Yesterday the US Supreme Court declined to take up an emergency appeal from Planned Parenthood concerning a new Texas law that will have the effect of closing some of the state’s abortion clinics. The decision itself was expected, but the way in which it was delivered shows a shift in the fight to end legalized abortion.
Back in June, the Texas state legislature passed new restrictions on abortion clinics. The major change was a mandate that doctors that do abortions in a clinic must have admitting privileges in a nearby hospital in order to perform abortions. Admitting privileges are difficult to get, as hospitals have certain requirements for doctors. Many hospitals require doctors to have a certain number of patients at the hospital over the course of the year in order to ensure that the doctors are familiar with the procedures in place, as well as a means of fostering competition between hospitals for the best doctors. Hospitals are unlikely to grant those privileges to a doctor that seldom sends patients there—which is the very reason doctors in many specialties are part of practices that can leverage their number of patients to gain hospital access.
But then again, abortion is not like other specialties.
The new restrictions were passed largely as a result of the Gosnell case in Philadelphia; if you have forgotten, Gosnell is a serial murderer who used an abortion clinic as a cover for his crimes. One woman, Karnamaya Mongar, died when she was given a lethal overdose of Demerol by the teen-aged anesthesiologist. Gosnell’s staff called 911, but it took the paramedics 20 minutes to get the victim out of the clinic because of how run down it was, and because of how many containers of “fetal remains” were strewn everywhere. When Mongar finally did get to the hospital, there were no medical files for her, and Gosnell refused to tell the doctors what had happened to her. Without knowing she was overdosing on Demerol, they could do nothing to save her life, and Gosnell was convicted of murder.
That is the kind of thing that wouldn’t have occurred if a doctor had the ability to admit to a hospital. If the state regulators refuse to regulate abortion doctors, which was the case in Pennsylvania, then a new mandate that doctors have admitting privileges in order to perform abortion pushes that oversight to the hospitals, where at least it will occur. At least that is the idea behind the new Texas law.
The law itself was almost immediately blocked by a federal judge, who pointed out that it would shut down 1/3 of Texas’ abortion clinics. He also noted that because many women would have to travel 100-150 miles to get an abortion that it posed an unconstitutional burden on those women (as if the Constitution guaranteed not only the right to abortion, but the right to have one available in less than a 2 hour drive).
The Federal Appeals Court in New Orleans disagreed, lifting the injunction, and allowing Planned Parenthood’s case to be decided at trail. If there was any doubt about what Planned Parenthood’s real function is (motto: “bringing the back alley to you”), they lodged an emergency appeal with the US Supreme Court.
Emergency appeals from Texas are given to Justice Scalia, who could have denied it by himself. Instead, he took the relatively unusual step of passing it along to the rest of the court. Five of the nine justices declined to overturn the New Orleans court—the effect being that the restrictions will go into law pending the outcome of Planned Parenthood’s challenge—expected in January.
That the appeal was denied is not unusual—the unusual feature of the ruling was that seven of the nine justices released reasoning behind their votes (which is very unusual when the court simply decides not to hear a case). Three of them explained that the principle of letting a state’s law stand unless it is “probably” unconstitutional is enough to keep the court from intervening at this time.
But the four justices who wanted to reverse the New Orleans court (and thus halt the Texas restrictions from being enacted) also released their reasoning. In one of the most blindly macabre phrases I’ve ever read, Justice Breyer wrote that “maintaining the status quo” of abortion in Texas is the legal threshold the judges should consider.
Imagine: in this reasoning the continued slaughter of babies must be allowed, and attempts to regulate those that do it should be prohibited, because otherwise the status quo could be tinkered with. That says a lot about what counts as the status quo in our culture of death.
The truth is, the pro-abortion position is running out of plausible defenses. As Planned Parenthood’s response to the Texas law shows, they are not in this for women’s health. After all, the if the whole point of legalized abortion is ostensibly to “protect women’s health,” then certainly a connection to a hospital is a step in the right direction.
It is worth remembering that Roe vs. Wade was written in a world where there were no effective ultrasound machines, and there was genuine confusion about when exactly a fetus was alive. With that confusion a thing of the past, the next front in the abortion war is seen with these kind of restrictions. After all, if the Gosnell case was really that bad, then even those in favor of keeping abortion legal should want to do what ever they can to upend the status quo.