Protective pro-life laws an “undue burden” only on the abortion industry’s bottom line


By Dave Andrusko

USSupremeCourtbldgThe headline for the National Journal piece, dated Sunday, is “Why Abortion-Rights Activists Should Fear the Supreme Court.” The longer, more detailed subhead read, “A high-court ruling is seen as a likely last-ditch effort to stop sweeping antiabortion legislation passed in Texas and other states. But counting on a win is a very risky gamble for the law’s opponents.”

The story, by Sophie Novack and Sam Baker, is by its nature speculative and filled with ying and yang comments from pro-abortionists (and sympathizers) who bounce between confidence and dread. Obviously there is much pro-life legislation working its way through the legal system, so what are they referring to?

Texas’ law, that’s what, best remembered by outsiders as the legislation which eventually passed after pro-abortion state Senator (and now gubernatorial aspirant) Wendy Davis sidetracked it with a filibuster.

Let’s first make clear what hasn’t been challenged in the courts–and which did not get mentioned in the Novack/Baker story– the Pain-Capable Unborn Child Protection Act.

Understandably so. If pro-abortionists are worried about how lesser provisions would fare in front of a closely-divided Supreme Court, they are certainly not going to give the justices a chance to ask (and answer) the question, “Does Roe really mean it’s acceptable to tear apart unborn babies capable of experiencing almost unimaginable pain?”

Novack and Baker write

“Abortion-rights advocates have always picked their legal battles carefully, trying not to elevate cases they’re likely to lose. But they’ve asked the Supreme Court to intervene in Texas once already, unsuccessfully petitioning the justices to stop the law from taking effect before a lower court ruled. The advocates hope a second trip in front of the Court would yield better results—and they have a lot to lose if it doesn’t.”

What intervention, you ask? Last November the High Court rejected an appeal by pro-abortion plaintiffs for a stay, allowing Texas to implement a part of a new abortion law that requires abortionists to have admitting privileges at a hospital within 30 miles of the abortion clinic.

The measure was part of HB 2, passed last July and signed into law by pro-life Texas Gov. Rick Perry. Just days before the provision was to go into effect, federal judge Lee Yeakel blocked the provision, concluding that it “places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her.”

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit unanimously disagreed. In a 20-page opinion, Judges Priscilla R. Owen, Jennifer Walker Elrod, and Catharina Haynes wrote, “[T]here is a substantial likelihood that the state will prevail in its argument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion.” (See

The abortionists and abortion clinics filed an emergency petition with the Supreme Court law asking that be stopped while challenges went forward, a request the Court rejected.

And it took only six days after the appeals court panel turned down pro-abortion litigants represented by the Center for Reproductive Rights (CRR) to announce they were filing a two-part attack on provisions of Texas’s omnibus HB2. They targeted the admitting privileges provision again and the requirement that abortion clinics meet the same building standards as ambulatory surgical centers, which does not even take effect until September 1. If the 5th circuit turns them down, the CRR theoretically could appeal to the Supreme Court.

Back to Novack and Baker and their speculation about the cost of appealing to the High Court—both to pro-abortionists, if they lose, and to pro-lifers, if the CRR (or someone else) wins.

In the post-Planned Parenthood v. Casey (1992) era, it is always largely an educated guess what the High Court will decide. In Casey, the justices gave legislators more leeway to protect unborn babies and their mothers, with the legal caveat that the protections do not constitute an “undue burden” on a woman’s right to abort.

Pro-abortionists insist if a provision “causes” abortion clinics to close, that is proof positive that closure was the intent. The back-up argument is, intent aside, if the result is that “x” number of abortion clinics close, the effect is to place an “undue burden” on women seeking an abortion.

The states that pass laws requiring admitting privileges, upgrading of abortion clinics, and/or that abortion-inducing drugs must be administered “in compliance with the protocol authorized by the U.S. Food and Drug Administration respond that all these measures protect women’s health and safety.

Only in the Alice-in-Wonderland world of pro-abortionists do women never have complications after an abortion and need to be admitted to a nearby hospital. It is important that the abortionist be able to follow the woman; he is the one who operated on her.

Only in the truth-denying world of PPFA do women not die or suffer egregious injuries after ingesting chemical abortifacients. Let them defend their practice of aborting women 9 weeks into pregnancy (versus the FDA-recommended 7) and having the woman take the second abortifacient drug at home.

And only those who pretend convicted murderer Kermit Gosnell was an “aberration,” or an “outlier” can believe that there aren’t plenty of abortion clinics where “one abortion would be completed every 8-10 minutes” (as one woman who formerly worked at a Delaware Planned Parenthood clinic told an ad hoc meeting chaired by two state senators), evidence of what she called its “meat-market style assembly line abortions.”

There IS a danger for pro-abortionists in moving these challenges up the legal chain. The justices might come to see that the only “undue burden” in passing commonsensical, women-protecting laws is on the abortion industry’s bottom line.