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.

Most Popular

Law & the Courts

The Last Trusted Prosecutor in Washington

John Durham may be the most consequential and least known figure in Washington right now. In May, U.S. attorney general William Barr selected Durham, a longtime prosecutor with a résumé so sterling it nearly glows, to investigate the origins of the special counsel’s probe into Russian interference in the ... Read More
Law & the Courts

The Last Trusted Prosecutor in Washington

John Durham may be the most consequential and least known figure in Washington right now. In May, U.S. attorney general William Barr selected Durham, a longtime prosecutor with a résumé so sterling it nearly glows, to investigate the origins of the special counsel’s probe into Russian interference in the ... Read More
World

WHO Failed

Since its inception 72 years ago almost to the day, the World Health Organization (WHO)  has been credited with the eradication of smallpox and the near eradication of other devastating illnesses, including leprosy and river blindness. This record of success makes the current corruption of the organization ... Read More
World

WHO Failed

Since its inception 72 years ago almost to the day, the World Health Organization (WHO)  has been credited with the eradication of smallpox and the near eradication of other devastating illnesses, including leprosy and river blindness. This record of success makes the current corruption of the organization ... Read More
Health Care

The Experts Lied to Us about Masks

When the stakes are highest, the truth counts the most. Or maybe when things get really serious, that’s when the people really can’t be trusted with the truth. It’s pretty clear which of these two ideas is the one that has been guiding elite medical, political, and journalistic institutions, isn’t it? ... Read More
Health Care

The Experts Lied to Us about Masks

When the stakes are highest, the truth counts the most. Or maybe when things get really serious, that’s when the people really can’t be trusted with the truth. It’s pretty clear which of these two ideas is the one that has been guiding elite medical, political, and journalistic institutions, isn’t it? ... Read More

The Trail Leading Back to the Wuhan Labs

It is understandable that many would be wary of the notion that the origin of the coronavirus could be discovered by some documentary filmmaker who used to live in China. Matthew Tye, who creates YouTube videos, contends he has identified the source of the coronavirus — and a great deal of the information that ... Read More

The Trail Leading Back to the Wuhan Labs

It is understandable that many would be wary of the notion that the origin of the coronavirus could be discovered by some documentary filmmaker who used to live in China. Matthew Tye, who creates YouTube videos, contends he has identified the source of the coronavirus — and a great deal of the information that ... Read More
World

A Curious Report from ABC News

Josh Margolin and James Gordon Meek of ABC News reported earlier today that the Trump Administration was warned in November 2019 about the coronavirus outbreak in Wuhan: As far back as late November, U.S. intelligence officials were warning that a contagion was sweeping through China’s Wuhan region, changing ... Read More
World

A Curious Report from ABC News

Josh Margolin and James Gordon Meek of ABC News reported earlier today that the Trump Administration was warned in November 2019 about the coronavirus outbreak in Wuhan: As far back as late November, U.S. intelligence officials were warning that a contagion was sweeping through China’s Wuhan region, changing ... Read More

The Eeyore Syndrome

In A. A. Milne's classic Winne-the-Pooh children’s tales, Eeyore, the old gray donkey, is perennially pessimistic and gloomy. He always expects the worst to happen. Milne understood that Eeyore’s outbursts of depression could at first be salutatory but then become monotonous. The outlook of the pessimist ... Read More

The Eeyore Syndrome

In A. A. Milne's classic Winne-the-Pooh children’s tales, Eeyore, the old gray donkey, is perennially pessimistic and gloomy. He always expects the worst to happen. Milne understood that Eeyore’s outbursts of depression could at first be salutatory but then become monotonous. The outlook of the pessimist ... Read More