On March 2, the U.S. Supreme Court will hear oral arguments in Whole Woman’s Health v. Hellerstedt, a case involving Texas’s standards for abortionists, in order to consider what health and safety standards a state may implement. It is a momentous case — the reach of which will extend far beyond Texas, as it will likely determine the lengths to which abortionists and their apologists can go to block common-sense health and safety regulations nationwide.
At issue is Texas H.B. 2, which Gov. Rick Perry signed into law in 2013. It’s designed to protect women against itinerant abortionists like Kermit Gosnell, whose murder trial had just ended. It requires abortionists to carry hospital admitting privileges and provide contact information to smooth transfer in emergency situations, requires abortion facilities to meet health and safety standards common to outpatient practice, mandates adherence to tested drug protocols for chemical abortions and prohibits late-term abortions.
These provisions are sorely needed; just one high-volume Planned Parenthood abortion facility in Houston reportedly botched at least 10 abortions last year, including five in four weeks, according to one source. Planned Parenthood admits that at least 210 Texas women are hospitalized after botched abortions every year, and the number may be much higher. Women need and deserve real doctors, not transient abortionists who have no connection to their patients or their communities.
The abortion industry has not challenged the late-term abortion prohibition in court, perhaps because of the strong evidence that babies in the womb feel pain when aborted at least at 18 weeks or later, but they quickly hauled the state into court over the other provisions.
The first lawsuit was Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, filed shortly after H.B. 2 was enacted to challenge the law’s admitting privileges and chemical abortion provisions. On March 27, 2014, three female judges on the U.S. Court of Appeals for the 5th Circuit unanimously upheld H.B. 2 as constitutional, concluding that “the State acted within its prerogative to regulate the medical profession by heeding these patient-centered concerns and requiring abortion practitioners to obtain admitting privileges at a nearby hospital.” Planned Parenthood asked the U.S. Supreme Court for a stay, but when the Court said no, it opted to go no further with the case, and thus the law went into effect.
The abortion industry took another bite at the apple in April 2014 with the Whole Woman’s Health case, which attacks the outpatient surgical standards across the state and the admitting privileges provision as applied to certain rural clinics. In June of last year, the 5th Circuit largely rejected these challenges and upheld H.B. 2’s application to most of the plaintiff clinics, with the exception of one isolated clinic in south Texas. The Supreme Court agreed to weigh in on this one.
The 5th Circuit’s decisions set up a showdown between women’s health advocates and itinerant abortionists who perform procedures but then move on to their next location by the time complications arise.
In 1992’s Planned Parenthood v. Casey, the Supreme Court affirmed that a state may regulate abortion as long as it “has a rational basis to act, and it does not impose an undue burden.” This “undue burden” test asks whether a given regulation has the “purpose or effect of placing a substantial obstacle in the path of a woman” seeking a previability abortion. As in other contexts, the states are given “wide discretion” to regulate the practice of medicine, and the existence of a reasonable medical debate on the importance of the law is enough to uphold it, according to the Supreme Court’s later ruling in Gonzales v. Carhart.
Now the high court is being called upon to determine (1) whether courts must scrutinize the medical merits of each proposed abortion regulation that would raise standards of medical care, effectively elevating abortion to a more protected status than other medical procedures, and (2) to what extent ensuring access to abortion should prevail over safety.
As the 5th Circuit articulated, the evidence demonstrates that “the State truly intends that women only receive an abortion in facilities that can provide the highest quality of care and safety.” The court also addressed the “undue burden” standard, finding that a “burden” is not the same thing as a “substantial obstacle,” and all H.B. 2’s standards can be and have been met by abortionists operating today.
Certain abortionists’ inability to ensure women’s health and safety is no reason to throw the baby out with the bathwater. As one commenter pointed out, Planned Parenthood is essentially asking the Supreme Court to “make regulations constitutional only where they wouldn’t have any effect.”
The Supreme Court should uphold the entirety of H.B. 2. Texas’s law, which implements a set of common-sense health and safety regulations that prevent patient abandonment and bring abortion facilities in line with similar outpatient surgical clinics. It is well within the proper realm of state legislatures to evaluate and pass such laws.
The fact that abortionists oppose this law, which emphasizes the right of women to safe medicine over the bottom line of abortionists, speaks to their true interests.
Catherine Glenn Foster (@cateici) is one of more than 3,000 private attorneys allied with Alliance Defending Freedom, which filed an amicus brief with the Supreme Court in defense of H.B. 2 .Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
