After Philadelphia abortionist Kermit Gosnell was convicted of murder in 2013, and the horrific conditions in his clinic were exposed to public disgust, several states set out to regulate an industry that was manifestly out of control.
Gosnell’s unsafe practices included the use of unsterilized equipment and the haphazard storage of fetal remains. His clinic padlocked exits and had hallways too narrow to evacuate victims on stretchers. A number of states responded with laws designed to make sure similarly shady clinics could never operate within their borders.
To be sure, the calculation was not simply to provide better abortion services for women; the politicians who voted for these measures tended to be opponents of abortion. But they were nevertheless operating under a principle of harm reduction, not abolition. Even if abortion is legal, they reasoned, abortionists cannot be allowed to operate as a medical class protected from the requirements that all other doctors must obey. Supporters of abortion refer to it as a women’s health issue, so it follows that its practitioners should be subject to health regulations.
States therefore passed laws containing basic safety requirements for abortion clinics, most of them specifically designed to remedy deficiencies in the Gosnell case. Among the rules imposed in Texas were requirements that a hospital be within a reasonable driving distance, and that abortionists have admitting privileges to ensure continuity of care, a core principle set forward last decade by three top medical associations.
By significantly weakening or eliminating these requirements with its ruling in Whole Woman’s Health v. Hellerstedt, a five-justice majority of the Supreme Court effectively declared on Monday that abortionists are not really healthcare providers, but some other, more special, even sacred species. The U.S. Constitution, as of Monday, supposedly holds that doctors who abort babies cannot be held to the same standard as other medical professionals, or even other businesses.
In his dissent, Justice Clarence Thomas quoted the late Antonin Scalia in arguing that the decision “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.'” The court has done nothing short of “second-guessing medical evidence and making its own assessments of ‘quality of care issues.'”
Meanwhile, the Left has at last identified a profitable industry it is not keen to ruin by regulation. Indeed, it is determined to protect it from any regulation. And it is determined that profitable abortion facilities should not be forced to plow profits back into guaranteeing the safety of its customers. Bear in mind that this is an industry that performs surgeries on people, and whose customers often suffer side effects and at times end up needing urgent care in a hospital. And in rarer cases, as under Gosnell, they die.
A quotation from Justice Stephen Breyer’s majority opinion unwittingly illustrates the disingenuous nature of this position on regulatory questions. In shrugging off Gosnell and other cases in which abortionists have been caught endangering patients, he writes that “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.”
In applying this argument to the health and safety regulations that govern legitimate business operations, Breyer completely demolishes the case for such regulations altogether. But whatever it takes to protect abortion as a sacred cow, no?
The fact that concerns for safety and consumer protection end at the abortionist’s door should lead everyone to question liberals’ sincerity on these questions in the first place. The only way to understand these two bipolar views of consumer protection as consistent with one another is to view regulation as most conservatives do. It is often a means not for promoting safety at all, but for protecting one favored constituency from competition against others, as the city of Austin did recently, for example, to protect taxi unions from Uber.
This explains why in Texas, a credit union official can be imprisoned for a year for publicly using the name of his business without appending the words “credit union” to the end, but the Whole Woman’s Health Clinic cannot be made to operate according state health or safety standards. As long as regulation is not about keeping people safe out of principle, but rather an exercise of the will to power, its selective application becomes easier to understand.
