensible ends (say, protecting women’s health) actually met by the means it settled on (say, requiring abortion clinics to operate as ambulatory surgical centers)?

In this week’s opinion, written by Justice Stephen Breyer, the Court appears to have done the real weighing of costs and benefits which the test deserves. At issue were two provisions of a law passed in 2013 by the Texas state legislature: one requiring all doctors who perform abortions to have admitting privileges at nearby hospitals, and one specifying that all clinics providing abortions must be retrofitted to meet the elaborate standards of ambulatory surgical centers. As a result of the new restrictions, about half of the forty-one facilities providing abortions in Texas have already closed; ten more would have closed if the law had remained in effect. (There was an injunction blocking the surgical-center provision.)…

The court looked closely at the facts of abortion availability and safety in Texas…

Of the admitting-privilege requirement, Justice Breyer’s opinion points out “that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

As for the mandate that abortions be performed in surgical centers, Breyer notes, “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. The mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion.”

In fact, it’s clear that laws like the one in Texas are not the product of some new enthusiasm for promoting women’s health but of a resourceful anti-abortion movement. [emphases mine] The lieutenant governor of Texas, David Dewhurst, gave the game away with a tweet the day after the Texas law passed the Senate. Above an image of a poster from a pro-choice group warning that the bill would essentially ban abortion statewide, he wrote, “We fought to pass SB5 through the Senate last night, & this is why.”

That said, it did bug me that only RBG actually called out Texas for the fundamental and breathtakingly obvious mendacity behind their law:

While the majority opinion methodically countered each of the arguments in defense of the law, which had previously been upheld by the Fifth Circuit Court of Appeals, Ginsburg went straight to the point.

“It is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions,’” she wrote. “Laws like H. B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ … cannot survive judicial inspection.”

No one joined her—not Stephen Breyer, who wrote the majority opinion, nor Elena Kagan and Sonia Sotomayor, the other female members of the liberal wing of the Court. While the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt is legally complicated—concerning issues from the standing of the plaintiffs to their right to pursue this case all the way to the Supreme Court—the lonely stand of Ruth Bader Ginsburg speaks to the difficult issue looming behind it: Legislators both for and against bills like H.B. 2 claim they are protecting the health of women. When all parties claim to have good intent and medical science on their side, the Court is left to navigate competing narratives of truth—and fiction—about abortion in America. But it’s difficult for the Court to name those fictions directly.

And, finally, I liked Scott Lemieux’s take on why Kennedy had been pushed too far by conservatives and was on-board:

In theory, the “undue burden” standard could provide robust protection for abortion rights, but in practice, prior to Monday’s decision, it didn’t. And one reason for this is that Kennedy believed that his fellow justices had reneged on his carefully constructed compromise in Casey.

In the 2000 case Stenberg v. Carhart, a 5-4 Court struck down Nebraska’s ban on so-called “partial-birth” abortion. For reasons concisely summarized by Justice John Paul Stevens in his concurrence, I believe this decision was correct. But Kennedy believed he had been double-crossed by his fellow justices, especially Justices O’Connor and Souter. In a lengthy and uncharacteristically angrydissent, Kennedy repeatedly lamented the Court’s “basic misunderstanding” and “misinterpretation” of Casey

Kennedy made it clear that he would be very deferential to abortion regulations in the form of health regulations, no matter how little the regulations had to do, in practice, with protecting women’s health.

Many state legislatures got the message and passed an increasing array of regulations, the most insidious of which were targeted regulations of abortion providers (TRAP)…

Texas placed requirements on facilities and doctors that would have closed more than half of the states’ already relatively small number of clinics, regardless of actual safety concerns.

It was this sort of practice that almost certainly pushed Kennedy back toward the liberal faction of the Court. Facing a brutal interrogation at oral argument, the medical justifications offered by Texas Solicitor General Scott Keller were almost farcically thin. It’s telling that the dissenting opinions in Hellerstedt focused primarily on procedural questions, and offered only cursory and half-hearted attempts at defending the sham justifications offered by Texas in support of its statute. The Texas regulations are not about protecting women’s health. They’re about trying to restrict, and eventually eliminate, abortion access…

Plenty of objections can be launched at Casey from both the left and right, and rightfully so. But it’s clear that Kennedy takes the compromises in this decision very seriously. It’s not surprising that state legislatures took his previous opinion as a green light to attack abortion rights, but it’s also not surprising that the pendulum is now swinging back. By demanding that state legislatures provide real medical justifications for regulations that substantially restrict abortion access, the Court has restored needed teeth to Roe. Kennedy’s past deference to anti-abortion interests has now turned to skepticism, and, for supporters of reproductive rights, this is excellent news indeed.

About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

One Response to Abortion ruling

  1. pino says:

    The Texas law and similar TRAP laws are so amazingly, transparently designed to close abortion clinics and yet all these pro-life supporters pretend that they are actualy designed for women’s health.

    I agree with you.

    I have always thought that such laws are intended to eliminate the possibility of abortion. I see the same style of laws in the gun debate. Some people just don’t like abortions so they regulate them out. Some people just don’t like guns so they regulate them out – See San Fran, Chicago, NY and DC.

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