Patterico's Pontifications


Supreme Court Overturns Texas Abortion Regulations

Filed under: General — JVW @ 3:29 pm

[guest post by JVW]

Fox News has a wrap-up. The full court ruling is here. Sort of predictable, I suppose. Anthony Kennedy sided with the liberals to provide the fifth vote.

Samuel Alito calls out the majority, pointing out that they have failed to apply the laws evenly and consistently where the contentious topic of abortion is concerned: “[D]etermined to strike down two provisions of a new Texas abortion statute in all of their applications, the Court simply disregards basic rules that apply in all other cases.”

Clarence Thomas also accuses the majority of inconsistency: “Ultimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.”

Feel free to discuss.


46 Responses to “Supreme Court Overturns Texas Abortion Regulations”

  1. Well, that’s true. First Amendment, death penalty, abortion, and gay rights do not follow either American or common-law rules of jurisprudence. The Court just makes it up as it goes along.

    And the decision was a foregone conclusion as long as the Court adheres to its Roe v. Wade pronouncement that the state has no protectable interest in the unborn before viability. But it was a valiant effort on the part of Texas.

    nk (dbc370)

  2. Left wingers believe that the Constitutional right to free speech can be limited by the state in certain contexts. Left wingers believe that the Constitutional right to bear arms can be limited by the state in certain contexts.

    But if the state of TX asserts that an abortion doctor must have admitting privileges at a hospital within X number of miles of the said abortion clinic, then that is all of a sudden a total violation of “privacy” rights of patients to have a surgical procedure done by a physician who doesn’t meet state requirements. (LOL)

    Can you imagine if a state legislature has passed a state law stating that an abortion doctor doesn’t necessarily have to have this license or that admitting privilege? If that were to happen, the pro-choicers would be accusing pro-lifers of not wanting women to have adequate health care facilitated by properly licensed physicians. (LOL)

    Cruz Supporter (102c9a)

  3. > But if the state of TX asserts that an abortion doctor must have admitting privileges at a hospital within X number of miles of the said abortion clinic, then that is all of a sudden a total violation of “privacy” rights of patients to have a surgical procedure done by a physician who doesn’t meet state requirements. (LOL)

    That’s not a fair characterization of the argument *in the decision*, although it’s certainly a fair characterization of the argument made by many political activists.

    The argument in the decision is closer to this: the requirement for admitting priviliges is *in effect* a bar to access because (a) hospitals often condition admitting priviliges on admitting a minimum number of patients per year, and (b) the complication risk for this procedure is so low that doctors who only do this procedure would have a difficult time meeting the minimum requirement.

    I’m not competent to comment on whether this is true, but it’s quite clearly one of the underpinnings of the decision.

    aphrael (e0cdc9)

  4. If you look at abortion cases close enough, it is less abut unduly burdening the right of woman to have an abortion and more about unduly burdening the ability of abortionists to make money. So my guess is that there would be few challenges to a law that allowed gypsies with coathangers to perform abortions in-between reading palms and picking pockets. But that is outside the ken of the effete legal theorists who get appointed to the Supreme Court these days.

    nk (dbc370)

  5. moloch must be fed, it’s one of the functions of government,

    narciso (732bc0)

  6. With the gimp Kennedy on board, all pro-life folks can hope to do is continue to point out the folly of the pro-death forces. After all, it’s on them when they stand before the Supreme Being.

    Colonel Haiku (dd820b)

  7. Gosnell’s for everyone!

    Ingot (ee6350)

  8. they are not even pretending anymore,

    narciso (732bc0)

  9. This ruling could be a 2-edged sword that could be used to attack the regulatory state.

    If the logic on this ruling rests on the argument that the requirements for doctors to be admitted to hospitals, etc. are not necessary for health of patients and actually impede their ability to get necessary services, then can’t conservatives look at the panoply of regulations (starting with licensing for barbers, hair stylists, etc.) that don’t promote consumer interests, but instead protect monopolies?

    Let’s make lemonade out of lemons, boys and girls!

    El Gipper (2c1f33)

  10. would’ve been fun to see pervy justice roberts try to write the dissent clarence wrote with a straight face

    happyfeet (28a91b)

  11. #3 aprhael,

    Uh, bud, I wasn’t talking about the Supreme Court decision.
    I was talking about what left wingers argue.

    It’s just pretzel logic that for decades the left wingers have been arguing that abortion is a medical procedure between a woman and her doctor.
    Okay, so here’s the state of TX saying that the medical procedure should be regulated like the serious medical procedure that it is…and then the left wingers have a total freak out about it. This TX law may be the only “regulation” that a left winger ever objects to. (LOL)

    Cruz Supporter (102c9a)

  12. It seems to me that anyone seeking an abortion would want to know the operation was being performed in sanitary conditions by a physician who had rights of access to a fully equipped hospital located nearby. Would any sane person argue against such precautions?

    ropelight (596f46)

  13. Just pull an Obama and ignore the ruling. Or pull a Chicago and rewrite the law to have the same effect, but “comply” with the ruling.

    njrob (64dc23)

  14. El Gipper (2c1f33) — 6/27/2016 @ 5:15 pm

    I tend to agree, although I was approaching it from another perspective.

    If the law had been upheld, it would be a clear precedent to abusively regulate anything that was disfavored by the legislative majority.

    The right to own a gun, for instance.

    I think it is best for small government that this law lost.

    You want people not to get abortions?
    Don’t try to control the supply: control the demand.
    Get people not to want abortion.

    Which is something that legislation can’t do.

    kishnevi (082931)

  15. @ aphrael (#3), who wrote, with respect to some intensely fact-driven policy arguments referenced in the opinion (regarding the extent to which doctors and hospitals are or aren’t likely to do certain things in response to certain rules):

    “I’m not competent to comment on whether this is true ….”

    And which member of the SCOTUS majority is?

    Why should the factual determinations underlying this issue of public policy, or the issues of policy themselves, be decided by five unelected life tenured judges in Washington, D.C., instead of the people of Texas speaking through their elected legislature and governor?

    Beldar (fa637a)

  16. There’s really isn’t a satisfactory answer to Beldar’s question.

    ropelight (596f46)

  17. kishnevi,

    There is an argument that pro-life people may have followed the wrong strategy after Roe v. Wade. Instead of making it more difficult for women who want abortions to have abortions, maybe we should have made it easier. Let women who want abortions abort themselves out of the gene pool, and the disease burn itself out.

    nk (dbc370)

  18. For my part, happyfeet has completely turned me around on late-term abortions after the 75th trimester. I’m all for them for some people.

    nk (dbc370)

  19. The argument in the decision is closer to this: the requirement for admitting priviliges is *in effect* a bar to access because (a) hospitals often condition admitting priviliges on admitting a minimum number of patients per year, and (b) the complication risk for this procedure is so low that doctors who only do this procedure would have a difficult time meeting the minimum requirement.

    I’m not competent to comment on whether this is true, but it’s quite clearly one of the underpinnings of the decision.

    aphrael (e0cdc9) — 6/27/2016 @ 4:09 pm

    It may be true. But it’s not a Constitutional issue. It’s still an issue for the states.

    Had this been about any other issue pertaining to healthcare the SCOTUS would never have
    inserted itself but left it to the states to sort out conflicts between state law and what a hospital’s internal policies may or may not require.

    For instance:

    States set standards for health care clinics or doctors who perform minimally invasive procedures such as endoscopy in their office all the time. I’m sure it’s rare to die or even require a visit to the ER from complications stemming from an endoscoscopy. But you can’t get this procedure and many others, such as a colonoscopy, in a clinic in Texas unless it meets the same standards as an ambulatory surgical clinic. Which is one of the Texas provisions the SCOTUS struck down today. Similarly, they never would have gotten inolved in a dispute between a state and hospitals if the state were to require doctors performing such endoscopies or colonoscopies in-office to have admitting privileges at a hospital within X numbers of miles. If a state can require clinics, including abortion clinics to follow state law, they can require hospitals to follow state law.

    The dissenters are exactly right. The majority bends the rules to protect favored rights. There are all sorts of risks that can cause major complications associated with abortion. They include complications from anesthesia, perforation of the uterus possibly associate with a perforated bladder or bowel, cervical lacerations, excessive bleeding. As you may imagine it is very difficult to get reliable statistics on the rate of women suffering serious complications for such a politicized issue such as abortion. I’ve seen a range of .3% from pro-abortion sites to 3% from pro-life sites. What appeared to me to be an unbiased site said the risk for serious complications is 1% for a surgical abortion in the first trimester. YMMV. But women do die from these complications, or at least require treatment such as transfusions.

    I can find only a couple of risks associated with either endoscopies or colonoscopies per the Mayo clinic. For instance:

    Bleeding and tearing of the gastrointestinal tract. I can find no statistics for the risk of suffering serious complications from an endoscopy. It appears to be so low nobody bothers to keep them.

    An unresponsive script is preventing me from copying and pasting the URL to the Mayo Clinic’s page on Colonoscopy risks, but I’m sure you can find it yourself if you doubt my information. They list three risks. (I am leaving out infection for all these procedures as I’m only including complications that could require an immediate trip to the ER. I’m also leaving out “failure to remove all products of conception” from abortion risks for the same reason.) Negative reaction to the sedative, bleeding, perforation of the colon possibly associated with perforation to the bowel. I’ve consistently seen a .5% risk of serious complication for this procedure.

    From what I find bleeding is really only a risk with an endoscopy/colonoscopy if the doctor has to remove tissue for a biopsy or to remove polyps. So it’s not a risk with all of these procedures but I included it anyway. But note: since tissue is always removed in a surgical abortion it is always a risk.

    Point being, no one would imagine it’s a violation for a state to to have applied the exact same regulations that the SCOTUS declared unconstitutional today to regulate low risk minimally invasive procedures. The same standard should apply to any surgical procedure, including abortion.

    Steve57 (ecac13)

  20. For my part, happyfeet has completely turned me around on late-term abortions after the 75th trimester. I’m all for them for some people.

    Brings to mind P.J. O’Rourke’s quip: “Hey, honey, I’m all for abortion too. As long as it’s retroactive.”

    JVW (eabb2a)

  21. “Let women who want abortions abort themselves out of the gene pool, and the disease burn itself out.”

    Don’t leave out assortative suicide by breast cancer as another part of the “choice”. It’s not Russian roulette by any means, the end isn’t immediate and the odds are better, but the incidence per thousand is available – even though the “women’s health/babies death” industry never provides it.

    Some day a starving ambulance chaser is going to make his fortune by establishing a class and putting Planned Genocide out of business for failing to provide accurate long term risk information to their victims.

    Rick Ballard (0e6252)

  22. SCOTUS is a cesspool of Ivy filth.

    The ruling and case are so nonsensical as to wishing Cersei could take care of DC as she did the Sept.

    I guess I can start doing open heart surgery in non surgical environments and then when they start to die I can dump the patient in the ER and claim otherwise it would be an undue burden on the patient not to.

    They are farrrrking insane at SCOTUS.

    Filthy lawyer Ivt garbage.

    Rodney King's Spirit (e2dd8e)

  23. might as well do coat hangers under MD supervision.

    Rodney King's Spirit (e2dd8e)

  24. Why bother with any state licensing, undue burden.

    But try and actually run a nail salon in NY without having the DOH bust chops about hygiene.

    But terminate children … Eh, screw that. Farm the kids and fark the women.

    We need a Purge real bad, start with the Lawyers then the Media and Academia.

    Rodney King's Spirit (e2dd8e)

  25. The right to bear arms is stated in the Second Amendment. The Supreme Court of the United States has also found that the right to an abortion is also included in the Constitution and its Amendments, although the procedure is not specifically mentioned. I am in no way going to argue one over the other. Both are the law of the land as many say.

    Here’s my problem: This doesn’t make sense.

    The Second Amendment says quite specifically that the right to bear arms shall not be infringed. But the Court and the left is adamant that this clearly articulated right does not apply for a variety of reasons and infringements on the said right are acceptable.

    Abortion is also a right despite any amendment or language that would indicate so and the Supreme Court has now gone so far as to say that any impediment to that right infringes on the Constitution.

    Can someone sort this out for me?

    Ag80 (eb6ffa)

  26. because it’s about positive liberties, what the govt can do for you, if you give up your soul, vs, nasty negative liberties, what govt isn’t allowed to do, dang nabbit,

    narciso (732bc0)

  27. Ag80 – I would wager that the answer to your question lies in the “undue” portion of the undue burden analysis. It implies the sort of interest-balancing that factors into 2nd Amendment questions, albeit in different terms. I don’t like these sorts of legal standards (that build a value judgment into the legal terminology, and thus beg important questions) but you see them frequently.

    Cruz Supporter and ropelight – you, in turn, beg the question as to the objective seriousness of this particular medical procedure. One of the reasons that the Court was able to find “undue burden” was that this is *not* typically a “serious medical procedure” of the sort you’re invoking.

    Beldar – if it’s preposterous to think that SCOTUS is in a position to assess the objective medical serious of these abortion procedures, it’s equally preposterous to think that any state legislature is in a position to do so.

    Leviticus (8d3250)

  28. If it’s a simple question of viable medical procedure, leave it to the discretion of trained doctors and their internal governance. If it’s a question of morality (which I believe it is, in most ways), lets have an honest discussion about the pros and cons of the State legislating morality, and pick our poison in clear-eyed fashion.

    Leviticus (8d3250)

  29. A viable medical procedure, no different than LASIK?

    Is that really your position Leviticus?

    NJRob (a07d2e)

    Most of US, do not understand that the LEFT, does NOT COMPROMISE, nor are they EVER RIGHT.

    GUS (30b6bd)

  31. Leviticus, I do not know you, but Doctor Mengele was a trained Doctor. As for MORALITY. I believe your compass is broken. I am CLEAR EYED. You, (please forgive me) seem to be a clown.
    Are you a CLOWN…Senor Leviticus??? Simple MEDICAL PROCEDURE????? The CHILD dies. How does the CHILD DYING equate with a SIMPLE MEDICAL PROCEDURE??????

    GUS (30b6bd)

  32. NJROB, cleary sir, you are not CLEAR EYED, nor do you want to have an “honest discussion” about the “Morality” of killing babies for HEALTH CARE REASONS.

    Wow. I even surprise myself. Killing babies. wholesale….Mother fu(redacted) WHOLESALE, KILLING OF BABIES, is WYMYNS HEALTH CARE?????

    GUS (30b6bd)

  33. OK. Except we’re not talking about viable medical procedures nor morality. We are talking about rights. What is a right? Living seems to be so on a human scale. Making it to feasibility seems to be inherent. What we’re really talking about is whether legislation is capable of discerning the correct answer and whether legislation should actually be involved.

    Ag80 (eb6ffa)

  34. Murder, rape, robbery, assault…these are all left up to individual states to govern.
    But for some reason, this medical procedure called abortion is so holy and untouchable that it can’t be left up to the states.
    If a state were to rescind its law regarding murder, the Supreme Court probably wouldn’t be able to do anything about it.
    But regulations about physicians conducting a serious medical procedure?
    Oh God damn, that’s a violation of “rights.” (LOL)

    And by the way, if you’re a minor who wants to get your ear pierced, you better provide your parents’ permission. They can’t pierce your ears otherwise. But if you want to abort your baby, then that’s totally cool.

    Cruz Supporter (102c9a)

  35. Aaaaaaannnnndd we find ourselves right back where we always find ourselves, and where people always disagree and can never reach consensus: is it a child?

    I lean towards “yes,” or at least I think that on the spectrum of personhood a fetus falls far closer to “human being” than “not human being,” and should have its rights protected accordingly.

    But this is always the sticking point, and no one seems equipped to have a calm discussion on this point, so we never seem to get anywhere with this debate. So I get frustrated by this debate.

    Leviticus (8d3250)

  36. Beldar – if it’s preposterous to think that SCOTUS is in a position to assess the objective medical serious of these abortion procedures, it’s equally preposterous to think that any state legislature is in a position to do so.

    Leviticus (8d3250) — 6/27/2016 @ 10:05 pm

    No, actually it’s not. They do it all the time, and it’s Constitutional for them to set standards. It’s part of the general police powers which belong entirely to the state governments. It would be negligent if they didn’t fulfill this responsibility.

    Are you suggesting that the health and safety codes that exist in every single state in the union are unconstitutional? And if not, why all of a sudden is it unconstitutional for a state legislature to be unable to hold abortion clinics and only abortion clinics to the same standards as they do other clinics for other procedures that carry similar risk?

    You’re making an entirely irrational and inconsistent argument. Just like the SCOTUS did today. Hence the dissents which points out that when it comes to favored rights like abortion the liberal judges will bend the rules. What would be constitutional under any other circumstance becomes unconstitutional when it touches on their manias.

    I can guarantee you that if the Texas ASC Society took the state of Texas to court and challenged those licensing requirements and could show the risk of the procedures they perform are no higher than abortion, therefore those licensing requirements also are unconstitutional, the SCOTUS would employ some pretzel logic to say that in the case of ASCs those licensing requirements are constitutional.

    Unless those ASCs decided to also perform abortions in addition to those other procedures. Then those licensing requirements are “medically unnecessary” and “unduly burdensome.”

    Steve57 (ecac13)

  37. * unconstitutional for a state legislature to be able to hold…

    Steve57 (ecac13)

  38. Also, Leviticus, how do you answer Justice Thomas’ challenge. Why where abortion clinics allowed to sue at all, considering the constitutional right they are asserting doesn’t belong to them? The (invented) right belongs to a third party; women seeking abortions.

    The argument here is muddled. The abortion providers are arguing, essentially, that the state doesn’t have the power to regulate them as they would an ASC because that would cause an undue burden to someone else’s exercise of a constitutional right. They only assert that, they don’t provide evidence. The only one who should be asserting that is a woman claiming it’s an undue burden to drive five hours for an abortion. Let’s pretend abortion has something to do with healthcare, “reproductive health,” as opposed to choosing to terminate a pregnancy. If it is it is at best an elective procedure. Is it now unconstitutional for somebody have to drive five hours for an elective procedure? How far is too far for me to drive to exercise my Second Amendment rights and buy a gun, Leviticus?

    But that’s irrelevant because no woman has asserted that a five hour drive is an undue burden on her exercise of a constitutional right.

    But based upon this assertion it’s unconstitutional for the state to expect the abortion clinic to meet the same licensing standards as an ASC. Let’s pretend that a woman right to abortion is in the Constitution. OK. So now a business, by extension, acquires a constitutional right to be exempt from the state’s general police powers?

    Because that’s what’s going on here.This is why there’s no way to avoid making an irrational inconsistent argument. Because as Thomas observes the SCOTUS keeps bending the rules. I suppose now anybody connected to the abortion industry, say the only medical waste company in a five county area, has acquired a constitutional right to be exempt from state regulation if that regulation threatens to put them out of business. Because if they go out of business the abortion clinic can’t meet state health and safety requirements. So they’ll goo out of business. And if the abortion clinic goes out of business then the state is now inside the woman’s uterus! How many constitutional rights are we going to invent when it comes to abortion?

    It’s time to stop pretending that this court is guided by anything remotely resembling the Constitution when they declare something unconstitutional. They are simply imposing their policy preferences willy nilly.

    Steve57 (ecac13)

  39. That the unborn have no rights is entirely in keeping with Anglo-Saxon and traditional American jurisprudence. That part of millennia-old law the Supreme Court kept. The argument is over the power of the government to protect the unborn.

    nk (dbc370)

  40. The inference that Texas having fewer abortion clinics is somehow a violation of a woman’s Constitutional “right” to access abortion services is just plain kooky logic. That actually speaks to the difference between “positive” VS “negative” rights.
    It’s for instance why there’s no “right” to health care, because health care is something that another party must provide you.

    Never in a million years would we ever hear the left wingers on this Supreme Court argue that the scarcity of licensed gun dealers in a remote area is a violation of someone’s 2nd Amendment rights.

    Cruz Supporter (102c9a)

  41. This ruling is another clear example of the disgusting hypocrisy that is inherent in the diseased ideology of leftism.

    You have to have a parents’ signed prrmission form for your child to take motein in school, but the school can send your daughter to an abortionist without parental knowledge, much less permission.

    The state can require admitting privileges for a plastic surgeon to run a botox clinic or to do liposuction and breast implants in free standing clinic…but an abortionist cannot be required to have admitting privileges to carve up a fetus in utero, or to scald a fetus to death – both procedures with potentially fatal complications for the woman – because of a made up bullshit “right to privacy” that is nowhere listed in the Constitution. (Though note actually clearly stated rights in the Constitution are regularly restricted or outright denied by leftists.)

    There is never a medical justification for the murder of the unborn. It is ALWAYS done for no reason other than the selfish convenience of the woman and the scum abortionists who kill humans in the fetal stage of development for their “Lamborghini”.

    This is yet another example of no matter how distasteful Trump’s persona, any action that supports another evil, disgusting leftist like Hillary having any say in future SCOTUS nominees is the same thing as cutting up the brains of every fetus murdered by every abortionist in the US by your own hands.

    Mock God at your peril. Abortion is absolute evil, no matter how the deceitful guilded propaganda may sound reasonable. There is never any justiifiication for the slaughter of the preborn. You might as well be the guard outside the gas chamber door who locks it closed, deceiving yourself into believing you are innocent of murdering Jews since you aren’t the one dropping the Zyklon B. And Obama lied yet again – as his national socialist “healthcare” is now mandating the murder of humans in the fetal stage of development.


    Pete (8012e7)

  42. Sorry….Obamacare is mandating that all medical insurance pay for the murder of the unborn. California, of course, leading the evil way.

    Pete (8012e7)

  43. these are the rulings the nevertrumpers want to bequeath to their children and grandchildren

    it’s all about paying it forward with those ones

    happyfeet (a037ad)

  44. CS, what these plaintiffs were b*tching about is the fact that the new law meant fewer abortion only clinics. I being somewhat facetious back @37. Some of those ambulatory surgical centers do provide abortions in addition to other surgeries that can be done on an outpatient basis.

    If I recall correctly there might have been 9 abortion clinics that closed coincident with this law coming into effect. I put it that way because one of the rules of logic is correlation is not causation. It’s clear that at least some of those clinics closed for reasons other than the two provisions of the law these plaintiffs were challenging, and the five libs obediently struck down.

    But I keep going back to Thomas’ dissent; whose right are we talking about here? How did these abortion providers acquire a right not to be regulated lest they go out of business? I hate talking about this as if a woman has a right to kill another genetically distinct human being. I am all for a woman doing with here body what she chooses. But there are two bodies we are talking about when we talk about abortion, and the woman is demanding the right to do something to somebody else’s body.

    But if abortion is a right it belongs to the woman and no woman has said she has been unduly burdened.

    Steve57 (ecac13)

  45. @ Leviticus (#38): Whether their individual members’ qualifications make them better or worse than the SCOTUS Justices, state legislatures are the part of our system of government that is designed to decide policy issues. Voters get to grade them and decide whether to return them to office or replace them. They are authorized to, and do — and in the case of the statute in question, in Texas, they did — hold hearings at which “experts” in all sorts of disciplines, including medicine and public policy and economics and demographics — are called to testify and subjected to cross-examination under oath.

    You didn’t read me writing an endorsement of the qualifications of individual legislators, did you? I’m talking about what branch of government is legitimately doing it’s job, and which one isn’t.

    Beldar (fa637a)

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