The Supreme Court Is Not the Supreme Medical Board

Anti-abortion activists rally outside of the Supreme Court in Washington, DC, March 2, 2016, following oral arguments in the case of Whole Woman's Health v. Hellerstedt, which deals with access to abortion in Texas. The US Supreme Court on March 2 took up its most important abortion case in a …
SAUL LOEB/AFP/Getty Images

A core issue in the Supreme Court’s case Whole Woman’s Health v. Hellerstedt, which  challenges a Texas law that set health and safety standards for abortion clinics, is the deference that the Courts need to give to legislatures, particularly when those legislatures make particular determinations in matters of medical dispute.

Legislatures have far more fact-finding capabilities than courts, and the Courts have acknowledged that.

Whether at the federal or state level, legislatures conduct hearings, read studies, and commission reports to gather the information that makes them the best equipped to draft our laws. Courts, on the other hand, are limited in the facts that they consider in their decision-making, restricted as they are by the matters brought before them by the disputing parties.

Inasmuch as the competence of legislators is respected, the cause of “abortion rights” does not do as well as when courts and judges – at least those judges appointed by liberal politicians – second-guess legislative decisions. And that’s what abortionists are again arguing for in this current Supreme Court case.

Abortionists are telling the justices of the Supreme Court that it should ignore the factual findings upon which Texas’s Senators and Representatives relied to create legal protections for women seeking abortions. The abortion lobby then goes further and claims that the Texas laws are based not on the goal of preserving the health and safety of women, but on legislators’ ulterior motives to shut down abortion clinics.

The problem for the abortionists, though, is that not only is there no evidence of bad faith on the part of Texas lawmakers, there’s no legal basis for the Supreme Court to question the legislature’s actions.

When Texas lawmakers voted to have abortion clinics abide by the same standards as other outpatient surgical centers and require abortion doctors to have local hospital admitting privileges, they did so in response to the serial killings of Kermit Gosnell.  Gosnell is the Philadelphia abortionist who now sits in prison for taking the lives of an abortion patient and three born-alive babies.

Gosnell’s clinic was described as a “house of horrors.”

The 2011 grand jury report on the abortionist stated: “The medical practice by which he carried out this business was a filthy fraud in which he overdosed his patients with dangerous drugs, spread venereal disease among them with infected instruments, perforated their wombs and bowels – and, on at least two occasions, caused their deaths.”

Add to this an office with blood-stained equipment, hallways too small for paramedics to carry out a dying patient on a stretcher, babies’ body parts stored in orange juice and cat food containers, and flea-infested felines using the clinic as a giant litter box and you have plenty of motive for legislators to act.

Despite a reluctance by the mainstream media to cover the case, Texans learned about Gosnell’s practice and they let their legislators know that they didn’t want anything like it in the Lone Star State. Thousands marched on the Capitol calling for action. And Texas lawmakers responded.

State Representative Jodie Laubenberg authored H.B. 2, the legislation now being examined by the Supreme Court.  She explained at the time that her bill “addresses the health and safety for a woman who undergoes an abortion procedure.”

Hours upon hours of hearings were held in which doctors testified as to abortion’s dangers and the need for proper safeguards to be put in place for women’s health.One physician noted that “women should not be subjected to a clinic… that has less standards than a man has to go through for a colonoscopy.”

The Texas legislature’s record is clear as to its intent in enacting H.B. 2 – it sought to protect the health of women having abortions as best it could. And as friend-of-the-court briefs filed by 174 U.S. Senators and Members of the U.S. House of Representatives and 121 Texas legislators point out, the Supreme Court’s own precedents require it to defer to the judgment of the Texas legislature.

The lawmakers note that in the 2007 Gonzales v. Carhart decision upholding a federal ban on partial-birth abortion, the Supreme Court held that as long as a law or regulation is “rational and in pursuit of legitimate ends,” it should defer to Congress’s or a state’s stated reasons for enacting the measure. Here, it’s completely rational and legitimate that a state would want to protect women’s health.

Moreover, the Supreme Court has held that this deference to legislatures applies especially in cases where there is “medical and scientific uncertainty” as to the law’s value. In other words, opposing sides are disputing whether it is safer for women when their abortion occurs in an ambulatory surgical center and when the abortionist has hospital admitting privileges.

But Texas legislators examined the question and decided to err on the side of patient safety. It is their right to do so. As Justice Anthony Kennedy wrote in Stenberg v. Carhart, “Courts are ill-equipped to evaluate the relative worth of particular surgical procedures,” and legislatures “have superior fact-finding capabilities in this regard.”

It is ironic that, given the pro-choice mantra of “the government should not be practicing medicine,” abortionists in this case are pushing for the Supreme Court to act as the nation’s Supreme Medical Board, and second-guess the judgments made by Texas legislators. The Court, in its own words, though, has admitted that its role is more limited.

Hopefully, when it hands down its decision in Whole Woman’s Health, the Supreme Court will reflect its nature as a tribunal, not a lawgiver.

Fr. Frank Pavone is National Director, Priests for Life


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