- The Washington Times - Monday, June 27, 2016

The Supreme Court struck down health and safety standards imposed by Texas on abortion clinics, an industry that withered under the laws, saying in a ruling that imperils gains made by pro-lifers nationwide that they imposed an “undue burden” on women’s access to abortion.

According to advocates on both sides of the abortion debate, the 5-3 decision, which was unaffected by the death of Justice Antonin Scalia, threatens numerous other state laws by signaling that the courts would no longer defer to state legislatures on the issue.

The two regulations in dispute required that abortion clinics meet the health and safety standards of other surgical centers and required abortionists to have admitting privileges at nearby hospitals. The justices agreed with the district court that these rules did not advance women’s health and safety enough.

Cecile Richards, president of the Planned Parenthood Federation of America, said the decision has opened new avenues for the pro-choice movement to challenge other state regulations on abortion.

“We now will take this fight state by state, to challenge and repeal other laws across the country,” Ms. Richards said on a press call.

Established in the landmark 1992 case Planned Parenthood v. Casey, the “undue burden” test says regulations cannot place a “substantial obstacle” before women seeking to abort nonviable fetuses. Justice Stephen G. Breyer’s majority opinion — joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — ruled that these decisions did just that.

“The surgical-center requirement, like the admitting privileges requirement, 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,” Justice Breyer wrote.

Roger Severino, who heads the Heritage Foundation’s DeVos Center for Religion and Civil Society, said the ruling in Whole Woman’s Health v. Hellerstedt breaks ground by reversing a 2007 decision on how to implement the standard on undue burden.

In the 2007 case, the court upheld a ban on partial-birth abortion, in part because courts must defer to legislatures in cases of “medical uncertainty” regarding the effects of abortion regulations.

Mr. Severino said the decision Monday means no more of that. He said the high court turned itself into “a medical review board for the entire country when it comes to abortion and only abortion.”

“The amount of deference that has been given to legislatures has really been scaled back by this decision,” Mr. Severino said on a press call. “It is effectively saying that it is a matter for the courts to decide, and the courts will be able to do their own fact-finding and come to their own conclusions about the state of medicine when it comes to abortion.”

Justice Clarence Thomas essentially made the same point in his dissent, joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

“Moreover, by second-guessing medical evidence and making its own assessments of ‘quality of care’ issues … 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,’” Justice Thomas wrote.

Rick Garnett, a law professor at the University of Notre Dame, was pithier and more cynical: “Shorter #scotus OT 2015: ‘We defer to non-judicial actors’ judgments when we feel like it,’” he tweeted.

Nancy Northup, president and CEO of the Center for Reproductive Rights, said she expects the pro-choice movement to rely on Hellerstedt “heavily in our cases going forward.”

“I think what’s important about this case, which is going to make it applicable in other cases, not just cases about admitting privileges and ambulatory surgical centers, is that in this case, the Court makes clear that under the Casey standard … that courts have to consider the burdens the law imposes on abortion access together with the benefits that they purport to advance,” she said.

Nine states besides Texas have similar rules on admitting privileges and five more have outpatient surgery standards of hospitals, according to the Center for Reproductive Rights.

Despite his criticism of the decision, Mr. Severino was more skeptical about Hellerstedt’s longer-term consequences, noting that the Supreme Court cited the lower court in finding that the Texas regulations did not constitute a sufficient health and safety boon.

Other courts may be free to find the opposite is true, he said.

“The question arises: What if you get a friendly district court judge who finds the opposite facts, that these do help the health and safety of women and credits this expert and discredits the abortion clinic experts?” Mr. Severino said. “What happens in those circumstances?

“It would be hard for the Supreme Court to say, ‘No, you got it wrong, but this court got it correct,’” he said.

However, Justice Alito warned in his dissent against judge-shopping and endless litigation over regulations. Reading in part from the bench, he said the court was following a rule of, “If at first you don’t succeed, sue, sue again.”

Mr. Severino said the ruling has silver linings for pro-life advocates.

Although much was made about whether Texas enacted the regulations as a bid to curtail access to abortion, the majority opinion did not take the additional step of weighing the state’s motivation for approving the law, he said.

The abortionists bringing the lawsuit said fewer than 10 clinics statewide could have met the regulations had they been fully implemented. Only a concurring opinion by Justice Ruth Bader Ginsburg took up that accusation.

The lawsuit against Texas also did not challenge a major component of the law: a ban on abortion 20 weeks into pregnancy.

Others in the pro-life movement said the decision reveals the hypocrisy of the pro-choice side.

Jeanne Mancini, president of the pro-life March for Life, said those who advocate abortion rights often frame the issue in terms of “women’s health.” But in this case, they were arguing against regulations aimed at making clinics safer and healthier for women.

“For years abortion advocates have equated greater access to abortion with improving women’s health,” she said in a statement. “In doing so they have advocated for substandard health regulations. This is not pro-woman.”

She also hinted at the irony of progressives pointing out the deleterious effects of regulation — but only when the subject of that regulation is abortion. “Because of the decision today beauty parlors, veterinarian clinics and public schools will be held to higher sanitary and health standards than abortion clinics,” she said.

David French went further in a piece at National Review Online titled “Crazy Right-Wing Supreme Court Rejects Government Regulations.”

In his decision, Justice Breyer dismissed claims that these regulations are needed to prevent abortion mills such as those run by Kermit Gosnell in Philadelphia. “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 new rules, the justice wrote.

Mr. French dryly wrote: “The regulatory state should tremble in fear. There is now ‘no reason to believe’ that additional regulations would affect wrongdoers. … Environmentalists are quaking in their boots. Gun controllers are throwing their hands up in despair. Financial and business regulators may as well close up shop. Wait. What’s that you say? This is an abortion decision? … Never mind. The regulatory state is safe. Everyone knows that the Supreme Court privileges the killing of children above all else.”


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