Was the Supreme Court’s “Whole Woman’s Health v. Hellerstedt” decision based on sound research?

By Dave Andrusko

As we reported in three separate posts today, the Supreme Court last night granted a Shreveport, Louisiana abortion facility’s emergency stay request, which means, for now, Louisiana is again thwarted in its attempt to enforce Act 620. The 2014 law does no more than require that abortionists have admitting privileges at a local hospital if/when there are complications.

We focus today on the obvious fact—obvious to the 5th Circuit Court of Appeals—that the Louisiana law does differ substantially from Texas’ 2014 law, HB 2, major parts of which the Supreme Court threw out in its 2016 Whole Women’s Health v. Hellerstedt, and therefore should be upheld. The question remains whether the High Court will go beyond issuing the emergency stay and grant certiorari for a full review of the case. The New York Times says, “The court is likely to hear a challenge to the law on the merits in its next term, which starts in October.”

But there is the separate issue of how based in genuine research—as opposed to pro-abortion advocacy dressed up in academese— was the work the majority relied on in Whole Women’s Health v. Hellerstedt to come to the conclusion that HB 2 placed an “undue burden” on a woman’s right to abortion.

So I’m reposting a long story we first posted June 20, 2016 that addressed that pivotal issue.


If you could work your way through Justice Stephen Breyer’s 40 page majority opinion, obliterating portions of Texas’ HB 2, there are two inter-related conclusions that virtually leap off the page.

First, he comes close to charging Texas with bad faith in passing a law that requires abortion clinics to meet the standards of ambulatory surgical centers and abortionists to have admitting privileges at a nearby hospital. (In a brief concurring opinion, Justice Ruth Bader Ginsburg said what Justice Breyer implied: “It is beyond rational belief that H.B. 2 could genuinely protect the health of women.”)

Second, that the “data” Justice Breyer relied so heavily on represented the triumph of “science [or evidence] over ideology.” Much of that data was generated by the Texas Policy Evaluation Project (TxPEP) and heavily promoted by Daniel Grossman, a rising star in pro-abortion circles.

Questioned by the Associated Press in a story that gushed over TxPEP in general, Grossman in particular, Grossman emailed, “It’s very heartening to see that the Court really cared about the evidence and referenced a lot of high-quality studies in the ruling,” adding modestly, “This was a triumph of evidence over ideology.”

Of course, if the mainstream media weren’t so in the hip pocket of the Abortion Industry and its academic spear carriers, they might actually read those who have actually read what Grossman/TxPEP have written, such as Dr. Randall K. O’Bannon, who heads NRLC’s Department of Education and Research.

Earlier this week, Dr. O’Bannon talked at length with Associated Press reporter Paul Weber, pointing out some of the holes, leaps of logic, and unsupported inferences in the pro-abortion research. For his trouble, there was one quote from Dr. O’Bannon.

I asked him what he told Weber and for a summary of the four-part series he wrote about what the oral arguments in Whole Woman’s Health v. Hellerstedt told us about the impact of HB 2.

The big-time backers of abortion [specifically the Susan T. Buffett Foundation, named for the wife of billionaire investor Warren Buffett who died in 2004] gave the University of Texas at Austin a lot of money to set up a pro-abortion research center and enlist the services of Dr. Grossman, an abortion “expert” from the University of California at San Francisco, America’s abortion training academy. One of Grossman’s chief tasks was to develop “research” supporting their contention that Texas’ 2013 law, HB 2, closed clinics, thereby placing an “undue burden” on women seeking abortion.

But most reporters and a majority of justices (with the conspicuous exception of Justice Alito) failed to ask some basic questions about the claims TxPEP was peddling. Yes, abortion clinics closed in Texas, but why? Was it because they were old, substandard clinics that were due to close anyway? Was it because of the provisions of HB 2 that were actually under court scrutiny, or because of other elements in the law that were not being challenged (such as the limits on chemical abortions)? Or was it because of other funding policies that Texas passed years earlier, that abortionists were retiring, or even that demand for abortion was dropping in Texas the way it was in most of the rest of the country?

I asked Dr. O’Bannon if it would be fair to say the majority in Whole Woman’s Health v. Hellerstedt pretty much took Grossman’s claims at face value, accepting them more or less as gospel.

Yes, but clearly not Justice Alito. He was very pointed and very specific in his questioning at the oral arguments. The attorney representing the abortion “providers” stumbled badly, failing to give substantive answers to his questions. In his dissent, Justice Alito “researched the research.” He properly challenged claims about clinic capacity, travel times, and unproven assertions about the number, timing, and reasons the clinics closed.

Did Dr. O’Bannon not see a role for research in abortion-related cases?

Of course there is a role. Research is fine when it illuminates an issue. But the research the majority relied upon in Whole Woman’s Health v. Hellerstedt was crafted to protect the interests of the abortion industry with scant attention to the legitimate health and safety issues of Texas women, let alone unborn babies.