On March 2nd, the Supreme Court will hear a major abortion case out of Texas. The two issues with the law are a requirement that providers at abortion clinics have admitting privileges at a hospital within 30 miles of a hospital while the second contested provision requires that clinics have facilities equal to an outpatient surgical center. The plaintiffs in this case contend that enforcement of these two provisions would have the effect of closing 75% of the abortion clinics in Texas. Planned Parenthood is not a party to this case since the provisions would not affect their facilities since most already meet the criteria, or are in the process of meeting them.
But first, let’s take a step back. The basic findings of Roe vs. Wade were upheld in a subsequent case called Casey vs. Planned Parenthood. That plurality decision established the “undue burden” standard in analyzing abortion regulations by states. The former argument was that a fundamental substantive right was recognized in Roe. However, some have argued that through adoption of the undue burden standard, the right was never substantive to begin with and therefore any regulations would have to survive a lower level of judicial scrutiny.
So, the level of scrutiny will obviously be an issue in the oral arguments. But, there is a more fundamental aspect to this case that makes that discussion less important. There is no doubt that states can regulate abortion clinics and providers, but cannot do so as to create an undue burden on the woman’s ability to obtain an abortion. And since the pro-choice movement is so engrossed with protecting Roe against all challenges, words from that very decision upon which they rely are telling in the Texas case. In Roe vs. Wade, that Court stated that a state has a compelling interest in regulating abortions to ensure maximum safety for the mother. It further stated: it “obviously extends at least to regulating the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that may arise.” Using the phrase “at least” establishes a floor, not a ceiling on state action.
That quote above obviously perfectly fits with the Texas law’s provisions at issue here. The only obvious question is whether they went too far and the practical effect of the law. The Casey decision makes clear that health-justified reasons for the regulation must advance legitimate health outcomes. The opponents argue that this is a TRAP law (targeted regulation of abortion provider). However, even when the evidence is contested on health grounds, the Court has ruled that they must defer to the state officials. In the 1997 case Mazurek vs. Armstrong, Montana required that abortions be performed by a licensed physician. The pro-choice lobby opposed this measure claiming that scientific evidence indicated that a medical degree was not necessary to perform a safe abortion. The Court rejected that argument and that was a case where there truly was a lack of scientific consensus or real world examples that backed up the claims of pro-choice groups. Still, there had to deference to the states. In Texas, there was legislative evidence that on average 210 abortion patients every year require post-care hospitalization due to complications. It is these 210 examples that the state wishes to avoid every year. To take the pro-choice view is akin to saying, “Oh well…accidents happen.”
Furthermore, what the abortion industry is advocating is a regulatory carve-out for their services- a form of judicial immunity which no other businesses enjoy. Several of the same groups railing against his law and characterizing it is a TRAP law are the very same groups and organizations that there advocating increased regulations over ambulatory surgical care centers a decade ago. Today, because it involves abortion, their cries for regulation have suddenly gone eerily silent.
As for the practical effects, the plaintiffs argue that up to 75% of abortion clinics will have to close in Texas because modifications would be too expensive, or they are not near a hospital. This affects rural areas the most. The state counters that 89% of the female child-bearing population in Texas lives within 150 miles of an abortion provider that does meet the state’s regulations. Opponents argue that clinics are already closing. But, that is more a reflection of the decline in abortions nationally rather than any state action. From 2010 to the present, abortions have declined 12% nationally and Texas reflects that perfectly- a 12% decline. The abortion industry argues that is because of onerous state laws. But, facts get in the way. Some of the states with the largest declines in abortions have passed no such laws of any kind and Texas’ decline in abortions occurred before enactment of this law. This argument is without merit.
What is true and what may be the true motivation in this case among the plaintiffs is that clinics are trying to survive in a shrinking market for their services. Thus, there is an economic restructuring of the abortion industry to take advantage of an economy of scale. It explains why in Texas organizations like Planned Parenthood are building mega-clinics in Houston and San Antonio (and why they are not a party to the lawsuit). It has nothing to do with reproductive health and everything to do with economics…and business.
What is most egregious is that the abortion industry which conjures up visions of back-alley abortions involving wire hangars as justification for their existence is fighting against the very regulations that would prevent those things. They are effectively asking for preferential treatment when it comes to medical regulations- a special carve out for them and them alone. There is no doubt that of the remaining 11% of the female child bearing population in Texas who fail to live within 150 miles of a Texas clinic may face some inconvenience. But does inconvenience rise to the level of an undue burden? This case is about protecting maternal health- something Planned Parenthood uses as justification for their existence. To oppose these commonsense and constitutional measures is to expose them for what they are- hypocritical baby-killers with no concern for maternal health and an industry of death.