October 28, 2013

Federal judge finds part of the new Texas abortion law unconstitutional.

"... Judge Lee Yeakel of United States District Court in Austin declared that 'the act’s admitting-privileges provision is without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.'"
Texas was the 12th state to adopt a 20-week ban, which legal experts say is in conflict with Supreme Court decisions granting a right to abortion until the fetus is viable outside the womb, usually at around 24 weeks. Courts have blocked such measures in the three states where they have been challenged, but they remain in effect in others.

60 comments:

Bob Ellison said...

Rational basis, schmational schmasis. The Texas and US Constitutions do not use the words.

Let's not be petty little legal scholars. Does the state have the power to enact and execute such a law? Yes, of course it does.

Basil said...

The "rational basis" test doesn't mean the same thing as it used to back in the day does it, professor? Used to be that a state regulation (usually of an economic activity) would be deferred to if there was any concievable basis for it, evn one not considered by the legislature. It is now the reverse, any reason that a left wing lawyer can think of invalidates the will of the people. Elite opinion enforced by federal potentates (I'm sorry, judges) now rules the people. It's not democracy and its certainly not a Constitutional republic. What do you think we should call our new governing structure?

Big Mike said...

I'm hard pressed to figure out why it's a burden for the abortion clinics to use qualified doctors. I thought that the point of Roe v. Wade was to get rid of back-alley abortions, not to move them inside Planned Parenthood clinics.

khesanh0802 said...

Seems to me the most important part of the law : that clinics meet ambulatory surgery standards is not in question. Admitting privileges seem arcane but I suppose it can be thought of as a measure of a doctor's legitimacy.

Paul Zrimsek said...

Concern about the quality of doctors in clinics certainly seems rational enough. I can well believe that demanding admitting privileges is overkill-- but that's the sort of policy judgment on which I'd expect judges to defer to legislators.

victoria said...

Yay!!!!!!!


Vicki from Pasadena

Michael K said...

" Blogger Big Mike said...

I'm hard pressed to figure out why it's a burden for the abortion clinics to use qualified doctors. I thought that the point of Roe v. Wade was to get rid of back-alley abortions, not to move them inside Planned Parenthood clinics."

Great point. Personally, I don't really care but it is a great point.

PB Reader said...

Ok, set it at 24 weeks. Abortion Barbie and her friends will still nag for more and the more extreme will say anything up to 9 months after birth is fine.

Frankly, there is no rational basis for setting a limit. The only rational basis is that life begins at conception and that individual's rights do, too.

FullMoon said...

Meanwhile, in California"
VAB154 by Assemblywoman Toni Atkins, D-San Diego, would let nurse practitioners, certified nurse-midwives and physician assistants with special training perform abortion by aspiration -- in which the uterus' contents are suctioned out -- which is the most common kind of first-trimester abortion. The Assembly passed the bill on a 50-25 vote in May, and the state Senate passed it on a 50-25 vote in August, with most Democrats and no Republicans voting for it.

Edward Lunny said...

So the slaughter will continue. Odd what libs call healthcare, the children never survive. What's healthy about that ? Will they use the Gosnell decorative theory on the next cover of, say, Vanity Fair, or Cosmo perhaps ? All of those tiny body parts clearly displayed about your home or apartment. How chic !
Geez, what a bunch of despicable curs they are, murderous despicable curs.

PB Reader said...

If viability is the standard and democrats believe word meanings are "flexible", then we're getting in really deep weeds. Most democrats today are insane and that is not a viable state for an elected official.

n.n said...

It is irrational to ignore that a human life evolves from conception to death. It is illegal to not offer equal protection to all lives subject to the jurisdiction of the constitution. It is a human rights violation to commit murder without cause or due process.

Couples need to make better choices and accept responsibility for their actions.

While couples may now enjoy sacrificial rites, they have no right to unilaterally devalue human life. However, it is the responsibility of society to preserve the value of its members, and it is in our best interest to preserve the value of all human lives.

Treating human life as a commodity is regressive concept which has been rejected by civilized men and women. Decent men and women recognize that human life has an unearned value which transcend its immediate utility and voluntary acceptance.

Deirdre Mundy said...

Would you go to an ambulatory surgery clinic where the doctor was unable to get admitting privileges at a hospital? Hemorrhaging or strokes or stop-breathing episodes can happen anywhere....

Perhaps clinics without admitting privileges should be required to prominently display a notice so that women can make an informed choice?

Big Mike said...

I'm okay with Deirdre's compromise.

Inga said...

HA!

Inga said...

Surgical clinics for non surgical abortions are NOT necessary.

paul a'barge said...

Successful appeal in 5 ... 4 ... 3 ... 2 ... 1 ...

Inga said...

Admitting privileges for non surgical clinic abortion doctors are NOT necessary. If there are complications, same as in a miscarriage at home without medical abortion, there is the ER of any hospital.

Deirdre Mundy said...

Inga-- for a non-surgical abortion, you just take a pill. No need for a clinic at all! As soon as you go to a D&C, that's surgery. In fact, OBs refer to it as a uterine surgery. Having D&Cs for any reason increases your risk of complications that can result in a hysterectomy.

All REAL OBs who do D&Cs have admitting practices at local hospitals.

Don't you want a woman having an abortion to have the same level of care as a woman having polyps removed or who's had a miscarriage???

Why do you hate women who choose abortion? Are you trying to punish them for their sins?

Inga said...

Medical abortions do not require a D&C.

Inga said...

Not all abortions done in Texas are surgical abortions.

Ann Althouse said...

"It is now the reverse, any reason that a left wing lawyer can think of invalidates the will of the people."

A woman has a right to an abortion prior to viability. The state may regulate in the interest of her health and in the interest of the potential child that could be born, but not to take her choice away from her, which the state might attempt to do through regulations that purportedly serve those state interests but are really ways to impede the woman's choice. That's the reason for the undue burden test from "Casey":

"A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends."

Apparently, in this new case, the judge didn't see any valid state interest that the admitting privileges requirement is rationally related to and that the only purpose was to burden the woman's constitutionally protected freedom.

Deirdre Mundy said...

But by 8-10 weeks GA, you have to have surgery. However, the judge set the cut-off at 24 weeks.

So, that's a good 14-16 weeks of pregnancy where women are having surgery, but docs don't need privileges...

And how many women are really getting abortions by 8 weeks? They're going to wait and see if they miscarry naturally before they spend money at a clinic! If they even bother to take a pregnancy test that early!

Heck, I EXPECT to get pregnant and LIKE babies, but I rarely take a pregnancy test before 6 or 7 weeks! There are too many other reasons to skip a period, so why waste the buck?

Inga said...

The abortion clinics are REQUIRED to be surgical clinics, even for non surgical abortions. If a D&C is required, a surgical clinic is equipped for the task.

Wayworn Wanderer said...

One dickwad judge overturns the democratic process yet again.

Bite me, pig!

Wayworn Wanderer said...

One dickwad judge overturns the democratic process yet again.

Bite me, pig!

Deirdre Mundy said...

Inga- Well, it's equipped unless something goes wrong-- like extreme blood loss, patient going into shock, etc.

And if there are complications after the surgery (like an infection), it's sort of helpful if your surgeon can admit you to the hospital.

Most Americans wouldn't dream of going to a surgeon for outpatient surgery who didn't have inpatient privileges nearby. Apparently women having abortions are the exception. Must be the hormones or something...

jr565 said...

20 weeks, 24 weeks. iS it that much of a difference? One of the problems with tying when you get an abortion to viability is that as medicine gets more advanced the age of viability gets earlier.
Women can still get abortions they'd just have to do it 4 weeks earlier.
If you are already setting a limit at 24 weeks, why could't you similarly set it at 20 weeks?

jr565 said...

Deirdre wrote:
Most Americans wouldn't dream of going to a surgeon for outpatient surgery who didn't have inpatient privileges nearby. Apparently women having abortions are the exception. Must be the hormones or something...

i though pro choicers wanted safe abortions?

Storkdoc said...

Inga, you just want to dump the complications on the ER. I personally just love it when i have to clean up somebody else's mess. Yes I just love that.....

Storkdoc said...

Inga, yes let us just dump the complications on the ED. I just love taking care of other's messes...yes I just love it......

Inga said...

Oh well, too damn bad storkdoc. They are human beings with a medical emergency. It's not as if your entire ER is filed with abortion patients.

Storkdoc said...

I love it so much I posted it twice....Sorry

jr565 said...

according to wiki "According to studies between 2003 and 2005, 20 to 35 percent of babies born at 23 weeks of gestation survive".
That was back in 2005. Maybe viabliity is now 22 weeks.
So, the window for mothers to kill their kids is getting smaller and smaller.
I would say a compromise would be set it at 23 weeks instead of 20, since I'm not sure if babies are considered viable at that age. But it's just a matter of time.

Storkdoc said...

Inga, it's a medical emergency caused by someone else who couldn't be bothered with getting the hospital priviledges to take care of their own damned mistakes.

Deirdre Mundy said...

Friends who've worked ERs that get lots of botched abortions say that it's a mess... because you can't get good information on the surgery, the patient is often in too rough shape to give you accurate details, and the abortionists have washed their hands of the whole matter.

As a result, figuring out what's wrong and treating it take longer. Women lose their uterus, bleed more, have more lasting complications because the guy who could be bothered to take their cash and their kid couldn't be bothered to answer a phone call and send over some medical records.

It's not a matter of 'not caring about women,' for these ER docs-- it's the issue of women receiving sub-optimal care because their so-called 'doctor' can't be bothered to take responsibility for his patients.

But the Texas judge thinks that's just fine and dandy.

If I demanded the right to go to an appendectomy clinic and have my appendix removed by an unlicensed doctor at any time for any reason, people would probably have me committed-- and rightly so.

But for some reason, when a woman wants to kill her unborn child, all standards go out the window. It's weird, that the people who are loudest about abortions being 'just a procedure' are the same ones who want to treat the women who have them worse than we treat stray cats.

I'd rather no one have them. But--- is it really fair to doom a woman to infertility for something she believed was no big deal? If we're going to make it legal, we should also make it safe.

Inga said...

It's not always their "mistake". How common are complications that require hospitalization?

Types of Complications from Surgical Abortion

blood clots accumulating in the uterus, requiring another suctioning procedure, (less than 0.2% of cases);9
infections, most of which are easily identified and treated if the woman carefully observes follow-up instructions, (0.1%-2.0% of North American cases);9

a tear in the cervix, which may be repaired with stitches (0.6%-1.2% of cases);10

perforation (a puncture or tear) of the wall of the uterus and/or other organs (less than 0.4% of cases).5,9 This may heal itself or may require surgical repair or, rarely, hysterectomy;

missed abortion, which does not end the pregnancy and requires the abortion to be repeated (less than 0.3% of cases);9

incomplete abortion, in which tissue from the pregnancy remains in the uterus, and requires a repeat suction procedure, (0.3%-2.0% of cases);9

excessive bleeding requiring a blood transfusion (0.02%-0.3% of cases).5,10

Death occurs in 0.0006% of all legal surgical abortions (one in 160,000 cases). These rare deaths are usually the result of such things as adverse reactions to anesthesia, embolism, infection, or uncontrollable bleeding.9 In comparison, a woman's risk of death during pregnancy and childbirth is ten times greater.5

http://www.prochoice.org/about_abortion/facts/safety_of_abortion.html

jr565 said...

"I'd rather no one have them. But--- is it really fair to doom a woman to infertility for something she believed was no big deal? If we're going to make it legal, we should also make it safe."

NO restrictions on the right to abortions! Any attempt at restriction is just the right wingers trying to stop a womans right to choose (war on women!). So if that means abortions that are not as safe as necessary, well then...

Storkdoc said...

Inga,

My point is that the people who have these complications should be able to deal with it themselves. When patients get dumped at the ED, someone has just abandoned them.

I have an office and I work at a hospital. If I get a complication from my office procedure, I take care of them myself. I don't dump it on someone else. That's why I think abortion providers should have the ability to admit to a hospital to take of it themselves.

And you have to wonder why they're not on hospital staff somewhere....

Tom P said...

"Death occurs in 0.0006% of all legal surgical abortions (one in 160,000 cases)." Um, Inga - seems to me death occurs in nearly 100% of abortions. Isn't that the point of an abortion?

jr565 said...

From national review's discussion of the law:
"It bans abortions after 20 weeks unless the fetus is nonviable or the mother’s health is at risk, requires that abortions take place in clinics that meet ambulatory surgical centers’ standards, and requires that abortion providers have admitting privileges at a hospital within 30 miles of the clinic where they work. It also mandates that the administration of drugs to perform medical abortions follows the FDA protocol, which requires three visits to the clinic to take the medication necessary to terminate and then expel the fetus."

Ok, so the 20 weeks is a bit controversial since viability may not be till 22-23 weeks or so. But, it sounds like that part of the bill wasn't contested.
And the other parts of the bill seem eminently reasonable and actually protect the life of the mother.

Inga said...

How many hospitals are Catholic or religiously affiliated Storkdoc?

heyboom said...

Oh well, too damn bad storkdoc. They are human beings with a medical emergency. It's not as if your entire ER is filed with abortion patients.

That's the despicable side of you, Inga. Yes, it is too damn bad that the human being inside of the mother is totally irrelevant to you.

jr565 said...

Deirdre wrote:
Don't you want a woman having an abortion to have the same level of care as a woman having polyps removed or who's had a miscarriage??? "


Yes! I mean, no! Wait, what is the pro choice position again?


Ok, after consulting the pro choice talking points I will say NO, I don't want a woman having an abortion to have the same level of care as a woman having polyps removed. Because that would be a war on women.
Or something.

Inga said...

No Heyboom. The unborn baby is not at all irrelevant to me. I'm in favor of limiting the window in which an abortion can be performed. The 20 week limitation could even be reduced to 16 weeks. I wish no woman would ever have an abortion. It's not my place to deny women what is her legal right though. I'm in favor of the abortion clinics being surgically equipped.

Storkdoc said...

Inga, believe it or not, but you can work at and admit patients to a religious hospital even if you do some other work on the side.

heyboom said...

This was your initial post at 5:17:

Inga said:

HA!


Doesn't really square with your claim that you have any concern for the unborn life.

jr565 said...

Inga wrote:
No Heyboom. The unborn baby is not at all irrelevant to me. I'm in favor of limiting the window in which an abortion can be performed. The 20 week limitation could even be reduced to 16 weeks. I wish no woman would ever have an abortion. It's not my place to deny women what is her legal right though. I'm in favor of the abortion clinics being surgically equipped.

Well, if you are currently able to get an abortion at 24 weeks and you cut that down to 16 weeks, you are in fact denying many women their legal rights. since, until you changed the time frame when they could have the abortion, they could have the abortion.
I'm ok with that as well, though if we're going to cut it to 16 weeks, why not 12 weeks? And if we're going to cut it to 12 weeks, why not 8 weeks? etc.

But, at any rate, the pro choicers are going to be contesting moving it back to 20 weeks as a violation of their rights.
Isn't your stance then kind of war on womenesque (as defined by pro choicers)?

Inga said...

This is regarding MS, but I'm sure it holds true in Texas also.

"Why can’t abortion providers received admitting privileges?

Many abortion providers can. However, for abortion providers in hostile anti-choice states, including Mississippi, Alabama, Kansas, North Dakota, South Dakota, etc., receiving admitting privileges from a local hospital is nearly impossible, for several reasons:

1) In hostile anti-choice areas, doctors are flown in from out-of-state for their own protection. (If not, they would be subject to harassment, stalking, and violence from anti-choice protesters.) Out-of-state doctors are unable to receive admitting privileges from a local hospital. 

2) Hospitals in anti-choice areas with lots of hostility tend to be afraid of being found out that they provided admitting privileges to an abortion provider. They are also looking out for their own safety. 

3) Having admitting privileges means you have to have a certain amount of patients sent to the hospital per month. While there are abortions that have unfortunate complications, overall abortions are very safe and complications are rare. 

4) Politicians are more interested in getting rid of abortion than providing adequate health care for women, so they’ll provide a much-too-quick deadline for receiving admitting privileges. This would have worked in Mississippi if it weren’t for the federal government stepping in to grant the clinic multiple injunctions.

5) If you only have a Catholic hospital in your area, then forget it. 

The Alabama state legislature recently passed an admitting privileges law similar to Mississippi’s. When reporters surveyed the hospitals in Birmingham to see who would grant admitting privileges to the abortion clinic’s doctor, this is what they found:

In Birmingham, there is one licensed abortion clinic and its doctor does not have local admitting privileges. And the chance of getting such credentials may be difficult, according to a survey of Birmingham area hospitals.

—UAB Hospital said it would not grant such credentials because UAB allows that privilege only to those on faculty;

—Trinity Medical Center and St. Vincent’s Health System issued statements that were not definitive on whether they would grant privileges to an abortion clinic doctor — but both trumpeted their opposition to abortion;

—Baptist Health System and Brookwood Medical Center didn’t respond after two days of inquiries.

Are admitting privileges necessary for abortion providers?

It’s tough to say. Hospitals are already required to provide care to anyone who needs emergency care, no matter if the person is insured or uninsured. This includes pregnant women who need a life-saving abortion, are in labor, or are suffering from the effects of a botched abortion. Many clinics already have agreements with hospitals in their areas, and hospitals do allow patients who need emergency care.

In 2011, however, the House of Representatives did pass a bill, nicknamed the “Let Women Die Bill,” that would have enabled hospitals to turn away pregnant women who need care, including a life-saving abortion. This bill, luckily, is not progressing in Congress. "

http://bebinn.tumblr.com/post/50285895396/do-admitting-privileges-help-abortion-providers

Inga said...
This comment has been removed by the author.
Inga said...

Heyboom, my HA! is in response to the judge saying admitting privileges place an undue burden on women seeking an abortion. That should be obvious by now. Have you read what I've been saying regarding my opinion on late term abortions for the last two years on this very blog's comments section, on practically every abortion thread ever posted?

I don't think you have, or you have selective amnesia.


heyboom said...

Oh yes, I have been following you closely for the past few years, even when I wasn't posting. I just don't think you've made a case on how this requirement places an undue burden on the mother.

Inga said...

Heyboom, you made an assertion that the unborn baby is irrelevant to me. You can apologize now.

As for making a case that's it is an undue burden, it's been done. Complain to the judge.

heyboom said...

I'll tell you what, Inga. You make a convincing case to me that there is a constitutional right to abortion and I will gladly apologize to you.

Basil said...

Professor, just what I said, anything a left wing lawyer can come up with it trumps the will of the people. Do you ever ask yourself why women and women alone have the right to kill without punishment? What is the logical basis of the mere assertion that abortion is related in any way to a woman's personhood? Being able to kill your baby in your womb does not make one more or less of a woman. It just makes one a person who kills. Is the woman who has an abortion more feminine than one who has not? Why or why not?

jr565 said...
This comment has been removed by the author.
jr565 said...

Inga, I just heard a spokesman for planned parenthood on Meghan Kelly's show say that 26 week fetuses are not viable, and certainly not 20 week old fetuses. And that restricting abortions to 20 weeks violates a woman's rights and places an undue hardship on women.

You however just said you'd be ok with abortions up to 16 weeks, which is 4 weeks earlier than Texas suggested.
i'd imagine Planned parenthood would say that Texas was conducting a war on women?
If you are ok with restricting abortions even earlier than Texas, how then are you not similarly engaging in a war on women? You're advocating restricting choice.
To planned parenthood, you're the enemy. Even more so than Texas.

Deirdre Mundy said...

Wow-- kid born at 24 and 26 weeks aren't viable? I'll have to pass that on to some of the kids I know.... they must be..... undead!

Funny... they don't SMELL like zombies...

Big Mike said...

@Inga, regarding your comment at 7:28. Those are good points, and I'm perfectly okay with requiring abortion clinics to have agreements in place with emergency rooms in lieu of admitting privileges. I think of the poor woman who bled to death in Gosnell's clinic because the hallways were too narrow for a gurney and the hospital was not notified that a woman was bleeding out. I think "many" in the last sentence of your next to last paragraph needs to be changed to "all," and if the law has to force hospitals to arrange to accept women from abortion clinics when things go wrong, then I'm okay with that, too.

Pardon me if I'm a bit flabbergasted to see you making valid points and departing from the liberal group-think, even if only temporarily. Would that you'd try to do it more often.

n.n said...

The right to choose is a sacrificial rite. The regressive practices of this progressive cult should be exposed to public scrutiny. Perhaps it is an Aztec or Roman derivative.

That said, liberty is only suitable and possible for women and men capable of self-moderating, responsible behavior. The premeditated termination of a human life for money, career, or convenience is the extraordinary act of an immature individual. We routinely circumscribe the liberty of children and criminals when they exhibit poor judgment and commit crimes against humanity, respectively.