Like many other Catholics and other people involved in pro-life work, I was greatly disappointed in the U.S. Supreme Court (SCOTUS) ruling in Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016), though, not wholly surprised. The decision in Whole Woman’s Health v. Hellerstedt is arguably the most important judicial decision on abortion since the 2007 decision in Gonzales v. Carhart, which upheld a federal ban on partial-birth abortions. Recognizing that most readers are not lawyers, I will endeavor to explain the history of this lawsuit, the holdings handed down by SCOTUS, and the reasons why the Court’s ruling is bad both for moral and jurisprudential reasons.
Background of Whole Woman’s Health
The heart of this lawsuit relates to a law passed by the Texas legislature in 2013, commonly known as House Bill 2 (H.B. 2). In part, the law did two things. First, it required physicians performing an abortion must have admitting privileges at a hospital within 30 miles of where the abortion is being performed. This is referred to as the “admitting privileges requirement” Second, H.B. 2 required that an abortion facility must meet the same minimum standards as other ambulatory surgical standards. This is referred to as the “surgical center requirement.” These laws are designed to ensure the safety of the women seeking abortions, making sure that appropriate follow-up care is available should something go amiss during the abortion. It also is meant to ensure clean, sterile conditions in the abortion facility. The law came after Kermit Gosnell scandal where Dr. Gosnell allowed unlicensed staff practice medicine unsupervised in dirty facilities, utilizing unsanitary equipment and illegal procedures, and inadequate emergency access.
The law was challenged after it went into effect by a group of Texas abortion providers in April 2014. The trial court agreed with the providers that the law was unconstitutional. The Fifth Circuit disagreed with the trial court and found that the laws were constitutional.
What Did SCOTUS Decide in Whole Woman’s Health?1
The Supreme Court found that both parts of the Texas law placed a substantial obstacle in the way of women seeking an abortion and were, therefore, unduly burdens on abortion access. Thus, on a 5-3 vote, it struck down both parts of H.B. 2 as unconstitutional.
As a practical matter, the Court’s ruling permits the eighteen abortion facilities in Texas to remain open without needing to meet the patient safety standards.
Import in Abortion Jurisprudence
This decision poses several troubling questions about abortion jurisprudence.
First, the factual basis for the decision is wrong. Justice Ginsburg’s two-page concurrence focuses on solely one issue: that abortions are safer than childbirth. Likewise, Justice Breyer’s majority opinion also states that there are no health concerns for women seeking an abortion. The Court ignores evidence debunking that claim. For example, a fourteen-year study involving over 1.14 million pregnancies showed that the chance of dying of all causes during pregnancy and in the year after was three times higher for women who chose abortion as compared to women who gave birth.2 Other studies of millions of women in Denmark demonstrated significantly higher maternal death rates following abortion compared to delivery.3 Additionally, the reporting of injuries and deaths due to abortion is wholly voluntary due to poor clinic regulation. At the very least, accurate studies and materials ought to be used in forming legal precedent and creating public policy. However, it is unclear, based on this decision, what role the facts about abortion have in actually dictating laws and policy on abortion.
Similarly, the majority opinion finds that H.B. 2 is a substantial burden on women’s access to abortion because of (1) the number of abortion facilities which closed prior to and subsequent to when H.B. 2 took effect; (2) the capacity of the remaining clinics to satisfy women’s demands for abortion; and (3) the expense needed to make abortion facilities compliant with the ambulatory surgical center standards. However, no evidence was to actually prove any of these propositions. As Justice Alito states in his dissent, numerous reasons could be attributable to the closure of abortion facilities in Texas including restrictions on chemical abortions in H.B. 2, a decline in abortion demand nationwide, and physician retirement. It is also possible Planned Parenthood purposely chose to close certain facilities in anticipation or immediately after enactment of H.B. 2. Further, no actual statistical analysis was performed on the actual capacity of the remaining facilities or the extent of upgrades required to make facilities compliant with H.B. 2.
This leads to a second concern: SCOTUS has taken on the role of setting the standards for patient care when it comes to abortion. Normally, appellate courts are to give deference to factual findings of the lower court and of legislatures who enact the laws, especially where there is medical and scientific uncertainty. This was the standard used by SCOTUS in the 2007 abortion case of Gonzales v. Carhart, 550 U.S. 124, 163-64 (2007). Here, however, the Court goes out of its way to ignore evidence presented regarding the health benefits of the two requirements at issue. This fact is scathingly pointed out by Justice Thomas in his dissent, writing: “[T]oday’s opinion tells the courts that, when the law’s justifications are medically uncertain, they need not defer to the legislature and must instead assess medical justifications for abortion restrictions by scrutinizing the record themselves.”) SCOTUS chooses to independently decide what medical and operational practices ought to be throughout the United States, ignoring the standards of care endorsed by medical organizations.4 Again, this calls into question the role of the scientific and medical community to inform the legislative and policy of abortion in our nation.
In order to create for itself the power to regulate abortion medical care, the Court here creates the third area of legal concern: it has effectively changed the rules on when abortion laws are constitutional. In 1992, SCOTUS held that abortion laws are constitutional so long as they are not unduly burdensome on women who seek an abortion before viability. Planned Parenthood v. Casey, 505 U.S. 833. While the Whole Woman’s Health court claims to follow the standard of Casey, it actually creates a new balancing test. This new test allows SCOTUS now to closely scrutinize and determine for itself what best protects women’s health when it comes to abortion. No other medical procedure receives this treatment. Put another way, the majority opinion is disingenuous in claiming to follow prior abortion jurisprudence.
Finally, it is clear that the majority of Supreme Court justices have a distorted view of what the law ought to be. In the majority opinion, the Kermit Gosnell scandal is described, including the filthy facilities, unsanitary instruments, untrained staff, illegal procedures, and inadequate emergency access. While Justice Breyer acknowledges that “Gosnell’s behavior was terribly wrong,” he goes on to state:
There is no reason to believe that an extra layer of regulation would have affected behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.
Put another way, because there are abortionists who will not comply with the laws, those laws should be removed. Following this line of reasoning, since murders’ behavior is not affected by homicide laws, we should do away with those laws. Or as Charlotte Lozier Institute associate fellow Michael New put it, Justice Breyer ought to be out removing stop signs.
This Ruling Is Morally Unsound
The failure of the majority to comprehend the role of laws in society ignores one of its fundamental functions. Laws help inform citizens of where their priorities ought to be. Often actions are justified by saying, “Well, it’s legal” and abortion is no exception. Make no mistake: continued legalization of abortion, in any form, says something very important, and damning, about the priorities of our society and, this message, is being implicitly transmitted.
As Catholics, it ought to go without saying that the Whole Woman’s Health ruling stands contrary to the heart of our morals and understanding of our human nature. Our human dignity is rooted in our identity as children of God, created in His image to live in communion with Him. Because of this fundamental understanding, human life is sacred and intentionally taking an innocent life is immoral. Moreover, efforts ought to be made to protect innocent life.
In contrast, society places stock in a radical autonomy, upon which abortion is seen to be a fundamental right. This court decision highlights the fact that SCOTUS considers abortion its own category of medical care and its own category of business. As discussed above, for no other type of medical care does SCOTUS rule itself the sole arbitrator of the standard of care. Further, no other industry is allowed to have regulations removed solely because they are unable to comply. For example, if a grocery store is unable to keep its meats properly refrigerated, the appropriate solution is not to get rid of the rules about refrigerating meat. Likewise, if a person is unable to pass the bar exam in order to be licensed as an attorney, no one would dare suggest that the bar exam should be removed wholesale as being necessary to practice law. Yet, strangely, when it comes to abortion, the majority opinion believes the best argument for not having these safety measures is because Planned Parenthood thinks it would cost too much to comply and, at least ostensibly, some of the abortion facilities do not meet these requirements.
Abortion is no longer merely a “quick fix” to an unfortunate situation. Abortion is no longer simply another form of health care. Abortion is the trump card and a fundamental “right” unlike any other.
Where Do We Go From Here?
No doubt, the SCOTUS decision is gravely disappointing. As Justice Thomas points out in his dissent:
[T]he entire Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.’
There is hope, however; after Roe v. Wade and Doe v. Bolton, it seemed that any pro-life laws would not survive judicial scrutiny. Yet over time, careful legislative advances have been made to protect the unborn and the women which have been upheld by the judiciary. Recent years have seen successes in the areas of partial-birth abortion bans, parental involvement laws, and informed consent laws. Additional legislative work can be done seeking to refashion protections for women seeking abortion akin to H.B. 2.
The work is not simply for our governing entities; each of us has work to do. We need to continue to change hearts and minds in our personal circles. Even if abortion were wholly legalized, it would still be meaningless if individuals in society did not seek abortions as “solutions.” If abortion were seen for the horror that it is and really was unthinkable, the laws would irrelevant.
We need to pray for the grace of courage in evangelization. All of us have family and friends who are ambivalent or disagree on the issue of abortion. We are called not to remain silent but to charitably share the truth. Have that difficult conversation about why it is important to defend the lives of the unborn. Be the visible sign of God’s mercy by helping families facing difficult situations, including a crisis pregnancy. Encourage and support those who are already working in the pro-life movement. Educate the youth in your family and parish about the importance of defending all life.
Above all, we need to redouble our prayer efforts for the conversion of souls for “this kind does not come out except by prayer and fasting” (Matthew 17:21). The Holy Spirit moves and acts in ways more powerful than we can comprehend. We must not become discouraged for we know that life will be victorious and life is triumphant over death.
1. SCOTUS also addressed the question of whether the abortion providers’ claims were barred by their 2013 lawsuit related to this law and the applicability of the severance clause in the legislation. For the purposes of focusing in on the abortion issue for a non-lawyer audience, these matters have been omitted from the discussion, though it also provokes interesting questions regarding SCOTUS’ decision to decide the merits of the case. These issues are addressed in the dissents authored by Justice Thomas and Justice Alito.
2. Gissler, M., et.al., Pregnancy-associated mortality after birth, spontaneous abortion, or induced abortion in Finland, l987-2000, American J. ObGyn (2004) 190, 422-27.
3. Reardon, D.C. & P.K. Coleman, Short, and long term mortality rates associated with first pregnancy outcome: Population register based study for Denmark 1980–2004, Med Sci Monit (2012) 18(9), 71-76. Coleman P.K., et al, Reproductive history patterns and long-term mortality rates: a Danish, population-based record linkage study, Eur J Public Health, first published online September 5, 2012.
4. American College of Surgeons, “Statement on Patient Safety Principles for Office-Based Surgery Utilizing Moderate Sedation/Analgesia, Deep Sedation/Analgesia, or General Anesthesia,” (2003) (agreed to by 32 medical societies).