Today the Supreme Court heard oral arguments in the most important abortion case of the last decade. At issue was a Texas law — upheld by the Fifth Circuit Court of Appeals — requiring abortion “doctors” to have admitting privileges at local hospitals and mandating that abortion facilities meet the same legal standards as ambulatory surgical centers.
Such laws were passed in states across the country as a reaction to Kermit Gosnell’s house of horrors, a fly-by-night abortion mill where women were butchered and babies slaughtered in the most appalling conditions.
That case revealed two things, both deeply disturbing. First, until publicly shamed by Kirsten Powers, the mainstream media remained utterly indifferent to a brutal serial murderer, because he happened to be an abortion doctor and they were eager to protect the abortion industry. Second, as legislators looked at their own states, they were alarmed that abortion providers had maintained their financial viability by cutting corners on facilities, thereby gambling with women’s lives.
Abortions go wrong by the thousands. As the Association of American Physicians and Surgeons noted in their amicus brief in support of the law, “over 75% of abortions involve a surgical procedure” and risks of, among other things, infection, uterine perforation, and excessive bleeding. The AAPS argues that since regulations on ambulatory surgical centers (ASCs) “target precisely the kinds of potential complications involved in outpatient abortion,”
it should thus be beyond dispute that it is reasonable to require outpatient abortion facilities to abide by ASC regulations. After all, it is common ground that abortion in most cases involves a surgical procedure, that abortions occur in large numbers in outpatient settings, and that abortion (including medication abortion) presents medical risks that ASC regulations seek to prevent, mitigate, or remedy.
The abortion industry’s response essentially depends on asking the court to substitute its judgment for the Texas legislature’s. They claim that the regulations are unnecessary and create an “undue burden” on a woman’s fabricated right to kill her child. The “undue burden” standard itself is a product of the judicial hocus-pocus that has defined the Supreme Court’s abortion jurisprudence for decades. A made-up standard supports a made-up right, and that permits an enormous amount of judicial mischief.
Thus, the abortion lobby deployed as one of its key arguments the assertion that its industry simply can’t provide the highest standard of care while making ends meet. If abortion clinics can’t be substandard, the logic goes, then they will close and women will be deprived of their alleged constitutional right to have a doctor kill their child as cheaply and conveniently as possible.
#share#At oral argument, the Court’s four faithful liberals seemed to accept these assertions unreservedly, entirely willing to substitute their own medical judgments for the legislature’s, with the clinic closures evidence enough of Texas’s ill intent. They know better than Texas lawmakers. Just because.
The best that the pro-life movement and anyone else who cares about the Constitution can hope for is a four–four tie, a result that, without setting any precedent, would leave the Fifth Circuit’s ruling alone, allowing Texas to implement its regulations. But Justice Kennedy, always the swing vote on abortion, indicated that he may not be ready to rule on the merits of the case, hinting at oral argument that perhaps the matter should be remanded for further fact-finding, a ruling that would put off a final determination until after the next presidential election.
Regardless of the outcome, it is remarkable indeed that an abortion movement that prides itself on “women’s health” is arguing that abortion quite simply can’t or won’t be widely available unless the court requires lax regulation of “clinics.” Abortion is a volume business, after all, and when hundreds of thousands of babies have to die, proper care and high-quality facilities eat into profit margins.
Indeed, the vast majority of abortion facilities are substandard. As the Washington Post reported, 21 clinics were forced to close after portions of Texas’s law went into effect, and abortion advocates say that if the law is upheld at the Supreme Court, only ten clinics will remain open in the entire state. The abortion industry and its media allies have conned America. They’ve fooled the public into believing that a morally filthy business has an ethical, caring core. But the abortion industry has always been about delivering death on the cheap, and now the truth is clear: If it can’t be substandard, it won’t exist for long.
— David French is an attorney and a staff writer at National Review.