October 16, 2014


How the 'Fundamental Right' to Abortion Faded Away : Under the standard set by Roe v. Wade, there would be no question that a controversial Texas abortion law was invalid. What happened? (GARRETT EPPS, OCT 16 2014, The Atlantic)

Flash forward to 2011, as newly elected Republican legislatures convened in red states. After 40 decades of mobilization by anti-abortion activists, the political climate and much of the federal judiciary had turned toxic for abortion rights. A study by the Guttmacher Institute finds that state legislatures enacted 205 restrictions between 2011 and 2013--more than had been passed nationwide in the 10 previous years. The two at issue in Texas are called "TRAPs" ("targeted regulation of abortion providers")--supposedly health-related rules that apply only to abortion providers and clinics.

First is an "admitting privileges" requirement--any doctor performing abortions must have a formal seal of approval from a hospital within 30 miles of the clinic--approval which may be withheld for economic or competitive reasons, or simply because the hospital disapproves of abortion. There is no real medical benefit. In the rare case of a complication requiring emergency treatment, local hospitals will treat any patient from a clinic. Second is a requirement that abortion clinics meet the physical standards for "ambulatory surgical centers," which perform invasive outpatient surgery. Abortion clinics aren't ASCs, but the legislatures now required them to have the same level of facilities, including things such as the width of hallways. Many existing clinics don't meet those standards, and would have to close.

So did these laws impose an "undue burden"? No, the Fifth Circuit found, because they wouldn't stop a "large fraction" of women from getting an abortion.

If the laws went into effect, 90 percent of women would only have to drive 150 miles to get to a clinic--and "an increase of travel of less than 150 miles for some women is not an undue burden," the Fifth Circuit said. The remaining 10 percent would be out of luck--but 10 percent is not a "large fraction."

The Casey plurality had said an undue burden was any measure that had "the purpose or effect of placing a substantial obstacle" in a woman's path. As Cornell Law Professor Sherry Colb has pointed out, "Had the Fifth Circuit ... taken the purpose prong of this test seriously, it would not have had to closely examine the impact of such laws." The Texas law clearly had the purpose of stopping as many abortions as the legislature thought it could get away with. The emerging rule is: Some bullying, even a lot of bullying, is okay. As long as we pretend there's a health purpose, as long as some women somewhere can get still abortions, as long as nobody anywhere admits what's really going on, the "right" has not been violated.

The right to choose, then, isn't what The New York Times's Linda Greenhouse calls "a right like any other." It's more like a role on a reality-TV show--the chance to stumble through a growing, onerous, and senseless set of demands designed to exhaust and bully any woman who tries to exercise it. It would be nice to imagine that the Supreme Court might set this topsy-turvy doctrine straight. But looking at the five members of this Court's majority--the five who voted in Hobby Lobby to ignore female employees' reproductive-health needs--I remember some words of Justice Harry Blackmun as he watched the tide on the Court turn against abortion rights in 1989. "The signs are evident and ominous," he wrote, "and a chill wind blows."

Gay marriage is likely just the new abortion, an issue the Left believes to have been settled in its favor by courts which will not withstand the pressures of democratic government.

Posted by at October 16, 2014 7:19 PM

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