Denise M. Burke is Vice President of Legal Affairs for Americans United for Life.

Over the last three years, Texas has again been at the forefront of the continuing national debate over abortion. In January 1973, in Roe v. Wade, the Supreme Court struck down Texas’s prohibition on abortion, unleashing an extreme abortion-on-demand agenda that has claimed more than fifty million children and left millions of American women at the mercy of an under-scrutinized, inadequately regulated, and profit-driven abortion industry. Further, a result of this still-controversial decision, the Supreme Court superseded the authority of state and federal lawmakers and installed itself as the “National Abortion Control Board,” assuming the right to unilaterally determine which much-needed restrictions and regulations on abortion will be permitted.

In today’s decision in Whole Woman’s Health v. Hellerstedt, the Supreme Court’s first abortion ruling since 2007, the Court doubled down on its position as the National Abortion Control Board. The majority attempted to differentiate from the deferential standard it applied to Congress in Gonzales v. Carhart (upholding a federal ban on partial-birth abortion) and held that “the statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.”

The case concerned the constitutionality of a 2013 Texas abortion law requiring that abortion facilities comply with the same patient-care standards as other facilities performing invasive, outpatient surgeries and mandating that individual abortion providers maintain hospital admitting privileges to facilitate emergency care and the treatment of post-abortive complications.  Importantly, it also presented the Court with the opportunity to strike a decisive blow for women’s health and safety and to ensure that abortion providers – who are often more interested in maintaining profitability than in safeguarding women’s health and safety – comply with medically endorsed and widely implemented standards of care.  Unfortunately, the Court declined this momentous opportunity and instead appears to have adopted the abortion industry’s callous and self-serving position that mere access to abortion clinics is sufficient to protect maternal health and safety.

The majority opinion, authored by Justice Stephen Breyer, dangerously prioritized mere access to abortion by focusing on the mere numbers of abortion clinics.

In evaluating the potential damage that this decision may inflict on American women, it is important to remember that convicted Philadelphia abortionist Kermit Gosnell provided “mere access” to abortion in a clinic where a woman died because a stretcher could not fit through the hallways, where unsterilized instruments spread infections, and where parts of unborn babies were stored in jars and cat food cans like macabre trophies.  Moreover, as detailed in amicus briefs filed in the Supreme Court in support of the Texas law, Kermit Gosnell is not an aberration, but the norm in an industry desperate to avoid meaningful regulation and oversight.  By this ill-advised decision, the Court may have given the abortion industry its wish.

“[F]ewer doctors, longer waiting times, and increased crowding,” which the Court now lists as its concerns for creating an “undue burden,” are all similarly true when Gosnell and other providers are put out of business by enforcement of the law.

Breyer acknowledged Gosnell’s grisly practice as “terribly wrong” but opined that “there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.” It is hard to believe that this argument that boils down to “bad people will do bad things” would be used to similarly strike down otherwise permissible gun regulations.

In granting women a constitutional right to abortion, the Roe Court did not, despite abortion industry claims to the contrary, equate that right with the abortion industry’s right to be free from appropriate regulation and oversight. Instead, Roe specifically found that a state legislature’s legitimate interest in regulating abortion “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.”  Since Planned Parenthood v. Casey, the Supreme Court and other federal and state courts had repeatedly recognized and supported the need for health-and-safety standards for abortion providers, consistently acknowledging that a state has “a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient.”

Today’s decision stands these precedents on their heads and leaves women subject to the self-serving whims of a profit-driven abortion industry that has essentially been given carte blanche to decide which medical standards it will comply with and which it will not.  Sadly, the Court failed to unequivocally reaffirm what it had said as far back as Roe: states may regulate abortion to protect maternal health.

Notably, other federal and state courts, including the Fifth Circuit panel that upheld the Texas law in June 2015, have routinely applied the Supreme Court’s precedents in Roe and Casey to uphold comprehensive health-and-safety standards for abortion clinics, finding that these standards protect women and do not impose an “undue burden.”  Many of these decisions summarily rejected the argument that health-and-safety standards create an “undue burden” on women seeking abortions by increasing the cost of abortions and by decreasing the number of available providers.  Inexplicably, in striking down the Texas law, the Supreme Court appears to have redefined what constitutes an “undue burden,” determining that increased costs and the decreased availability of providers are “undue burden,” arguments that it specifically rejected in Casey.

The abortion right had been defined by the Supreme Court as “the right of the women herself,” not as the “right” of abortion providers to practice without appropriate regulation or oversight, to realize a profit, or to charge a certain fee for their services.  Today’s decision suggests that the rights of the abortion providers to turn a profit and remain in business are now, in the Court’s view, paramount to women’s rights to medically competent care and treatment.

It bears remembering that our abortion jurisprudence has rested on the uncritical adoption of the arguments made in at least ten amicus briefs filed by national abortion advocates and their allies, asserting that the ready availability of abortion ensures women’s positions in society and their legal, social, and financial rights.  Importantly, this so-called “reliance interest,” which derives from the 1992 Casey decision, has been repeatedly discredited by both jurists and legal scholars.

For example, in his dissent in Casey, Chief Justice William Rehnquist called the “reliance argument” adopted by the Casey plurality as “undeveloped and totally conclusory,” writing:

Surely it is dubious to suggest that women have reached their “places in society” in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men.

Similarly, constitutional attorneys Paige Cunningham and Clarke Forsythe have noted that “Roe is rarely cited as a precedent for women’s rights in any area other than abortion. Virtually all progress in women’s legal, social, and employment rights over the past [forty] years has come about through federal or state legislation and judicial interpretation wholly unrelated to and not derived from Roe v. Wade.”

Clearly, today’s decision is troubling for both for American women and for states committed to protecting women from abortion industry abuses.  Currently, twenty-nine states regulate (to widely varying degrees) abortion facilities, and six of these states (including Texas) require abortion clinics to meet the same comprehensive and rigorous health-and-safety standards as facilities performing other outpatient surgeries.  Further, fifteen states require individual abortion providers and/or abortion facilities to maintain either hospital admitting privileges or a transfer agreement with a third-party physician who maintains such privileges.

As a result of today’s decision, many of these protective laws may be in jeopardy, subject to legal challenges brought by an increasingly predatory abortion industry more motivated by profit margins than by protecting the very women it claims to champion.  State legislators may also be forced to ignore the growing public health problem of substandard abortion care.

The reality of abortion practice in American is indisputably at odds with abortion advocates’ repeated assurances that legalized abortion ensures and protects maternal health.  Over just the last six years, Americans United for Life has documented that nearly two hundred abortion providers in states across the nation have faced investigations or been cited for violating state laws and medical regulations governing the provision of abortion.

For example, in April, a Virginia abortion clinic was shut down after investigators issued a fifty-two-page deficiency report which included evidence that a staff member assisted in an abortion after unclogging a toilet but before changing scrubs or properly cleaning her hands, that an abortionist saved a blood-smeared surgical gown for future use rather than putting it into the laundry, and that surgical equipment was smeared with “foreign material” and dried yellow and brown “splatter.”

Similarly, in late 2015, an Atlanta television station reviewed inspection reports for all of Georgia’s licensed abortion clinics.  The investigation uncovered multiple and repeated health-and-safety violations including unsterilized equipment, expired medications including the use of iodine swaps that had expired ten years ago, a vent in a biohazard room taped off with cardboard, stirrups wrapped in duct tape, and soiled linens in procedure rooms.

Legal abortion clinics are the “back alleys” that abortion advocates shamelessly invoke whenever anyone challenges their unrestricted and unregulated abortion-on-demand ideology.  Today’s decision permits these “back alley” abortion clinics to remain in business without meaningful regulation or oversight.

Further, the abortion industry routinely claims that 2.5% of women who have first-trimester abortions “undergo minor complications,” while fewer than 0.3% experience complications requiring hospitalization.  Taking these conservative estimates at face value and using the latest abortion statistics from the Guttmacher Institute (for 2011), that would mean that 26,500 American women experienced complications and approximately 3,180 women required post-abortion hospitalization in 2011 alone.  These numbers are obviously not insignificant, but instead reveal a serious public health concern.  Unfortunately, as a result of today’s decision, this concern, in many cases, will not be effectively addressed through comprehensive and high-quality health and safety standards.

Posted in Whole Woman’s Health v. Hellerstedt, Symposium on the Court's ruling in Whole Woman's Health v. Hellerstedt

Recommended Citation: Denise Burke, Symposium: Supreme Court disavows precedent, refusing to protect women from abortion industry abuses, SCOTUSblog (Jun. 27, 2016, 2:08 PM), http://www.scotusblog.com/2016/06/symposium-supreme-court-disavows-precedent-refusing-to-protect-women-from-abortion-industry-abuses/