Admitting Bias, Part II: The right to abortion?

This is Political Sphere. I felt the need to add to the discussion the recent abortion decisions in Alabama and Mississippi that Mrs. Spherical Model discussed last Thursday. The one that I want to focus on, though, is the Mississippi case. In Mississippi, the court decided that the legislation that had recently passed was unconstitutional because it would result in the closure of the state’s only abortion clinic. This is generally a very reasonable basis in the law—but not in this case.

Generally, if a state is responsible for ensuring a right, they must ensure that right may be obtained within the borders of the state. The best example for this legal basis is the right to legal counsel. Each state is required to ensure that residents of that state have access to legal counsel. This requirement means that the state must provide a lawyer to represent an accused individual when that individual is incapable of paying for legal counsel on their own. The right to counsel has been used to prevent a state from refusing to allow a lawyer to practice in the state if the lawyer did not have an office within the state.

However, in Alabama and Mississippi, the court misunderstands the right being asserted. Planned Parenthood and other abortion providers assert that the right the court is required to protect is the right to an abortion within the state. The right that is actually being protected, according to the “umbras and penumbras” discovered by The Supreme Court, is the right to privacy. The right, specifically, is that reproductive choices made between men, women, and doctors are generally not subject to government interference beyond generally applicable restrictions on the medical industry.

The only exception to this right of privacy is what leads abortion proponents to get confused. The Supreme Court in Roe v. Wade did note that the State had a long-recognized interest in the life of its citizens, including persons-in-being (or unborn children/fetuses). Thus, it became an issue of where is The State’s interest in the person-in-being great enough to eliminate the continued right of privacy in reproductive decisions.

Clarifying the right The Supreme Court has actually recognized also clarifies the claim that the right is to be ensured by the state. If the state were held positively responsible to ensure abortion services were available within that state, that requirement would defeat the clarified right. Instead of being required to limit the restrictions the state may put on private reproductive choices, the state would be required to actively insert itself in the reproductive decisions made.

The undue burden rule

Recognizing that the right found by The Supreme Court is actually a right to privacy in making reproductive choices, The Supreme Court requires that the correct test to apply to legislation affecting reproductive choices is the rational basis undue burden test. This test requires first that some rational basis support the legislation imposed by the government. If a rational basis exists, step two of the test asks whether the legislation creates an undue burden on the person making the reproductive decisions. This second step is where the court in the Alabama and Mississippi cases err.

The first step requires that a rational basis exist for the enacted legislation. In other words, does any logical reason exist that the legislature may have used in deciding to enact the legislation. This does not require that the legislature used any rational basis in enacting the statute. As far as the court is concerned, the legislation may have been enacted because the tea leaves in the cup of the speaker of the house encouraged the Congress to vote yes on all votes scheduled that day. If the court is able to find any logical reason the legislature may have used, the actual reason a statute was enacted is irrelevant. Also irrelevant is whether the legislation actually achieves the rational basis that might have been used to enact the legislation. The Court is not allowed to impose its personal beliefs on elected officials.

The second step allows the court to consider whether the statute results in an undue burden. While this is an outcome based test, the court misapplies the burden onto the state. In Mississippi, the only abortion facility has announced its intention to shut down in response to the new legislation. In Alabama, three of the five abortion facilities announced intentions to shut down in response to the new legislation. The courts in these cases decided that the announced closings imposed an undue burden on people making reproductive decisions within that state.

As I discussed in the last section, however, the state cannot and should not take an affirmative role in assuring that abortion facilities remain open. All the state is required to do under this second step is ensure that the legislation is not unrealistic for the abortion facilities to follow. However, the burden falls to the party claiming that the statute imposes the undue burden to prove that the statute imposes a restriction that the abortion facility cannot comply with.

In other situations, inability to abide by the law is a defense, but the burden is on the party asserting the defense to show that it cannot abide. It is not enough that a party chooses not to abide by the law that imposes some restriction. If that were the case, then The State could not even require sterilization of instruments if abortion clinics chose not to abide by that restriction. Therefore, the test requires that opponents of the statute show that the restrictions are impossible to abide by, or that the restrictions create such an imposition that it is completely unreasonable to expect that the opponent can abide by the statute.

In conclusion, the courts misunderstand the right being alleged in the cases. There is no right to abortion, just a right to privacy in making reproductive choices. This misunderstanding results in the courts then misapplying the rational basis undue burden test as The Supreme Court requires. Using the correct test, it becomes clear that the statutes do not unconstitutionally interfere with the right recognized by The Supreme Court.

Admitting Bias

Earlier this week a couple of stories appeared concerning abortion—specifically concerning whether abortion clinics can be required to meet the standards required of other ambulatory surgical centers. One story is that Texas’s law is having another day in court. The other is that a judge blocked such a law in Alabama.

Tuesday's Houston Chronicle front page

I’m dealing with the news section of August 5^th Houston Chronicle, front page above the fold, and A-7, where theoretically you get news instead of opinion. But what we get here is the news from the point of view of the “abortion-rights” side.

The Texas story’s first paragraph is:

Abortion providers returned to court Monday seeking to block a provision of Texas’ stringent new law that would require abortion facilities to comply with the standards of ambulatory surgical centers, a restriction opponents said would force more clinics out of business and leave hundreds of thousands of women without easy access to the procedure.

Stringent is a subjective term, not news. What the law actually did—in the wake of the Gosnell horrors—was cause abortion clinics to meet the standards expected already of other surgical centers. Why that is considered “stringent” is not mentioned. It should be noted that just days after the Gosnell verdict, Texas employees at an abortion clinic came forward with evidence of similar situations in Houston, with babies being killed.

US Rep. John Culberson gave this reaction to the story:

On the heels of Kermit Gosnell’s conviction, I am deeply saddened to learn about more atrocities committed against precious unborn babies, this time in our own backyard. Douglas Karpen of Houston, TX, has been accused of brutally murdering babies born after twenty weeks. He is innocent until proven guilty, but the descriptions from his former employees are gut wrenching and absolutely heartbreaking. Taking a baby from its mother’s womb and terminating its life is murder. Throughout my years in public service I have been committed to protecting the lives of the innocent, and as a Member of Congress, I will work with my colleagues to ensure that we put an immediate end to this practice in every corner of this nation. I will never stop fighting to protect the lives of the most vulnerable.

So the Texas legislature’s law had two missions: prevent abortions after 20 weeks, when it is now known the fetus feels pain (which also prevents the botched abortion-live birth killings that have been reported); and bring the clinics up to normally accepted health codes for the sake of women’s health.

This is the law, you may recall, that won Wendy Davis (now candidate for Texas governor) notoriety for filibustering, forcing a second special session to get a vote; it passed easily once a vote was taken. Afterward Davis seemed unaware of the actual provisions in the law, and seemed to think it was to outlaw all abortions. Maybe she just seemed confused while revealing she simply can’t bear the thought of any abortion ever being thwarted. Claiming that prevention of any abortion under any circumstances is a "war on women" is hardly a basis for leading the strongest state in the nation.

The providers testifying against the law weren’t led by people actually affected by the Texas law, but the New York-based Center for Reproductive Rights. Their lawyers spoke in front of US District Judge Lee Yeakel, asking him to block implementation of the law’s provision, scheduled for September 1^st. Judge Yeakel ruled House Bill 2 unconstitutional last year—his decision was overruled by the Fifth Circuit Court of Appeals. So going before this judge again is likely to go as before.

The pro-abortionists' main argument is that requiring abortion doctors to have admitting privileges at a hospital within 30 miles means that the clinics have to close. They also claim that these regulatory burdens are “not imposed on any other health care providers in Texas,” which is false on its face. There are various simple procedures, like dental extraction, that are done in doctor’s offices, but if they are procedures in which there’s a risk of bleeding to death or other serious complications, they are already done in surgical centers meeting the requirements, or in hospitals.

Let’s take a close look at the admitting privileges question. When this came up last year, my question was, “Why don’t the doctors just go get admitting privileges?” They were given ample additional time to do so. And everything I read made it sound pretty standard. But here are the abortionists still complaining that they can’t qualify.

So I looked it up. The main thing is providing credentials. There’s some paperwork involved, but any practicing physician probably has his/her diploma and licenses available. There are two levels of admitting privileges. There are courtesy privileges, which are simply that the doctor is allowed to occasionally use the hospital, to perform rounds with patients and do procedures within his/her specialty on an as needed basis—just in case a need ever arises. This level is relatively simple to get, and would meet the law’s requirements.

The second type is full admitting privileges. This may require that the doctor become a part of the hospital staff, attend staff meetings, and provide a certain number of patients to the hospital per year. Sometimes the doctor must belong to the same insurance group as the hospital. This is admittedly harder to get, and might not be possible for an abortionist to meet.

Here’s where I have a problem with the story—and with the abortionists’ argument: the story says, quoting a coalition attorney: “Almost half of the roughly 40 abortion facilities operating in Texas before the passage of House Bill 2 already have closed because of doctors’ inability to obtain admitting privileges.”

It is not necessarily that doctors couldn’t obtain admitting privileges; it is that they didn’t. An online story I found, describing what it takes to get admitting privileges, quotes the CEO of the untruthfully named abortion provider Whole Woman’s Health, talking about the process: "We’ve worked with at least 25 hospitals around the state in the last six months trying to get privileges on behalf of our physicians."

I see a couple of problems here. First, 25 hospitals isn’t that many. As of 2012 there were 630 hospitals in the state. There are 80 just in Harris County, where Houston is located. Why work with only 25 hospitals? Why not apply with all of them, or at least all that are within 30 miles of an abortion clinic? And how do we know whether these 25 hospitals were the least likely to accept the requests? Catholic hospitals, or other Christian supported hospitals, or possibly hospitals related to specific insurance groups? After all, these are people trying to provide evidence that the law is too restrictive, not people actually trying to meet the requirements. It also appears, from the descriptions, that only full admitting privileges were sought—possibly so that they would be turned down, and then they could claim they couldn’t meet the requirements of the law, giving them "evidence" for appeal.

Second, why is the abortion provider clinic organization, rather than the physician, doing the applying? At some point the doctor has to apply. And generally applications are available for download from a hospital website, so the intermediary isn’t really necessary. Apparently we’re just supposed to take it as fact that they’ve exerted every effort and failed, because the law is too stringent?

On that note, if requiring that a doctor be credentialed and not barred because of various malpractice complaints is too stringent, aren’t we really undervaluing women’s health?

Another problem with the story is the numbers. The pro-abortion coalition claims that there’s a particular shortage of clinics in El Paso and generally in the southwestern portion of the state: “That would leave some 900,000 women of reproductive age in the Rio Grande Valley and West Texas living at least 150 miles from a Texas abortion facility.”

They are counting all women, not just the relative few who choose abortion as their birth control method. Let me proclaim, loudly, that abortion clinics do not serve me. Nor any woman in my family. Nor any woman I know at church. Possibly not any woman in my circle of friends and acquaintances. They are vastly overestimating the number of women they “serve” by killing their babies.

And they’re assuming the state should go to great lengths—even to the point of dumbing down safety requirements that can affect women’s health—just to encourage more clinics where there hasn’t been enough of a market thus far.

This is similar to the argument in the Alabama story (Houston Chronicle p. A7, Tuesday, August 5): “Judge blocks Alabama’s Abortion Law.” In that state, with a law similar to Texas’s, the claim is that, because the abortion doctors live outside the state, they wouldn’t be able to get admitting privileges. The state has just five abortion clinics, and three have this challenge. The claim is, “it’s unlikely that local doctors would begin performing abortions because of a history of violence across the South that includes bombings, shootings, and arsons against clinics, the judge said.”

First, as if I need to say it, violence is not the right approach to persuading people not to commit abortions. And any such violence should be prosecuted according to the law—as it has been; most perpetrators are on death row, have been executed, or are serving life sentences. That said, I haven’t heard of abortion clinic violence in a long time. So I did a Wikipedia search. I found one case listed for Alabama, in 1998. The story says “the South,” so I broadened the search. There are two Florida cases, one in 1993, and one in 1994—with a follow-up bombing in 2012 at the same clinic. One in Kansas in 2009.

There are some additional incidents of attempted murder, death threats, and criminal mischief. I found one case of criminal mischief (breaking in, threatening, damaging equipment) in Alabama, in 1984.

So, my question is, why, if the damage is aimed at the clinics, does a doctor feel safe performing abortions in Alabama clinics, but not living there? And since Alabama is only part of the South, why do those doctors feel safe living across state lines but still nearby? The argument doesn’t hold water. What abortion clinics are saying is that, in some places they find it difficult to find doctors willing to enter into that profession—so they want government to lower standards for women’s health to make it easier for them to ply their grisly trade.

A similar problem is happening in Mississippi, where the single abortion clinic might close, and abortionists are asserting that each state should be required to make sure it has at least one abortion clinic, regardless of nearby access across state lines. They don't say why.

The subheading reveals bias

One more complaint about the Chronicle piece on the Texas law: One of the subheads is “Other Victories.” The paper is telling the story of the struggle of abortion providers; it is on their side. You can get facts about the issue from the story, but know that you might not be getting them all, because the reporter has revealed a pro-abortion bias.

If you think there’s reasonableness on that side, you need to read their protest signs: “Abortion on Demand & without Apology” and the absurdly irrelevant “Forced motherhood is female enslavement.” That is not exactly “safe, legal, and rare” message most pro-choice people would say they support. These religiously pro-abortion activists are perfectly willing to risk women’s health, as long as they press for what they want: to kill any baby up to birth, and even beyond. It’s an ugly business.

On the other hand, the signs at the anti-abortion prayer rally read, “Abortion harms women,” which it does. Not to mention women's babies. 

People need to rethink that whole “war on women” claim. Abortionists aren’t for women; they’re for profit. And they really resent being held to responsible standards if it could cost them money.