Politics & Policy

Fifth Circuit Strikes Blow against Big Abortion

Rallying for Big Abortion at the Supreme Court, January 2010. (Mark Wilson/Getty)

The Fifth Circuit’s decision in Whole Woman’s Health v. Cole has Big Abortion reeling. For years, the abortion lobby has used the false argument of “access” to put its business interests ahead of women’s health and safety, and has consistently opposed any and all commonsense health and safety measures. In addition, it has misread and misrepresented the abortion jurisprudence of the U.S. Supreme Court since Roe v. Wade.

It should come as no surprise that the Fifth Circuit upheld Texas’s HB 2, which requires that abortion facilities comply with the minimum health and safety standards adopted by the State for ambulatory surgical centers, and that abortionists have admitting privileges in a local hospital near an abortion clinic.

There are two substantial takeaways from the Fifth Circuit’s opinion. The first is that the court did not make its decision in a vacuum: It relied on well-established Supreme Court jurisprudence, and gave a substantial recounting of the High Court’s earlier decisions affirming the states’ interest in protecting maternal health — an interest that must be given ample deference when considering the constitutionality of abortion regulations.

Notably, even in Roe, the Court made clear the broad discretion the states have to ensure maximum patient safety: “The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient.” The Court found that a state’s legitimate interest in regulating abortion to protect maternal health “obviously extends at least to [regulating] the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that may arise.”

Contrary to Big Abortion’s talking points, the state’s interest in maternal health is comprehensive and has been affirmed consistently by the Supreme Court.

Preceded as they are by the phrase “at least,” these examples clearly set a floor, not a ceiling, for the “obvious” interests a state maintains in protecting maternal health. The Supreme Court’s list of the minimum “obvious” examples goes beyond regulating the abortion procedure itself, and extends to regulations that would ensure the qualifications of the physician and the availability of comprehensive post-abortive after-care treatment and emergency care in the case of complications — precisely the sort of regulations required by Texas’s HB 2.

In its comprehensive overview of Supreme Court jurisprudence, the Fifth Circuit explained the Court’s continuing affirmation and recognition of the states’ interest in maternal health since Roe, emphasizing that those interests exist “throughout pregnancy.” Indeed, in both Planned Parenthood v. Casey (1992) and Gonzales v. Carhart (2007), the Court affirmed “the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman.”

Contrary to Big Abortion’s talking points, the state’s interest in maternal health is comprehensive and has been affirmed consistently by the Supreme Court. The Fifth Circuit’s decision this week reflects that fact.

The second takeaway from the decision is that the court rejected, wholesale, Big Abortion’s decision that protecting “access” to substandard clinics is more important than investing a small percentage of its billion-dollar business in updating clinics to meet health and safety standards. The fact that protecting women’s health could cost money is not a reason to reject such standards, and the fact that abortionists don’t want to make an investment in safety should not stop a commonsense law.

Cases like this one reveal the true colors and extremism of the abortion industry, by putting in the spotlight the kind of “care” women actually receive from abortionists who claim to be offering health care. Substandard care that can harm women should not be allowed merely because the political class has a soft spot for abortion.

Unlike Texas and other states seeking to impose minimal health and safety standards to better ensure the well-being of women seeking abortions, Big Abortion does not have the best interests of women in mind. The fact that the abortion industry fights so vigorously against these standards demonstrates that it does not care what happens to a woman once she walks through a clinic’s doors. The abortion industry launches lengthy legal battles to ensure that filthy, degrading clinics such as that of convicted killer Kermit Gosnell can continue to operate.

The bottom line is that health and safety standards aimed at protecting maternal health — like those upheld in HB 2 this week — are constitutional, but the abortion industry doesn’t like complying with them. Commonsense abortion restrictions do not shut down clinics: It is the abortion industry itself that shuts down clinics, when it refuses to provide appropriate facilities and credentialed personnel for women.

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