WASHINGTON — In a case that could affect how states regulate abortion facilities, the U.S. Supreme Court will review Texas’ 2013 law that requires those facilities to meet the standards for ambulatory surgical centers and that abortionists have admitting privileges at nearby hospitals.
The abortion lobby is arguing that those regulations are unconstitutional because they have forced dozens of abortion facilities in Texas to close, creating what the lobby describes as an undue burden for women seeking to have an abortion.
However, pro-life leaders and Texas state officials say those regulations are necessary to protect women’s health in an industry that is wrought with fraud and substandard medical care.
“The regulations are very reasonable. The Supreme Court has the chance to put women’s health before the corporate financial interests of Planned Parenthood and their affiliates, which is what the citizens of Texas intended,” said Dr. Grazie Christie, a radiologist in Miami who is also a policy adviser for The Catholic Association.
Christie and other observers told the Register that abortion facilities across the United States often have not been as regulated as regular medical practices due to political reasons. They note that, in the horrific case of Kermit Gosnell, Pennsylvania’s health department did not inspect his business for 17 years. In May 2013, Gosnell was convicted of murdering three infants born alive after botched abortions.
“This case definitely will have a big impact on whether these health and safety standards are permissible or if the abortion industry is going to continue to be allowed to operate like the red-light district of medicine. That is what is at stake in this case,” said Anna Paprocki, staff counsel with Americans United for Life.
On Nov. 13, the Supreme Court agreed to review Whole Woman’s Health v. Cole, which abortion providers in Texas filed shortly after former Gov. Rick Perry signed the bill into law in July 2013. It is the first abortion-related case that the court will hear since Gonzales v. Carhart in 2007, a case in which the court upheld the Partial-Birth Abortion Ban Act of 2003.
In the Cole case, the high court is expected to clarify the undue-burden standard that emerged from the 1992 Casey v. Planned Parenthood case. In Casey, the court said states cannot place undue burdens on the constitutional right to abortion before fetal viability. Undue burdens, the court said, include “unnecessary health regulations” that create a “substantial obstacle” to women seeking an abortion.
The abortion lobby argues that the Texas law fails that standard because it has already forced about half of the state’s abortion facilities to close. If the law’s provisions are allowed to take effect — they are currently halted by court order — the plaintiffs estimate that another 10 abortion facilities will close. That would leave the remaining centers in Texas to be clustered around Austin, Dallas-Fort Worth, Houston and San Antonio.
The 5th U.S. Circuit Court of Appeals, which upheld Texas’ law, struck down a similar law in Mississippi because it would have closed that state’s last remaining abortion facility. That case is also now pending at the Supreme Court.
The Texas plaintiffs say that if the law goes into effect, there would be almost no access to abortion around San Antonio, forcing women in some parts of Texas to drive more than 300 miles round-trip for an abortion.
However, Emily Horne, a legislative assistant with Texas Right to Life, told the Register that the abortion lobby is really arguing that the state law creates an undue burden for the abortion facilities themselves because they cannot comply with reasonable health and safety standards.
“What they’re really focusing on is their bottom line,” Horne said. “They don’t want to comply with the safety standards because it’s costing them money, and it’s difficult for them to comply; but I’m not interested in that as much as I am [about] what the standards mean for women. That’s why we’re passing these laws.”
Peter Breen, special counsel with the Thomas More Society, told the Register that the Supreme Court has chosen a good time to review the case, given that a growing number of states have been looking to step up their regulations on abortion facilities.
“The problem with trying to regulate in the abortion field is that the undue-burden standard from the Casey decision is nebulous,” Breen said. “Even experts in abortion rights can’t describe with any particularity what an undue burden is or is not under the law. We have various standards of review for constitutional basis, but undue burden is a unique standard. It’s very difficult for legislators to draft up laws and for courts to judge those laws under this undue-burden standard that is specific to abortion law.”
According to Americans United for Life, over the last six years, more than 150 abortion providers in at least 30 states and Washington, D.C., have faced investigations, criminal charges, administrative complaints and lawsuits or have been cited for violating state laws governing the operation of abortion facilities.
In October, the Pro-Life Action League reported that the Albany Medical-Surgical Center Family Planning Associates clinic in Chicago was forced to shut down, after failing inspections by the Illinois Department of Public Health. In South Carolina, three abortion facilities are facing major fines for dumping the bodies of aborted babies into landfills, according to published reports.
“The truth is that abortion practices do not conform to and cannot meet the same basic standards that other similar outpatient surgical practices conform to. And that’s not good for women’s health and safety,” said Steven Aden, a senior counsel with Alliance Defending Freedom, a Christian public interest law firm.
Aden also told the Register that he expects the Cole case to have as much of an impact on abortion jurisprudence as the Casey decision.
“It will probably drive the course for abortion law for years to come,” he said. “It really is all about whether states have the authority to regulate abortion as the outpatient surgical procedure that it is, or if they have to soft-pedal on it because it is a constitutional right, even if doing so lowers the standards for women’s health.”
According to Americans United for Life, 29 states currently regulate abortion facilities to varying degrees, and only six of those states require the businesses to meet the same health and safety standards as facilities performing other outpatient surgeries.
Breen described as “frivolous on their face” the abortion lobby’s arguments that the Texas regulations do not increase health and safety.
“When you perform a surgical procedure in a higher-quality medical setting, you necessarily make the procedure safer,” Breen said. “When you require that a doctor be able to transfer a surgical patient seamlessly to a hospital, that necessarily improves the safety of that surgical procedure.”
Said Breen, “The question comes down to: Can states improve the safety of the abortion procedure even if by doing so they greatly reduce the number of abortion clinics that are able to do the procedure?”
Making the Case
Robert Destro, a law professor at The Catholic University of America, told the Register that the pro-life side, to prevail at the Supreme Court, has to make a detailed case for why the abortion facility regulations are necessary.
“If you focus on generalities and make this about access to abortion, then our side loses,” Destro said. “If you make it about reasonable health-care regulations in an industry fraught with fraud and malpractice lawsuits and things that are covered up, like Gosnell, then we stand a very good chance.”
Said Destro, “The question is: Can you convince Justice Anthony Kennedy that your version of the story is more realistic?”
Other observers also believe that Kennedy, who is often the swing vote in close cases, will likely be the deciding voice in the Cole case.
“It’s Kennedy’s path to chart,” said Aden, who added that he expects the court to clarify the undue-burden standard.
Paprocki, of Americans United for Life, said Kennedy, who wrote the majority opinion in the Carhart decision, gave deference to state legislatures to decide what the necessary regulations are for abortion facilities. She noted that several medical experts testified before the Texas Legislature to explain why the law was appropriate to protect women’s health and safety.
“It should be common sense that it’s upheld,” she said. “There are many substandard abortion clinics and abortion providers. The whole industry is known to have problems, is known to prey on women. And, in part, you see a greater recognition of that in wake of Gosnell.”
Said Paprocki, “Gosnell was not an aberration.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.