Supreme Court Agrees to Hear New Abortion Case

Abortion is headed back to SCOTUS.


Credit: Library of Congress

The legal controversy surrounding abortion is headed back to the U.S. Supreme Court. On Friday afternoon the justices agreed to review the constitutionality of a Texas law which threatens to close all but a handful of the state's abortion clinics in the name of public health.

At issue in Whole Woman's Health v. Cole are two provisions from a 2013 Texas statute known as H.B. 2. The first of those challenged provisions requires all abortion clinics to upgrade their facilities in order to meet the same standards required of ambulatory surgical centers. The second challenged provision requires all physicians performing abortions to have admitting privileges at nearby hospitals. If allowed to go into effect, these regulations would shutter more than 75 percent of the state's abortion clinics.

Texas justifies its regulations as legitimate exercises of the state's police power to protect public health and safety. Whole Woman's Health argues that the state's regulations do not protect health and safety and are in fact mere pretexts designed to harass and eliminate the state's abortion providers.

In most cases dealing with ostensible public health and safety regulations, the Supreme Court employs a legal approach known as the rational-basis test. As the Court once described it, under the rational-basis test, "the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might conceivably support it." Put differently, the legal challengers must not only defeat the government's stated rationale for the regulation in question, they must also defeat any hypothetical rationale that the government, or even the presiding judge, might "conceivably" think up before or during trial. Needless to say, this highly deferential approach tips the scales strongly in favor of government regulation.

But abortion regulations are treated somewhat differently. In the abortion context, the Court's legal approach is also informed by something known as the "undue burden" test. This test originated in the Court's 1992 decision in Planned Parenthood of Southeast Pennsylvania v. Casey, in which the Court upheld most of the challenged provisions from a Pennsylvania abortion statute, yet struck down one provision for placing an undue burden on a woman's right to abortion under the Due Process Clause of the 14th Amendment.

What exactly counts as an undue burden? Here's how the Court explained it in Casey. "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." As the Court noted, "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right."

Is Texas law H.B. 2 an unnecessary regulation that places a substantial obstacle in the path of women seeking to exercise their constitutional rights, or is it instead a necessary regulation that advances public health and can therefore survive scrutiny under the undue burden test?

Those questions will be at the center of the Supreme Court's analysis in Whole Woman's Health v. Cole. Oral arguments in the case are likely to occur sometime in spring 2016.

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  1. Whatever your thoughts on abortion, it’s a damn shame the Supreme Court doesn’t see fit to apply the “undue burden” on all government regulation.

    1. ^ s/b “undue burden test“, although it works like that as well.

    2. The notion that the government can’t interfere in a private transaction has seen very little traction outside of abortion. The relationships between drug dealer and drug user or between gun seller and gun buyer, for example, are no less “private” than that between an abortion practitioner and a woman seeking an abortion.

  2. The so-called conservatives in the supreme court are trying to flood this country with millions of people who won’t necessarily share our values and may even turn out to be terrorists.

    1. You mean by banning abortion?

      1. Babies are the original ‘undocumented’ immigrants.

        1. Better to kill them all from the start just to be safe.

  3. Oh good: war/immigration AND abortion threads on the same morning.

    1. Isn’t anything vaginal supposed to be ENB’s beat?

  4. as a moderately pro-life (or I could be called moderately pro-choice as well I guess), regulating abortion clinics to essentially the same standards of care as other surgery centers is hardly inappropriate. Of course I am sidestepping the issue of regulations in general.
    Sorry if you can take a pill that will essentially stop some cells from reproducing, none of my business. If you have to cut up parts of a body that are remarkably human which involves stopping a beating heart, or inject a solution into an organ that appears to be a brain, then at the very fucking least it should be done like any other surgery.

    1. I agree. Requiring clinics to maintain the standards of clinics doesn’t seem an undue burden. I am surprised they had to pass a special law requiring it. Requiring docs performing surgery where things might go bad to have admitting privileges also seems like common sense.

    2. Its . . . *not* like surgery. There’s no surgery done on the mother and attempting to *preserve the life of the fetus* would defeat the purpose. They’re not doing *surgery* on it, they’re *butchering* it. So it makes no sense to require an abortion clinic to to have the same sorts of capacities as a surgical one or admitting privileges – they’re not going to admit the fetus, nor are they going to attempt to save its like.

      You could just as well require a clinic that does colonoscopies to meet the same requirements.

      1. “You could just as well require a clinic that does colonoscopies to meet the same requirements.”

        ^ This. I’m working on a hospital construction project in CA right now, and I don’t know about other states (except that everything in construction is easier in other states), but the differences between clinic buildings that are licensed for outpatient services and facilities that are licensed for full-blown surgery are non-trivial, to say the least.

        I suppose the question would be, how *does* TX treat facilities that perform similar outpatient services? Is it *only* abortion clinics that are being regulated this way, or do facilities that perform, say, colonoscopies, or dental surgeries, have to comply with the same regulation?

      2. I just googled up ‘abortion complications’. Looks like some pretty nasty stuff. Risks are low, but still, I wouldn’t want one done in a garage.

        1. An outpatient clinic is not a garage. How are abortion risks in comparison to other outpatient procedures?

    3. Yes it is inappropriate! Abortion is many times safer than procedures performed in other surgery centers. The majority of abortions use no sharp, bladed, edged, or pointed instruments and do not cut the patient at all.

  5. Who’s crazy, now?

    For context, these two* Republican presidential candidates have backed some completely bonkers economic ideas during the campaign. Both want to eliminate the Internal Revenue Service, even though doing so would leave no one to collect tax revenue. And both want to return to the gold standard, which means our money supply would be determined not by the coolheaded economic experts at the Federal Reserve but rather by, say, China. (China is the world’s No. 1 producer of gold; Russia is No. 3.)

    *Cruz and Paul

    coolheaded experts at the Federal Reserve

    That makes my head hurt.

    1. It is amazing that these “smart” people don’t understand the difference between cause and effect.
      They are not saying “See now there’s no IRS? Now what are you going to do? Nanny nanny boo boo!”
      Simplify the tax code either ” flat tax or fair tax” and the need for a literal army of tax collectors, auditors, compliance officers, etc is vastly reduced.
      Simplify taxes and spend less, then the IRS can be either shut down and those duties simpl done by other orgs, or the IRS itself becomes something far different, and far less scary than it is now.
      Of course, none of this will ever actually happen so fuck it. After this weekend I am polishing off an entire fifth of my Glendiddich 15yo!

      1. The federal government is largely a jobs program. Why do you hate jobs BearOdinson?

  6. I think her real concern is that the Chinese cannot possibly dig gold out of the ground fast enough to keep up with the sodium-cooled printing presses of the Federal Reserve Bank.

    1. I admit to being no expert on economics / monetary policy, but I’m currently reading Friedman’s Monetary History of the United States, and what I’m getting out of it is that staying on the gold standard would have been disastrous, and only worked out during the McKinley administration because new gold mines had been discovered that inflated the currency in spite of what the gold standard advocates wanted.

      Friedman seems (to me) to demonstrate pretty clearly that using gold as currency just means you are at the mercy of the vagaries of gold mining, are spending a lot to produce currency, and either your currency’s value or the size of your money stock generally will fluctuate with the commodity price of gold.

      Doesn’t it make more sense to have currency that doesn’t have a commodity value? Is there enough gold in the world to meaningfully use it as currency?

      I get that central banking is not ideal from a free-market perspective, but has there ever been a banking system that wasn’t government backed in some way?

      Again – not an expert, and I know there are lots of economics people here, so I’m just curious to hear what people have to say.

      1. Is there enough gold to use as a currency – Yes. And no. To put gold coins in everyone’s hands, probably not. To use as a gold-backed dollar, certainly.

        There’s a shit-ton of gold, like there’s a shit-ton of oil – it only depends on how much it costs to extract as to how much is available.

        The advantage of a commodity based currency is that you completely eliminate the ability of a power to deliberately debase its currency to inflate away debt. Destroying the value of savings in the process and making things more expensive (inflation).

        The disadvantages are that if there’s a technological revolution that makes your previously rare commodity readily available – the value of your currency drops.

        Sure, you’re at the mercy of dips and rises in commodity price – but I’d rather trust those than the ‘cool heads at the Federal Reserve’.

        And a commodity-backed currency has its own built-in feedback loop. If you’re doing well and your economy is expanding, the price of the commodity goes up, more effort is put into extraction, if it goes down – less effort is expended to get more. In both case this brings the supply/demand curves back in line *without* needing the expert manipulation by ‘Top Men’..

        1. The advantage of a commodity based currency is that you completely eliminate the ability of a power to deliberately debase its currency to inflate away debt.

          Inflation in commodity-based currencies is easy, you just redefine the backing ratio.

          Today: $500 = 1 troy oz of gold
          Tomorrow: $600 = 1 troy oz of gold

          You have the same amount of gold but now have a 20% larger money supply.

          1. “You have the same amount of gold but now have a 20% larger money supply.”

            Isn’t inflating paper currency essentially the same, without needing to track the price of gold?

            Again – not trolling, just curious. A government would need to take that action, right? So is that any different from inflating a fiat currency vis-?-vis government control of the currency value?

            1. There is no difference, which was my point.

              1. I see – thanks.

          2. So then “going back to the gold standard” would just mean, the government, rather than the market, would set the price of gold. What would the penalty be for buying or selling gold for a price other than the price set by government???

        2. Well put

          1. One of Greenspan’s goals for years was to try and keep money supply at a point where there was as little deviation in the dollars value in relation to gold as possible. So basically a gold standard in practice rather than legality. Which is probably just as effective as long as you can avoid the political pressure not to deviate from that. We’re well past that point.

        3. “The advantage of a commodity based currency is that you completely eliminate the ability of a power to deliberately debase its currency to inflate away debt”

          But do you really? Henry VIII debased his currency to inflate away his debts. Or do you mean if you just get government out of the minting business altogether?

          “And a commodity-backed currency has its own built-in feedback loop”

          But wasn’t this exactly the problem in the 1880s-early 1890s? The feedback loop was a British one, and the US was just along for the ride? Deflation seems like it causes a lot more problems than inflation, since it leads to higher default rates and declining stock market values?

          I’m new to this stuff and so far Friedman is my only detailed source. Is there more reading anyone can recommend?

          1. I’m new to this stuff and so far Friedman is my only detailed source. Is there more reading anyone can recommend?

            This book is a great start.

            He also has a blog at newworldeconomics.com where he digs even deeper into the issue.

        4. There’s a shit-ton of gold

          Less than you would think. Indeed, the United States economy produces more value than the value of all of the gold that has ever been mined. I am too lazy to look it up but only a couple trillion dollars worth of gold has ever been mined, a pittance to what the US economy produces every year.

      2. I get that central banking is not ideal from a free-market perspective, but has there ever been a banking system that wasn’t government backed in some way?

        Yes, look up Scottish free banking for just one of many examples.

        There were and are a lot of people who don’t know how a gold standard worked.

        The purpose of a gold standard is to have parity of the price of gold as denominated in a given currency with what ever was set as the price. Therefore if you set the price of gold in your currency at 1000 per ounce then you manipulate the amount of currency in circulation to maintain that parity.

        So you move currency into or out of circulation to maintain the peg. You do this in the simplest manner by selling or buying gold with your currency.

        So you do need some gold to make this happen but you don’t need a lot and it doesn’t matter how much more is found as a gold standard works on the currency side mainly not on the how-much-gold-is-in-the-vaults side.

        1. That said politicians can fuck anything up and if you look at the history of the gold standard you will see a lot of bad events that fiat currency sorts and leftists point at as failures of the GS but when you dig into the events you see that they were caused by political fuckery not by a program of maintaining a stable currency.

          1. A lot of folks seem to think that a gold standard means all that we will use in transactions is actual metal. But this has never been true even before the advent of paper currency. There has always been credit instruments and things like of bills of exchange and ledger money and so forth.

            But even if that’s all we had prices would adjust to amount of gold in circulation and as Aggromormom points out there is an automatic feedback loop built into the process. It might not work as fast as some would prefer but it does work.

            1. HEY! I’m an atheist, not a Mormon farmer.

              1. Sorry, AgateMermaid.

    2. It’s possible to have a gold standard without any gold in the system at all. All you need to know is the price of gold.

      Of course you need some mechanism to move currency into or out of circulation to maintain parity. You could use bonds, or foreign reserves (or just peg to another currency), artwork, land, livestock, rolling stock or a combination.

      But really, having some gold about is the easiest.

    1. I thought the photos showing The Donald making duck face were just carefully timed and chosen to show him that way. Now I get it. That is his mouth and it looks like that all of the time. He has permanent open-mouth duck face. I shall coin it ‘quack face’.

      1. “Quack face”, I like it.

    2. All he got was a dishwater blonde? What was he doing, scouting for barmaids for his casinos?

    3. Why is a picture from *1991* in B&W?

      1. B&W film was cheaper than color film, and monochrome printing was cheaper than color printing — for a tabloid photo like that, it was probably shot in B&W and printed in B&W

        1. I remember most of the pictures in that paper in the early 90s were in black and white.

      2. I still shoot B&W film and have a darkroom. I love it.

  7. OT: When you slap a “Yeti Coolers” bumper sticker on your vehicle, what social signal are you trying to send to the world? Just what exactly is the incentive for a rational adult to do this?

    1. That your a yeti coolers salesperson?

    2. Cool sporty guy? Or maybe a Yeti salesman? The people I know that spend that kind of money on ice chests seem to have a fetish for the things.

      I buy $10 cheapos at walmart and throw them away when they wear out.

      1. I have never heard of these, that is insane. how in the world can an insulated box cost that much?

        1. If the insulation was a (near-)vacuum chamber, the price would actually be worth it. I don’t think that’s the case, however.

        2. They are incredibly well made and tough, also large. I know two guys who have them. One had his installed on a very expensive boat, the other uses his for camping, which he does a lot. They are both fanatics about the things and make all kinds of wild claims about how well they work. But hey, it’s their money.

          1. But hey, it’s their money Agreed, and I even get that they may be the top-o-the-line coolers.Honestly, I’m a bit envious, I have a hard time selling (what i consider) quality products at a reasonable price. When I see these kind of things I wonder if I shouldn’t double or triple my rates, go for the whole overpaying and proud of it niche.

            1. Do both, just like most corporations do. Just create a different brand name and add a new label.

              Toyota = Lexus
              Kroger Brand = Contracted from Primary Brand (eg at one time, they got their canned fruits from Del Monte).

    3. Rhymes with mouche?

      1. The two I know who have them, yes. 24K douches.

  8. I’m just curious to hear what people have to say.

    I’m not a hard core gold bug, but the Fed has completely fucked over savers and massively distorted the price signals for financial risk.

    1. This I can see, and it seems like there is some sense that saving is bad for the economy for some reason, so that they seem to make a point of monetary policies that discourage saving.

      What I’m picking up from Friedman (and may be misunderstanding) is that it seems to be anxiety over the deflation thing – i.e. that if people save and don’t spend, prices can go down due to lack of demand, and then we enter a deflationary cycle and investments tank, banks fail, etc.

      But I can also see the argument that you just have to let that happen sometimes (haven’t finished the book, yet, and actually haven’t even gotten to the 30s, which is where I understand the real meat of the book is), or else you’re spreading the results of financial risks across lots of people who weren’t interested in taking those risks.

  9. OT: I can’t imagine this is going to turn out well


    Also, watch for more attacks in France


  10. The Free Market will fix this one.

    The problem is that the Economic Liberty of the Doctor is running in conflict with the “life-liberty-pursuit of happiness” of the human growing in some woman’s body. That’s simple, the human inside her is not recognized and should not be recognized.

    We should consider:

    Allowing the woman to dispose of that human being inside her until it is out of her body. That is, go to a doctor and that doctors does what he/she needs to do to extract that human being.

    If the human being survives the extraction process, it should be handed over to the state and put in an orphanage.

    1. That is quite close to Jewish law. Abortion wars are religious wars.

  11. “In most cases dealing with ostensible public health and safety regulations, the Supreme Court employs a legal approach known as the rational-basis test.”

    And bear in mind that outside the abortion context, “public health and safety regulations” include even the most retarded protectionist legislation, as in the 1955 case of Williamson v. Lee Optical Company.

    When it comes to getting glasses, the government can put arbitrary restrictions on customers and providers, and the courts will give such light scrutiny as to suggest metaphors of blindness.

    But the courts will go over with a fine tooth comb any law which limits a woman’s right to hire a “professional” to kill her child.

    If an abortion is “just another medical procedure,” why can’t the courts let it be arbitrarily regulated like other medical procedures?

    1. If you haven’t yet, take a look at the updated edition of Barnett’s Restoring the Lost Constitution.

  12. Lacks the “proper” element.

  13. Dude seems to know which way is up thats for sure.


  14. The biggest problems for conservatives is discriminating between killing of a fetus and a murder of one.

    Once the fetus is being born, it becomes a child. This is why partial birth abortions are murder.

  15. See Curtis J. Neeley Jr., Petitioner v. Louis Jerry Edwards, et. al., (15-7059)
    in HTML to explain what SCOTUS will do. http://human-dignity-us.org/#14
    The Texas case will be resolved as the HOAX this Texas law always was.
    It is obvious to ANY reader or justice reading page 14 linked above.

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