Supreme Court strikes down portions of pro-life Texas Law

Pain-Capable Unborn Child Protection Act not challenged

By Dave Andrusko

Carol-HB2-QuotereIn its succinct and to the point statement this morning, National Right to Life lamented the Supreme Court’ 5-3 verdict that struck down two provisions of HB2, Texas’s omnibus 2013 law.

Justice Kennedy joined Justice Breyer (who wrote the majority opinion) and Justices Ginsburg, Sotomayor, and Kagan in overturning commonsense measures that required abortion clinics to meet the standards of ambulatory surgical centers and required abortionists to have admitting privileges at a hospital within 30 miles of the clinic, with certain exceptions.

The nub of the decision is summed up in these conclusions:

“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” wrote Justice Breyer. “Each places substantial obstacles in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”

Rep. Smith (R-NJ). Co-chair of the House Pro-Life Caucus, sent out a statement criticizing what he described as the Supreme Court’s “tragic decision.”

It “shields the abortion industry from accountability and minimal medical standards,” said Smith. “Abortionists should not get a free pass on commonsense safety standards. Women deserve better than this decision that prioritizes the abortion industry’s profit margin.”

Smith, who will speak at the closing Banquet of National Right to Life’s annual convention next month [nrlcconvention.com], added, “Today’s devastating news underscores the incredibly high stakes the Supreme Court vacancy holds for the unborn child. 43 years ago the Supreme Court stripped away protection for unborn children and their mothers. Restoring that protection requires a Court that acknowledges the right of states to protect women’s health and the unborn.”

Before analyzing the dissents of Justices Thomas and Alito, which patiently explained where the majority opinion went off the rails, it is important to remember what was not challenged by abortion “providers” in Texas: the Preborn Pain Act.

Based on model legislation provided by National Right to Life, the law protects unborn children who are capable of experiencing great pain when being killed by dismemberment or other late abortion methods. An unborn child is capable of feeling pain by 20 weeks after fertilization and earlier. (See www.nrlc.org/abortion/fetalpain and www.doctorsonfetalpain.com.)

The Pain-Capable Unborn Child Protection Act has passed in 14 states: Alabama, Arkansas, Georgia, Idaho, Kansas, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, West Virginia and Wisconsin.

Last year, the U.S. House of Representatives passed a national version of the Pain-Capable Unborn Child Protection Act (H.R. 36). A minority of pro-abortion Democrats blocked consideration of the bill in the U.S. Senate last September.

“Basic compassion for human life demands that this legislation be enacted all over the country,” said National Right to Life Director of State Legislation Mary Spaulding Balch, J.D. “In our upside-down society, most animals have more rights than unborn members of the human family.”

The dissents of Justices Thomas and Alito in Whole Woman’s Health v. Hellerstedt dealt with multiple fundamental issues. Space allows me to touch on only a few.

Justice Thomas cut to the chase in his opening sentence: “Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors.”

Thomas then immediately quoted from the late Justice Scalia’s dissent in Stenberg v. Carhart:

That decision exemplifies the Court’s troubling tendency “to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.”

Elsewhere that has been aptly described as the “ad hoc nullification machine” or “abortion distortion.” In a word, nothing can ever get in the way of finding a legal justification, however flimsy, for a decision that promotes unregulated abortion.

Justice Thomas observed that the majority opinion radically rewrote the “undue burden” test established in the 1992 Casey decision. It has, he wrote, “transform[ed] the undue-burden test to something much more akin to strict scrutiny.”

Justice Alito elaborated on questions he had asked at oral argument and the (non-)answers of the attorney who represented the Texas abortion providers.

One of the major objections that the Court majority had to the provisions was that their enactment purportedly caused a number of abortion clinics in Texas to close. Alito dealt with that objection in two ways.

First,

I do not dispute the fact that H. B. 2 caused the closure of some clinics. Indeed, it seems clear that H. B. 2 was intended to force unsafe facilities to shut down. The law was one of many enacted by States in the wake of the Kermit Gosnell scandal, in which a physician who ran an abortion clinic in Philadelphia was convicted for the first degree murder of three infants who were born alive and for the manslaughter of a patient. Gosnell had not been actively supervised by state or local authorities or by his peers, and the Philadelphia grand jury that investigated the case recommended that the Commonwealth adopt a law requiring abortion clinics to comply with the same regulations as ASCs. If Pennsylvania had had such a requirement in force, the Gosnell facility may have been shut down before his crimes. And if there were any similarly unsafe facilities in Texas, H. B. 2 was clearly intended to put them out of business.

HB 2, and laws like it, were and are intended to put unsafe abortion clinics out of business. You would think even abortion “providers” might agree with that.

Second,

While there can be no doubt that H. B. 2 caused some clinics to cease operation, the absence of proof regarding the reasons for particular closures is a problem because some clinics have or may have closed for at least four reasons other than the two H. B. 2 requirements at issue here.

NRLC’s Dr. Randall K. O’Bannon has written about these alternatives (and much more plausible) explanations on many occasions. They include the welcomed nationwide decline in the number of abortions, regulations placed on chemical abortions (“medication abortions”), other laws not at issue in Whole Woman’s Health v. Hellerstedt, and the retirement of abortionists.

Justice Alito’s dissent also addresses the question of “capacity” in light of the closings.

[T]he Court asserts that, after the admitting privileges requirement took effect, clinics “were not able to accommodate increased demand,” but petitioners’ own evidence suggested that the requirement had no effect on capacity.

The decision can be read in its entirety here.

This was a decision by and for the Abortion Industry. It does nothing to save the lives of women or their unborn children.

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