By Matt Hadro
Washington D.C., Jun 27, 2016 / 15:35 pm
In striking down Texas' regulations of abortion clinics, the Supreme Court showed favoritism toward the supposed "right to abortion" over states' interests in the health of women and normal court proceedings, critics said Monday.
"The Court has rejected a common-sense law protecting women from abortion facilities that put profits above patient safety," said Deirdre McQuade, assistant director for pro-life communications at the U.S. Conference of Catholic Bishops' Secretariat of Pro-Life Activities.
In a 5-3 vote, the Supreme Court struck down a Texas law that included two key regulations of abortion clinics – abortionists had to have admitting privileges at a local hospital, and clinics had to meet the standards of ambulatory surgical centers.
The court ruled that the law put an "undue burden" on a women's right to an abortion, saying that it posed a "substantial obstacle" to that right without showing the necessary benefits of its regulations to women's health.
Regarding the admitting privileges requirement, the court majority said there was already a "working arrangement" in place between hospitals and abortionists. Because of the new requirement, around half the clinics in the state closed, they said, citing "sufficient evidence" from "the record."
The court also said that requiring clinics to meet the standards of ambulatory surgical centers, "provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an 'undue burden' on their constitutional right to do so."
Since clinics closing meant longer waits, longer distances between clinics, and more crowds at each clinic, this all presented an unconstitutional "undue burden" on a woman's "right to abortion," the court said.
The dissenting justices sharply disagreed. The closing of clinics in one part of the state shouldn't mean that clinics in another area should be free from the law, Justice Samuel Alito argued.
"The possibility that the admitting privileges requirement might have caused a closure in Lubbock is no reason to issue a facial injunction exempting Houston clinics from that requirement," he stated.
Justice Clarence Thomas added that the "decision perpetuates the Court's habit of applying different rules to different constitutional rights - especially the putative right to abortion."
After the Court's ruling, Texas attorney general Ken Paxton defended the Texas law, saying it "was an effort to improve minimum safety standards and ensure capable care for Texas women."
Other Catholics spoke out against the majority opinion.
"The Catholic Church in Texas, in communion with millions of Catholics across America and the world, will continue its efforts to protect life and human dignity from conception to natural death," the Texas Catholic bishops stated.
"Surgical abortion is an invasive procedure that poses numerous and serious medical complications," they said. "The state has a legitimate interest in ensuring the maximum level of safety for the woman subjected to the procedure and that viable emergency care is available if complications such as hemorrhage, infection, uterine perforation, blood clots, cervical tears, or allergic reactions occur."
The Court's opinion in Whole Women's Health v. Hellerstedt is problematic for a number of reasons, legal experts warned.
First, the Court continued its trend of having a special preference for protecting abortion rights, Rick Garnett, law professor at the University of Notre Dame, noted, calling it the Court's "tendency to bend its own rules in abortion-related cases."
There was "no language" about "the government's interest in 'preserving and promoting fetal life'" in the decision, said Lucia Silecchia, a law professor at The Catholic University of America. This was expressed in a previous case – Planned Parenthood v. Casey – but the Court didn't invoke it in Monday's ruling, she said.
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"To have the Supreme Court address abortion without addressing this interest in any meaningful way is a new low in abortion jurisprudence," she told CNA.
That third parties with financial interest brought the case to the Court, and not women directly affected by the law, undermined the argument that the case was about women's rights, Silecchia added.
"Despite the fact that they dubiously asserted the rights of women, their real interest in this case was not women's health but their own profit," Silecchia said of "the abortion industry and abortionists" who brought the case. The clinics could have abided by the regulations, she added, but "it would cost a substantial amount of money to retrofit facilities or purchase new land."
Justice Thomas noted the problem of hearing third parties bring a suit, writing in his dissent that "ordinarily, plaintiffs cannot file suits to vindicate the constitutional rights of others."
"But," he continued, "the Court employs a different approach to rights that it favors."
Also, "the majority disregarded entirely the state's interest in protecting fetal life and instead second-guessed the state legislature's judgments about health and safety," Garnett said.
That deference to the states shouldn't apply in all cases, but it should have applied in this particular case, Silecchia clarified.
The Texas law came after a massive grand jury report on horrific abuses at the Philadelphia clinic of Dr. Kermit Gosnell, which became the subject of national outrage. This and other reports of abuses in abortion clinics "should make state legislatures interested in greater regulation, not less," Silecchia said.
The majority opinion in the ruling acknowledged Gosnell's behavior at "terribly wrong," but added that "(d)etermined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations."
This court opinion "will make it harder" for states to regulate such abuses in the future, Silecchia said. "After this opinion, there is no meaningful guidance to states as to how they can protect the health of women post-Hellerstedt."
Justice Ruth Bader Ginsburg, in her concurrence, argued that abortion is now a safe procedure and doesn't merit such regulations posed by the Texas law. "Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements," she said.
However, Silecchia insisted, "women deserve higher standards of care, not lower." And yet the ruling will "make it harder for states to pass legislation that raises the standards of care that women receive."
As to the Court's claim that the previous "working arrangement" between hospitals and doctors nullified the need for "admitting privileges" for abortionists, Silecchia said the Court's term "is vague and it is hard to tell whether this is a meaningful safeguard."
"Having a local hospital grant admitting privileges is, at least, a minimal assessment of the physician's medical competence," she said, adding that an abortionist with an admitting privilege might be "more likely to err on the side of transport to a hospital" in case of a medical emergency."
