Another Bad Abortion Ruling

Everything the Supreme Court has not yet ruled on comes out today or tomorrow, since their end of term is the end of June.

It’s the divisive cases that get the attention. Today’s is an abortion case: June Medical Services v. Russo. Russo is the Interim Secretary of the Louisiana Department of Health, so we could call it June Medical Services v. Louisiana Dept. of Health.

The case is very similar, according to the plurality (not majority) opinion, to the case from Texas in Whole Woman’s Health v. Hellerstedt. The essence is that each state legislated a law requiring doctors at abortion services to have admitting privileges at a nearby hospital, for the sake of women’s health.

That part of the Texas law was overturned in 2016, based on the possibility that too many abortion facilities would close, which, using the Casey standard (Planned Parenthood v. Casey in 1992), was deemed to have placed an undue burden on women seeking abortions.

Justice Roberts dissented in that case. But, now that it has been precedent for a whole four years, he concurs with the plurality (winning) opinion because of stare decisis:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.

Chief Justice John Roberts
image: Leah Millis/Associated Press, found here

The dissents explain his error, but it’s notable that, of the most controversial cases this session, he as sided with the conservatives only once—on the Seila Law decision, splitting with constitutional textualism on Bostock, DACA, and now June Medical Services. Because of personal interest? 

I wrote several times on the Whole Woman’s Health case, since it was pertinent here in Texas.

·         Texas Abortion Ruling (November 1, 2013)

·         Angels of Death (November 4, 2013)

·         Admitting Bias, Part I (August 7, 2014)

·         Admitting Bias, Part II (August 11, 2014)

·         About That Wrong Abortion Ruling (June 30, 2016)

Here’s some background on the Texas case, from my 2016 piece, which applies also to the Louisiana case:

It was a reaction to the Gosnell case, in which an abortion clinic was filthy, grisly, and engaged in late-term and post-birth abortions (i.e., murder of newborns). There were two basic requirements to make sure Gosnell-like conditions wouldn’t risk the lives of the women receiving abortions. One was that clinics would be required to have doctors with admitting privileges at a relatively nearby hospital (the miles were far enough to offer flexibility in all cases). The other was that the facilities would have to meet the same standards as other ambulatory surgical centers.

So let’s be clear: the abortion industry fought all the way to the Supreme Court to avoid securing basic health care for women.

Both states faced similar infractions in their states. Louisiana, however, wrote the legislation carefully considering the requirements the Court decided to make law following the Texas case. While the evidence below was dismissed by the plurality, Justice Gorsuch, in pointing out why legislatures are better suited to deciding these things, shares with us some of what the Louisiana legislature heard:

The legislature heard, too, from affected women and emergency room physicians about clinic doctors’ record of abandoning their patients. One woman testified that, while she was hemorrhaging, her abortion provider told her, “‘You’re on your own. Get out.’” Eventually, the woman went to a hospital where an emergency room physician removed fetal body parts that the abortion provider had left in her body. Another patient who complained of severe pain following her abortion was told simply to go home and lie down. When she decided for herself to go to the emergency room, physicians discovered a tear in her uterus and a large hematoma containing a fetal head. The woman required an emergency hysterectomy. In another case, a clinic physician allowed a patient to bleed for three hours, yet a clinic employee testified that the physician would not let her call 911 because of possible media involvement. In the end, the employee called anyway and emergency room personnel discovered that the woman had a perforated uterus and a needed a hysterectomy. A different physician explained that she routinely treats abortion complications in the emergency room when the physician who performed the abortion lacks admitting privileges. In her experience, that situation “puts a woman’s health at an unnecessary, unacceptable risk that results from a delay of care… and a lack of continuity of care.”

The dissents agree on this: the plaintiffs lack standing. (The dissents, by the way, are all written singularly, although Justice Kavanaugh concurs with most of Justice Alito’s dissent.) The law is in place to protect the health of women who seek abortions—that is the state’s interest. If there is an undue burden placed on women in order to accomplish that interest, then those women are the damaged party and entitled to be plaintiffs against the state. But there are no such women. Nor were there, I might add, in Texas.

This is a third-party complaint—from abortion providers, whose interest is in avoiding regulation on them that could cost them money or inconvenience.

Justice Gorsuch, in his dissent, points out,

The plaintiffs before us are abortion providers. They do not claim a constitutional right to perform that procedure, and no one on the Court contends they hold such a right. Instead, the abortion providers before us seek only to assert the constitutional rights of an undefined, unnamed, indeed unknown, group of women who they hope will be their patients in the future.

The Court’s granting of standing in these circumstances is extraordinary in its wrongness. Justice Alito, in his dissent, does not mince words about the political reason:

And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.

There are three Louisiana abortion providers in the suit, claiming to be the only providers available, comprising six doctors. And yet, even as the suit was underway before the Court, two additional providers made themselves known—but their existence was ignored in the plurality’s ruling on the case.

The doctors at these clinics were required to get admitting privileges at nearby hospitals. They claimed they made an effort but couldn’t.

Figure 1 from the SCOTUS ruling, page 32.
The numbers in parentheses are the estimation of abortions
done by that abortion doctor annually. 

As Justice Alito points out in his dissent, the plurality depended on the testimony of people who had an interest in not getting privileges:

[T]he factual finding on which the plurality and THE CHIEF JUSTICE rely—that the Louisiana law would drastically reduce access to abortion in the State—depends on the District Court’s finding that the doctors in question exercised “good faith” in their quest for privileges, but that test is woefully deficient….

[I]t primarily rests on the anecdotal testimony of June Medical’s administrator. Neither the plurality nor THE CHIEF JUSTICE explains why it should be accepted….

[T]he doctors had everything to lose and nothing to gain by obtaining privileges….

If these doctors had secured privileges, that would have tended to defeat the lawsuit….

[T]hey had an incentive to do as little as they thought the District Court would demand, not as much as they would if they stood to benefit from success.

I notice in the Texas case as well, the determination wasn’t on whether the law placed an undue burden on women, but on whether it placed a burden on abortion providers, who would then of their own volition stop providing services. The law didn’t shut down the clinics; it required an improved standard, which the providers could choose to meet or not. It they chose not to, then was it incumbent on the state to go out and help recruit providers who would meet the standard? That seems ludicrous. And yet, here we are.

The Whole Woman’s Health case added a burden on states to do some kind of balancing act that was not required in Casey. Justice Alito suggests,

The Court should remand this case for a new trial under the correct legal standards. The District Court should apply Casey’s “substantial obstacle” test, not the Whole Woman’s Health balancing test. And it should require those challenging Act 620 to demonstrate that the doctors who lack admitting privileges attempted to obtain them with the same zeal they would have exhibited if the Act were in effect and they stood to lose by failing in those efforts.

To summarize,

·         The case should never have come forward, because the plaintiffs lack standing.

·         The dependence on the anomalous Whole Women’s Health balancing standard was incorrect, as it overrode the longer-standing Casey test.

·         The case overlooked the benefits of the law for women’s health, a state interest.

·         The case assumed, without question, as fact that the doctors in question could not meet the requirements, and therefore no doctor could be found who could.

There are more. But what fascinated me was Justice Thomas’s dissent, which was very frank:

The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.

And,

But today’s decision is wrong for a far simpler reason: The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process. As the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.

He’s not finished. He lays out a pertinent history lesson for us—and for his apparently ignorant colleagues in the plurality:

The Court first conceived a free-floating constitutional right to privacy in Griswold v. Connecticut (1965). In that case, the Court declared unconstitutional a state law prohibiting the use of contraceptives, finding that it violated a married couple’s “right of privacy.” The Court explained that this right could be found in the “penumbras” of five different Amendments to the Constitution—the First, Third, Fourth, Fifth, and Ninth. Rather than explain what free speech or the quartering of troops had to do with contraception, the Court simply declared that these rights had created “zones of privacy” with their “penumbras,” which were “formed by emanations from those guarantees that help give them life and substance.” This reasoning is as mystifying as it is baseless….

Just eight years later, the Court utilized its newfound power in Roe v. Wade (1973). There, the Court struck down a Texas law restricting abortion as a violation of a woman’s constitutional “right of privacy,” which it grounded in the “concept of personal liberty” purportedly protected by the Due Process Clause of the Fourteenth Amendment. The Court began its legal analysis by openly acknowledging that the Constitution’s text does not “mention any right of privacy.” The Court nevertheless concluded that it need not bother with our founding document’s text, because the Court’s prior decisions—chief among them Griswold—had already divined such a right from constitutional penumbras. Without any legal explanation, the Court simply concluded that this unwritten right to privacy was “broad enough to encompass a woman’s [abortion] decision.”…

In 1868, when the Fourteenth Amendment was ratified, a majority of the States and numerous Territories had laws on the books that limited (and in many cases nearly prohibited) abortion. It would no doubt shock the public at that time to learn that one of the new constitutional Amendments contained hidden within the interstices of its text a right to abortion. The fact that it took this Court over a century to find that right all but proves that it was more than hidden—it simply was not (and is not) there.

You go, Justice Thomas!

Justice Clarence Thomas
image: J. Scott Applewhite/AP Photo, found here

In the Texas platform this year, our district is proposing a plank to simply outlaw abortion, in one single bill. No skirting around limits that, on their face, concede the “right” to murder some innocent life under some circumstances. We’ll see how that goes at the convention. But it’s time to stop compromising with evil and boldly go where we should have gone all along.

I’ve already written too much. But I want to add with this opening statement from Justice Gorsuch’s dissent:

The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.

Today’s decision doesn’t just overlook one of these rules. It overlooks one after another. And it does so in a case touching on one of the most controversial topics in contemporary politics and law, exactly the context where this Court should be leaning most heavily on the rules of the judicial process. In truth, Roe v. Wade (1973), is not even at issue here. The real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.

Bench Slap Needed

The Texas abortion law HB2 is in the news again, and again the Houston Chronicle has a difficult time not coloring the story with their pro-abortion position. Here’s how the Saturday, August 29, front page story begins:

For the second time in 10 months, a federal judge has struck down a key piece of Texas’ tough new abortion law just before its implementation was expected to force clinics across the state to close.

The facts are basically there, sort of. But, if you’re not up on this story, you might think that various judges are consistently finding this “tough new abortion law” too onerous to be legal.  What’s really happening is that one judge, Federal District Judge Lee Yeakel, keeps ignoring the criteria for judging and keeps ruling according to an outcome he wants. He stayed the law’s implementation last fall, and the stay was lifted in three days; then his ruling was reversed entirely in April.

Earlier in August opponents went before the same judge again, saying they shouldn’t have to comply.  I wrote about the admitting privileges part of the law August 7, and son Political Sphere followed up about what’s going on in Mississippi and Alabama with similar laws. [“Admitting Bias, part I, part II”]

Judge Yeakel’s first  ruling claimed the law didn’t pass the “undue burden” requirement, based on the number of clinics that did not have doctors with admitting privileges. At issue before the hearing this past month were again the admitting privileges and also the required upgrades to be as other surgical centers—which were set to take effect September 1^st. He used the upgrade argument to claim undue burden this time.

For both reasons, a number of clinics have chosen to close rather than meet the law. Judge Yeakel is equating the choice of the clinics not to meet the law with undue burden placed on women seeking abortions. But that is not the standard he should be using. The state is not required to adopt laws to make sure clinics choose to do business in the state; the state is merely required to make its regulations meet standards set by the Supreme Court (as if SCOTUS had authority to set such laws in the first place, but I digress).

As the judge was instructed last spring, the law only causes an undue burden if the requirements have no reasonable purpose (health and safety are a reasonable purpose here, particularly in the wake of the Gosnell case and cases similar that have shown up in Texas), and that the law prevents reasonably regulated clinics from operating. The state is not required to “sponsor” such businesses, nor adapt laws to ease the financial costs to entice such businesses.

Nothing has changed. Judge Yeakel is imposing his viewpoint again, rather than judging according to the law. The clinics involved may have shown that fewer clinics are operating, but they have not shown that the law prevented them.

Additionally in Friday’s ruling, Judge Yeakel exempted the El Paso and McAllen areas from the law’s requirements, because no doctors got admitting privileges, and no clinics would remain open. That would mean women seeking abortions in that part of the state would have a longer drive—if they chose to stay in Texas. But they were within 15 miles of a clinic in New Mexico. The out-of-state clinic would not necessarily conform to health and safety rules required in Texas, but the judge just said Texas clinics in those areas would fail compliance as well, and that’s OK—because it’s more important to have abortion clinics in Texas than to have safe and reliable medical facilities. Somehow that shows how caring he is about El Paso women.

The distance rule set by SCOTUS is 150 miles. If the law is fully implemented, with any existing clinics refusing to meet the new standards and therefore closing, it still so happens that 86% of Texas women live within 150 miles of such a clinic. And there is nothing the state is doing to prevent additional clinics from meeting the higher standards to locate near the other 14%. The clinics that are closing are refusing to put their financial resources into health and safety upgrades; they prefer to close rather than to raise the cost of doing their grisly business.

What I expect will happen (and what the state expects to happen) is that the 5^th Circuit will rule quickly, reversing AGAIN Judge Yeakel’s imposition of his personal opinion, rather than following the law. If this happens, it is what in casual legal circles would be called a “bench slap.” The judge is being put in his place for failing to apply the law and instead imposing his opinion of what he wants to be the outcome.

Bench slapping happens to the 9^th Circuit (particularly any three-judge panel operating in California) pretty regularly, when its decisions are vacated by the Supreme Court. And it is becoming something of a habit for the pro-abortion-under-any-circumstances Judge Yeakel. Let’s hope the 5^th Circuit takes care of him again promptly.

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.

Texas Abortion Ruling

In Texas this week, some of the news included a federal judge ruling on the changes in abortion law voted on by the Texas Legislature in special session this summer. The ruling was mixed. [Entire ruling here.]

There was nothing related to prohibiting abortions after 20 weeks that was found problematic. This part is consistent with many other states, and is in line with recent scientific evidence of pain in the fetus after that gestational age. That part of the bill is set to go into effect September 1, 2014.

Monday’s ruling mainly focused on the requirement that abortion doctors have admitting privileges at a hospital within 30 miles of the clinic. If doctors do not seek and receive such privileges, then 13 abortion clinics in the state could be closed—and that was set to be enforced this past Tuesday, so the judge’s ruling agreed with an injunction against enforcement.

As the Houston Chronicle reported, US Federal District Judge Lee Yeakel “said the requirement for admitting privileges was unconstitutional because it poses an undue burden on women seeking an abortion and has no ‘rational relationship to improved patient care.’”

My son Political Sphere is looking at the case from a lawyerly point of view. It appears the case was ruled on using the wrong basis—strict scrutiny rather than undue burden, and probably based on burden on the wrong person. I don’t understand the terms as well as he does, but I’m going to attempt to describe the ruling and what went wrong, in lay terms that I understand.

A finding of lack of rationale does not necessarily lead to an undue burden ruling. But if there is a rationale, the law must be considered constitutional unless there is a significant and certain undue burden. In this case, the judge ignored rationale and decided that any burden was “undue.”

Texas AG Greg Abbott
defendant in the case
photo from Houston Chronicle

There was no actual citation of a case, no plaintiff, where a woman was caused an undue burden; the law had yet to go into effect. But the law itself imposed no burden directly on women; it imposed a requirement on doctors. Yet there was also no case of a doctor attempting to meet the requirements of the law and being unable; that may have happened, but there is no such plaintiff in this case. The plaintiff is Planned Parenthood and affiliates against the State of Texas (technically against Attorney General Greg Abbott), simply claiming the law could conceivably cause an undue burden on women seeking an otherwise legal procedure.

All of this was discussed during the legislative hearings, but one of the main points of the legislation is that currently there is an exemption for abortion clinics that is not available for all other ambulatory surgical centers, which do require doctors to have hospital admitting privileges. For the sake of women’s health, is there a reason for exempting only abortion clinics? The legislature could not find such a reason. On the other hand, the legislature could see a rationale for upgrading abortion clinics to bring them in line with similar medical providers.

For comparison, let’s say a surgical center that specializes in hand surgery has a problem with a patient during the procedure. Let’s say it’s something like unexpected bleeding where a transfusion is needed, or a negative reaction to anesthetic causing cardiac arrest or breathing difficulties. The doctor would rush the patient to the nearest hospital, where he would continue as the primary doctor, get the patient admitted without stopping for paperwork (because the doctor has all the information on the patient), and the doctor continues to treat the patient with the additional help of equipment and specialists available at the hospital.

Note that there is no handoff at the hospital door at which time the patient ceases to be that doctor’s patient and is now a new emergency patient at the hospital, with new doctors quickly having to familiarize themselves with the patient, assessing what has happened and what should be done. Continuity with the doctor is a plus for the patient in these rare circumstances, and that is why it is required of ambulatory surgeons.

It’s similar also to a regular OB-GYN, who sees the patient repeatedly at an office or clinic during the pregnancy and then meets the patient at the hospital they’ve agreed upon when it’s time for the delivery. Some OB-GYNs have birthing centers, where most deliveries can be done. But if there is a rare but severe emergency, the hospital where the doctor has admitting privileges is the backup plan. The doctor who knows the patient continues as the primary physician—with the additional help the hospital offers. Again, continuity with the doctor is a plus for the patient, and that is why admitting privileges are required.

It’s different for paramedics, who give limited emergency medical care and then turn the patient over to a hospital emergency team. The paramedics have a preliminary job—to care for the patient until the hospital can take over. They are likely to go to whichever hospital is most convenient. The paramedic doesn’t need admitting privileges, because the paramedic will not serve as the primary physician once the patient has been turned over to the hospital for care. Nor was the paramedic a doctor engaging in a surgical procedure the led to the emergency need for care.

In the abortion ruling, Judge Yeakel seems to have based his decision on testimony from an emergency room doctor from Houston:

Jennifer Carnell, an emergency room physician at Ben Taub Hospital in Houston, Texas, testified that she has never had an occasion to consider whether an incoming patient’s physician has admitting privileges at the hospital. Additionally, she would not have treated any patient differently if she were aware of that fact. [ruling, p. 11]

What this testimony described was a handoff—as in the case of a paramedic, rather than an admission as in the case of an ambulatory surgical emergency. The testimony is irrelevant—unless you’re questioning the legitimacy of asking any ambulatory surgeon to have admitting privileges, which was certainly beyond the scope of the case. All the other types of doctors continue caring for their patient after admittance to the hospital. Abortion doctors do not. There is no reason given for why they are not expected to continue care for their patient. Why are they the exception to the rule? Is it better for the woman’s health to have the care of their doctor cut off when they reach the hospital? The judge’s ruling says yes.

On the radio, after the ruling, the top of the hour news kept repeating the statement that the injunction against implementing the law was given because it was found that doctor admitting privileges “weren’t shown to improve health for the mother and the baby.” That’s right—the statement included the health of the baby. Let’s be clear: the purpose of the abortion was to kill the baby, but the ruling was reportedly partially based on whether the baby’s “health” would be improved by having doctor admitting privileges.

Ironically, if the abortion doctor were to continue care of mother and child in the hospital, that could lead to worse health outcomes for the child than being handed over to an emergency room—because the doctor’s purpose is to see to the death of the child.

Note, however, that the ruling itself does not include any mention about the health of the fetus, baby, or child—only mention of the mother’s health. So that was just a reporting error.

Back to strict scrutiny as opposed to undue burden. If I understand correctly, strict scrutiny is a higher standard, and it is being required of the state, rather than the plaintiff, to prove not only that there is rationale for the requirement, but also to prove that there are no cases in which a single person could be deprived of a legal right. The undue burden level would be lower; the state could simply show that there is a rational reason for the requirement, and that alternatives remain for those seeking abortion services.

When there is no case of any actual person being harmed, making the ruling the way Judge Yeakel did is probably both the wrong approach and the wrong standard.

The next step is the 5^th Circuit Court of Appeals; they previously overturned Yeakel’s ruling against Texas’s requirement for a sonogram to be shown prior to an abortion. AG Greg Abbott believes, however the 5^th Circuit rules, the case will be appealed to the US Supreme Court.

My opinion is that Texas did not overstep its bounds by requiring abortion clinic doctors to comply with the same rules as other ambulatory surgical centers; there is a rationale, and not all options are eliminated.

While hospitals set their own standards about who gets admitting privileges—and therefore it is possible some abortion doctors could be prevented from meeting the requirement—there is no evidence yet of a doctor trying to comply and being unable. There is only the hue and cry that the law might make getting care less convenient for some hypothetical abortion seeker.

Sen. Wendy Davis, from Houston Chronicle

State Sen. Wendy Davis, who filibustered the bill in the first special session back in June, which led to its easy passage in a second special session, carefully avoided mention of “abortion” in her response. She said, “Texas families are stronger and healthier when women across the state have access to quality health care.” That is liberal-speak. Women, particularly women in families, have many many options for health care.

Women seeking abortions are rarely in families, and since families include children but abortions snuff out the life of children, Davis’s statement is pretty much a lie to cover up the ugly baby-killing facts of abortion. She also went on to say, “I would rather see our tax dollars spent on improving our kids’ schools than defending this law”—completely missing the irony that, if the law hadn’t been attacked, no money would have to be spent defending it, so she ought to connect Planned Parenthood with unnecessarily using up state funds, because the state is required to defend its laws.

Davis is running for governor—based solely on her notoriety following the abortion filibuster. She has no other experience to recommend her to the top executive job in one of the biggest states. Yet she is afraid to say the word. In an odd way, I find that comforting after a bad day in the courts.