Commentary

First Major Abortion Case in Nearly a Decade Will Go Before SCOTUS This Wednesday

Elizabeth Slattery
By Elizabeth Slattery | February 29, 2016 | 10:32 AM EST

In this 2013 photo, an anti-abortion rights supporter holds a crucifix and prays while opponents and supporters of abortion rights gather in the Texas State Capitol as lawmakers debated abortion restrictions. The U.S. Supreme Court will soon weigh in on the legality of the law. (AP Photo/Tamir Kalifa)

On Wednesday, the Supreme Court will hear oral argument in the first major abortion case in nearly a decade.

In the case Whole Woman’s Health v. Hellerstedt, the Supreme Court will consider whether Texas’s H.B. 2 law—a common-sense reform intended to increase women’s health and safety—meets the test laid out in prior cases.

Texas passed H.B. 2 in 2013 to ensure that women are not subject to substandard conditions or practices at abortion clinics that could jeopardize their health and even lives. This came on the heels of Philadelphia abortion doctor Kermit Gosnell’s murder trial—which brought to light dangerous and unsanitary conditions at his clinic.

The Texas law requires abortion clinic doctors to have admitting privileges at a hospital within 30 miles of the clinic and clinics to meet the minimum health and safety standards that other ambulatory surgical centers have to meet. These include standards for the operation of a facility (including requirements to ensure quality of care, facility cleanliness and safety, adequate staffing, and safe pathology and medical laboratory services, among others), and fire prevention and safety, among others.

The Court’s current abortion jurisprudence reflects three guiding principles:

  1. The state maintains legitimate and important interests in protecting the mother’s health and safety and the life of the unborn child throughout pregnancy.
  2. Before viability (which is at 23-24 weeks gestation), states may pass regulations that do not have the purpose or effect of imposing an undue burden on women who are seeking abortions.
  3. After viability, states may ban certain abortion procedures outright, provided there is an exception for the mother’s health.

The abortion clinics and doctors challenging the law argue that Texas is not trying to advance women’s health, but is simply attempting to shut down abortion clinics. There is ample evidence, however, that these regulations are necessary to advance women’s health and safety.

When the Texas legislature considered passing this law, it heard testimony from numerous medical professionals about the benefits of admitting privileges and ambulatory surgical center standards, as well as the serious complications that can result from abortion. One doctor testified that these requirements “keep the patients safe” and that “simple things like physical plant requirements to have a generator in case the power goes out [and] CPR training” are essential in the event of complications. Texas points out that the Supreme Court upheld a stricter ambulatory surgical center requirement in Simopoulos v. Virginia (1983), “recognizing that it furthered the legitimate state interest in ensuring patient health.”

Texas also argues that the challengers are trying to “upend” the undue-burden test and turn the courts into “medical board[s] with powers to approve or disapprove medical and operative practices and standards throughout the United States,” thereby overriding legislative determinations.

Though some abortion clinics may close because they are either unable or unwilling to meet the ambulatory surgical centers requirements, that does not transform the law into an undue burden. As the Supreme Court explained in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the fact a law might make it more difficult or more expensive to obtain an abortion does not mean they are per se undue burdens.

Moreover, as Texas notes, “an abortion clinic will remain operational in each metropolitan area where petitioners allege one would close if the Court affirms… . Over 90% of Texas women of reproductive age will live within 150 miles of an operational abortion clinic.” Thus, the challengers cannot show that these provisions impose an undue burden “in a large fraction of cases,” which would be necessary for the Supreme Court to facially invalidate the law.

In the more than 40 years since the Supreme Court invented a constitutional right to abortion, the abortion industry has evaded and fought common-sense regulations at every step. The result has been horrors like those found in the Gosnell clinic, which for years, due to lack of regulation and oversight, harmed women and killed children born alive.

The Supreme Court now has an opportunity to confirm that states have a legitimate interest in ensuring the safety and health of women who enter abortion clinics. The justices would do well to uphold Texas’s reasonable law and reconsider the long, deadly shadow that its abortion decisions have cast over American law, medicine, and society.

Elizabeth Slattery writes about the rule of law, the proper role of the courts, civil rights and equal protection, and the scope of constitutional provisions such as the Commerce Clause and the Recess Appointments Clause as a legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Editor's Note: This piece was originally published by The Daily Signal.

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