Abortion

What the Supreme Court Ruling Means for U.S. Abortion Access

The Supreme Court's ruling in Whole Woman's Health v. Hellerstedt could affect laws around the U.S.

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Patsy Lynch/Polaris/Newscom

In its first significant abortion ruling since 1992, the U.S. Supreme Court Monday held that Texas abortion regulations were unconstitutional. As Damon Root noted here earlier, the 2013 Texas statute, known as H.B. 2, was "one of the strictest anti-abortion laws in the United States." With four liberal-leaning justices and three strict conservatives on the Court, Justice Anthony Kennedy was the swing voter in this case, and his siding against the state of Texas tipped the scales to Whole Women's Health clinic favor by a vote of 5-3. The decision means Texas can't require all abortion doctors to obtain admitting privileges at a nearby hospital nor force abortion clinics to meet surgical-center standards regardless of whether they perform surgical abortions. With similar regulations recently passed—and challenged in court—across the country, the Court's ruling could effect abortion access in all regions of the U.S. 

The Court found that the Texas restrictions (more background on them here) put an "undue burden" on women seeking abortions without serving a legitimate interest of the state—i.e., keeping patients safe or holding doctors and clinics accountable). "Neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes," wrote Justice Stephen Breyer for the majority. "Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution."

Backhanded regulation of abortion clinics sold under the guise of women's safety has been one of the most popular, and successful, tactics of the pro-life movement in recent years. More than 20 U.S. states require abortion clinics to meet ambulatory surgical-center standards, according to the Guttmacher Institute, and more than 14 states say abortion doctors must have some affiliation with a local hospital. These "TRAP laws" (targeted regulation of abortion providers) have forced shut abortion clinics in Texas, Virginia, Mississippi, and elsewhere. 

Against this backdrop, the Supreme Court's decision matters far beyond Texas—and not just geographically. It gets to a fundamental debate about legal abortion in America, one last opined upon federal in 1992's Planned Parenthood v. Casey: is abortion a limited right subject to strong state subjectivity or a fundamental constitutional right with which legislatures may not interfere? 

"Today, the Supreme Court reaffirmed that the Constitution protects not just the theoretical right to abortion, but the right of a woman to actually get one without unwarranted interference from politicians," said Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union (ACLU), on Monday. "The decision should send a loud signal to politicians that they can no longer hide behind sham rationales to shut down clinics and prevent a woman who has decided to end a pregnancy from getting the care she needs." Its "effects are likely to be felt around the country," stated the ACLU.  

The Supreme Court's decision doesn't automatically invalidate state laws similar to Texas' H.B. 2, but should they be challenged in court (and many already have been), state judges now have the SCOTUS decision to serve as a precedent, making their revocation likely. Still, as Vox writer Sarah Kliff noted, "one thing that stands out about the Texas case is that it was very facts-based: Justices wrote extensively about the effect the law was having on clinic closures, the distance that women had to drive, and their overall access to abortion. So there is a possible world in which abortion opponents try to mount a defense with different facts — if they can make the argument that in their state, abortion access hasn't changed significantly in the wake of new laws." 

But should such TRAP laws prove no longer useful, anti-abortion advocates always have more tricks up their sleeves. The latest is to rebrand dilation and cutterage (D & C) procedures, a surgical method common for both elective abortions and women who miscarry—as "dismemberment abortion" and have the procedure banned. Meanwhile, other states, such as Oklahoma, have taken to outright criminalizing physicians who perform abortions or criminalizing anyone who tries to talk someone else into terminating a pregnancy. I suspect will see more of these and new tactics to come. 

NEXT: Brexit is an Opportunity For Britain to Return its Classical Liberal Roots

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  1. And if Texas tells the SC to piss off, what then?

    1. Texit!

      1. We can hope. I suspect that, this time around, the union would let it (and others) succeed to secede.

      2. This would actually be a case for federalism.

        The different sections of the country just don’t want the same things. The South and the Great Plains state go one way, the Coasts and Northest go another.

        But the Left wants to centralize all power, so it’s secede, or nothing.

    2. Oh, yaaaay, an abortion thread. I bet we will finally come to an agreement and all dance together around a May pole holding hands.

      [Scrolls down]

      …….

      [Stares out window at smoke from Hihndenberg crashing and taking out all the Faith Militant. Takes off crown. Steps off ledge.]

      1. Meh. It’s no different from any other thread dealing with a topic controversial within libertarian circles. Take the immigration threads, for instance.

      2. NO SPOILERS!

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  2. I’m sure that the Supreme Court will now similarly assure that all of our individual liberties are freely exercised without interference from politicians, and will subject all restrictions on liberty to similar scrutiny.

    1. Sure, if you strawman this decision a huge amount.

      Note that, even before 2013, abortion clinics in Texas and elsewhere were already regulated. Striking down these specific regulations as “too far” does nothing to push back the rest.

      1. Note that, even before 2013, abortion clinics in Texas and elsewhere were already regulated.

        Not in ways that differ from medical facilities of any other kind. The equivalent to, say, the 2nd Amendment would be to rule that gun stores have to comply with business licensing requirements and carry liability insurance, while invalidating the gun-specific regulations with which they must comply.

        Wouldn’t it be nice if you were right about anything, just once, even accidentally?

        1. The gun grabbers use the same sort of tactics as the anti-choicers, even if the specifics are different.

          Look at San Francisco’s law requiring all gun purchases to be videotaped, or Hawaii’s new law putting all (legal!) gun buyers on an FBI watch list.

          Unfortunately, Kennedy is the only Supreme Court justice who respects both gun rights and abortion rights, so unless we can clone him, SCOTUS is unlikely to adopt a consistent position on defending fundamental rights against being regulated out of existence.

          1. How can Hawaii put anyone on a FBI list? Isn’t the FBI in charge of it?

            1. From Reuters:

              “Hawaii Governor David Ige, a Democrat, on Thursday signed into law a bill to have police in the state enroll people into an FBI criminal monitoring service after they register their firearms as already required, his office said in a statement.

              The Federal Bureau of Investigation database called “Rap Back” will allow Hawaii police to be notified when a firearm owner from the state is arrested anywhere in the United States.

              The law could affect gun owners outside Hawaii, because the state requires visitors carrying guns to register, Hunter said.

              As a result, they could be added to “Rap Back” because they arrived in the state with a gun, she said. The Hawaii attorney general’s office said a weapon-carrying visitor should be able to petition for removal from the national database after leaving the state.”

              http://www.reuters.com/article…..SKCN0ZA3IP

              1. In other words, exactly what the “paranoids” said would happen.

      2. You miss my point.

        I am not defending the Texas regulations. I am objecting to the court’s selective enforcement of liberties. If the court applied the same level of scrutiny to the government’s action in, for example, the Kelo case, that government action would have been stricken down as well.

        1. Consistency is for those who believe in Rule of Law, not arbitrary power.

        2. Backhanded regulation of abortion clinics gun sales sold under the guise of women’s public safety has been one of the most popular, and successful, tactics of the pro-life anti-gun movement in recent years.

          1. Oddly the pogressives push gun bans under the auspice of making us safer/saving lives while simultanepusly push abortions that actually take lives and every time an abortion is conducted.

    2. They’ve already gutted most of the Constitution. With the help of Hillary’s new appointees, they’ll finish the job.

      1. Living Constitution – we’ll do what we want, and the peasants will take it and like it.

  3. Who wears their pajamas to an abortion rally?

    1. What if they threw a pajama rally and everyone slept through it?

    2. People who don’t work.

      *drops microphone*

  4. Now does the court apply this ruling to every other medical procedure or ildoes abortion alone have a right to noninterference associated with it?

    1. You noticed that too, huh?

      We are entirely captives of a medical mafia. But when it’s *abortion* that is interfered with, well that just can’t happen!

  5. You know what’s “a fundamental constitutional right with which legislatures may not interfere?”

    This part of the Fourteenth Amendment: “nor shall any state deprive any person of life, liberty, or property, without due process of law.” And the Fifth Amendment imposes this requirement on the federal government.

    Trace that back to Magna Carta, and you’ll find that this protection applies before someone can be *outlawed* – that is, before someone is deprived of legal protection of his or her life.

    So the government can’t go around arbitrarily saying that it’s legal to kill some person or persons it deems inconvenient. There has to be “due process” first: An accusation of some specific charge and an opportunity to answer the accusation.

    Persons in the womb certainly aren’t given any due process before their killing is legalized.

    That would seem to make legalized abortion unconstitutional.

    1. So the government can’t go around arbitrarily saying that it’s legal to kill some person or persons it deems inconvenient

      Well, that’s easy, you just make them un-persons. Works for terrorists, fetuses, you name it!

    2. The 2nd amendment? Once they’re completely rid of that one, the others will fall like dominoes.

    3. Yeah, well, that’s just like, your opinion, man.

    4. Every sperm is sacred! Due process rights for spermatozoa! (But only if they’re legal-human sperm).

    5. Well, unless the government is forcing people to get abortions or carrying them out, I don’t see your point. The government merely allowing abortions and the state actually carrying them out are two entirely different matters.

      1. Outlawry means withdrawing government protection against being killed.

    6. Fusionist–So you are advocating for women to be imprisoned for involuntary manslaughter for actions that may cause a miscarriage or still-birth, ie, not taking prenatal vitamins? Do you support additional criminal charges for individuals who cause the death of an unborn child, ie, drinking and driving that results in the death of mother and unborn child, or even just child? As a Libertarian, are you advocating that you want more government involvement in deciding these matters?

      1. Not picking sides but…

        It is not necessarily un-libertarian to seek government action where it is supposed to be… the protection of an individual’s rights from another. Your argument about him being un-libertarian would be like me asking you if you really are advocating to have a legal system (hypothetically). After all… that’s more government. If, however, you are an anarchist, then you could legitimately oppose even the tiniest state action. As a libertarian, however, not every state action is a statist action and it certainly isn’t in this particular where he is calling for the state to act to protect the individual right to life.

        If you think a fetus is not a human… then you would be right, given your presupposition. But from his perspective, if you begin with a fetus being human, his request is very much in line with general libertarian thought.

  6. dilation and cutterage (D & C)

    That’s curettage you dink.

    1. I thought they were making a pun.

      Could it be that that’s why the bill exists? People confusing curetting with cutting? So all that needs to be done is point out it’s merely scraping, no dismemberment, & then OK?

  7. Gigantic throbbing Texas Jesus cock just slumped onto its windswept pubic mound as the liquid saffron of fucking repudiation dribbles and puddles from its inky deep pockmark.

    1. Ugh. You are totally dismissing the Magna Carta.

    2. I have the weirdest boner right now

      Also, I think we should compile an erotic fiction anthology consisting of alternating stories by AC and nutrasweet.

  8. With any luck, some pro-life state will begin subjecting abortion facilities to Certificate of Need rules and end up getting them overturned nationwide.

  9. RE: What the Supreme Court Ruling Means for U.S. Abortion Access
    The Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt could affect laws around the U.S.

    I do not care if a woman gets an abortion or not.
    That’s between her and her conscience.
    However, what I don’t like is a political entity usurping the will of the electorate.
    The taking of a human life, whether it be executing a violent criminal or taking of a gestating human in a woman’s womb should be up the voters, not nine appointed-for-life political hacks who wipe their ass with US Constitution at every given chance. The voters in a state should decide such political acts, not judges.
    As I stated in a post related to this one, I believe it is time to eliminate the SCOTUS, or at the worst, have these justices being elected every four years.
    I recognize this won’t happen because people in power (such as SCOTUS justices) would never voluntarily give up their power. Nevertheless, I believe it would be a worthwhile project to add a constitutional amendment to this suggestion.
    Sadly, I doubt this idea will produce fruit.

  10. This should be welcome news for the Pro 2A crowd. This ruling should be used to help strike down laws in areas that have de-facto eliminated the RTBA.

    1. There’s the rather inconvenient fact that the Justices who think the 2nd Amendment isn’t a personal right are also the biggest pro-abortion zealots, while the icky SoCon justices are more pro-RKBA.

      Bear in mind that guns *are* a conservative culture-war issue, no matter how many tie-died shirts you wear, and how icky you find SoCons to be.

      1. It’s only going to take a couple more restrictions and exceptions to the 2nd amendment and most citizens, that is those not politically connected or working for the state, are going to find themselves stripped of their 2nd amendment rights, forever. Only states can stop this and they show no signs of doing being willing to do so, I mean, cannot lose those sweet federal dollars.

    2. Keep dreaming.

      The Left rationalizes power, and the Supreme Court is the ideal place for rationalizations of power.

      Next week, they’ll completely reverse the supposed “principles” they relied on today.

      Arbitrary power, garnished with rationalization.

  11. Hinfected thread. *blocks troll*

  12. My wife gave birth to our second son this weekend. As I did for our first child, I was there holding her (and watching) the whole thing. I watched both children emerge from the womb and heard their first cries as they breathed air. Watching firsthand the miracle of birth, and also knowing that the babies in the NICU unit below were struggling was life changing.

    It takes a special kind of inhuman, self-absorbed asshole to think that abortions are no big deal and that they should be fought for with the same zeal that doctors fight to preserve a sick child’s life. The entire pro-abortion debate is just sickening.

    1. You did not watch your children emerge from the womb. You watched them emerge from the birth canal, which is NOT part of the womb. First, they emerged from the womb through the cervix into the birth canal, and you did not watch that.

      AND….

      There is no such thing as “the womb”. Every womb is part of a woman’s body. It’s HER womb, not “the” womb. Wombs have owners.

      1. Climb back in the womb.

      2. I bet you’re a blast at parties and a hit with ladies. The parties and ladies online of course.

        1. Hasn’t seen many wombs, that one.

      3. Nice of you to bring your wet blanket to the party…douche and double douche.

      4. Nikki?

      5. “I watched [X] emerge from the womb” is a common phrase that refers to the birth canal.

        Your pedantry is duly noted.

  13. My wife gave birth to our second son this weekend. As I did for our first child, I was there holding her (and watching) the whole thing. I watched both children emerge from the womb and heard their first cries as they breathed air. Watching firsthand the miracle of birth, and also knowing that the babies in the NICU unit below were struggling was life changing.

    It takes a special kind of inhuman, self-absorbed asshole to think that abortions are no big deal and that they should be fought for with the same zeal that doctors fight to preserve a sick child’s life. The entire pro-abortion debate is just sickening.

    1. The squirrels thought enough of my post to post it twice.

    2. Well it’s more a matter of not getting in your enemies way while he screws up. (In this case self-decimates his population)

    3. Congratulations!

        1. I’m actually pregnant with my first (25 weeks and also a boy), and I probably have a similar POV, especially thinking about late-term abortions. Having seen him yawn twice on the ultrasound and feeling him move for the past month and a half, plus knowing his chance of viability is over 50%, It’s so bizarre to me that someone in the same position could think this isn’t a person.

          1. Congrats to you too and I agree.

          2. Wait, you mean there really ARE libertarian women besides Banjos and Mrs. DesigNate?

            Congratulations! My wife and I just had our second girl in April.

    4. Congratulations and best wishes!

    5. Duke:

      You did not watch your children emerge from the womb. You watched them emerge from the birth canal, which is NOT part of the womb. First, they emerged from the womb through the cervix into the birth canal, and you did not watch that.

      AND….

      There is no such thing as “the womb”. Every womb is part of a woman’s body. It’s HER womb, not “the” womb. Wombs have owners.

      1. Nice of you to bring your wet blanket to the party…douche

        1. Twice. He was a little shit not once, but twice.

          1. I’m on it. And for the record I’m on it. Of course I’m always down for a proper deep dish Somalian road-side abortion, but not when someone is trying to celebrate a proper hatching

  14. Abortion violates the NAP. So do drone strikes against civilians. As does anal rapings.

    1. Chumby: No, abortion does not violate the NAP. The NAP does not, and should not, protect trespassers, especially not trespassers inside your body.

      1. Even if the fetus could be construed as a trespasser (which is laughable since it lacks the agency to form the intent required), the NAP still applies to trespassers to some degree. Sorry, but you can’t outright kill someone who merely steps onto your land.

        1. Intent is not required to be a trespasser. You can trespass by accident.

          RE: “Sorry, but you can’t outright kill someone who merely steps onto your land.” Well many libertarians (and Libertarians) would disagree with you. I, however agree with you, you shouldn’t kill a trespasser on your land. BUT, that’s because ownership of external property (land) is a weaker, less intimate form of ownership than ownership of your body.

          1. Intent to enter is required. A gestating fetus has no intent to do anything.

            BUT, that’s because ownership of external property (land) is a weaker, less intimate form of ownership than ownership of your body.

            And it’s morally outrageous that the totally foreseeable and very temporary deprivation of absolute control of one’s body outweighs another, completely innocent person’s right to live. Talk about the lack of proportionality.

      2. Please explain how the fetus got inside the womb.

        If I invite you to take a flight in a Cesna I’m piloting and do not explicitly tell you that I will bring you back and you will be in the plane when we land do I get to claim trespass midway through the flight and have the right to toss you out the door at 10,000 feet?

        1. Yes, in the vast majority of cases the fetus was invited inside the womb.

  15. “one thing that stands out about the Texas case is that it was very facts-based: Justices wrote extensively about the effect the law was having on clinic closures, the distance that women had to drive, and their overall access to abortion.

    Which in my understanding is *not* what the Supreme Court should be about. They should not be finders of facts, but arbiters on the law.

    In theory, at least. In fact, they’re just a star chamber than makes shit up to suit their whimsies.

    “Neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,”

    Because a bunch of cloistered geezers in robes are all of a sudden experts in estimating cost benefit ratios in the medical industry.

    State governments make all sorts of idiotic laws restricting our health care freedom. The federal government as well. The medical mafia is just a shakedown racket. But if it’s *abortion*, then hold on their bucko, all of a sudden freedom and access matter.

    1. I’m actually pro abortion, and I agree with the claims – the laws are transparent attempts to limit abortion rights, and all the talk of safety is just rationalization to limit access. But I’m just sickened by the similarly transparent court actions to limit or grant state power based on political expedient.

      There’s no rule of law. It’s hypocritical, arbitrary power all the way down, but at least the Texas legislature was elected, and can be voted out.

      The Powers that Be shriek about the “authoritarianism” of Trump, who has never actually wielded a scintilla of government power, while the everyday rule of government at all levels is authoritarian in every action. Rule of Law is kaput, and we’re treated to these inane kabuki dances pretending otherwise. Rule of Law theatre.

      This is one of those moments when Moldbug appeals. If we’re going to be ruled by arbitrary power, let’s be honest about it and stop pretending otherwise.

      1. By that reasoning you could say, get rid of Second Amendment protections, since the government is violating so many other rights (like the entire Ninth and Tenth Amendments). Things can always get worse…

        1. The Constitution, the 2nd Amendment, were supposed to protect us against arbitrary power.

          They have failed. I think the pretense otherwise likely only makes things worse.

          1. Okay, but then what? Armed revolution? Or just decide to go along with the big government/big business axis, because if you can’t beat them, join them?

  16. We learned the abortion wing had completely gone off its nut when the Kermit Gosnell affair (aka, completely unambiguous infanticide was treated like a non-event.

    1. Well, maybe not a non-event, but much of the coverage seemed to turn on “THEY’RE TOUCHING OUR ‘BORTIONS! ATTAAAACK!!!”

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  19. “…is abortion a limited right subject to strong state subjectivity or a fundamental constitutional right with which legislatures may not interfere?”

    I’d be curious which constitutional amendment mentions abortion as a fundamental constitutional right. Comparing this to gun ownership is facile since it actually is a constitutional right whereas abortion is not. I’m not making a judgment on that one way or the other, this is simply a fact in my view.

  20. It seems to me that this ruling says a state can regulate a medical procedure. It could actually be the crack that demolishes the licensing regime. I think it would be awesome, but is it really what progressives want? I know they have abortion blinders on, and all that matters is having more abortions, but is this really the ruling that want to stand on?

  21. This is such a contorted ruling and really shows cracks in how the government picks and chooses how personal agency and property rights get protected or not. Apparently all those medical regulations aren’t legitimate if they make it hard to get medical care, which means cheaper unregulated medical procedures are constitutionally justifiable because the cost of healthcare damn well makes it hard to get for large parts of the population.

    I think we’re just witnessing continued protectionism of the abortion at all cost by people who in every other area of life would love to see more regulation and more government quality control, and ironically it’s at the expense of quality of care for women seeking abortions. Obviously the geographic spread of abortions is more important than the safety infrastructure of abortion clinics.

  22. “the Constitution protects not just the theoretical right to abortion, but the right of a woman to actually get one …”

    This must be the secret, invisible constitution that only the supreme court and the leftists can read.

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  24. “Targeted” regulations would mean that physicians performing similar operation don’t face similar requirements. Is that really the case? Or is this really another truth reversal, in which liberals who reject regulations on abortion they accept everywhere else falsely accuse their enemies of behaving the same way? I would also suggest you think of Kermit Gosnell, but I doubt a staunch Molochite would allow herself to remember his name.

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  26. From Justice Thomas’ dissenting opinion:

    “…the very existence of this suit is a jurisprudential oddity. Ordinarily, plaintiffs cannot file suits to vindicate the constitutional rights of others. But the Court employs a different approach to rights that it favors. So in this case and many others, the Court has erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortions.”

    This case was brought by businesses to protect their financial interest, not by the women who might have an interest in access to abortion services. Thus, the court might have inadvertently set a standard and precedent whereby clinic closures become a litmus test for whether this “right” has been abridged. Of course, that would require the application of consistent logic rather than partisan affection for abortion.

    Shouldn’t Reason be concerned about SCOTUS indulging in this sort of switcheroo?
    http://www.supremecourt.gov/op…..4_p8k0.pdf

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