When the Supreme Court reviews the Texas abortion case, Whole Woman’s Health v. Hellerstedt (formerly Cole), abortion providers’ deadly game will have prompted a discussion about what is more important: “access” to the current back alley of abortion now offered by an industry that puts profits over people, or commonsense health and safety standards the Court has historically supported. The stakes are high—life and death—and encompass more than whether the Texas provisions in House Bill (HB) 2 are constitutional.
To be sure, the law Texas passed in 2013—requiring abortion clinics to meet commonsense health and safety standards and requiring abortion providers to have admitting privileges at a local hospital—is front and center. However, the abortion providers challenging HB 2 are actually arguing for a complete upheaval of the Supreme Court’s abortion precedents.
Defending state leaders working to protect women, this week Americans United for Life’s legal team filed an amicus curie (friend of the court) brief on behalf of more than 450 bipartisan and bicameral legislators and lieutenant governors from states that the Court’s decision in the case will affect. The brief demonstrates that the plaintiff abortion providers are blatantly ignoring the Supreme Court’s previous decisions because those decisions devastate their case.
Women’s Safety Should Be Paramount
For example, the Supreme Court has repeatedly made clear that states have an interest in protecting maternal health from the outset of pregnancy. In fact, in Roe v. Wade the Court explained that states could regulate abortion to ensure “maximum safety” of women, including regulations involving the performing physician and his staff, the facilities involved, the availability of after-care, and the adequate provision for any complication or emergency that may arise.
In other words, Roe itself supports the very provisions the abortion providers are challenging in Hellerstedt. Strike one against the abortion providers.
Moreover, the Court has repeatedly given state and federal lawmakers “wide discretion” to enact abortion regulations when the medical community disagrees about the safety of an abortion procedure or the effect of a regulation. In fact, the Court terms this the “traditional rule” and holds that such medical disagreement is “sufficient basis” to preclude the abortion providers’ claims entirely.
Here, expert medical testimony presented to the legislature before HB 2 was enacted, along with evidence presented in the trial court, demonstrate the need for comprehensive safety regulations in the abortion clinic setting. The abortion providers disagree and offer their own experts to counter the state’s data, but Supreme Court precedent demands that such disagreement be resolved in favor of the state. Strike two against the abortion providers.
Strike Three Against Women
In addition to ignoring the Supreme Court’s prior abortion decisions, the abortion providers ignore the clear health risks women face in unregulated, substandard clinics. Over the last six years, more than 175 abortion providers in at least 30 states and DC have faced investigations, criminal charges, administrative complaints, and civil lawsuits related to the provision of abortions. Enacting medically appropriate and comprehensive health and safety standards for abortion providers is a critical and sensible solution to the problem of unsafe abortions in America.
In her floor statement supporting HB 2, Texas Sen. Donna Campbell, an emergency room physician, explained the reasonableness of such standards. For example, back-up generators are necessary in case a procedure is in progress when electricity goes out. Wider hallways are necessary to bring in a gurney in the case of a medical complication. Requirements as simple as lockers and janitors’ closets are necessary to keep contaminants out of the operating room.
Unfortunately, abortion providers value “access” to the squalor of clinics like that of Kermit Gosnell over protecting women through commonsense health and safety regulations. Strike three.
Upset Abortion Jurisprudence to Protect Substandard Care?
Of course, the Supreme Court’s prior precedents, which clearly support the provisions in HB 2 and the state’s interest in protecting women from substandard clinic conditions, are not convenient for the abortion providers. What to do when the law is not on your side? Their answer appears to be ignore it and argue something else.
In short, the abortion providers are urging the Court to ignore the states’ interest in protecting women’s health and the deference that must be afforded to the state legislature, and instead adopt a new standard which requires states to prove the effectiveness of a law in protecting women’s health before such a law is in effect. In legal terms, they are arguing for a “strict scrutiny” standard—the highest level of review the Court uses in evaluating constitutional claims, and a standard the Court has explicitly rejected in the context of abortion.
Should the abortion providers prevail in toppling four decades of abortion jurisprudence, current and potential future regulations would be directly impacted. At least 10 states maintain measures similar to those at issue in HB 2, and some of those laws are currently in litigation. As the Guttmacher Institute reported in January, states have enacted 231 abortion regulations in the last four years alone. Each of those laws would be in the abortion industry’s crosshairs should the Court cave to the abortion providers’ demands in Hellerstedt.
Indeed, it is time for the Supreme Court to unequivocally affirm that it meant what it said as far back as Roe: states may regulate abortion to protect maternal health. The health and safety of women depends upon it.
