By Dave Andrusko
Editor’s note. My family will be on vacation through the end of this week. I will be posting an occasional new story, but for the most part we will be re-posting columns that ran over the last year. Many will be strictly educational while some will about remind us of notable victories this legislative cycle.
Like a really bad penny, the egregiously erroneous formulation that Roe v. Wade and Doe v. Bolton legalized abortion in the first trimester turns up with depressing regularity. It’s as if many people and publications who clearly should know better have plugged that misrepresentation into their hard drives to be automatically inserted whenever Roe/Doe are “explained.”
With the huge exception of anything having to do the abortion issue, one could make a plausible case that the editorial page of the Washington Post is light years advanced over its New York Times counterpart. But when I read the lead Post editorial on Texas and abortion, it was as if the editorial board was channeling the Times’ most hysterical, fear-mongering outbursts, particularly about pro-life legislation.
For starters, take the opening paragraph, which, while comparatively calm, is very misleading:
“ABORTION REMAINS legal in the United States, but states such as Texas are erecting legal impediments before clinics that perform the procedure. In effect, 40 years after the Supreme Court’s decision in Roe v. Wade established the right to first-trimester abortion, pro-life groups and lawmakers are negating its effects.”
The “legal impediments” including such “radical” proposals as requiring abortionists to have admitting privileges at a nearby hospital so they can go with those women who inevitably suffer complications. Or mandating that abortionists actually be in the room when a woman receives the drugs that make up the RU-486 chemical abortion regimen. Or forbidding abortionists from tearing apart unborn babies capable of experiencing pain.
But Roe and Doe didn’t merely establish “the right to first-trimester abortion,” as the editorial implies, albeit does not definitely state. That is a formulation, as NRLC has pointed out, that early on even some of the major media players recognized was very misleading. The Associated Press’s Louis D. Boccardi, for example, wrote, “It’s wrong to say only that the court approved abortion in the first three months. It did that, but more.”
In fact, under Roe/Doe no restrictions were allowed prior to “viability.” In 1996, the Post’s Dr. David Brown wrote, “Contrary to a widely held public impression, third trimester abortion is not outlawed in the United States.” He noted that given the expansive definition of “health” in the Doe decision, “life-threatening conditions need not exist for a woman to get a third-trimester abortion.”
And in light of the protective laws the Post so hates, it would have been helpful if the editorial board mentioned that Roe/Doe no longer is the governing constitutional doctrine. The 1992 case of Planned Parenthood v. Casey gave states a wider berth to enact protective legislation, provided the law did not impose an “undue burden” on a woman’s right to abortion.
The remainder of the 509-word-long editorial goes from bad to worse. It’s understandable that a pro-abortion editorial board would be loathe to give any credence to what the women and men who passed the laws said was their motivation.
But the nightmarish scenario laid out in the editorial could have been lifted directly from any Planned Parenthood or Center for Reproductive Rights fundraising letter. Suffice it to say by the time the editorial board has vented its collective spleen, we are told that women will die.
Again, had someone on the editorial board bothered to read the unanimous decision of a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, they would at least have been exposed to a factual analysis of the impact of Texas’ HB 2.
As Judge Edith Jones wrote
“The evidence presented to the district court [to Judge Lee Yeakel] demonstrates that if the admitting-privileges regulation burdens abortion access by diminishing the number of doctors who will perform abortions and requiring women to travel farther, the burden does not fall on the vast majority of Texas women seeking abortions. Put otherwise, the regulation will not affect a significant (much less ‘large’) fraction of such women [women seeking abortions in a given area of Texas], and it imposes on other women in Texas less of a burden than the waiting-period provisions upheld” in the Supreme Court’s ‘Casey’ decision.”
And so on and so on. But as bad as the Post’s editorial is, at least they have the excuse that they are not judges.
As we will talk about later today in a separate post, the two judges who overturned Mississippi’s requirement that abortionists have admitting privileges have no such excuse. As we will see, Judge Emilo Garza’s brilliant dissent exposes the serious inadequacies of the conclusions drawn by Judges E. Grady Jolly and Stephan A. Higginson.