Supreme Court

Today at SCOTUS: Abortion Regulations on Trial

The Supreme Court hears oral argument in Texas abortion case.

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Today the U.S. Supreme Court will hear oral arguments in a case asking whether the state of Texas exceeded its lawful authority by imposing a sweeping regulatory crackdown on abortion clinics and doctors.

Credit: C-SPAN

The case of Whole Woman's Health v. Hellerstedt centers on the legality of two provisions from a 2013 Texas statute known as H.B. 2. The first provision requires all abortion clinics to meet the same standards required of ambulatory surgical centers. The second provision requires all doctors who perform abortions to have admitting privileges at nearby hospitals. If both provisions go into full effect, at least 75 percent of the state's abortion providers are expected to close.

The dispute in the case boils down to this. Texas claims to be acting in the name of health and safety and maintains that the Supreme Court must therefore afford state lawmakers wide leeway to regulate. Whole Woman's Health maintains that H.B. 2 is "the epitome of unnecessary health regulations" and is in fact a mere pretext designed to harass abortion providers and ultimately drive them out of business.

In other words, this is not a case about whether the right to abortion should be upheld or struck down. It is a case about whether the state government has exceeded the proper scope of its legitimate regulatory powers.

The legal precedent most likely to inform the Supreme Court's ultimate decision is a 1992 ruling known as Planned Parenthood of Southeast Pennsylvania v. Casey. In that case the Court upheld most of the provisions from a challenged Pennsylvania abortion statute, yet voided one provision for placing an "undue burden" in the way of women seeking abortions. "A finding of an undue burden," the Court explained in Casey, "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." For example, "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."

In most Supreme Court cases dealing with the issue of health and safety regulations, the legal left can be expected to favor broad judicial deference towards government action. But that's not the case here. Indeed, the same left-wing legal pundits who normally say that the Court has no business striking down ostensible health and safety laws suddenly find themselves in the unusual position of favoring aggressive judicial action against Texas' "burdensome and expensive restrictions" and "sham health laws." By the same token, conservative legal activists have taken up the mantle of government regulation and are now accusing the other side of seeking "to use the Due Process Clause as a deregulatory tool."

All eyes in the courtroom today will undoubtedly be trained on Justice Anthony Kennedy, who may well hold the deciding vote. Over the years, Kennedy has managed to alternately please and outrage both sides of the abortion debate. In 1992, for example, Kennedy jointly co-authored the majority opinion in Casey, thereby placing the "undue burden" test in the way of all future legislative attempts to limit abortion. In 2007, however, Kennedy authored the majority opinion in Gonzales v. Carhart, which upheld the federal Partial-Birth Abortion Act signed by President George W. Bush. Needless to say, both sides today will do everything possible in the hopes of swinging Justice Kennedy in their favor.

A decision in Whole Woman's Health v. Hellerstedt is expected by late June.

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  1. In most Supreme Court cases dealing with the issue of health and safety regulations, the legal left can be expected to favor broad judicial deference towards government action. But that’s not the case here. Indeed, the same left-wing legal pundits who normally say that the Court has no business striking down ostensible health and safety laws suddenly find themselves in the unusual position of favoring aggressive judicial action against Texas’ “burdensome and expensive restrictions” and “sham health laws.”

    So, principals over principles.

    1. What else can you expect from the leftist leadership?

  2. “Today the U.S. Supreme Court will hear oral arguments in a case asking whether the state of Texas exceeded its lawful authority by imposing a sweeping regulatory crackdown on abortion clinics and doctors”

    It’s time they cut through the clutter and reached the *real* issue – does *any* branch of government – state or federal, legislative, executive or judiciary – have the authority to decide that any given category of living human beings are not legal persons?

    If they were legal persons, then they could not be deprived of live without due process of law. Outlawry – getting placed outside of legal protection – is deprivation of life, so it must be preceded by formal charges and an opportunity to meet these charges. Since you can’t do this with the unborn, then they cannot be outlawed.

    1. could not be deprived of *life*

    2. As I’ve long maintained, the question is badly placed. Of course a fetus is alive — in exactly the same manner that tonsils are alive.
      The question is not whether the fetus is alive or not but whether it is a new human individual. The tonsils aren’t, and I maintain that neither is the fetus. It certainly is not individuated in the first trimester, I doubt it is individuated in the second.

      But the real root question here is “who decides?” I’m all for leaving the decision to the mother. She is, quite literally, the only person with standing to determine whether or not the fetus should be aborted. That was the standard until politics started pulling in science to justify its policies. The standard changed from “when I say” to “when science says”. The question is not scientific. Science has nothing to offer here, other than additional input that only the person with standing needs to concern herself with.

      1. If sh s the only one with a right to choose, shouldn’t all child support laws be overturned? If the father (odd reference since the fetus isn’t considered a person) has no choice in the matter, how can he be forced to provide a nickel down the road?

        1. shouldn’t all child support laws be overturned?

          Yes. If a child is put up for adoption by both parents, then both parents are absolved of responsibility for the child. Why can’t one parent put the child up for “adoption” on his/her own?

        2. Argument from consequences. I don’t care if all child support laws are overturned. I’m an anarchist, I don’t care about somebody’s effing laws.
          In terms of priorities, I think abortion is more important to address than child support. Your mileage differs. No biggie, until the slavers get into the argument and insist that there is someone else who has greater standing than the mother and so can override her decision.

      2. How can scientific facts be up to the feelings of an individual? How can the right to life of a human person be up to the one who is considering killing that human person?

        1. Easy — it’s not yet a person, no one else is better positioned to determine if it’s individuated/”alive”, that was the standard for centuries. Scientific facts are flexible, changeable, malleable to the will of researchers. If they can’t get climate change right, why should they be assumed to have ‘settled science’ on the issue of personhood?

          Who has standing to override the mother’s decision?

          1. Easy — it’s not yet a person, no one else is better positioned to determine if it’s individuated/”alive”, that was the standard for centuries.

            Actually, to the extent there was an historical standard for abortion, it was viability. Not the mother’s personal beliefs.

        2. Note that the scientific facts are clear on the dangers of heroin, particularly where the drug trade is forbidden. Does this justify claiming it’s wrong to choose to use heroin even in the face of the risks, on the basis of the ‘scientific facts’?
          There are countless other examples. How can your interpretation of the ‘scientific facts’ overrule the judgement of an individual making a choice?

          1. Furthermore, if we decide that the fetus is a person with the right to life what are the implications for the myriad of other activities that expectant mothers do which increase the risk of a miscarriage? If a woman continues smoking through pregnancy and has a miscarriage can she be tried for manslaughter? What if she just doesn’t follow the most current medical advice like taking a prenatal vitamins and has a miscarriage? More manslaughter?

      3. But the real root question here is “who decides?” I’m all for leaving the decision to the mother.

        Umm…no, that’s a terrible standard.

        1. Anything else requires enslaving the woman to someone else’s standards. How is that better?

          1. All laws require “enslaving” someone to another’s standards. Your proposed standard is completely arbitrary, affords unequal legal protection to similarly situated fetuses, and has no logical stopping point. Is in the womb at 9months less of a person than a premature baby at 6 and 1/2? Why can’t the mother decide that the premature infant isn’t a person?

            1. All laws require “enslaving” someone to another’s standards.

              And normally we don’t like to do that when society at large is heavily divided on an issue. The vast majority of the country agree that murdering an adult is wrong. But society is split almost evenly on whether a fetus is a person with a right to life. In such a case it is bad for government to come in and force everyone to go one way or the other.

              Your proposed standard is completely arbitrary

              As is your proposed standard, again because we are far from a consensus on whether fetuses are persons. When either solution is arbitrary, the one that minimizes governmental involvement is to be preferred.

              Is in the womb at 9months less of a person than a premature baby at 6 and 1/2?

              This question is almost pointless because 3rd trimester abortions are exceptionally rare.

              Why can’t the mother decide that the premature infant isn’t a person?

              The premature infant no longer depends on the mother as the sole possible source of survival. We do, however, allow the mother to abandon the infant at this point at a hospital. Why shouldn’t we let her abandon the fetus sooner?

              1. As is your proposed standard, again because we are far from a consensus on whether fetuses are persons. When either solution is arbitrary, the one that minimizes governmental involvement is to be preferred.

                Just a quibble here, but when either solution is arbitrary, shouldn’t the preferred one be the one that maximizes individual liberty? And if that’s the case, we need to define who qualifies as an individual…which takes us back to determining if a fetus is a person once and for all.

                1. One additional quibble: I didn’t propose any standard. I merely criticized “letting the mother decided” as arbitrary, affording unequal protection under the law to fetuses, and having no logical stopping point.

                  1. One additional quibble: I didn’t propose any standard. I merely criticized “letting the mother decided” as arbitrary

                    The alternative is to let the government (legislature + judiciary) decide, which is still arbitrary given that they are beholden to the whim of the majority and the majority is split on this issue.

                    1. The alternative is a bright-line rule which, yes, would have to be dictated by the legislature and/or the courts. It’s a difficult question indeed, and I don’t pretend to know the answer. To me it seems that, at some point, the fetus becomes a human life entitled to the protection of the law, no matter how that may impact the liberty of the mother. Where that line is, I have no idea. I would think, certainly, it is well before the third trimester. Many people argue viability, others say the development of the central nervous system. I don’t know.

                      Yes, the majority is split on this issue, but the majority has no right (subject to certain exceptions, death penalty, blah blah blah) to decide whether an individual may be killed at the whim of another. The difficult question is when the unborn child becomes such an individual.

                2. Just a quibble here, but when either solution is arbitrary, shouldn’t the preferred one be the one that maximizes individual liberty?

                  Agreed. We know the mother is an individual. The fetus is up for debate. So following the will of the mother is the path to maximizing liberty.

    3. Perhaps they need to rule on what defines personhood and be done with it. Some of us will cheer the ruling and some will decry it. But at least then we all know where unborn children/fetuses stand legally and there would be a framework to work within to change current laws in a way that complies with the constitution (be it to outlaw abortion completely or to “unperson” them so abortions can be completely legal).

      It would also have consequences on murder laws when somebody kills a pregnant woman and myriad other charges that are currently vague.

      1. Perhaps they need to rule on what defines personhood and be done with it.

        SCOTUS did that, in effect, in the original abortion case: viability.

        States that have taken SCOTUS up on this have run into opposition in the courts.

    4. If they were legal persons, then they could not be deprived of live without due process of law. Outlawry – getting placed outside of legal protection – is deprivation of life, so it must be preceded by formal charges and an opportunity to meet these charges. Since you can’t do this with the unborn, then they cannot be outlawed.

      And how are the unborn being outlawed?

      1. The literal meaning of “outlawed”, that is, someone who has been officially been out outside the protection of the law.

        1. *put outside

    5. I think they do have the authority to decide whether it’s OK to kill someone, whether that’s a legal person or not.

  3. 1) If they strike down these laws or draw some boundary on them, then it could be good for 2A.
    2) Ever notice how people rarely wonder how the liberal justices will vote? The question always seems to be if one of the conservative justices will decide to not tow the lion.

    1. Are you calling Kennedy “one of the conservative justices”?

    2. Ever notice how people rarely wonder how the liberal justices will vote? The question always seems to be if one of the conservative justices will decide to not tow the lion

      I’ve commented on this before. The liberal Justices are all in lockstep, yet it’s conservatives like Thomas who “can’t think for themselves.”

    3. If they strike down these laws or draw some boundary on them, then it could be good for 2A.

      My, aren’t you the optomist! There are several justices who would rule differently depending on whether they like the right in question. Because FYTW.

      1. There are several justices who would rule differently depending on whether they like the right in question. Because FYTW.

        Eight, by my count.

      2. How about whether they like the particular person who’s a party?

  4. It is mighty funny how the left is all about “regulate regulate regulate” right up till its one of their sacred cows. IMO, IF you accept the fact that there will be regulation of the medical profession, then since abortion is an outpatient surgical procedure, they should have to follow the same rules as any other outpatient surgical procedure. If you’re going to have crappy rules then they should apply to everyone equally….

    1. Guess what? Abortion isn’t always an outpatient surgical procedure, yet this law always regulated it like one.

      Also, “the left” are not the only proponents of abortion rights.

      1. I thought the Texas law only applied to clinics performing surgical abortions.

        Also, I think nova’s point was about the hypocrisy of pro-regulatory leftists and wasn’t against anti-regulatory anarchists that don’t think other procedures should have government oversight. And it’s a valid point because they, unlike the consistent anti-regulatory anarchists and libertarians, love regulating businesses they don’t like and virtually all other medical procedures.

      2. If it’s not an outpatient surgical procedure then what is it? The gruesome picture painted by the pro-choice side is that in a world without legal abortion, you have women bleeding to death in back alleys from coat hanger procedures. The potential for bleeding to death without proper care because someone stuck something sharp into you sure sounds like surgery to me.

        And sloopy is right about my point. The leftists think regulation is the answer to everything EXCEPT when it’s one of their politically favored groups.

        Take zoning. They love zoning of all kinds because we can’t have people just choosing to put what they want where they want. But I guarantee if some place changed the zoning laws such that medical offices, including abortion clinics, had to be within a certain distance of a hospital, they’d lose their minds….

      3. Also, in some cases abortion is regulated more strictly than other outpatient procedures such as colonoscopy, which actually carry a higher risk of complications. This makes it obvious that these laws are all about limiting access to abortions and not at all about making abortions safer.

        1. Also, in some cases abortion is regulated more strictly than other outpatient procedures such as colonoscopy, which actually carry a higher risk of complications.

          Colonoscopies are diagnostic. Abortions are therapeutic. You typically have a lighter regulatory burden on diagnostic procedures, because as a class they are much less risky than therapeutic procedures. There are outliers, of course, but trying to run down every outlier and fine-tune regulations for it is both a fools errand and a recipe for grotesque micro-management.

          1. Colonoscopies are often therapeutic/preventative as well. At least that’s what I’d call it when they decide to remove a polyp in the middle of one…

            1. And a D&C is often diagnostic too.

      4. There’s two kinds of abortions: surgical (typically done later term) and medical/pharmaceutical (typically done early term. I’m not sure if these rules are triggered by medical abortions.

        My recollection is that Texas basically extended the rules for ambulatory surgical centers to cover clinics performing ambulatory surgical abortion procedures. Now, there are other “minor” surgical procedures that doctors do in their offices that do not trigger that level of regulation.

        I don’t think there’s any question this was intended to limit abortions. Questioning the motives and intent of someone who imposes a regulation is something that statists always object to, and as far as I know its not relevant to the Constitutionality of a law.

        The real issue, as ever, is what level of scrutiny is applied, and why. If this were treated like every other health and safety regulation, I think it would easily pass ‘rational basis’ review. I think it gets into trouble if you apply strict scrutiny. The question is, why apply strict scrutiny to this reg, when you don’t apply it more generally to similar regs?

        1. Questioning the motives and intent of someone who imposes a regulation is something that statists always object to, and as far as I know its not relevant to the Constitutionality of a law.

          I agree in principle, but SCOTUS did recently decide that the intent of those who drafted PPACA was more important than the actual text of the law itself…

  5. Does abortion get treated by the judiciary as any other medical procedure? If the regulations are not an undue burden on other outpatient procedures then they should not be for abortion. If the regulations are an undue medically unnecessary burden on abortion then they should also be an undue burden on any other ambulatory procedure. What concerns me is does the Court rules that abortion has special protections that are not afforded to any other medical procedure, which would be the lawless and unprincipled result.

    1. Oh I like that rationale. Thanks, I will steal that.

    2. Proggies want to regulate every detail of your life except abortion, which you apparently should be able to do up to, and maybe even after, birth.

      1. Hey, the way my kids are acting lately I’m nearly in favor of 12th trimester abortion :p

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