Why Don’t Consumer Protections Apply To The Abortion Industry?

Why Don’t Consumer Protections Apply To The Abortion Industry?

In making access the measure of scrutiny for abortion regulations, the Supreme Court has made it nearly impossible to enact the kind of consumer protections that apply to all other industries.
Nick Dusek
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The argument for consumer protection laws, as the name implies, is that they protect consumers from harmful business practices and hold accountable the businesses that engage in them. We accept, and some even welcome, consumer protection laws in nearly all industries, and as new products and services are created, new regulations follow closely behind. The Left is particularly active in demanding regulations from here to Sunday on myriad market interactions, restricting the ability of individuals to make decisions as they see fit.

Yet one industry seems to be immune to consumer protection, and at the Left’s overt insistence: the abortion industry. For abortion, all talk of consumer protection is cast aside to guarantee unrestricted access to medical procedures that threaten the health of the many women who seek them (not to mention its effects on their babies). A recent Texas law requiring “admitting-privileges and the surgical-center requirements” for abortion facilities “place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution,” the Supreme Court recently ruled in its 5-3 decision in Whole Woman’s Health v. Hellerstedt.

To understand why abortion is the exception to the consumer protections rules, we need to understand what consumer protection law is and how it is applied.

Four Basic Consumer Protection Principles

Consumer protection law is not a single unified body of law, but rather a series of separate laws governing specific industries, products, and practices. As HG.org, a legal information site, explains, these laws “have come into existence through a series of legal disputes, and have been shaped by the results of those cases.” According to their website, there are four basic consumer “rights” that, although they are not officially codified, are generally acknowledged as the basis for these laws. These are the principles of safety, information, choice, and petition (or “to be heard”).

A consumer’s right to safety is probably the most apparent in our everyday lives. Products are constantly being recalled over consumer safety concerns, and although the majority of product recalls are voluntary, companies found to have knowingly neglected a safety issue in one of their products are often held legally responsible in the lawsuits that ensue.

If an airbag, instead of cushioning your head and neck in a crash, releases metal shrapnel with deadly force, that product should be recalled. If flour, granola bars, or frozen vegetables are found to contain potentially deadly food-borne bacterial pathogens, those products should be recalled. If a certain types of furniture tend to fall on and kill small children, they should be recalled. As consumers, we expect a reasonable standard of safety in the products and services we purchase, and if there is something unsafe about them, we should know.

That brings us to the next point. The second implied right of consumers, the right to be informed, is important because without adequate information, we can’t make good decisions. One of the most common applications of this right is nutrition facts labeling, which requires listing all ingredients and dietary information on food products.

The right to information also underlies many of the consumer protection laws in finance. For example, the Truth In Lending Act requires, among other things, that the terms of a loan or credit card be spelled out in plain language to protect consumers from predatory lending.

The third right, the right of consumers to choose, is understood as the right to have multiple choices of the same product, or a lack of market monopolies. The availability of multiple choices increases competition in free markets, which leads to increases in product quality and decreases in price. This right is invoked as the key reason for preventing monopolies from forming in certain industries, and was applied, in a general sense, in a recent court decision where the D.C. Circuit Court of Appeals sided with the Federal Communications Commission in saying that Internet service providers (ISPs) must treat all Internet traffic as equal—an idea that has come to be known as “net neutrality.” The argument in favor of net neutrality was that allowing ISPs to prioritize certain traffic over others allows them to reduce consumer choice.

Lastly, the right to be heard can be rephrased as the right of consumers to seek redress. In other words, if consumers think a certain business or industry is not responding to their concerns about safety, information, and choice, they have a right to be listened to and have their concerns investigated.

Taken together, these implied consumer rights provide the framework for ensuring that businesses act with honesty and integrity. Although the scope of each of these principles can be debated in specific cases and many counterproductive regulations are applied in the name of consumer safety, most of us agree that consumer protections, when applied appropriately, are a good thing.

Abortion: Where We Don’t Protect Consumers

Consumer rights and protections were at the center of the Hellerstedt, where the court aimed to assess the constitutionality of Texas laws requiring abortion clinics to meet the same facility and hospital admitting requirements as other surgical centers. The court’s majority opinion, as cited above, found that requiring abortion facilities to meet health and safety standards equal to similar outpatient surgical facilities was an “undue burden on abortion access,” and thus violated Supreme Court precedent creating an abortion-allowing right to privacy not found in the U.S. Constitution.

In other words, patient safety is a legitimate interest, but is not as important as availability. In holding up access to abortion as the measure of scrutiny for abortion regulations, the court has made it nearly impossible to enact the kind of consumer protections that apply to all other industries. But more than just contradicting the precedents set by countless consumer protections cases, the justices of the majority opinion contradict their own views of constitutional rights.

As an example, it is almost impossible to imagine any of the more liberal members of the Supreme Court applying this same reasoning to the Second Amendment, saying that criminal background checks and waiting periods constitute an undue burden on access to firearms, thereby violating the Constitution. In fact, we are constantly hearing that “constitutional rights aren’t absolute” and that “all rights have boundaries”—that is, all rights except for abortion.

No, the Supreme Court has made it clear that whatever laws exist to protect consumers from harmful business practices, they don’t apply to abortion, that the women who seek abortion only have a right to access, not safety. Even the right to be heard is discarded, as court completely neglected the testimonies of women the abortion industry has harmed. The Supreme Court decision in Whole Woman’s Health v. Hellerstedt demonstrates that, when it comes to abortion, the goal is not to protect women, but to protect a political ideology: “Abortion, on demand and without apology”—or safety.

Nick Dusek lives and works in Fargo, ND, and holds a degree in biotechnology from North Dakota State University.

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