As hundreds of thousands of protesters descend on the nation’s capital for the March for Life, pro-life lawyers are zeroing in on June Medical Services v. Gee, the Supreme Court case centered on Louisiana’s law forcing abortion clinics to have admitting privileges at a hospital within 30 miles. One particular legal issue in that case could upend the current state of abortion law and undermine almost every pending lawsuit on the issue.
“It would have an impact on every case pending in the courts today on abortion,” Catherine Glenn Foster, CEO and president of Americans United for Life (AUL), told PJ Media.
Foster said she does not expect the Supreme Court to overturn Roe v. Wade (1973) or the other major precedents on abortion in this case, but she did predict that the Court might effectively dismiss every lawsuit filed by an abortion clinic claiming to represent the rights of women.
“I’m not expecting them to overturn Roe on this case,” she told PJ Media. However, “the court decided to hear the issue of whether an abortion facility should have the right to go to court and claim to represent the women who are protected by the law. That could be potentially game-changing for all the cases having to do with abortion that are out there right now.”
Most abortion litigation follows a similar model: an abortion clinic sues to fight state regulations, claiming to represent the women getting abortions. But the whole situation is perverse.
“It’s wrong for abortion providers to come into court and pretend they represent the women’s interests,” Denise Harle, legal counsel at Alliance Defending Freedom (ADF), told PJ Media. In the case of June Medical, “this Louisiana law protects women’s health and safety. The abortion doctors want a special exemption so they don’t have to abide by these standards, when in fact they’re just looking out for the interests of the abortion industry.”
“This is the fox guarding the henhouse,” Harle insisted.
“Women are capable of speaking for themselves. They can defend their constitutional rights, and if they don’t like a law, they can come challenge it,” the ADF lawyer said. “But it’s not right for an abortion clinic with a conflict of interest to claim to speak on their behalf.”
“The abortion doctors are challenging requirements like sterilizing their instruments,” Harle noted, referencing one of the provisions in the Louisiana law. “We’re never going to hear a woman say, ‘I don’t want doctors to sterilize these instruments before they start working on me.'”
“It’s almost always Planned Parenthood or another abortion clinic is the plaintiff” in abortion cases, the ADF lawyer explained. She paraphrased their arguments: “We don’t want to perform ultrasounds, we don’t want to provide a woman 24 hours to consider this serious procedure. We don’t want women to see their child, hear their heartbeat, learn about what the abortion actually does.”
“You can’t find any other part of law where a third party with a conflict of interest is allowed to file a lawsuit. We need to bring them in line with the rest of the law of the land,” Harle insisted. “You’re not going to find women who say, ‘I don’t want my clinic to keep safe, unexpired medication on hand. I don’t want my abortion clinic to use anti-septics to clean instruments. I don’t want the ability to see an ultrasound image.'”
“The other side is going to be very hard-pressed to find women who don’t want health and safety protections that are completely commonsense.”
Many abortion advocates may argue that hospital admitting privileges are an onerous restriction on abortion clinics, but Foster pointed out how essential these privileges would be if an abortion results in complications.
She recalled going to the hospital for a broken foot. “It was almost empty but I still sat there and waited for almost six hours. Thinking about a woman in this kind of situation, a woman who has already been through an arguably traumatic experience, now she’s injured. Now, she’s hemorrhaging, she has sepsis. And show she has to sit there for hours?”
“We’re talking about life and death on the line,” Foster added, chillingly.
“We’ve had times when a woman was waiting for hours in a hospital after an abortion and the hospital doesn’t really know what’s going on. The terrified woman is waiting, not knowing that her uterus may have been perforated, her bowel may have been perforated, and no one knows she just had an abortion,” the AUL president explained.
Hospital admitting privileges would allow an abortionist to smoothly transfer medical records to a hospital, to escort a woman with abortion complications to an operating room so that the abortionist could then work to save her life.
“It’s hard to think of anything less that they would do,” Foster insisted. “How else do you ensure that the woman has a smooth transfer and that the doctor is with her if we want women to be protected?”
She pointed to a recent survey showing that 78 percent of Americans agreed with the statement, “Regardless of my personal views on abortion, I believe physicians performing abortions should be able to transfer women who experience complications directly to the emergency room as necessary.” Only 4.8 percent of Americans disagreed.
Another 73 percent of Americans in the survey said they would support “states being able to pass safeguards that ensure abortion facilities are in compliance with basic medical practices and sanitation.” Only 11.9 percent opposed this freedom for states.
More than 200 members of Congress — including two Democrats — signed a petition urging the Supreme Court to strike down the “conflict of interest” regarding an abortion clinic’s ability to sue on behalf of the women it wants the freedom not to protect. That petition also urged the Court to reconsider the precedents of Roe v. Wade.
At the March for Life, Americans will protest Roe on its 47th anniversary. Even if the Supreme Court does not reconsider Roe and the following precedents, striking down the practice of “the fox guarding the henhouse” would have powerful reverberations for abortion law.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.