No Undue Burden

On Tuesday, the 5^th Circuit Court of Appeals ruled in favor of the state of Texas relating to its abortion law, HB2, passed in 2013.  So it was a good day, correcting a previous bad ruling.

To review, HB2 had two pain pieces. First, it prevents abortion after week 20 of gestation—time point at which science has shown the fetus feels pain, and in line with many other states and nations. While pro-abortion cultists have fought this provision (remember the Wendy Davis filibuster), there has been no challenge to this provision in the courts.

This NYT graphic shows the pre-HB2 number of clinics, left,
and the current number of clinics, right,
with the open circles likely to close after the ruling.

The other main piece requires abortion clinics to have the same standards as other ambulatory surgical centers: doctors need admitting privileges to a hospital within 30 miles, and certain safety and cleanliness standards need to be met.

Back in October 2013, US Federal District Judge Lee Yeakel ruled that the admitting privileges requirement was unconstitutional because it poses an undue burden on women seeking an abortion and has no “rational relationship to improved patient care.”

We discussed the ruling at that time. There were several problems. The judge used the wrong criteria—strict scrutiny rather than undue burden.  He failed to notice that the law puts no undue burden on women at all; it puts the burden on the clinics and their doctors. All the state has to prove is that it has a rationale for the rule—which it does—and then it must not cause a significant and certain undue burden on women seeking legal abortions. I know that sounds convoluted, but it’s the way the Supreme Court has carved out laws and requirements, even though the Court technically has no lawmaking authority.

Texas lawmakers knew the requirements when they carefully crafted the law. If the clinics had their doctors get admitting privileges, there would be no closings. If the clinics met basic health and safety standards, there would be no closings. The state of Texas has singled out exactly zero clinics to close down regardless of standards. The clinics choose to close rather than meet the standards, which are both sensible and attainable.

There have been no plaintiffs, no examples of any woman actually suffering an undue burden. The judge made his ruling on the supposition that some hypothetical woman might someday be burdened, and declared that a significant and certain undue burden. He was overstepping, as activist judges do.

Judge Yeakel had the 5^th Circuit throw out his ruling against Texas’s requirement for a sonogram to be shown prior to an abortion. Again, there was a rationale (fully inform the patient, as with other surgical procedures), and no significant undue burden (a quick sonogram procedure in a clinic that provides sonograms). So one needs to start asking, what was he thinking? Not about the actual law, but about his personal preferences. Judges like that are in the way of justice.

The ruling Tuesday wasn’t a total win for Texas. The Court carved out a single exception, a single doctor, in McAllen, Texas, is not required to get admitting privileges. That could only make sense if there is no hospital within a 30-mile radius that will allow that doctor at that singular clinic to have admitting privileges (for example, if all of the nearby hospitals are religion-affiliated hospitals who choose to refuse him). I don’t know for certain the circumstances yet.

There will still be around ten abortion clinics in Texas, spread out so that travel for a woman is not considered an undue burden. Note that Texas is not required to make sure there are any abortion clinics; the state is simply required to make only reasonable regulations of clinics; the clinics are free to meet the regulations or not do business. It may be that, even that excluded McAllen clinic will close if it chooses not to upgrade to the safety and cleanliness standards. The law will not have caused that; the free choice of the clinic will have caused that.

Governor Abbott predicted, at the time of the 2013 ruling, when he was Attorney General, that regardless of how the 5^th Circuit ruled, it would be appealed to the Supreme Court, and that is the next step. But Texas’ new Attorney General Ken Paxton feels certain Texas will win. My guess is that, if the Supreme Court takes it up, it will be in the 2015-2016 term, with an answer by June 2016. In the meantime, the law stands and continues to function.

Courts and Public Opinions

The Supreme Court reversed its October decision, wherein it decided not to rule on states’ being required by circuit court judges to change their definition of marriage to include same-sex couples.

Maybe you saw what I did there; I did not say states were being told it was unconstitutional to ban gay marriages—for several reasons: 1) the Constitution is silent on that issue, which leaves it to the states; 2) keeping the definition as it has been in most cultures during all the millennia of human history is not a ban, which would require taking something existing away; and 3) people need to be aware that a change in definition of terms for a particular contract is what’s going on, such that marriage would no longer include permanence, exclusivity, and the sexual act required for procreation, but would simply “honor” anyone in any sort of sexual relationship at the current time, regardless of society’s interest in such a relationship.

Anyway, the SCOTUS changed because there is now a split among circuit court rulings, which gave them impetus to rule sooner rather than later. We can expect a decision by late June.

I never like putting matters of basic right and wrong ordained by God into the hands of a few judges (mainly appointed for their leanings). But we can pray that a good decision on their part might be helpful. As president of the Family Research Council, Tony Perkins, said, “Lower court judges have robbed millions of people of their voice and vote on society’s most fundamental relationship—marriage.  There is nothing in the Constitution that empowers the courts to silence the people and impose a nationwide redefinition of marriage.”

So, this decision for SCOTUS to get involved happened Friday, January 16^th. The previous Friday, January 7^th, the 5^th Circuit Court heard oral arguments on the cases before it, relating to Texas. An interesting group of amicus briefs was presented—against same-sex “marriage,” from adults who had been raised by same-sex parents. Their complaints ranged from sexual confusion, to fear of disagreeing with the same-sex “marriage” promoters (risking ostracism from family relationships), to subjugation to sexual predation—apparently unprotected by the parents, and possibly even enabled by those parents.

I find some of what these people suffered to be horrifying. Their testimonies are anecdotal. However, they represent much larger numbers who have feared to come forward. Going against the culture they were raised in puts at risk the relationships they have reason to value.

The prescribed claim being made about “same-sex families” is that children raised by same-sex couples differ in no particular way from those raised by heterosexual couples. It might look like a pleasant claim, but it’s unsupportable. Studies have generally compared such children to children raised by heterosexual unmarried parents—which have significantly poorer outcomes than children raised by their married mother and father. More evidence is coming out that, not only are these children not better off than other children lacking a mother or father; these children also have the addition of sexual confusion and other sexual-related problems (overly sexual at a young age, inappropriate sexual relationships with much older adults, promiscuity, prostitution).

If the question is what is best for the children, there is nothing about same-sex parenting that satisfies society’s interest.

I listened to a good part of the oral arguments [here]. The plaintiffs’ claim that there is a Constitutional right to same-sex “marriage” fails to identify what marriage itself means. Their claim is that a minority group cannot be discriminated against by denying them marriage. This argument fails, because marriage laws do not prevent any homosexual person from getting married to a person of the opposite sex. Many homosexuals do that very thing; it’s the main way children come to exist for homosexual parents (adoption and in-vitro fertilization from a non-parent sperm donor being the other ways, because obviously a homosexual couple cannot produce offspring together).

So the argument further claims that there is a fundamental right to marry the person of your choice. But that simply isn’t so—and the different limitations are determined by the states. No state allows persons to marry someone already married, or someone under the age of consent without the consent of a parent (and then within a limited age range), and each state determines the level of consanguinity allowed (i.e., no states allow brother/sister marriage, and most disallow first cousins from marrying, maybe even second cousins). While the plaintiff’s law team made a show of reason and case law, their argument boils down to, “You have to call homosexual relationships equivalent to heterosexual marriage, because they want that, and you’re just being mean.” It’s emotional, not logical.

Some of the questioning of the defense dealt with various past cases and what each had contributed. Mostly they dealt with the question of whether and how marriage had been defined. A case concerning whether inmates could marry didn’t determine, for example, whether there was an inviolable right to marry, but related somewhat to whether a marriage could take place if there was no chance that the couple could consummate the marriage. Which really leads to a germane question that gets danced around: is it marriage if the couple does not intend to—and indeed cannot—consummate the marriage with the act that marriage is concerned with? You know the one—the particular kind of sex that can lead to procreation.

Some of the questions related to cases in which there is infertility or age impediments to procreation. But those are old, and answered; the law assumes that a man and wife with the appropriate genetics have the theoretical possibility of being fertile, and so the law does not interfere on that basis. However, failure to participate in the procreative sex act has been grounds for annulment or divorce pretty much universally; it’s a breach of the marriage contract.

What should be asked of same sex couples is, do you intend to behave as a married couple? i.e., engage in the required type of procreative act? And is it possible for you to do so with one another? If it isn’t possible, genetically, then what they are asking us all to do is pretend something is marriage that is not marriage. Our agreeing with them and proclaiming it so will not make it marriage; that will only disregard the underlying purpose of marriage.

Marriage may be much more than simply the sex act, but it must be at least that. Love is not required, but that particular behavior is. So to suddenly come up with a definition of “marriage” that excludes one of those basic essential details of what marriage means seems imprudent at best—and a hundred years hence will look foolhardy. There will not be (cannot be) progeny from same-sex couples, so the progeny of that generation will ask, “What were they thinking?”

Elder Dallin H. Oaks
photo from MormonNewsroom.org

In the wake of these marriage issues, there was a news conference this Tuesday, a relatively rare thing for The Church of Jesus Christ of Latter-day Saints, asking for protections for freedom of religion. The whole twenty are worth hearing in context, but I’ll try to summarize the three parts. Sister Neill Marriott represented Church Public Affairs, and talked about respecting each other’s views and working together to understand one another. Elder Dallin Oaks, who has been a state supreme court judge, talked mainly about issues related to same-sex marriage—and the persecution that has come upon those who stand for traditional marriage. He pointed out that a people should be granted basic rights, and he enumerated things like being able to find employment and housing. But he also asserted the right for individuals to disagree on belief issues, and we should respect rather than stifle the freedom to believe differently. He was followed by Elder Jeffrey Holland, who spent much of his time concerning the larger questions of religious freedom, such as being able to choose whom to hire or what services to perform as a business, without coercion by government or pressure groups.

I thought they all three sounded reasonable and kind—extremely kind. There was no hate speech there. Nor was there any new doctrine or shift in policy. There was simply a declaration that the doctrine is what it is, and while we can respect that many people don’t believe the same way, we request, and firmly insist, that we have the right to our beliefs as well. We have been kind and respectful, and we ask for that in response.

Whatever the Courts decide, God will still have His will, and it’s up to us, in our personal ways, to go about aligning ourselves with that. Let’s pray that the Courts don’t make things harder for any earnest believers.

Court Kudos

It’s nice to be able to praise a court for getting things right. Last week the 5^th Circuit Court reversed the district court ruling, of October 28, 2013, that had claimed Texas’s HB2 law was unconstitutional. This was the law passed last summer, which got notoriety for Wendy Davis, for her “pro-feminist” filibuster, which caused the legislature to go into special session to pass it—which did indeed pass easily. An emergency stay of the district court’s order two days after the ruling kept the law from being enjoined (in other words, HB 2 continued to be treated as the law), since the state showed likelihood of success upon appeal.

The 5^th Circuit pretty well gave a smackdown to the district judge. It might be interesting to note that the three-judge panel was made up of three career-women, and the district judge was a man. The assumption that all thinking working women must be automatically pro-abortion is clearly false.

To review, the law did mainly two things: 1) prohibited abortions after 20 weeks, the point at which we now have evidence the fetus feels pain; and 2) required abortion providers to meet the health and safety requirements of other surgical centers.

The first point was not disputed by the plaintiffs: Planned Parenthood of Greater Texas Surgical Health Services, along with other Planned Parenthood entities and other abortion providers in Texas. The 20-week mark is only a few weeks before the previously set “viability” limit. It has been upheld in other states, and is the standard limit in most of Europe. So they didn’t even argue that main purpose of the law.

The second purpose had several provisions: doctors needed to have hospital admitting privileges; surgical centers needed to meet health and safety and cleanliness standards; and medication abortions must be held to the FDA requirements for use of those substances.

The plaintiffs took issue with the provision of the law regarding admitting privileges and limit to use of medication abortions. They presented four grounds for invalidating the law: violation of patients’ substantive due process rights, violation of physicians’ procedural due process rights, unlawful delegation of authority to hospitals, and vagueness. The opinion goes through each of these, explaining in pretty clear terms (considering it’s legal language) why the district court was wrong.

The state maintains the district court erred in these four ways: 1) granting standing to abortion providers to assert physicians’ and patients’ rights vis-à-vis the issues raised; 2) facially invalidating the admitting-privileges regulation; 3) creating a “broad and vague ‘health’ exception” to the medication abortion regulations; and 4) enforcing an injunction beyond the rights of the plaintiffs in this case.

While the ruling covers each of these carefully, the meat of the opinion relates to the requirement for admitting privileges. The standard is based on several cases that have essentially set abortion law requirements: Roe v Wade, which found a “right” for a woman to end a pregnancy by abortion; Casey, which ruled that the state had an interest once the fetus was viable, but couldn’t impose an “undue burden” on a woman seeking an abortion in earlier weeks; and Gonzalez, which added to the “undue burden” rule that the law must have a rational reason.

The plaintiffs claim, but fail to provide convincing evidence, that the requirement will limit availability to abortions by closing down. Much of what they provided was supposition without any actual cases. There were indeed specific clinics they showed would close down. But when they went through the specific clinics, there were doctors who couldn’t qualify because they were too old (already over age 65), unlicensed in obstetrics and gynecology, or unwilling to be recruited to the abortion industry in the first place (or, in the case of one doctor, unwilling to come to Texas to do abortions because of fear of anti-abortion sentiment here).

There were some hospitals—Catholic hospitals—that refused access to abortion service providers, but essentially all public hospitals are required to allow admitting privileges if abortion service is the only disqualifier.

That answered one question I had: why did they assume they couldn’t get admitting privileges if they hadn’t tried? Abortion providers who apply for admitting privileges must get them at most hospital if they meet all other requirements—but they might not qualify, or might not want to try, reasons that hardly show dedication to women’s health. Essentially, if a woman expects an OB/GYN physician to perform her surgical abortion, and to have him be her physician if an issue arises that requires hospitalization—as happens to 210 Texas women annually—Planned Parenthood says she should have no such expectation, and can just go to an emergency room, because her abortionist is done with her.

The state showed that there is a loss of care when a patient is handed over to a doctor who does not know her medical history. That is the reason other out-patient surgeons are required to have admitting privileges. So the rational basis for that provision of the law was met.

The plaintiffs tried to say that the number of abortion clinics that would be forced to close would cause a third of abortion clinics in the state to close. They added that this could prevent 22,286 women who were seeking abortions. They failed, however, to show that those numbers were scientifically derived; in other words, they were found to be speculation, just pulled out of thin air.

The district court opinion had found that the claim of  “24 counties in the Rio Grande Valley would be left with no abortion provider because those abortion providers do not have admitting privileges and are unlikely to get them” was invalid:

[The district court’s] opinion invalidated the admitting–privileges provision as it pertains to the entire state of Texas, but its only recitation of evidence concerned “24 counties in the Rio Grande Valley,” which it predicted would be left with no abortion provider. As an initial matter, the statement that both clinics in the Rio Grande Valley will close may be disregarded as clearly erroneous based on the trial court record. Hagstrom–Miller and Ferrigno each testified that there were two clinics in the Rio Grande Valley, yet the district court accepted testimony regarding only one of them. Even if we were to accept that both clinics in the Rio Grande Valley were about to close as a result of the admitting privileges provision, however, this finding does not show an undue burden. To put this “finding” into perspective, of the 254 counties in Texas only thirteen had abortion facilities before H.B. 2 was to take effect. The Rio Grande Valley, moreover, has four counties, not twenty-four, and travel between those four counties and Corpus Christi, where abortion services are still provided, takes less than three hours on Texas highways (distances up to 150 miles maximum and most far less). In addition, Texas exempts from its 24-hour waiting period after informed consent those women who must travel more than 100 miles to an abortion facility (pp. 20-21).

Yeah, it had been that badly ruled. I don’t know what was going through the district court judge’s mind, but he was clearly going above and beyond the law to try to ensure abortion under any circumstances, regardless of risk to women’s health.

I’m glad the 5^th Circuit got this one right. I wish we didn’t have to so often depend on courts to decide these life and death issues. But I’m glad when they use the rule of law.

There’s always more to say against abortion. I came across a piece this week, written I think over a decade ago, from the Ethics and Public Policy Center, detailing some of the negative costs to society of abortion. A lot of data, worth considering: “The Socioeconomic Costs of Roe v. Wade.”