July 15, 2014
S. 1696, the “Women’s Health Protection Act of 2013,” is anything but. Indeed, such a title perhaps would have been more apt (though still laughable) many years ago, before technological advancements made it possible to view, and impossible to deny, that little baby struggling for life in the womb. Now, such a title is a complete sideline, a distraction of advocates of death who grasp at straws and try to block all images from sight and mind of a helpless baby growing and grasping at life as she is about to be delivered onto its stage. No, S. 1696 is not about “health.” It is but the latest ploy in an attempt to deny what is increasingly becoming more undeniable — the life of the baby in the womb.
How does S. 1696 attempt this ploy? By trying to interfere in the regulation of the health and safety of citizens — areas of general authority constitutionally left to the states. The bill doesn’t even attempt to hide this interference, explicitly stating in its findings: “Though described by their proponents as health and safety regulations many of these abortion-specific restrictions do not advance the safety of abortion services and do nothing to protect women’s health.”
The bill would prohibit specific tests or medical procedures in connection with the provision of an abortion. It would also prohibit limits from being placed on an abortion provider’s ability to delegate tasks, ability to prescribe or dispense drugs based on her or his good-faith medical judgment, and ability to provide abortion services via telemedicine. It would also bar states and localities from determining how equipment, staffing, credentialing, privileges, and transfer arrangements would work at facilities providing abortions, and from restricting abortion training. In all these matters, state and local governments may only regulate the health and safety of their citizens regarding abortions if they do so through generally applicable regulations or also regulate medically comparable fields. In addition, S. 1696 would bar state and local governments from requiring women to “make one or more medically unnecessary visits to the provider of abortion services or to any individual or entity that does not provide abortion services” before “obtaining an abortion.” Aside from the overt intrusion into areas of power clearly left to the states, the federal government is now going to tell the states what is and isn’t “medically unnecessary.” The brashness of this power grab is hard to ignore.
As if this wasn’t enough, the bill continues: “[a] measure or action that restricts the provision of abortion services or the facilities that provide abortion services that is similar to any of the prohibited limitations or requirements described [above] shall be unlawful if such measure or action singles out abortion services or make abortions services more difficult to access and does not significantly advance women’s health or the safety of abortion services.” Well that’s nice. How is any of this defined? “[A] plaintiff shall demonstrate that the measure or action involved — (A) singles out the provision of abortion services or facilities in which abortion services are performed; or (B) impedes women’s access to abortion services based on one or more of the factors described in paragraph (3)” (emphasis mine). One such “factor” is “[w]hether the measure or action is reasonably likely to delay some women in accessing abortion services.” So a lawsuit may be brought under this bill by merely showing that it takes longer to get an abortion (please pay no attention to the state’s serious health concerns). Under this theory, one could introduce legislation mandating “immediate medical treatment” of certain conditions because the diagnosis period is “too long.” Another such “factor” is “[w]hether the measure or action requires, or is reasonably likely to have the effect of necessitating, a trip to the offices of the abortion provider that would not otherwise be required.” Who determines what is “required.”
At this point, S.1696 should just stop pretending it is not intruding into areas of state authority. Other “factors” are laid out in the bill. But the last one is a doozy: “[t]he cumulative impact of the measure or action combined with other new or existing requirements or restrictions.” Thus, according to S. 1696, a plaintiff can make out a prima facie case by showing that a law “impedes women’s health” through the “cumulative impact of the measure or action combined with other new or existing requirements or restrictions.” Obfuscate. Muddle. Then go for the power-grab. On top of all this, the bill would require a state to show there is no “less restrictive alternative measure or action” to accomplish regulation of abortion—thus clearly interfering with the rational basis standard typically used to measure state regulation of citizens’ health and welfare. If S. 1696 isn’t an attempt to rip from state control the power to regulate the health and welfare of their citizens, I don’t know what is.
Adding insult to injury, the bill’s authors pretend to care about minorities by claiming that the “harms” they claim to fix “fall especially heavily on low-income women, women of color, and women living in rural and other medically underserved areas.” If they so cared about minorities, this bill’s supporters would look to restrict abortion generally, as abortion providers have been shown time and time again to profit off killing minority babies. Such purported minority rights advocates would have come to the defense of the Arizona law banning race-based abortions, yet they were silent there. Indeed, the NAACP and others actually opposed the law and sued to have it blocked! Yet, abortion must be advanced at all costs. Such is the sentiment of S. 1696.