The Supreme Court, Texas law and the abortion industry

It’s an election year and, not surprisingly, the national debate over abortion is heating up. However, this year’s dominant battle is taking place not on the campaign trail, but in the Supreme Court.

On March 2, the Court will take up its first abortion case in nearly a decade when it hears oral arguments in Whole Woman’s Health v. Hellerstedt, a challenge to health and safety standards for abortion clinics.  At issue in this landmark case is the abortion industry’s right to remain and operate in the proverbial “back alley.”

The Supreme Court arguments will mark the culmination of the nearly three-year legal battle over a Texas law requiring abortion clinics to meet the same high-quality and medically endorsed standards as other outpatient surgical facilities and mandating that individual abortionists maintain hospital admitting privileges to facilitate emergency care and the treatment of post-abortive complications.

In challenging this commonsense law, the abortion industry is essentially advancing the argument that it should be allowed to keep its profits high and patient care standards low. 

Specifically, the abortion industry and its supporters have repeatedly asserted that, if the Texas law is enforced, many abortion clinics will be forced to close their doors and women will suffer. In advancing these arguments, abortion supporters have unwittingly exposed the rotten core of their profit-motivated abortion business.

First, by alleging that the enforcement of this protective law will force abortion clinics out of business, the abortion industry is implicitly admitting that abortion clinics either cannot meet or are unwilling to meet basic health and safety requirements such as employing qualified medical personnel, maintaining clean and sanitary procedure rooms, and ensuring that patients have access to appropriate post-surgical care. In either circumstance, the abortion industry is prioritizing mere access to abortion facilities over the health and safety of the very women it claims to champion.

The abortion industry callously believes that simple access to a facility providing abortions is sufficient to protect maternal health.

They give little to no thought or concern to what happens to women behind the closed doors of these often substandard facilities.

Convicted Philadelphia abortionist Kermit Gosnell provided “mere access” to abortion in a clinic where a woman died because a stretcher could not fit through the hallways, where unsterilized instruments spread infections, and where parts of unborn babies were stored in jars and cat food cans like macabre trophies. Unfortunately, Gosnell is not an aberration, but is instead emblematic of a duplicitous industry desperate to avoid meaningful regulation and oversight.

Second, by alleging that current abortion facilities will have to
expend a significant amount of money to come into compliance with the physical plant and other requirements of the Texas law, the abortion industry is tacitly confirming that it prizes profits over patient health and safety. If the abortion industry was truly committed to women, it would, without complaint,
expend whatever amount of money is necessary to ensure safe facilities and competent care. Clearly, that is not the path that the increasingly litigious abortion industry has chosen.

Instead, abortion advocates have publicly questioned the necessity of many of the mandates in the Texas law, alleging that requirements such as maintaining a hallway wide enough to accommodate a stretcher are “unnecessary” for abortion patients. Presumably then, the abortion industry does not believe that women seeking abortions are entitled to the protection of the medical community’s best practices.

The arguments being advanced by the abortion industry are not
new. Abortion advocates made these same arguments nearly 20 years ago when states began requiring abortion clinics to meet minimum health and safety standards. What has changed is the increasingly perilous position that the abortion industry now finds itself in after have been repeatedly exposed as more interested in safeguarding its profits and the ability of unsafe abortion  mills to remain in business than in protecting maternal health and safety.

Currently, 29 states prescribe specific health, safety, and administrative standards for abortion facilities. If the Supreme Court finds in favor of the Texas law, more states will certainly follow suit, and the abortion industry’s days of operating substandard facilities while simultaneously raking in substantial profits will be at an end.

To uphold the Texas law, the Court needs only affirm what it said in Roe v. Wade: a state’s legitimate interest in regulating abortion “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.”

This is an uncomfortable truth for an industry that celebrates this
controversial decision while demanding that it be permit to remain in the “back alley” that Roe was supposed to eradicate.

Attorney Denise Burke is Vice President of Legal Affairs at Americans United for Life, which has filed an amicus curie brief in the case representing more than 460 Republicans and Democrat office holders who support health and safety standards in their states.

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