Bench Memos

Law & the Courts

Three Years after the Supreme Court’s Last Abortion Case

(Brendan McDermid/Reuters)

For months, the Missouri Department of Health has been investigating unsafe practices at Planned Parenthood’s abortion clinic in St. Louis and at the pathology lab that contracts with Planned Parenthood. What’s been characterized as a “licensing dispute” involves an inquiry into incomplete abortions that may threaten women’s lives. The health department’s attempt to thoroughly investigate these problems was blocked, at least temporarily, by a state court. There’s little that public-health officials or legislators in the states can do about such conditions without risking expensive litigation.   

That was one implication of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, decided in June 2016. The Court eliminated several health and safety regulations for Texas abortion clinics, including the state’s requirement that abortion doctors be able to admit women who suffer complications after abortions to a nearby hospital and quickly transfer the patient’s medical data to a receiving physician. Hellerstedt gave more power to clinics to self-regulate and put a heavier burden on states to justify health and safety regulations. 

This enabled abortion clinics to launch an attack on a wide variety of abortion regulations. Since June 2016, abortion advocates have filed or renewed court challenges to regulations in more than two dozen states, including ultrasound laws, informed-consent laws, parental-notice laws, and medical-data-reporting requirements. A recent report by the Guttmacher Institute, a think tank supportive of abortion rights, says that at least eleven state laws regulating abortion providers and facilities are currently temporarily or permanently enjoined. 

The Hellerstedt decision has also fostered confusion in the federal courts. Federal courts have reached differing decisions as to how Hellerstedt applies to the various regulations being challenged, because the Supreme Court gave them wide discretion to apply subjective standards. Hellerstedt has been criticized by a number of legal scholars as vague and confusing.

After Hellerstedt, a report by my colleagues at Americans United for Life documented more than 1,400 health and safety deficiencies and violations of state regulations by 227 providers in 32 states over the 2008–2016 period. The Court did nothing in Hellerstedt to address the substandard conditions in abortion clinics that still persist, or to tell states how they might do so without risking litigation.  

Though the Supreme Court has twice upheld state laws mandating that only licensed doctors can perform abortions, abortion-advocacy organizations have launched new court challenges to at least one-quarter of these state laws since 2016. Physician-only laws are necessary to maintain high standards for patient care. An October 2009 study published in Obstetrics & Gynecology found that chemical abortions have a higher complication rate than surgical abortions. A March 2013 study published in the American Journal of Public Health showed that non-physicians doing aspiration abortions had nearly twice the rate of complications that physicians had.  

The health and safety laws struck down in Hellertstedt are preventive. They set reasonable standards for clinics to prevent injuries. Without such preventive standards, women injured by abortion are left with no other recourse than the American personal-injury litigation system. But personal-injury litigation is expensive, and personal-injury attorneys are not financially interested until they’re confident in a substantial monetary reward, and that requires a horrific, life-threatening injury. Women who suffer hemorrhage, a lacerated cervix, or a punctured uterus during an abortion usually have no recourse in the personal-injury litigation system and thus no effective remedy. So, every woman considering an abortion in a state is helped by high standards for patient care. 

No county, state, or federal agency in the U.S. collects comprehensive data on abortion or abortion complications. Unlike the normal physician–patient relationship in America, the standard procedure for abortion clinics is to tell patients who suffer complications, “Don’t come back here. Go to the nearest emergency room.” That practice enables clinics to avoid seeing or reporting their own mistakes. An emergency-room doctor often can’t confidently tell the difference between a heavy period, hemorrhaging, a spontaneous miscarriage, and an abortion. That means the emergency-room doctor can’t accurately record the correct code for the procedure, and it often won’t be accurately recorded as a public-health matter. Through filters such as these, abortion complications are weeded out of the American public-health system, and the problems in abortion clinics are thoroughly obscured.     

The primary if not exclusive responsibility for these problems lies with the justices.  Through their delegation of power, the justices empower the lower federal courts to entertain suits, delay or prevent the enforcement of health and safety standards, and invalidate health and safety laws without an extensive review of the facts. This has continued for more than four decades, and the Supreme Court’s role as the national abortion-control board continues without end in sight.  

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