Yesterday, the Supreme Court issued its ruling entitled Whole Woman’s Health v. Hellerstedt, which struck down a Texas law regulating abortion clinics. It was a defeat for life, for women’s health and safety, and for the rule of law.
Texas believed that it needed to protect women going to abortion clinics, due to how under-regulated abortion clinics have been since its legalization in the 1970’s. In 2013, Philadelphia abortionist Kermit Gosnell was found guilty of three counts of murder for killing recently-born infants, and one count of involuntary manslaughter due to a mother dying in his unsanitary and unsafe clinic. In response to this story, the Texas Legislature made a reasonable decision to pass HB 2, a law imposing certain safety standards on abortion clinics to ensure that what happened in the Gosnell clinic would never happen in their state.
The law had two major effects. First, it required abortion clinics to follow the same health and safety standards that other ambulatory surgical centers have to follow. This includes cleanliness standards, regulations for hallway width (enough for gurneys to pass through unhindered), and other requirements. Second, it required abortion doctors to have admitting privileges at any hospital within a 30-mile radius of the clinic. This would help in emergency circumstances if a patient needed to be admitted to a nearby hospital after complications from abortion.
Why would the Supreme Court deem this law unconstitutional, and overturn it? The Court thought HB 2 put too great a burden on women’s ability to access abortion (many clinics in Texas would have to close, since they were unable to live up to these standards), while providing too few actual health benefits (exemplary health and safety standards). This was a new standard for evaluating an abortion law, one not mentioned in Planned Parenthood v. Casey, the controlling Supreme Court precedent.
Whether one agrees with that balancing test or not (and it’s a stretch), it is another instance of the Supreme Court arrogating to itself the power to make law, rather than to simply interpret a law’s conformity with the Constitution. Decisions regarding health and safety regulations have always been an area of public life left to the discretion and decision-making of state governments, and courts have always given them broad latitude and deference on these questions. It is not the Supreme Court’s job to decide whether a law is well-balanced, or intelligently written, or appropriate for a given situation; their job is to decide whether a law is consistent with the text and original understanding of the Constitution.
With abortion, however, the story is always different. Because it is such a political fireball, the liberals on the Court will bend over backwards to create out of thin air new Constitutional standards, new doctrines, anything necessary to preserve the goal of legalized abortion on demand. There is no thought to respecting the text or original intent of the Constitution; the only goal is to enact policies of which the left approves.
For more on this story, please watch the Facebook Live video Jonathan Keller and I recorded yesterday after the ruling. We also encourage you to read the op-ed piece from Notre Dame Law School’s O. Carter Snead (one of my old professors) over at CNN, and to stay tuned to California Family Council for more information and updates on California and national issues of importance to Life, Family, and Religious Liberty.