Reading the headlines on the case Whole Woman’s Health v. Hellerstedt, you might think Texas passed laws on “abortion access,” as CNN put it, or aiming to undermine Roe v. Wade. In the actual ruling, the Supreme Court struck down a law which held abortion clinics to higher medical standards, something arguably necessary after the horrifying stories of Kermit Gosnell’s “house of horrors” in Philadelphia, PA. (Gosnell received life in prison).
In a dramatic 5-3 ruling, the Court struck down Texas’ House Bill 2 on Monday. Justice Stephen Breyer, a Bill Clinton appointee, argued in the Court’s opinion that “there was no significant health-related problem that the new law helped to cure.”
The law had two provisions at issue: one saying that doctors have to have local admitting privileges at nearby hospitals, and another saying that clinics have to upgrade their facilities to hospital-like standards. Critics said the law would force abortion clinics to close, creating a problem of access for the 5.4 million women of reproductive age in the state. Nevertheless, the laws were not focused on abortion access but increasing health standards for the clinics.
“We agree with the District Court that the surgical-center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so,” Breyer wrote.
Justice Anthony Kennedy proved the swing vote, joining Breyer in the majority, but declining to write a concurring opinion. “The fact that Justice Kennedy gave away this opinion assignment and didn’t write separately is striking,” CNN contributor and law processor at American University Steve Vladeck told CNN.
“Kennedy has not only been the swing vote on abortion issues since he joined the Court in 1988, but he has written an opinion in virtually every major abortion case during that time, including the majority opinion in the Court’s controversial 2007 decision upholding the federal ban on so-called ‘partial birth’ abortions,” Vladeck added.
In a bitter dissent, Justice Clarence Thomas tore apart the decision as nothing less than rampant judicial activism. “As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat,” Thomas wrote.
“The court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution,” Thomas added. “But our Constitution renounces the notion that some constitutional rights are more equal than others.”
Next Page: Judicial activism, and reports of a second Kermit Gosnell in Texas — suggesting these bills had a good reason.
“A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment,” Thomas wrote. “Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”
Thomas would have upheld the laws, but another dissent, written by Justice Samuel Alito and joined by Chief Justice John Roberts, argued that the Supreme Court should have sent the laws back to lower courts to be decided only after more evidence was presented. Alito accused the justices who decided the case of creating new arguments against the Texas laws.
“Determined to strike down two provisions of a new Texas abortion statute in all their applications, the Court simply disregards basic rules that apply in all other cases,” Alito wrote. “The Court favors petitioners with a victory that they did not have the audacity to seek.”
Alito added that the two laws should have been dealt with separately, and that the Court should not have struck down the entire law. “If some applications are unconstitutional, the sever ability clause plainly requires that those applications be severed and that the rest be left intact. … How can the Court possibly escape this painfully obvious conclusion.” He mocked the decision, saying the Court argued “it need not honor the sever ability provision because doing so would be too burdensome.”
Apart from the legal arguments, there is a truly terrifying part of this case. According to reports in 2013, there was a “second Kermit Gosnell” in Texas. Another example of an abortion doctor failing to keep his clinic up to health standards and putting the lives of women at risk seems an apt reason to consider laws like H.B.2 at least understandable.
“How shabby are these abortion clinics that they cannot meet the minimum standards and other outpatient surgical centers are required to meet, and just how bad are these abortionists that they can’t get admitting privileges at a local hospital?” asked Carol Tobias, president of the pro-life organization National Right to Life.
“As we saw with Kermit Gosnell in Philadelphia, it’s clear that the lucrative abortion industry is not able or willing to police itself and allows filthy, deplorable conditions to go unchecked,” Tobias added. She argued that “in the years following Roe v. Wade, the Court exhibited extreme hostility to regulation of abortion as a medical procedure.”
This changed in the 1992 Planned Parenthood v. Casey decision, when the Supreme Court rejected the idea of it being “the country’s ex officio medical board,” but in this case the Court “reversed course and decided they know better than representatives duly elected by the people of the United States.”