November 20, 2013

"Splitting 5 to 4, the Supreme Court... refused to block a Texas abortion law that critics say is forcing the closing of one-third of all clinics in the state."

Lyle Denniston explains the issues and the votes:
The majority said that the challengers had not met the requirement for setting aside a federal appeals court’s order permitting the law to take effect on October 31.


The majority specifically included Justices Antonin Scalia, who wrote separately in a concurring opinion joined by Justices Samuel A. Alito, Jr., and Clarence Thomas.  But Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy presumably voted with those three, because it would have taken five votes to act definitively on the plea by doctors and clinics when there were four Justices who wanted to block the law....

Justice Stephen G. Breyer wrote for the four dissenters, including Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.
Here's the opinion PDF.

Scalia, writing for the majority, says that the Court can only vacate the stay if the Court of Appeals clearly erred in staying the district court's injunction. The Court of Appeals had to consider whether the party seeking the stay is likely to succeed on the merits, whether that party will be irreparably injured without the stay, whether others would be injured by a stay, and the public interest. In Scalia's view, you can't find clear error in the way the Court of Appeals analyzed those factors.

Breyer looks at the practical reality here. Either Texas must wait to start enforcing its new law (which might be constitutional), or doctors are going to have to close down clinics right away to meet the new requirement (which might be unconstitutional). Whatever proper ends Texas might have in its requirement that doctors have hospital admitting privileges, the harm in waiting a while for that to apply is much less than all of the change to the status quo.

Keep in mind that deterring women from having abortions is not a proper end under the case law. If that's what the law is really doing, counts toward finding an "undue burden," which is what would make the law unconstitutional.  The law needs to be justified as an improvement in health care, and so the injury that Scalia and Breyer are talking about is only the loss of improved care pending the litigation. On the other side of injury equation, there are all those clinics that must close, restricting access to abortion.

45 comments:

El Pollo Raylan said...

Can't the Obama Administration step in and refuse to enforce new State laws as well as Federal ones? There must an emergency clause somewhere...

David said...

Our abortion mess encourages intellectual dishonesty on all sides of the debate. The conservatives are not immune from the impulse.

Is either side on this case disclosing what actually motivates their decision?

Curious George said...

I would think they could keep the doors open with all that mammogram cash.

Deirdre Mundy said...

If requiring clinics/abortionists to meet commonly acceptable medical standards is automatically driven by 'desire to decrease abortions,' doesn't that mean that the pro-abortion side of the aisle is admitting that abortions mostly occur in gross, dirty clinics with sub-par medical staffs?

What happened to the "Safe" part of the trifecta?

Deirdre Mundy said...

Though, I don't know about TX, but in Indiana a lot of the public hospitals perform abortions on site. The difference is that the doctors who do them only do them for women who are their patients. So there's no anonymity, and the woman has to actually make a doctor's appointment.

But with Obamacare, all women's health is free, so this shouldn't be a barrier anymore, should it?

If you're trying to avoid practices that support abortion, you actually have to either carefully research doctors, or stick with the Catholic hospitals. But one reason for the lack of abortion clinics in many areas is that a local hospital is perfectly willing to do the deed.

So... unless TX is very different, I'm skeptical that this law will reduce access at all--except among women who refuse to make doctor's appointments...

Ann Althouse said...

"Can't the Obama Administration step in and refuse to enforce new State laws as well as Federal ones? There must an emergency clause somewhere…"

The state enforces its own laws, but maybe the Obama administration can threaten to bring a civil rights action of some sort, charging a conspiracy to violate women's rights.

Ann Althouse said...

The Texas law is about the proximity of the clinics to hospitals and the doctors' admitting privileges.

You could have a excellent clinic, completely clean and safe, but more than 30 miles from a hospital, and it would have to close.

Jack Wayne said...

Is this really different from requiring strip clubs to be more than 1500 feet from a school?

Matthew Sablan said...

"Is this really different from requiring strip clubs to be more than 1500 feet from a school?"

-- Yes. The question should be: Are there any other surgery/medical like centers allowed to be farther away? Were abortion centers singled out?

Why did we decide 30 miles? Is that 30 city miles, or 30 country miles, since the distance is less important than the speed of getting emergency care started in the case of an emergency.

But those are different questions, I guess.

Deirdre Mundy said...

Ann - that's actually fair. For instance, the recommendations for home birth say that you shouldn't try one more than 30 minutes from a hospital equipped to handle complications. The fear is that if there's hemorrhaging, a longer distance can mean that the mom's life is lost, even if there are Medivac procedures in place.

Hemorrhaging is a very real complication of surgical abortion... it's just not safe to do surgery if there's not a hospital nearby. In fact, outpatient surgery centers for other conditions are usually located in close proximity to hospitals.

Part of the problem, I think, is that people on the pro-abortion side of the spectrum are reluctant to admit that it is, in fact, a surgery, and that it carries all the complications and after-effects of a surgery.

(After we lost a baby, the doctor gave a careful rundown on all the risks and issues associated with a D&C. They include hemorrhage, future infertility, increase risks of ectopic pregnancies and placental issues, and an increased risk of endometriosis.

We lucked out and ended up not needing one... but they actually ARE surgery, even if they can be done on an outpatient basis.

And surgery carries risks of complications. There's no such thing as a 'safe' surgery. We just forget that, because antibiotics have lulled us into a sense of complacency.

So, a perfectly clean and competent clinic 30 miles from the nearest hospital? Probably not so competent, if they can't acknowledge the risks inherent in the procedure.

They can get away with it because the clinics cater to poor, uneducated women and young girls and college kids.

Educated women know where to find doctors to 'take care of things' in a normal medical setting.

Widmerpool said...

To state the obvious, Breyer, et al would certainly not apply his sloppy, lazy, "practical realities" test to preclude the enforcement, pending resolution on appeal, of a law he liked.

Also, he makes no attempt to show that the appeals court was "demonstrably wrong" in applying existing standards.

PeterK said...

" If 97% of Planned Parenthood’s services aren’t abortion, why in the world would an abortion regulation cause a dozen Planned Parenthood clinics to close?"
http://thefederalist.com/2013/11/18/planned-parenthoods-abortion-theater/
iirc part of the ambulatory surgical center regulations in texas require that the centers subject to the regulation make annual reports about how many patients are sent to the hospital for treatment. If this is the case I seriously doubt that PP or other abortion center operators want that information reported. also i've yet to see from any pro-abortion supporter solid reasons why abortion centers shouldn't be subject to sch regulations. the general reason given is cost. If Pennsylvania had had such a regulation in place would that have prevented Dr. Gosnell?
http://articles.washingtonpost.com/2013-04-20/national/38690223_1_abortion-foes-abortion-clinics-illegal-abortion
or how about this in Delaware
http://www.washingtonpost.com/blogs/she-the-people/wp/2013/08/02/another-gosnell-in-delaware/

Brennan said...

I would prefer that patients and doctors make this decision and the government stays out of it, but thanks to Justice Blackmon and his acceptance of made up history, the Supreme Court is now the medical advisory board for the entire nation.

However, I'm OK with litigants having to show actual harm the law incurs upon them rather tales from their land of make believe.

Renee said...

Abby Johnson, the former planned parenthood worker who is now pro-life just posted in medical detail what is done at an abortion at 20 weeks on Facrbbok. I'm not not copying and pasting, but even if I agreed with abortion the procedure should be done near a hospital.

BTW I had my physical with my primary, I was offered a papsmear & I scheduled my mammogram. Other then abortion, almost all services are duplicates. So when more people get health insurance and a primary doctor, women shouldnt need PP. But where I live in Massachusetts, women go to PP for one thing. We go to our real doctor for everything else.

Deirdre Mundy said...

Brennan- But don't all states regulate medical procedures? Does anywhere have a totally libertarian policy on doctors?

PB Reader said...

The minority 4 seem to thing that the law is merely a flexible guideline.

n.n said...

Baby steps, literally. In the meantime, human life is property, interchangeable and disposable.

Is it because human life without a voice cannot be readily exploited?

Is it because the demand for libertine behavior (i.e. progressive morality) and taxable activity is so great?

There have been other "civilizations" with equally progressive morality before ours. Still, today the "decent" women and men are better adapted to hide their activities in plain sight. That represents some kind of progress.

Mark Nielsen said...

At the university where I work we had a faculty presentation yesterday (as part of an interdisciplinary colloquium) with the following as an abstract:

"The Affordable Care Act was signed into law on March 23, 2010 and upheld by the U.S. Supreme Court on June 23, 2012. It is now the law of the land. Now, our challenge as scholars, professionals, businesses, and community leaders is to design our shared future instead of trying to repeal or un-fund ACA."

I'm sure the libs in Texas will adopt that same philosophy with regard to this law now.

Drago said...

David: "Is either side on this case disclosing what actually motivates their decision?"

I care only for the impact of the proposed laws and how it will be implemented.

The intellectual policy pathway taken by an individual to arrive at agreement with a proposed law interests me less.

Politics make for strange bedfellows it is said (can we still say that?).

Drago said...

PeterK said...
" If 97% of Planned Parenthood’s services aren’t abortion, why in the world would an abortion regulation cause a dozen Planned Parenthood clinics to close?"

The 97% figure is completely bogus.

PP arrives at this hilariously false percentage by disaggregating each and every activity for which they calculate a charge and pretend that only the final and ultimate "act" is actually "abortion" but all of the required steps leading up to it has nothing to do with the abortion.

If we applied this "special" rule (like all of the lefties "special" rules) to other procedures (say a gall bladder procedure): the anesthesia used wouldn't count, room prep wouldn't count, room cleanup wouldn't count, the images taken prior to the procedure wouldn't count, nurses assistance wouldn't count, etc.

The left lies about every single thing they do and advocate for.

El Pollo Raylan said...

The Affordable Care Act was signed into law on March 23, 2010 and upheld by the U.S. Supreme Court on June 23, 2012. It is now the law of the land. Now, our challenge as scholars, professionals, businesses, and community leaders is to design our shared future instead of trying to repeal or un-fund ACA.

This has to be flat out wrong as a policy. SCOTUS only ruled on the aspect of the law before it, not on the entirety of the law.

Brennan said...

"The Affordable Care Act was signed into law on March 23, 2010 and upheld by the U.S. Supreme Court on June 23, 2012. It is now the law of the land. Now, our challenge as scholars, professionals, businesses, and community leaders is to design our shared future instead of trying to repeal or un-fund ACA."

Does your university have some goal to achieve cosmic justice?

Mark Nielsen said...

@El Pollo Raylan: True. But what got me was the partisan tone for an abstract of a supposedly academic presentation. "How dare those conservatives keep arguing? We won."

Brennan said...

The 97% figure is completely bogus.

I don't speak for the author, but I took this 97% number as an excellent trolling of Planned Parenthood's talking point robots.

Mark Nielsen said...

"Does your university have some goal to achieve cosmic justice?"

Like at most universities, if the matter were left up to the liberal arts faculty, cosmic justice would be front and center in our strategic plan.

I feel fortunate to be in a relatively safe and apolitical part of campus (science).

El Pollo Raylan said...

@Mark Nielsen: Please drop a hint which university you're talking about so that I can keep my kids far and away from it in a few years.

The Godfather said...

The government passes a law to regulate medical procedures for the ostensible purpose of protecting patient health. Who would oppose such a law? Perhaps strict libertarians. Who would you expect to support such a law? Liberals, who usually support the exercise of government regulatory power in the public interest. Only not this time, because the exercise of government regulatory power in this case might reduce the number of abortions.

It's a funny world we live in.

Mark Nielsen said...

@El Pollo Raylan: My university is actually much better than most. The fact that I'm in a conservative state keeps the left-leaning tendency of the academy at least a little bit in check.

damikesc said...

You could have a excellent clinic, completely clean and safe, but more than 30 miles from a hospital, and it would have to close.

Shouldn't that be desired, though? No matter how wonderful the abortion facility is --- accidents happen. If there is no way you can be saved in that situation, then there is a problem.

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

damikesc:

The business of the abortion clinic is to provide low-cost termination of human lives. It would be a conflict of interest if they were to also save them.

Non-elective abortions should be handled by a doctor with an intent to save both mother and child. This can only be done at a facility with the resources and intent to preserve human lives.

West Texas Intermediate Crude said...
This comment has been removed by the author.
Ambrose said...

The clinics that are closing are just a few "substandard", "junk" clinics run by "bad apple". providers. Besides, the law's not really making them close - it's their decision not to meet the new standards that are the law of the state (and approved by the courts).

Deirdre Mundy said...

n.n. What the heck is a 'non-elective abortion with the intent to save mother and child??'

It's not an abortion if you're not trying to save the baby. When the mom has preeclampsia and they have to deliver at 22-24 weeks? That's 'early induction' or 'early c-section.'

The only 'non-elective' abortions are for ectopic pregnancies.. and even Catholic hospitals do that surgery, since the intent is to keep the fallopian tube from rupturing and killing both mother and child.

(The intention is not to kill the child, but to save the mother, and the assumption is that, if there was a way to save babies that small, they would do it.)

But...when you read these stories about how "I had to have an abortion at 26 weeks because my life was in danger?" Total BS. You don't NEED to kill the baby at that point. You just need to remove the baby, and we DO have the facilities to save the baby.

There is no such thing as a non-elective abortion after viability.

Though, interestingly enough, if your baby dies after about 14 weeks or so and they have to do surgery or induce labor to remove the body? Doctors make you go.... TO THE HOSPITAL. Because childbirth is childbirth, whether the baby is alive or dead, and your body has the same work to do and faces the same risks.

But again... if the baby is dead? It's non-elective, but it's not an abortion.....

And, if there's a crisis and you have to deliver the baby at 18 weeks? (alive, but not viable?) Still not an abortion. Just a tragedy. And hospitals treat it that way.

It's only an abortion if the medical practitioner ACTIVELY kills the baby. Or screws up and throws a living baby in the trash can.....

West Texas Intermediate Crude said...

The Fugitive Slave Act was signed into law on September 18, 1850, and upheld by the U.S. Supreme Court on December 1, 1858. It is now the law of the land. Now, our challenge as scholars, professionals, businesses, and community leaders is to design our shared future instead of trying to repeal or un-fund FSA.

FIFY

[Cannot edit posts- have to delete and re-post to correct typos. Sorry].

Mark Nielsen said...

Thanks West Texas -- I was looking for the perfect analogy to use in altering that abstract. You've got it.

For my money, Ambrose wins the thread with a late entry.

Elliott A said...

If an OB-GYN does not have hospital privileges one has to wonder why. Hardly a barrier, definitely a protection.

n.n said...

Deirdre Mundy:

Elective is by choice, optional, not required. Non-elective is its complement. The former implies premeditation.

Abortion is the unqualified termination of a pregnancy. It has acquired a specific connotation over the years, but its original meaning was derived from its root which is defined as a generic termination.

Kelly said...

Everything else on Gods green earth is regulated. Why is abortion extra special?

David said...

"You could have a excellent clinic, completely clean and safe, but more than 30 miles from a hospital, and it would have to close."

Does the law apply to all medical clinics or just abortion clinics? The whole point of a clinic is to provide services that are not conveniently available at a hospital. (Think Africa. Or parts of South Carolina, for that matter. Or Texas.)

Doesn't it make more sense to prohibit abortions in clinics that are within 30 miles of the hospital? There the medical justification is that the more complete (and resumable medically safer) facility is available.

They have it backward and inside out all at once, which is what the abortion pretzel twisting will do to you.

Saint Croix said...

You could have a excellent clinic, completely clean and safe, but more than 30 miles from a hospital, and it would have to close

Is there such a thing as an abortion clinic that is "completely clean and safe"? I grant you clean--it should be a simple matter to keep the cat shit out of your abortion clinic--but "safe"?

Here are some of the complications of the D&E, according to Stenberg v. Carhart:

“sharp bone fragments passing through the cervix”

“uterine perforations caused by (the doctor’s) instruments”

“infection-causing fetal and placental tissue in the uterus”

“potentially fatal absorption of fetal tissue into the (bloodstream)”

The Supreme Court has been incredibly glib about the safety of late-term abortion procedures. Breyer and company only list these dangers of the D&E while arguing for partial-birth abortion. Now that partial-birth abortion is illegal, they're back to saying that D&E is a day at the beach.

Deirdre Mundy said...

David-- Ambulatory surgery centers are usually cheaper than the hospital because they don't have things like... an ICU, or overnight rooms, or food services. But they tend to locate near hospitals because of the risk of complications.

In IL, any doctor who performs surgery at a surgicenter must also have privileges to perform surgery at a nearby hospital. The idea is that the surgeon evaluates patients based on risk-- low-risk patients can get the low cost, more personalized care of the surgicenter. Higher risk patients go to the hospital.

There doesn't seem to be a similar process for abortions...

Deirdre Mundy said...

I mean, I'm flat-out opposed to abortion, but don't you think it's odd that its proponents, who claim it carries no moral stigma and is just a medical procedure like any other, refuse to treat it the same way as knee surgery or a hysterectomy?

Why are they opposed to giving women more at risk for hemorrhaging a safer option? Why are they opposed to qualified surgeons and clean operating rooms?

Are they trying to punish these women for their choices? Is this all part and parcel of the 'slut shaming' thing?

Matthew Sablan said...

I think "safe" in relation to any medical procedure doesn't mean 100% rate of nothing bad happening, but rather, that the risk involved is within the expected limits. Like, say, going sky diving can be safe, but reading at home is also safe -- but there's a clear difference in risk between the two activities.

Matthew Sablan said...

"I mean, I'm flat-out opposed to abortion, but don't you think it's odd that its proponents, who claim it carries no moral stigma and is just a medical procedure like any other, refuse to treat it the same way as knee surgery or a hysterectomy?"

-- I think we have to look at it from their point of view. Let's not focus on the moral value they place on abortion, but rather, what they think they know/know the OTHER side believes. They ascribe to the other side various bad faiths and motives.

When you take into account that they view pro-life as actively opposing women's health, you begin to see why they'd move to more extreme positions. Because, in the majority, it is a slippery slope. If you force underage girls to get parental permission for abortions, then you've given ground and may lose abortions altogether. You have to remember that to them, even the tiniest action is a risk to the autonomy of the women they know and love; when you look at it from that angle, you can see why big, broad strokes are impossible and these nibbling actions are resisted so much. We can find neutral ground, but not without a lot more give and take and understanding.

It is like when I try to explain to pro-choice people that they can't talk to someone who is pro-life without trying to remember, they think abortion is a heinous, evil act. Being flip and rude about it burns bridges, because while the pro-choice person might not see it as a weighty, moral issue, if they want to reach an accord with the other side, they HAVE to realize the other side does.

Most of the arguments, I think, won't be resolved until both sides step back and treat the argument with the gravity the pro-life side believes it deserves, while also accepting the real fears to personal autonomy that the pro-choice side fears.