The Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt was a heavy-handed exercise in judicial activism. With the opinion, concurrence, and two dissents exceeding 100 pages, let’s break down the decision into five important takeaways.
1) This ruling did not strike down all similar laws around the nation.
While this decision is devastating to the health and lives of women and preborn children in Texas, the decision did not set an absolute bar on similar laws in other states. Conceivably, even Texas could come up with a similar law that might meet the Court’s muster.
The majority opinion attempted to erect and apply new standards that only apply to abortion “rights” (a favorite pastime of the Court’s liberals, according to Justices Thomas and Alito). One of these new standards was a move to a burden vs. benefit analysis of laws that regulate abortions.
In Whole Woman’s Health, the majority of the Court claimed that Texas did not demonstrate a significant enough benefit to women to outweigh what the Court found to be a burden on them. Basically, in the Court’s mind, the “burden” of a lack of super convenient and easily accessible abortions all throughout the state at any moment in time outweighs the benefit of basic health standards that save lives. Ok…
As Thomas observed in his dissent, this is a sharp turn from the recognition in Casey that states have the right to pass policies that recognize the value of unborn human life. However, the lengths to which the Court is willing to go to deny states the right to protect preborn children – and women – in any way from abortion is unknowable at this point. Many of the Court’s arguments rested on what they claimed to be a lack of evidence supporting Texas as well as the fact that Texas already has a number of abortion regulations in place.
Simply put, the Court might come to a completely different conclusion with another state. It appears that the future of similar abortion regulations will turn more on evidence and factual findings than on an easily-understood principal of law. (Though, to the credit of Texas and its many amici in this case, the Court was provided with plenty of evidence regarding the unsafe, filthy, and dangerous conditions of abortion clinics in the state and the harm to women and children who are subjected to these conditions. The Court chose to overlook this evidence or give any credit to the abhorrent abortion facilities that were closed by HB2.)
2) The Court went strike-down crazy.
In striking down the part of HB2 that required surgical center standards, the Court was irresponsible (as noted by Justice Alito). In his dissent, Alito pointed out that the severability provision in the Texas law was one of the most thorough ever seen. Severability allows a law to be struck down in phrases, portions, or applications that are considered unconstitutional, but to be upheld in any other portion that is not.
However, instead of bothering to recognize that many of the surgical center requirements are plain commonsense, the Court struck down every single one. Let’s hear from Alito himself:
By forgoing severability, the Court strikes down numerous provisions that could not plausibly impose an undue burden. For example, surgical center patients must “be treated with respect, consideration, and dignity.” Tex. Admin. Code, tit. 25, §135.5(a). That’s now enjoined. Patients may not be given misleading “advertising regard ing the competence and/or capabilities of the organization.” §135.5(g). Enjoined. Centers must maintain fire alarm and emergency communications systems, §§135.41(d), 135.42(e), and eliminate “[h]azards that might lead to slipping, falling, electrical shock, burns, poisoning, or other trauma,” §135.10(b). Enjoined and enjoined. When a center is being remodeled while still in use, “[t]emporary sound barriers shall be provided where intense, prolonged construction noises will disturb pa tients or staff in the occupied portions of the building.” §135.51(b)(3)(B)(vi). Enjoined. Centers must develop and enforce policies concerning teaching and publishing by staff. §§135.16(a), (c). Enjoined. They must obtain informed consent before doing research on patients. §135.17(e). Enjoined. And each center “shall develop, implement[,] and maintain an effective, ongoing, organization- wide, data driven patient safety program.” §135.27(b). Also enjoined. These are but a few of the innocuous requirements that the Court invalidates with nary a wave of the hand.
3) The majority doesn’t want more regulations because laws don’t stop criminals.
With reasoning that surely has to thrill Second Amendment enthusiasts, Justice Breyer wrote in his majority opinion that:
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 stat- utes 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.
If you are confused, you should be. The Supreme Court is arguing that, since criminals are going to break the law no matter what, we should not attempt to make abortion facilities adopt basic health standards for women in an attempt to stop bad behavior.
First of all, the women who are trusting these so-called doctors with what the majority considers a very personal decision deserve much more protection than the Court recognizes. We have moved from an age where abortions were promoted as needing to be “safe, legal and rare” to an age where they merely need to be “legal.”
Make no mistake: Gosnell was not rare and neither were the horrific conditions of his clinic. Just this year, it was uncovered that Dr. Leroy Carhart has sent at least six women in five months to the hospital for botched abortions (from Dec. 2015 to April 2016). Douglas Karpen (who ran a facility in Houston) killed children who were born alive “daily” after attempting abortions by stabbing them in the soft spot or twisting off their necks. His own staff testified to his abhorrent and illegal behavior, and HB2 shut down his facility.
From now on, the Supreme Court and the abortion lobby will have blood on their hands from the women and preborn children who are injured or killed in these substandard clinics.
4) The women on the Court leave it to a man to make their points.
When oral arguments occurred on March 2nd, the media erupted with story after story of how powerful Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan were in their assault on the anti-abortion arguments of Texas Solicitor General Scott Keller. Pro-abortion women everywhere basked in the glory of having women in the Supreme Court to defend their rights to abortion on demand.
Surely, these same women were deflated on Monday when an opinion defending a woman’s ‘right’ to an abortion came down from none other than Justice Stephen Breyer. Sure, Ginsburg wrote a pithy concurrence but Breyer’s opinion made the arguments, Breyer’s opinion defended these women’s position, Breyer’s opinion became law.
There should no longer be any argument from pro-abortion women that a man cannot make pro-life arguments because it is a woman’s body and a woman’s decision. After all, yesterday, three strong women left it to a man to defend their rights and make their arguments for them in what certainly has to be a setback for the feminist movement.
5) “Notorious RBG” makes an odd comment.
At the end of Ruth Bader Ginsburg’s short concurring opinion, she wrote these words:
So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection. [Emphasis added.]
If Ginsburg were so confident in the everlasting nature of Roe and Casey, would she make that “so long as” comment? Color us impressed that the Court’s most rabid pro-abortion justice may already recognize that one day, abortion on demand will end, and the true rule of law, equality, and justice for all will prevail.
