This morning the Supreme Court heard oral arguments in Whole Women’s Health v. Hellerstedt, the first abortion related case to reach the Court since Gonzales v. Carhart (2007), in which the Court upheld the Partial Birth Abortion Ban.
Life Legal had planned to submit an amicus brief on behalf of David Daleiden in support of the Texas statute at issue in the case, but the brief contains information that is still under a federal court order. When we asked permission of the court to release the information for the sole purpose of informing the Supreme Court, the judge flatly denied our motion–another example of the egregious suppression of speech brought on by the abortion industry’s recent lawsuits.
Life Legal believes this is the most important abortion case before the Supreme Court in nearly 25 years. Not since the Casey v. Planned Parenthood decision in 1992 has so much been at stake.
Casey implemented a new legal test for regulating abortion by asking whether a statute places an “undue burden” on a woman seeking abortion. The implication is that states should not burden the process of killing babies with too many rules.
Whole Woman’s Health v. Hellerstedt arises out of a challenge to a Texas law (HB2) that requires abortion clinics to be governed by the same standards as other outpatient facilities. The premise behind the law is that a procedure involving scraping a child from its mother’s womb should be performed under the same regulations as a procedure to, say, remove a bunion.
The Texas law also requires abortionists to have admitting privileges in local hospitals. This is important because emergency rooms do not always have specialists available to handle abortion-related complications. Moreover, hospitals investigate the training, performance, licensure, and certification of applicants prior to granting them admitting privileges. The shortage of qualified physicians willing to perform abortions has led to the closure of at least 11 Texas abortion clinics to date.
The Texas law is being challenged as an undue burden. Essentially its opponents are saying that women deserve mediocre, substandard, and potentially life-threatening care because it is simply too hard to comply with the basic standards required of thousands of health care providers and facilities across the state.
The untimely death of Supreme Court Justice Antonin Scalia plays a significant role in the reach of this case. Justice Anthony Kennedy tends to be the swing vote in decisions related to the protection of life. However, without Scalia’s vote, the best we can reasonably hope for in this case is a 4-4 decision. This would leave the Texas statute—and similar statutes also at play in Louisiana and Mississippi—intact. However, it would not set a nationwide precedent, as a 5-4 decision would have.
Of course it is too soon to say what the Court will decide. Based on preliminary reports from inside the Supreme Court, questions from the Justices, including Justice Alito and Justice Kennedy, indicated a possibility that the case may go back to the lower courts, as there was clear frustration with the lack of tangible, detailed evidence presented this morning.
We will keep you posted. In the meantime, please join Life Legal in praying that the Texas statute protecting both women and their unborn babies is upheld.