Lead pro-abortion lawyer outlines case she will make to Supreme CourtBy Dave Andrusko
As promised, NRL News Today is running at least an article a day about Whole Woman’s Health v. Hellerstedt as we come up on March 2, the day the Supreme Court will hear oral arguments in this challenge to two parts of Texas’ 2013 pro-life HB2.
I read “Supreme Court Abortion Case Seen as a Turning Point for Clinics” yesterday.
While Eric Eckholm’s story largely turns over old soil, it does plow some new (or at least not widely discussed) ground.
This afternoon, the equally pro-abortion Houston Chronicle ran a story under the headline, “Abortion providers reveal their Supreme Court strategy ahead of arguments.”
This post will talk about both.
To refresh your memory, pro-abortionists did not challenge the Pain-Capable Unborn Child Protection Act, which forbids aborting babies who would experience excruciating pain as they are torn to pieces.
They turned their guns instead on two other provisions. (1)That abortion clinics meet the same building standards as ambulatory surgical centers (ASCs); and (2) that abortionists have admitting privileges at a nearby hospital for situations of medical emergencies.
The linchpin of the attack on the provisions is that they place an “undue burden” on a woman’s right to abortion, a reference to language in the 1992 Casey decision.
As Eckholm reminds us, the 5th U.S. Circuit Court of Appeals upheld the admitting privileges requirement, “although exceptions were later granted for geographically isolated clinics in McAllen and El Paso. The second requirement, mandating costly surgical center facilities, has been temporarily stayed by the Supreme Court, but it would force still more reductions if upheld.”
Eckholm explains that with the death of Justice Antonin Scalia, a 4-4 tie is possible. If that does prove to be the case, the decision by the 5th Circuit would stand.
However, “a tie vote would not be a binding precedent, leaving uncertainty for other states and highlighting more than ever the importance of the next Supreme Court appointment.”
The story by the Houston Chronicle’s Brian M. Rosenthal is not nearly as dramatic as the headline makes it sound. Nothing in the five arguments outlined by Stephanie Toti of the Center for Reproductive Rights, is even a little surprising.
Here are the first two, according to Rosenthal’s account:
1. The 14th Amendment of the U.S. Constitution requires meaningful scrutiny of abortion laws to make sure they have a permissible purpose and don’t impose an undue burden on women seeking the procedure.
2. Precedent dictates that the justices should not simply accept legislative statements about the purpose of the law. An independent analysis of the justification is necessary
Moreover, when the 5th circuit upheld the law, it explained in great detail why the law did not constitute an “undue burden.” (See
Re: #2 I thought the way Eckholm put the issue in his story answers that question. He wrote, “Can the courts second-guess a legislature’s assertion that a rule promotes women’s health?” This is truly a bone of contention among the justices. No one put it better than Justice Scalia who was constantly reminding his colleagues that they were not a super-legislature and that the opinion of nine lawyers does not automatically supersede what state legislatures determine is appropriate for their states.
Eckholm’s next sentence was “Can a state enforce laws that seriously reduce access to abortion without valid medical reasons?”
The 5th circuit, as noted above, already addressed the question of “seriously reduc[ing] access,” finding that it didn’t. And as much as the abortion industry hates to hear it, there are plenty of “valid medical reasons” why laws are passed–that’s why they were passed: to protect women from the abortion industry which is not known as a hotbed of self-regulation.
Source: NRLC News