In a 5-3 decision Monday, the Supreme Court declared that a 2013 Texas statute regulating abortion clinics was unconstitutional. The Texas law, which would have established the same health and safety standards for abortion clinics as outpatient surgical centers and require a doctor on staff to have admitting privileges at a nearby hospital, was passed in the wake of the trial of Kermit Gosnell. And both the majority opinion written by Justice Breyer and a dissent written by Justice Alito addressed the case of Gosnell, the Philadelphia abortionist who was convicted of murder because he severed the spines of infants after they were born instead of legally dismembering those infants before they were born. Gosnell was also convicted of manslaughter over the death of a woman who died in his squalid clinic, which was likened to “a bad gas station restroom” by one law enforcement agent.
Alito wrote in his dissent that the Texas law could’ve stopped Gosnell and others like him: “I do not dispute the fact that [Texas’s law] H. B. 2 caused the closure of some clinics. Indeed, it seems clear that H. B. 2 was intended to force unsafe facilities to shut down. The law was one of many enacted by States in the wake of the Kermit Gosnell scandal, in which a physician who ran an abortion clinic in Philadelphia was convicted for the firstdegree murder of three infants who were born alive and for the manslaughter of a patient. Gosnell had not been actively supervised by state or local authorities or by his peers, and the Philadelphia grand jury that investigated the case recommended that the Commonwealth adopt a law requiring abortion clinics to comply with the same regulations as [ambulatory surgical centers]. If Pennsylvania had had such a requirement in force, the Gosnell facility may have been shut down before his crimes. And if there were any similarly unsafe facilities in Texas, H. B. 2 was clearly intended to put them out of business.”
Indeed, the Gosnell grand jury found that the “abhorrent conditions and practices inside Gosnell’s clinic [were] directly attributable to the Pennsylvania Health Department’s refusal to treat abortion clinics as ambulatory surgical facilities.” According to the report, the Gosnell clinic’s narrow hallways hampered efforts to help women injured there: “Ambulances were summoned to pick up the waiting patients, but (just as on the night Mrs. Mongar died three months earlier), no one, not even Gosnell, knew where the keys were to open the emergency exit. Emergency personnel had to use bolt cutters to remove the lock. They discovered they could not maneuver stretchers through the building’s narrow hallways to reach the patients (just as emergency personnel had been obstructed from reaching Mrs. Mongar).”
In his majority opinion, Justice Breyer responded to Alito by writing: “Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.”
“Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years,” Breyer added. “Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually.”
But couldn’t improved health and safety standards protect at least some women? “Provisions that are indisputably constitutional—for example, provisions that require facilities performing abortions to follow basic fire safety measures—are stricken from the books. There is no possible justification for this collateral damage,” Alito wrote. Isn’t it at least conceivable narrow hallways at Texas clinics could endanger the lives of women? Breyer and his four colleagues ruled that whatever benefits to women of the Texas health and safety standards, those benefits did not outweigh the “undue burden” imposed on women who wanted to procure abortions: The sometimes costly regulations would cause some clinics to close down, and those closures would require some women to travel farther to obtain abortions.
But, as Justice Thomas emphasized in his dissent, why was the Supreme Court debating this issue and making decision in the first place? Thomas noted that he remains fundamentally opposed to the “Court’s invention of a constitutional right to abortion,” but he argued that Monday’s decision didn’t even abide by the Court’s own precedent established in the 1992 Casey decision:
“[B]y second-guessing medical evidence and making its own assessments of ‘quality of care’ issues,” added Thomas, “the majority reappoints this Court as ‘the country’s ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States.'”
