Supreme Court Heard Challenge To Texas Law Restricting Abortion Access

“Landmark” Abortion Case “Could Shape Abortion Rules For Years To Come.” The Supreme Court heard oral arguments for Whole Woman's Health v. Hellerstedt on March 2. The case involves a Texas abortion law that “requires abortion doctors to be affiliated with nearby hospitals and also limits abortion to ambulatory surgical centers,” according to The New York Times. Pro-choice advocates and “major medical groups say [the law] will not enhance patient safety and will only reduce women's access to abortion.” The Times wrote that the challenge is seen as a “landmark case” that “could shape abortion rules for years to come”:

On March 2, the Supreme Court is scheduled to hear arguments on the challenge to the Texas law, which requires abortion doctors to be affiliated with nearby hospitals and also limits abortion to ambulatory surgical centers. Abortion opponents say such measures are needed to protect women, but major medical groups say they will not enhance patient safety and will only reduce women's access to abortion.

Overruling a lower court's injunction, the Fifth Circuit appeals court allowed the Texas admitting-privilege rule to take effect throughout the state in 2013, immediately shuttering about half of what had been more than 40 abortion clinics, although exceptions were later granted for geographically isolated clinics in McAllen and El Paso. The second requirement, mandating costly surgical center facilities, has been temporarily stayed by the Supreme Court, but it would force still more reductions if upheld.

At stake in the case, Whole Woman's Health v. Hellerstedt, is not only the future of abortion access in Texas and in the nine other states that, like Alabama and Louisiana, have adopted similar physician rules. It could also affect dozens of other regulations of disputed medical value that have been adopted by numerous states, including limits on nonsurgical drug-induced abortions, mandated building standards for clinics and two-day or three-day waiting periods. [The New York Times, 2/24/16]

Texas Solicitor General Invoked Right-Wing Media Myth That HB 2 Prevents Another “Gosnell Situation”

Solicitor General Keller: HB 2 Restrictions “Passed In The Wake Of The Kermit Gosnell Scandal That Prompted Texas ... To Reexamine Their Abortion Regulations.” In oral arguments for Whole Woman's Health v. Hellerstedt, Texas Solicitor General Scott Keller was asked why the state of Texas needed to change its regulation of abortion clinics, to which he replied that HB 2 was “passed in the wake of the Kermit Gosnell scandal” in order to improve patient safety. As Justices Kagan and Ginsburg explained, however, the case of Kermit Gosnell -- which concerns the illegal operations of a Philadelphia abortion provider -- is actually an example of Pennsylvania's failure to regularly inspect medical facilities and not a evidence of a widespread lack of safety in abortion care. From the transcript of the oral arguments (emphasis added):

JUSTICE KAGAN: General, could -- ­­ could I ask ­­ -- could I go back to a question that -- ­­ something that you said earlier? And tell me if I'm misquoting you. You said that as the law is now, under your interpretation of it, Texas is allowed to set much, much higher medical standards, whether it has to do with the personnel or procedures or the facilities themselves, higher medical standards, including much higher medical standards for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work. And you said that that was your understanding of the law; am I right?

MR. KELLER: Correct, in this Court's ­­ -- in Simopoulos.

JUSTICE KAGAN: And I guess I just want to know why would Texas do that?

(Laughter.)

MR. KELLER: When there are complications from abortion that's in the record, Texas can enact laws to promote safety.

JUSTICE KAGAN: No, I know, but -- ­­but the assumption of the question, and I think you haven't challenged this assumption, is that there are many procedures that are much higher risk: Colonoscopies, liposuctions, we could go on and on. And --­­ and you're saying, that's okay, we get to set much higher standards for abortion. And I just want to know why that is.

MR. KELLER: Justice Kagan, this bill was passed in the wake of the Kermit Gosnell scandal that prompted Texas and many other States to reexamine their abortion regulations.

JUSTICE KAGAN: But, of course, the --­­ I mean, Texas' own regulations actually have made abortion facilities such that that can never happen, because you have continual inspections, I mean, to your credit. So that was really not a problem in Texas, having a kind of rogue outfit there. Texas has taken actions to prevent that.

So, again, I just sort of --­­ I'm left wondering, given this baseline of regulation that prevents rogue outfits of ­­-- like that, why it is that Texas would make this choice. And you say you're allowed to make this choice, and we can argue about that. I just want to know why Texas would make it.

[...]

JUSTICE GINSBURG: Random ­­-- Texas, under the prior law, has the right to make random inspections. Was --­­ the problem in Pennsylvania was this filthy clinic hadn't been looked at by anyone from the State in 16 years. But Texas can go into any one of these clinics and immediate­­ -- immediately spots a violation? It says you can't operate till you come up to speed.

So Texas has had, as Justice Kagan pointed out, its own mechanism for preventing that kind of thing from happening.

MR. KELLER: Texas did have existing regulations, but increasing the standard of care is valid, particularly not only in light of­­ --

JUSTICE SOTOMAYOR: It's valid only if it's taking care of a real problem.

MR. KELLER: And there were - ­­the -- ­­abortion complications and underreported questions ­­--

JUSTICE SOTOMAYOR: Well, no, no, no. A real problem, meaning, Gosnell, the governor of Pennsylvania, said was a regulatory failure. And only in that, not ­­-- this clinic had not been inspected for 15 years. He -- ­­the doctor was fabricating his reports. That could happen almost in any setting. Anyone who intends to break the law is going to break the law, whatever the regulatory rules are.

You're going to have doctors, as happened pre our laws, who were performing abortions without permission in their offices or without licenses. And I don't want to suggest that we should presume that's going to happen, but it will happen.

MR. KELLER: The constitutional standard for whether a State can make abortion safer can't be that it can only prevent the Gosnell situation, and there are complications.

JUSTICE SOTOMAYOR: Well, but ­­-- yeah, but --­­ but you have to see, as Justice Breyer asked you earlier, why are the problems? Isn't this a self-­created problem? What happened in Texas independent of Gosnell that raised the Gosnell­-like situation concerned in Texas that made ­­ --

JUSTICE ALITO: Gosnell.

JUSTICE SOTOMAYOR: ­­ -- the legislature so after so many years about taking care of this greater risk in abortions, as opposed to all the other procedures that are performed in non­-ASC facilities?

MR. KELLER: Because there are complications in abortion, and this was a top ­­ --

JUSTICE SOTOMAYOR: But there's complications in colonoscopies, and colonoscopies are, what, 15 times --

JUSTICE BREYER: 28.

JUSTICE SOTOMAYOR: 28. Justice Breyer just corrected me.

(Laughter.)

JUSTICE SOTOMAYOR: 28 percent higher. [Supreme Court of the United States, Oral Arguments, Whole Womans' Health v. Hellerstedt, 3/2/16]

Invoking Gosnell To Justify Unnecessary Abortion Restrictions Is An Ongoing Right-Wing Media Tactic

Phyllis Schlafly: HB 2 Will Help “Ensure That There Is Never Again Another Kermit Gosnell.” In a February 29 post on WND, Phyllis Schlafly, founder of the conservative Eagle Forum, claimed that HB 2 will “ensure that there is never against another Kermit Gosnell”:

Without the late Justice Antonin Scalia, the U.S. Supreme Court will hear a full hour of oral argument Wednesday on the biggest abortion case in a quarter century. This case, Whole Woman's Health v. Hellerstedt, arises from a Texas law requiring that abortionists have hospital medical staff privileges within 30 miles of the abortion, and also that abortion clinics comply with the same standards as ambulatory surgery centers.

Abortion supporters claim that this good law has forced about half of Texas' 40 abortion clinics to close, and that even more may close if the U.S. Supreme Court does not rule in their favor. The gruesome reality is that many abortions are performed by physicians who lack nearby hospital admitting privileges, and many abortions are performed in degrading clinics whose facilities are below the minimal standards of a modern surgery center.

[...]

Even after the sudden and tragic loss of Justice Scalia, it's hard to imagine why the U.S. Supreme Court would prevent states from taking reasonable steps, as Texas and other states have done, to ensure that there is never again another Kermit Gosnell. [WND, 2/29/16]

Fox's Manny Alvarez: “Given The Severity” Of Gosnell's Case, Texas Should “Construct More Regulated” Abortion Facilities Under HB 2. In a June 29, 2015, article following the Supreme Court's decision to hear arguments about the constitutionality of HB 2, Fox News senior managing editor for health news Manny Alvarez claimed that Gosnell's crimes were “a reason for the state to address its needs and construct more regulated, safe facilities” through the Texas law:

Let me be clear, the regulations that were being placed on these clinics were mainly focused on enforcing safety and guidelines for a very delicate procedure. What the state of Texas is asking for is that these independent clinics performing these procedures be held to the same clinical standards as any other surgical center in the country.

[...]

Have we already forgotten what happened in Philadelphia with Dr. Kermit Gosnell who was arrested on Jan. 19 and charged with eight counts of murder? One count stemmed from the death of a woman who received an overdose of anesthetic at his clinic, while seven involved infants that officials say were delivered live and then killed. He was later convicted of killing three of the infants at his Women's Medical Society practice, and of involuntary manslaughter in the death of a patient. He is currently serving life in prison without parole.

[...]

Given the severity of that case and many others, I don't understand this Supreme Court ruling, I really do not. I believe that if you are going to perform any kind of medical procedure on any type of patient you must have medical standards that ensure quality medicine and focus on patient safety. Just because some clinics do not want to adhere to these rules does not mean our country's patients must suffer. The opposition argued that the new regulations would have forced a major wave of clinic closures, leaving some areas across the state without any centers. That should not have been a reason to block this rule, but rather a reason for the state to address its needs and construct more regulated, safe facilities. [FoxNews.com, 6/29/15]

Fox Contributors Argue HB 2's Restrictions Are “Completely Reasonable” Because “One Of The Women Who Died Wouldn't Have” If Gosnell “Had Met Some Of These Requirements.” On the June 26, 2013, edition of Fox News' America Live, Megyn Kelly hosted Fox contributors Kirsten Powers and Monica Crowley to discuss the failure of the Texas legislature to pass the earlier version of HB 2. During the segment, Powers argued that “what Texas is trying to do is exactly the same as what they did in Pennsylvania after the Gosnell tragedy.” Crowley further disputed the dangers associated with greater clinic restrictions, stating that HB 2 was “completely reasonable” and that “one of the women who died wouldn't have” if Gosnell had “met some of these [HB 2's] requirements”:

MEGYN KELLY (HOST): They [Texas Republicans] wanted to restrict abortions to just 20 -- I don't mean to say just, because a lot of people think, 20 weeks, that's halfway there -- but to 20 weeks. Whereas right now most of the states say 24 weeks or after, so it's a four-week -- you know moving the date back four weeks, and to tighten restrictions on clinics. Why was the Planned Parenthood, NARAL Pro Choice America crowd so upset?

KIRSTEN POWERS: Well, they opposed this in every state. Basically, what Texas is trying to do is exactly what happened in Pennsylvania after the Gosnell tragedy in terms of, not so much in the moving the date, but all of the stuff of making them into ambulatory service centers, saying that you have to have admitting privileges, because in the Gosnell case they actually found that -- independent investigation found -- that probably one of the women who died wouldn't have died had they had met some of these requirements.

KELLY: Better facilities?

POWERS: Yeah, so Planned Parenthood, they opposed this across the country. This is an ongoing battle that goes on all over the country.

[...]

CROWLEY: Everything in this bill is completely reasonable from the 20-week mark to upgrading these facilities to demanding that doctors have hospital privileges within a 30-mile radius in case anything goes wrong. This is a direct response to the horrors that we saw in the Gosnell case. [Fox News, America Live, via Media Matters, 6/26/13]

Michelle Malkin: “Kermit Gosnell Is No Exception,” And HB 2 Protects Women From Another “Awful Kermit Gosnell House Of Horrors Situation.” Conservative columnist Michelle Malkin also invoked Gosnell to justify the passage of highly restrictive anti-choice laws. Appearing in a segment during the July 8, 2013, edition of Fox News' America Live, Malkin asserted that HB 2 was designed to protect “women and ... unborn children” from another “awful Kermit Gosnell house of horrors situation.” When questioned by host Alisyn Camerota on the questionable rationale of basing new restrictions on the actions of “one homicidal maniac,” Malkin argued that it wasn't “just a case of picking the Gosnell case and then demonizing every abortion clinic” because “Kermit Gosnell is no exception” (emphasis added):

ALISYN CAMEROTA (HOST): Obviously an incredibly heated topic and you can see that played out in front of the state house today where abortion opponents and supporters are sort of having a showdown in front of the state house. What are we expecting?

MICHELLE MALKIN: Well, I think what we can expect is more of the same: rude, uncivil and unhinged behavior on the part of many of these pro-abortion supporters, and a lot of them -- as many Texas natives have been pointing out -- are coming from outside of the state. Supported by the national pro-abortion organizations NARAL and Planned Parenthood, along with a lot of these Hollywood celebrities who've taken to Twitter -- and my Twitter aggregation and curation site, Twitchy.com, has been monitoring them for the last week or so -- where they've ratcheted up vulgar rhetoric against peaceful, pro-life supporters and pro-life legislators and of course a staunchly pro-life governor, Rick Perry, who are really putting a test to these forces on the other side. Do they really believe in ensuring that abortions are conducted in a safe manner? And I think that's what we have to remember, Alisyn, as these debates become more heated, not just in Texas but around the country where other state legislatures are trying to, in the wake of that awful Kermit Gosnell house of horrors situation, make sure that women and unborn children are protected.

CAMEROTA: But in terms of the Gosnell issue, Michelle, couldn't you argue that it's never a good idea to base policy on one homicidal maniac?

MALKIN: Well, I think the problem is that over the course of the last several decades is the pro-life forces who have tried to expose and report time and time again that Kermit Gosnell is no exception. That in fact, there are many barbaric practices that have gone whitewashed not just in Pennsylvania but in many states and of course including Texas itself. Very recently there were pro-life reporters and investigators, [inaudible] people who have worked in these abortion clinics who've been blowing the whistle on practices that have endangered women and obviously unborn children. So it's not just a case of picking the Gosnell case and then demonizing every abortion clinic, but as I said, will they abide by standards that will ensure safety? [Fox News, America Live, via Media Matters, 7/8/13]

But That Comparison Has Been Long Debunked -- Gosnell Committed Crimes Despite Restrictive Laws And His Actions Bear No Resemblance To Legal Abortions

MSNBC's Irin Carmon: Gosnell's Clinic Operated In Violation Of The Law And Women Went Only Because “They Felt They Had No Alternative.” While working as a staff writer for Salon, Irin Carmon -- now of MSNBC -- rebuked right-wing media attempts to politicize Gosnell's actions as evidence of widespread malfeasance by other abortion providers. Carmon wrote that Gosnell was not representative of other providers because it was his “willingness to break the law” that made him many women's last resort. She argued that it was “existing policies and public indifference to low-income communities” that forced women to seek out Gosnell despite multiple warnings from other, reputable abortion providers. According to Carmon, Gosnell's illegal practice was sustained only because women “felt they have no alternative.” [Salon, 4/12/13]

Tracy Weitz: Gosnell's Actions Have Nothing To Do With “The Way In Which Later Abortion Procedures Are Performed In The United States.” University of California reproductive health professor Tracy Weitz pointed out that the procedures Gosnell was accused of performing have “nothing to do with the way in which the standard of care and later abortion procedures are performed in the United States,” and that his actions are “nowhere in the medical literature.” [The Washington Examiner, via Media Matters, 4/17/13]

Philadelphia Grand Jury: Breaking The Law Was Gosnell's “Competitive Edge.” According to the grand jury report in the Dr. Kermit Gosnell case, the grand jury found that “Gosnell's approach was simple: keep volume high, expenses low - and break the law. That was his competitive edge.” The grand jury report elaborated:

Pennsylvania, like other states, permits legal abortion within a regulatory framework. Physicians must, for example, provide counseling about the nature of the procedure. Minors must have parental or judicial consent. All women must wait 24 hours after first visiting the facility, in order to fully consider their decision. But Gosnell's compliance with such requirements was casual at best. At the Women's Medical Society, the only question that really mattered was whether you had the cash. Too young? No problem. Didn't want to wait? Gosnell provided same-day service. [Gosnell Grand Jury Report, 1/14/11]