By Lynn Wardle
Less than three months ago, on June 27, 2016, in Whole Woman’s Health v. Hellerstedt,579 U.S. __, 136 S.Ct. 2292 (June 27, 2016), the Supreme Court sadly, but not surprisingly, struck down two common-sense Texas health regulations of abortion clinics. The decision is sad because, once again, the Court has given priority to abortion providers over the health and safety of women. It is not surprising because the Court (at least the liberal wind of the Court) is institutionally invested in propping up and maintaining its judicially-created abortion doctrine.
In the forty-three years since the ruling in Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court has decided fifty abortion cases that can be called important decisions, not counting about a dozen additional abortion decisions that were mostly procedural or peripheral to abortion access.
The Supreme Court’s abortion cases expose a very clear policy preference and very strong adult-autonomy and a continuing refusal to consider any countervailing interests of the unborn child or of morality or significant social and health consequences. In most of the cases, most of the justices have been very protective of access to abortion, and have ruled in favor of abortion providers (abortion clinics, doctors, etc.). Most of the majority opinions in those Supreme Court cases have been very skeptical of, if not openly hostile to, attempts by state legislatures to restrict abortion – or even simply regulate abortion for health and safety reasons.
The decision in Whole Woman’s Health is a clear example of the willingness of the Court to invalidate even ordinary health and safety regulations applicable to abortion.
In 2013, Texas had enacted legislation requiring (1) abortion doctors to have admitting privileges at a hospital within 30 miles of their abortion facility, and (2) abortion clinics to meet the standards for ambulatory surgical centers (ASC). Those Texas regulations were enacted in response to the scandal involving Dr. Kermit Gosnell whose Philadelphia “House of Horrors” abortion clinic and practices led to his conviction and imprisonment that year for killing three children born alive during late-term abortions he performed, as well as the death of an immigrant young woman as a result of his abortion.
Texas was not alone in enacting such abortion safety regulations. Nearly two dozen other states also enacted similar laws. The Guttmacher Institute reported in March 2016 complaining that many states had strict laws regulating abortion facilities (24 states), abortion licensing (22 states), and abortion personnel or clinicians (14 states).
A Texas abortion clinic, Whole Woman’s Health, sued seeking to enjoin enforcement of the new Texas abortion regulations, and a federal district court enjoined the new laws. On appeal, however, the 5th Circuit reversed, and held that the laws properly and constitutionally protect women’s health.
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