On Friday, the Supreme Court agreed to hear an appeal involving a challenge to a Louisiana law that requires abortionists operating in the state to maintain admitting privileges at a nearby hospital. As the first abortion case to be considered by the high court since the confirmation of Justices Neil Gorsuch and Brett Kavanaugh, the significance of this development cannot be overstated.
Yet it is not just the new composition of the court making this case consequential, both legally and politically. The case proves of further significance because the details buried in the briefing expose the abortion industry as a self-interested player putting women’s health at risk under the false flag of Roe v. Wade.
Kennedy Affirms Garbage Abortion Precedent
When news broke late last week that the Supreme Court’s 2019-2020 term would include the high-profile abortion case of June Medical Serv. v. Gee, Sec., LA Dep’t of Health, the press quickly focused on the change in the make-up of the high court since the Supreme Court struck down a similar Texas law in 2016. The 2016 decision of Whole Woman’s Health v. Hellerstedt followed the sudden death of Justice Antonin Scalia. The court in a 5-3 decision held that Texas’s requirement that abortionists maintain admitting privileges at a hospital within 30 miles of their abortion facility was unconstitutional.
Since then, the Senate has confirmedGorsuch to replace Scalia, and Justice Kennedy—who sided with the liberal wing of the court in Whole Woman’s Health—has retired and been replaced by Kavanaugh. With two more originalists on the court, abortion apologists fear Whole Woman’s Health risks being overturned. Others, though, speculate that a respect for precedent may push Justice John Roberts to switch his previous vote and instead affirm Whole Woman’s Health.
There is yet a third option: The Supreme Court could uphold Whole Woman’s Health yet conclude that the facts in the Louisiana case are distinguishable from those at play Texas. In upholding the Louisiana law, the Fifth Circuit Court of Appeals took that tack, explaining:
Careful review of the record reveals stark differences between the record before us and that which the Court considered in [Whole Woman’s Health.] Almost all Texas hospitals required that for a doctor to maintain privileges there, he or she had to admit a minimum number of patients annually. Few Louisiana hospitals make that demand. Because Texas doctors could not gain privileges, all but 8 of 40 clinics closed. Here, only one doctor at one clinic is currently unable to obtain privileges; there is no evidence that any of the clinics will close as a result of the Act. In Texas, the number of women forced to drive over 150 miles increased by 350%. Driving distances will not increase in Louisiana. Unlike the record in Louisiana, the record in Texas reflected no benefits from the legislation. Finally, because of the closures, the remaining Texas clinics would have been overwhelmed, burdening every woman seeking an abortion. In Louisiana, however, the cessation of one doctor’s practice will affect, at most, only 30% of women, and even then not substantially.
Yet a Third Possibility
There is still another possibility that has yet to garner much media attention: The Supreme Court could hold that the abortion providers lack standing to challenge Louisiana’s admitting-privileges law.
While Louisiana had argued against the Supreme Court taking the June Medical Serv. appeal, alternatively, it contended in a “conditional cross petition” that if the high court intervened, it should further determine whether the abortion providers litigating this matter have standing, or the right to sue, on behalf of women. In agreeing to hear the abortion providers’ appeal, the Supreme Court also granted Louisiana’s cross petition to resolve that issue.
Of the two questions before the Supreme Court, this latter question of whether abortion providers have standing to challenge the Louisiana law presents the bigger risk to abortion apologists, both legally and politically.
Legally, since a plurality of the Supreme Court in 1976 in Singleton v. Wulff concluded that it would “‘generally [be] appropriate’ for abortion providers to challenge abortion regulations on behalf of their patients,” the Supreme Court and “lower courts have assumed abortion providers have standing to represent their patients’ interests.” However, as Louisiana argued in its brief, that proposition is suspect and given the Supreme Court granted the state’s cross petition, it appears the high court believes that issue deserves further consideration.
Should Louisiana convince a majority of the Supreme Court that this assumption cannot stand, the legal ramifications would be huge. No longer could the abortion lobby march from the capital to the courthouse with a parade of horribles in tow. Instead, actual women alleging a real constitutional injury would need to pursue the litigation. And it will be more difficult for individual plaintiffs to hide behind the rhetoric of hardship that abortion providers bandy about.
Abortion Industry’s Terrible Record on Women’s Health
The political risk is even greater because Louisiana’s argument exposes the dark underbelly of the abortion industry. Here is the overview of the argument made in its petition to the Supreme Court:
Plaintiff abortion providers, nominally proceeding on behalf of their patients, challenge a law intended to provide patients with greater health and safety protections by ensuring abortion doctors are subjected to meaningful, ongoing credentialing review by their peers. Yet there is little evidence that their patients’ interests actually align with Plaintiffs’ position that the burdens of such protections exceed their value. On the contrary, undisputed record evidence (including of Plaintiffs’ poor safety record, inadequate credentialing practices, and questionable efforts to undermine the law at issue) shows Plaintiffs are directly adverse to their patients.’
The details will shock the public and destroy the many abortion apologist talking points. For instance, the “abortion is a matter between a woman and her doctor” soundbite cannot withstand the reality there is not “her doctor” involved.
Instead, “the doctors’ interactions with patients are limited” and the “doctors may see as many as thirty patients per day for only a few minutes each.” And “the required pre-abortion counseling is often not provided by the doctor who performs the abortion, but by different doctors hired solely for that separate purpose.” So, “apart from the brief procedure itself, an abortion provider may not interact with a given patient at all.”
Then there is the evidence Louisiana highlights to illustrate how the abortion providers’ objections to the admitting privileges mandate directly contradict the interests of the women on whose behalf the doctors claim to be speaking. Plaintiff Doe 1 provides a perfect case in point. He was one of the only abortion providers to make a good-faith attempt to obtain admitting privileges, but was denied that privilege.
And no wonder! “Doe 1, a graduate of Saba University medical school in the Dutch Caribbean, is not an obstetrician or gynecologist. Instead he is a specialist in ‘Family Medicine and Addiction Medicine’ — and he has never actually practiced family medicine.” Additionally, “Doe 1 conceded he had no training in abortion practice during his medical school or residency; instead he was principally taught on-the-job by Doe 3.”
Doe 1 is not an anomaly. Doe 3, who served as the medical director for the plaintiff abortion facility, “admitted he hired a radiologist and an ophthalmologist to perform abortions there and when hiring doctors he performs no background check and makes no inquiry into their previous training,” and “such poor hiring and credentialing practices are common among other Louisiana abortion clinics, which ‘beyond ensuring that the provider has a current medical license, do not appear to undertake any review of a provider’s competency.”
Doe 1, Doe 3, and the abortion clinic may object to the admitting-privileges law because it will keep unqualified doctors from performing abortions and force clinics to expend more resources to retain qualified and competent physicians, or close, but those interests are very different than that of the women whose interests they claim to represent in challenging this law.
‘Horrifying’ Safety Violations
The clinics litigating this case likewise have interests far different than the women whose interest they purport to champion. As Louisiana detailed in its petition:
The Plaintiff clinic in this case has a history of serious regulatory violations which the panel characterized as ‘horrifying.’ It was undisputed at trial that the Plaintiff clinic has been cited for improper administration of intravenous medications and gas, failure to document patients’ physical examinations, administration of anesthesia by employees who were not qualified, inaccurate reporting of abortion procedures to the State, and miscalculation of medication dosages, among other violations. In 2012, [the Department of Health] revoked the Plaintiff clinic’s license for failure to comply with health and safety regulations. The underlying documents related to the Plaintiff clinic, which were admitted into evidence under seal, contain even more violations.
Eerily striking in similarity to these details from Louisiana’s petition are the facts that shuttered now-deceased George Klopfer’s Indiana abortion facilities. Before the nation ever heard his name after more the remains of more than 2,000 unborn babies were discovered stored in his rural Illinois home, Indiana state officials were well familiar with the man known as the most prolific abortionist in the Hoosier state.
A law like the Louisiana one led to closing Klopfer’s Fort Wayne facility well before his death. At the time, Klopfer ran a circuit of abortion facilities, driving to different locations to perform abortions. After several of his Fort Wayne patients ended up in the emergency room, the local county passed an ordinance “requiring traveling doctors to have backup physicians that could take their patients in case of complications.”
Dr. Geoffrey Cly originally agreed to serve as Klopfer’s backup. But Cly, who had previously testified that Klopfer had injured his patients “being sloppy and leaving pieces of tissue and fetuses inside,” stepped down after learning Klopfer had performed an abortion on a young rape victim and failed to report the abuse to authorities. Unable to find another backup physician, Klopfer’s Fort Wayne clinic was forced to close.
To the abortion provider, it is the law that shuttered the clinic and deprived women of access to abortion, when in reality, the law served its purpose of protecting women. Louisiana made a solid argument in its petition that this conflict in interests prevents abortion providers from obtaining third-party standing to assert a woman’s constitutional right under Roe v. Wade, and its progeny. And the Klopfer case just gave them more ammunition to illustrate this point.
It is unlikely the latest horror will sway the liberal wing of the court, however, as the Whole Women’s Health case came on the heels of abortionist Kermit Gosnell’s conviction, yet had no impact on the majority’s analysis. But with Kennedy gone, the question is whether it will resonate with the new swing justice Roberts—at least enough to push him to rule abortion providers lack standing absent evidence they can adequately represent their patients’ interests.