Law & the Courts

The Supreme Court’s Undue Burden on State Abortion Laws

(Brandon Bourdages/Dreamstime)

Today’s Supreme Court decision striking down Texas’s H.B. 2 abortion law is the most important abortion-related decision in the last quarter-century. By arrogating to itself excessive authority to second-guess legislative efforts to regulate abortion, the Supreme Court has again taken up the role that Justice Byron White warned against in 1976: “the country’s ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States.”

In 2013, following the exposure of abortionist Kermit Gosnell’s house of horrors in Philadelphia (Gosnell is currently serving a life sentence for the first-degree murder of three infants), the Texas legislature passed, and governor Rick Perry signed, a bill that required abortionists to have admitting privileges to a hospital not more than 30 miles away and abortion clinics to meet the minimum health and safety standards that obtain for “ambulatory surgical centers.” Under existing precedent, states have wide latitude to regulate abortion, and rightly so. Gosnell, contrary to the claims of the National Abortion Federation, was not an “outlier.” Texas is home to Douglas Karpen, for example, whose former nurses report born-alive infants regularly killed by “twisting the head off the neck.” But even run-of-the-mill abortion clinics are known for long skirting health and safety regulations. Whole Women’s Health, which operates facilities in four Texas cities, was disciplined repeatedly by the state for offenses ranging from failing to have licensed nursing staff at the facility (2007) to illegally dumping medical waste (2011) to using rusty equipment (2014). In 2013, it was cited on 13 different safety-code violations.

Still, in 2015, Whole Women’s Health successfully petitioned the Supreme Court to stay, then hear its case against, Texas’s newest abortion regulation. Whole Women’s Health, a limited-liability company, has no constitutional right to abortion, and in normal circumstances the Court does not allow a third party to sue to vindicate someone else’s constitutional rights. But, to quote Justice Thomas’s dissent: “The Court employs a different approach to rights that it favors.”

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That was true in this case from beginning to end. In Planned Parenthood v. Casey(1992), the Court articulated its “undue burden” standard, which — as later elaborated in Gonzales v. Carhart (2007) — allowed that “where it has a rational basis to act and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” That standard — though vague and absent, like the right to abortion itself, from the Constitution — has allowed legislatures to enact parental-notification laws, waiting periods, informed-consent laws, and partial-birth abortion bans.

“Undue burden” is now little more than an all-purpose excuse for striking down laws the majority, for ideological reasons, doesn’t like.

But in Whole Women’s Health, the Court suddenly abandoned that standard in favor of “weighing the asserted benefits against the burdens,” using a calculus entirely of the majority’s creation. Predictably, that calculus gave considerably more weight to the “evidence” provided by the abortion industry and its partisans. The claim on which the case was largely premised — that H.B. 2 had precipitated the shutdown of several abortion clinics — remains unsupported. But the majority simply ignored the relevant evidence to substitute its policy judgment for that of the legislature. As Justice Alito pointed out in dissent, the Court also set aside the legislation’s emphatic “severability” provision, which stipulated that if part of the bill were struck down in court the rest of it would stand, and in doing so nullified portions of the law that were constitutional even under the Court’s own analysis.

The result of this decision is the replacement of relatively neutral judicial analysis on abortion-related questions with personal whim. It is now unmistakably clear that the modus operandi of the Court’s liberal majority is to first side with relatively unrestricted abortion and only then find a legal rationale for doing so. “Undue burden” is now little more than an all-purpose excuse for striking down laws the majority, for ideological reasons, doesn’t like.

In Roe v. Wade, the Supreme Court usurped states’ power to regulate abortion within their own borders, with no justification in the text or original understanding of the Constitution. We hope for a day when a wiser court will overturn that decision and return the question of abortion to the people and their representatives, and we hope that they would work to protect the health of pregnant women and promote the dignity of the unborn. That should be the ultimate goal of those who value the right to “life, liberty, and the pursuit of happiness.”

Unfortunately, the Supreme Court seems to have other priorities.


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