by Cathy Ruse
October 22, 2018
This feels like momentum.
This column contains a good description of where the legal fight stands on requiring abortionists to obtain admitting privileges.
Good, but confusing, because the Supreme Court has confused things so much.
Here’s my attempt at a shorter description:
Prior to the devastating 2016 Whole Women’s Health v. Hellerstedt ruling striking down Texas’ abortion safety regulations, the Supreme Court had long used the “undue burden” standard from Casey (1992) to measure the constitutionality of state abortion regulations: A law could stand if (1) the state had a legitimate reason for the law, and (2) the law did not impose an “undue burden” on obtaining an abortion (meaning it did not place a “substantial obstacle in the path” to obtaining an abortion).
But the Hellerstedt majority did not follow this legitimate reason + no undue burden formula. Instead, it asked whether the burdens from the law outweigh the benefits from the law.
This is a new balancing test, and there is a lot of room for judicial shenanigans in balancing tests.
As the majority in Hellerstedt saw it, many Texas clinics threatened to close, so that showed a large burden, and since abortion was already safe in Texas (the court’s conclusion), additional safety requirements would provide little benefit.
Importantly, the court disregarded the legislators’ position that hospital admission privileges do provide a health benefit for women.
But the recent 5th Circuit’s application of the balancing test came out differently.
In Louisiana, only one of the five clinics threatened to close. On the benefit side, the court gave deference to legislative position that admitting privileges provide “a real, and previously unaddressed, credentialing function that promotes the wellbeing of women.”
The really gratifying part of the 5th Circuit opinion is when they call out these abortionists for not even really trying to get admitting privileges—for “sitting on their hands.” One abortionist apparently threatened to close if his was the only abortion clinic left, but then when he learned that another clinic would be remaining open, he changed his position and threatened to close if his was one of only two clinics left. This shows bad faith, and the 5th Circuit wasn’t going to be played for fools.
It would be best, of course, if the Supreme Court got rid of the Hellerstedt balancing test altogether. Perhaps that will happen now that there are a majority of justices who aren’t keen to make up fancy new standards to get the results they want.
But in the meantime, pro-life laws are winning, even under a bad standard.