Abortion Advocates, the Supreme Court, and Reasonableness

Frank Pavone
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Posted: Jun 29, 2016 12:01 AM
Abortion Advocates, the Supreme Court, and Reasonableness

In this term that is now at its end, the Supreme Court dealt with two abortion-related cases, both of which put to the test the willingness of the Court, and of abortion advocates, to be reasonable in this ongoing, contentious national debate.

The first case, Zubik vs. Burwell, which included Priests for Life vs. HHS and five other cases consolidated with it, was one in which I am a petitioner, and which turned on the question of whether the government has gone too far in expanding abortion. At issue is an HHS mandate that would force me and my organization to be complicit in that expansion. The Court did not resolve the issue but hopes the petitioners and the government can come to a resolution in the lower courts.

The second case, Whole Woman's Health vs. Hellerstedt, reviewed a Texas law (HB2) and the question of whether the government has gone too far in restricting abortion. Our organization filed a friend of the court brief on behalf of the State of Texas and of women harmed by abortion. The high court struck down the Texas law by a 5-3 decision that said the law posed an undue burden on women seeking an abortion.

The resolution of both cases, actually, should have been rather simple, and neither affects the legality of abortion. In the first case, the pro-life side has argued that the legality of abortion doesn't mean the government can force someone to participate in it. That would seem to be reasonable. In the second case, the pro-life side has argued that the legality of abortion doesn't mean the government can’t regulate it to increase the safety of the woman undergoing the procedure. That too, seems reasonable.

That safety, in fact, is something that Roe vs. Wade (the 1973 Supreme Court decision legalizing abortion) itself called for, declaring that

"The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to 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 might arise." [410 U.S. 113, 150]

Those are exactly the issues the TX law addresses, spurred on by the horrifying details of case of Philadelphia abortionist Kermit Gosnell a few years ago. Gosnell now sits in prison for life because he killed a woman who came to him for an abortion, and killed three babies born alive. The details in his case revealed highly unregulated, filthy conditions in his clinic. The grand jury in that case specifically recommended that states hold abortion clinics to the standards of ambulatory surgical centers, which is exactly what the Texas law did. In fact, Texas did the same thing that various other states have done, passing measures that advance the legitimate state interest in increasing the health and safety of abortion patients and providing them with the highest standard of health care. We are talking here about things like nurse training, sterilization procedures, requirements to have fire extinguishers, an evacuation plan, proper room size, floor coverings, and soap dispensers.

The other disputed provision in the Texas law was a requirement for abortionists to have admitting privileges at a hospital within 30 miles of where the abortion occurs. Again, this requirement was not peculiar to Texas. Not only have other states implemented it -- to advance such health benefits as continuity of care and knowledge of patient medical history -- but it has been recommended in the past by non-governmental agencies, including none other than the National Abortion Federation!

At issue here is how reasonable abortion advocates are willing to be. In the case of Priests for Life vs. HHS, abortion advocates hold that the government has more than met the standards which the law and the courts set for actions that burden our religious freedom by having us cooperate in the expansion of abortion. Those standards, known as "strict scrutiny," are the highest constitutional standards, requiring that the government utilize only the least restrictive means to further a compelling government interest.

In the Texas case, the constitutional standard was much lower, consisting of a "rational basis" test that says that a government action -- such as regulations on abortion clinics -- need only have a rational basis in relation to a legitimate government interest. The Supreme Court has held (in Planned Parenthood vs. Casey) that such abortion regulations may not put a substantial burden on access to abortion. Abortion advocates, as well as the Court, claimed that the regulations put forth by Texas did not meet that standard.

In other words, in the two cases, abortion advocates were unwilling to either acknowledge that the higher standards prevent the government from burdening those who oppose abortion, or that the lower standards allow the government to burden those who buy and sell it.

Since Roe vs. Wade, the leeway states have to regulate abortion has increased and the standard for constitutional analysis of such regulations has been lowered. Strict scrutiny, which was the standard in Roe vs. Wade, no longer governs abortion regulations. The standard is now the lower standard I just described. Put in simpler terms, the abortion 'right' is not in the same ball park as freedom of religion or freedom of speech.

The willingness of abortion advocates to recognize that has been tested in both of these Supreme Court cases. A good dose of reasonableness would go a long way toward resolving the ongoing abortion controversy in the United States. By all accounts, abortion advocates have failed the test.