On the Way to End Abortion. No Matter What
In spite of much anticipation and cautious optimism from pro-lifers—and hysteria and doomsaying from abortion advocates—the Supreme Court’s decision in June Medical Services v. Russo appears unlikely to have a significant impact on abortion law or abortion practice. That is certainly not the outcome we are hoping for, but it is the unfortunate reality.
In June Medical Services, abortionists filed a lawsuit challenging Louisiana’s Act 620, the Unsafe Abortion Protection Act, which requires abortion providers to hold active admitting privileges at a hospital within thirty miles of their practice. The District Court enjoined or blocked the statute, but the Fifth Circuit Court of Appeals reversed and the law was in effect for a short time. The Supreme Court again blocked enforcement while it reviews the Act.
Despite hopes that the presence of two new justices on the Court (Neil Gorsuch and Brett Kavanaugh) would create a majority that could damage if not destroy Roe v. Wade, the lawsuit challenging Louisiana’s hospital admitting privileges law does not seem the case that will afford an opportunity to do so.
Life Legal’s VP of Legal Affairs Katie Short was in the Supreme Court as both sides presented their arguments on March 4. The hour-long argument before the Justices devolved into nit-picking over what the trial record showed about whether this or that abortionist in Louisiana could or could not get admitting privileges at one or another hospital, and whether their efforts to do so were inadequate (the state’s position) or futile (the clinic’s position). Factual arguments about whether admitting privilege laws have any benefit overshadowed legal arguments about whether the abortion providers (as opposed to women seeking abortion) should be able to challenge the law at all.
Why is this important? The abortion providers in this case claim to have filed the lawsuit challenging the Louisiana law on behalf of women, i.e., potential patients. But the law was enacted specifically to protect women from those very abortionists. Justice Alito addressed this concern when he asked abortion industry attorney Julie Rikelman, “Would you agree with the general proposition that a party should not be able to sue ostensibly to protect the rights of other people, if there is a real conflict of interest between the party who is suing and those whose rights the party claims to be attempting to defend?” Rikelman said she could not see a conflict of interest.
Justice Alito was nonplused: “Really? That’s amazing. You think that if the plaintiff actually has interests that are directly contrary to those of the—those individuals on whose behalf the plaintiff is claiming to sue, nevertheless that plaintiff can have standing?”
Rikelman insisted that there was no conflict in this case because her clients do not believe the law benefits women—but went on to argue that abortionists should have standing even in cases where a law clearly protects women from bad doctors. She was also not troubled by the fact that the lead plaintiff’s medical license had been suspended for “violations that posed significant health and safety risks to clients,” including failing to monitor patients under anesthesia.1 Rikelman’s disregard for women’s safety puts a new spin on the mantra of an abortion industry that is out to sell women abortion. No matter what.
Louisiana law, by the way, requires all medical staff of ambulatory surgical centers to hold local hospital admitting privileges.2 The 2014 law does not single out abortionists—rather the admitting privileges law was enacted to close a loophole that previously exempted abortionists from a law that already applies to other doctors. It was not even controversial at the time it was enacted, having passed with overwhelming bipartisan support.3
June Medical Services was initially filed in 2014 by three abortion clinics and two abortion doctors. One of the clinics, Bossier City Medical Suite, surrendered its license and shut its doors in 2017, one month after an investigation of the clinic’s records showed it had performed abortions on at least five minor children without filing required statutory rape reports.4 Bossier has since destroyed all of its records in violation of state law.
Another abortion facility associated with the lawsuit, Delta Clinic of Baton Rouge, closed for a time, but later reopened. Last year, that clinic was investigated and cited for violations after a young woman suffered severe bleeding after an abortion. She was taken by ambulance to a hospital and had to have an emergency hysterectomy.5 Authorities found that the clinic did not have the supplies required by law that could have stabilized the patient.
The lead plaintiff in the case, June Medical Services, which does business as Hope Medical Group, is currently under investigation for hiding evidence of criminal activity.6 The abortion clinic obtained a federal court order to seal certain documents prior to the Supreme Court’s review of the case, including testimony of one of its abortionists, “Doe 2.”7 This abortionist testified in court that he had used abortion methods outside of the standard of care that resulted in the delivery of a live baby at 14-15 weeks. He further testified that at least one other Louisiana abortionist had delivered a live, intact baby at nineteen weeks. Louisiana’s attorney general believes that the testimony under seal also includes evidence of Doe 2 failing to report the forcible rape of a 14-year-old girl.
Instead of providing the Court with evidence of Louisiana’s failure to adequately safeguard women and children, the briefs made available to the Court delved into the most painstaking details regarding women in which locations at which times may or may not be impacted by the law. And why would they be impacted by a law that simply requires doctors to obtain admitting privileges? Because the doctors challenging the law, even when they were in practice, were not able to meet the criteria required to help women recover from the abortions they inflicted.
Furthermore, as Justice Alito also noted that “it would be counter to [an abortionist’s] interests for him to make a super effort to get admitting privileges, wouldn’t it, because he’d be defeating his own claim?” In response, Rikelman again insisted that the abortionist in question challenged the law to “protect the rights of his patients” and that he was “competent and qualified.” Of course, she failed to mention that her client had to obtain a federal court order to make sure the Supreme Court would not have access to evidence of this abortionist’s—Doe 2—malfeasance. But when you’re fighting for women’s “right” to abortion, what does it matter if your favorite abortionist helps child rapists get away with their crimes? That’s just abortion. No matter what.
So if the Unsafe Abortion Protection Act was designed to help prevent some of the egregious violations we cite here, why is there any question as to whether it will be upheld?
Chief Justice John Roberts is the likely swing vote in this case and it is unclear from the oral argument how he will rule. In a similar 2016 case, Whole Women’s Health v. Hellerstedt, the Supreme Court overturned a Texas law that also required abortionists to have local admitting privileges. Justice Roberts joined in a dissent written by Justice Alito in that case based on a technical issue, res judicata, that precludes parties from relitigating the same claim a second time. Alito argued that the abortionists in the Texas case had already lost at the District Court level in 2013 and decided not to seek Supreme Court review because they didn’t think they could win and did not want to establish bad precedent. That should have been the end of Hellerstedt. But the Supreme Court heard the case and in doing so carved out yet another judicial exception for abortionists. Not only did the Court strike down the Texas law, but it upended one of the foundational principles of our judicial system, namely, that claims that have been litigated are forever settled.8 Abortion. No matter what.
Justice Roberts has often touted the importance of Supreme Court precedents so as to promote “stability and evenhandedness” in the law. During his confirmation hearing, he said it is a “jolt to the legal system” to overturn a precedent and called Roe v. Wade “settled as a precedent of the Court.” Furthermore, it is “not enough to think the prior decision was wrongly decided.”
The abortionist’s attorney knows this, which is why she began her argument—which is addressed to the Chief Justice—by saying “This case is about respect for the Court’s precedent.”
Unfortunately, the precedent in this case is the Court’s poorly reasoned decision in Hellerstedt that struck down the Texas admitting privileges statute that was virtually identical to the one in Louisiana. Roberts did ask several questions to try to understand if the impact and benefits of the law were different in each state. But his last question—a rhetorical one—hints that he may not be convinced that Louisiana has made its case that the Unsafe Abortion Protection Act is sufficiently different from the Texas law to warrant overturning Hellerstedt: “I mean, I understand the idea that the impact might be different in different places, but as far as the benefits of the law, that’s going to be the same in each state, isn’t it?”
However, rather than marking a sea change, JMS v. Russo is playing out by the same malleable rules as controlled in Hellerstedt, namely whether, in a “large fraction” of cases, the law “operates as a substantial obstacle to a woman’s choice to undergo an abortion.” You may remember that former Justice Sandra Day O’Connor breathed the nebulous “undue obstacle” test into existence in Planned Parenthood v. Casey in 1992. It has proven to be an unwieldy and confusing standard by which to review abortion regulations.
Justice Thomas’s observation in his dissent in Hellerstedt applies equally to June Medical Services: “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.”
While we are not exactly popping champagne corks after watching the oral argument in June Medical Services, we are trying to remain cautiously optimistic that Justice Roberts will find enough of a difference in the impact of the law in Louisiana to warrant overturning or at least refining Hellerstedt.
But we know that this case is not the silver bullet that will stop the holocaust of abortion in America. To that end, we will continue to litigate, educate, and advocate on behalf of babies until they are finally protected in law and practice from the abortionist’s scalpel. No matter what.
The Bubble of Silence Spreads
For the past nearly forty years, vigilant prayer warriors have peacefully gathered on public sidewalks in front of abortion clinics to pray for women in crisis, babies on the verge of death, and workers blinded to the atrocity of abortion. They offer help, hope, and compassion. Only in a bizarre twilight zone universe are help, hope, and compassion viewed as threatening, antagonizing, and criminal conduct.
As we approach the twentieth anniversary of Hill v. Colorado, the Supreme Court case that upheld a Colorado law creating no-approach bubble zones outside of medical facilities, the heavy hand of pro-abortion government is hitting Life Legal Defense Foundation close to home. The city council of Napa, California, administrative headquarter of Life Legal, has invited comment and police evaluation/reports about a newly proposed bubble zone ordinance. Since Hill, numerous states and cities (Massachusetts; Montana; San Francisco and Oakland, California; Rochester, New York; Harrisburg and Pittsburgh, Pennsylvania; Portland, Maine; and Jackson, Mississippi just to name a few) have implemented similar laws that prohibit sidewalk counselors from approaching abortion-minded women to offer them life-saving alternatives to killing their children.
LLDF is no stranger to fighting off these attacks against the last line of defense to save precious little ones from imminent death.
In 2010, Life Legal defended Rev. Walter Hoye in criminal court against charges of violating a bubble law in Oakland, California. We simultaneously challenged the constitutionality of the law in federal court. Life Legal ultimately got all charges dismissed against Rev. Hoye and was instrumental in forcing the City to enforce the bubble law evenhandedly and not just against pro-life speakers.
In 2009 and 2013, Life Legal filed amicus briefs in the Supreme Court of the United States, supporting the successful challenge to the Massachusetts buffer zone law (McCullen v. Coakley, 573 U.S. 464 ). The Court rejected certain aspects of the buffer law because the State could not justify the need for such extreme restrictions on free speech. This precedent-setting case was instrumental in placing the burden on cities and states to demonstrate that, before enacting buffer zones around abortion clinics, less restrictive measures were tried and such measures failed to address the alleged problems. Because, as pro-lifers know, the “problem” is actually their speech, and not their conduct, the McCullen decision erected a very high hurdle for passing speech-restrictive laws against pro-life activism.
Despite the Supreme Court’s reprimand of Massachusetts for its sacrifice of First Amendment freedoms to the convenience of keeping pro-lifers at a distance, some cities across the United States have passed bubble laws to thwart sidewalk counselors from offering life-saving alternatives to women in need. In 2018, Life Legal filed a friend of the court brief in the Third Circuit, supporting pro-lifers challenging the buffer zone law in Pittsburgh, Pennsylvania. The case is now on appeal to the United States Supreme Court, and Life Legal has been asked to file, next month, another brief urging the Court to accept the case for review. We are also working closely with local activists preparing to challenge the newly enacted bubble law in Jackson, Mississippi that went into effect in November 2019.
While the battle rages on many fronts, Life Legal feels a personal stake in defending the pro-life advocates in Napa, the heart and home of Life Legal. The Napa pro-life community recently learned that Planned Parenthood is lobbying the city to enact a buffer zone law similar to the law in San Francisco, and that city officials have instructed the police to investigate and report about the need for such a law in Napa.
For years, Planned Parenthood associates have made false claims against pro-life advocates ranging from noise violations, sign violations, blocking sidewalks, and prohibiting access to their clinic. On some occasions, police officers responded and reported that no law violations have been observed. On other occasions, however, police officers intimidated and persuaded the prayerful to cease their lawful activities.
During one such episode, the police threatened to arrest Ron Maxson, one of Life Legal’s founders, for peacefully kneeling on the sidewalk to pray. Despite observing him week after week not causing any actual obstruction, police threatened Mr. Maxson with a citation and prosecution for creating a theoretical obstruction on the sidewalk. Thankfully, Life Legal attorneys intervened to secure Mr. Maxson’s right to pray on the sidewalk, pointing out that he took up no more space than the six trash cans that he was next to on the sidewalk.
Last summer, Planned Parenthood threatened to sue several pro-life advocates if they did not cancel their scheduled 40 Days for Life vigil. Life Legal promptly responded to the threat, with a stern legal warning to Planned Parenthood and a lesson on First Amendment rights.
Over the past several months, police have also stepped up enforcement of Napa’s new and extremely stringent sign ordinance, which, among other restrictions, limits the size of handheld signs to two feet by two feet. Life Legal is currently in communication with city officials about the uneven enforcement of the law, documented in numerous news reports showing protesters for other causes carrying large signs. In our experience, cities will often stop enforcing unreasonable restrictions rather than enforce them against everyone evenhandedly.
As noted above, in order to justify the proposed buffer law, the City will have to show a history of problems that cannot be solved in any less restrictive way. To prepare to counter this, whether before the city council or in court, Life Legal has requested all communications between the city and Planned Parenthood to expose the real reason the city is now considering passing such a law. Additionally, Life Legal has requested all police records from calls and activity outside Planned Parenthood in Napa.
The reality is that sidewalk counselors have not violated any laws or interfered with any woman’s access to the clinic and thus, there is no justification for a bubble zone. The city’s burden to prove that any significant infringement on free speech is warranted is high. Life Legal will attend every city council meeting and fight this abuse of power every step of the way.
The diligent work and fervent prayers of life advocates has put the abortion industry in jeopardy. When faced with becoming obsolete and unnecessary, their only resort is to silence the voice of hope. For the sake of the innocent pre-born, we at Life Legal stand with those dedicated advocates who speak truth and offer hope to women confronting fear and despair.
On February 4, 2020, as nearly 40 million viewers watched from home, 2-year-old Ellie Schneider—clad in a frilly emerald green dress and yawning in her mother’s arms—received a bi-partisan standing ovation during President Trump’s 2020 State of the Union Address. Ellie and her mother Robin were invited as honored guests because Ellie survived despite having been born weighing less than a pound at just 21 weeks and 6 days’ gestation. This made her a “micro-preemie” and one of the youngest children ever to be born in America. President Trump credited Ellie’s victory in the fight for her life to the skill of her doctors and the prayers of her parents, referring to mother Robin as “amazing.”
Earlier that day, many of the Senators who publicly celebrated the medical advances that saved Ellie’s life voted to deny life-saving treatment to other babies born at the same gestational age. Senate Bill 311, introduced by Nebraska Senator Ben Sasse, would have required babies born alive during an abortion to receive proper health care. Not surprisingly, the vote was mostly split along party lines. Even though three Democrats1 joined their Republican colleagues in favor of the measure, the yeas did not obtain the 60 votes needed for the motion to pass.
Tragically, the 41 Democrats who voted against SB 311 could not see the inherent discrimination in applauding Ellie’s life just after issuing a death knell for other babies born at the same age. There is no doubt about whether these babies are human beings—a 21-week-old baby is far too big and too developed for any rational person to think it is merely a “blob of tissue.” Still, nearly half of the highest elected officials in our country continue to discriminate against children based on a single criterion: whether or not their mothers want them.
SB 311 would have established the principle that all children who are born alive deserve the same standard of care, regardless of the circumstances leading up to their birth. The bill did not specify which treatments should be used or whether palliative and comfort care would be offered. It simply required that doctors “exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age.” (SB 311, §3.)
This raises an interesting question: what exactly is the standard of care given to children born at Ellie’s age? The answer is not as straightforward as we might hope.
Micro-preemies like Ellie are referred to as periviable, or more informally, as being at “the edge of viability.”2 According to a 2017 Interim Update released jointly by American College of Obstetricians and Gynecologists (ACOG) and the Society for Maternal-Fetal Medicine (SMFM), approximately one-half of one percent of American births—approximately 20,000 children per year—fall into this category, which ranges from 20 weeks, 0 days to 25 weeks, 6 days.3 While babies born in this age range account for 40% of American infant deaths, studies throughout the world are reporting the encouraging news that survival rates are ever-increasing and that survival is shown to be possible at younger and younger ages, with the youngest surviving periviable baby on record born at 21 weeks, 4 days’ gestation.3
One of the most promising studies to date was released in February 2020 issue of The Journal of Pediatrics.4 Neonatologists at the University of Iowa tracked survival rates of the periviable births in their center for nine years and found that babies born during 22- and 23-weeks’ gestation had a survival-to-discharge rate of 78%. This is a high success rate, especially when compared with other clinics. For example, one clinic in Portland, Oregon, had a 0% survival rate for 22-week babies and a mere 21% survival rate of 23-week babies who were given active treatment.5
So why is there such a discrepancy between medical institutions?
It is simple. Doctors in Iowa default to providing treatment. Doctors in Oregon do not.
A wealth of research shows the more frequently a clinic offers resuscitation to babies born at 22 weeks and later, the higher that clinic’s overall survival rate becomes. Meanwhile clinics that do not offer resuscitation as a matter of policy have lower survival rates, even in babies who do receive treatment. In fact, a 2015 study of 24 hospitals found that a hospital’s rate of offering active treatment (as opposed to palliative care only) explains the majority of the differences in survival rates from facility to facility.6
We have the opportunity to view this through a glass-half-full perspective. Even though we are frustrated by policies like the one adopted by the hospital in Portland, we know that there are other clinics that will use state-of-the-art technologies to improve outcomes for vulnerable babies. As these clinics see higher survival rates, more hospitals will be inclined to provide resuscitation and treatment to micro-preemies as a matter of course.
Overall, the standard medical guidance is that for births up to 22 weeks, consultation and joint decision-making with informed parents is preferable to treatment plans made by a physician alone. Generally speaking, the most up-to-date guidelines call for providing active resuscitative care when the family requests it. For example, the American Academy of Pediatrics (AAP) and the American Heart Association (AHA) offer guidance that a physician should almost always begin resuscitation, even in cases where the parents’ views are unknown or uncertain.7 Likewise, guidelines issued in 2019 by Yale’s Chief of Neonatal-Perinatal Medicine, Dr. Mark Mercurio, recommend that resuscitation should be offered to parents if there is at least a small chance of survival.8
Unfortunately, not all hospitals are adopting those recommendations. Life Legal has spoken to mothers whose babies born at 23 or even 24 weeks gestation were not given any treatment whatsoever. Those parents had to watch helplessly as their babies died surrounded by a medical team that simply refused to provide medical intervention.
As with other cases involving the denial of life-sustaining medical care, physicians are often guided more by their personal preferences than by published research and the wishes of parents.
Life Legal is partnering with neonatologists and with parents whose micro-preemies were denied medical care to urge the U.S. Department of Health and Human Services (HHS) to issue clear, unequivocal guidance for treating babies born at 22 weeks’ gestation and to fund research and training opportunities to expand the culture of care that is so successful in Iowa and elsewhere.
Beyond the immediate application of offering life-saving resuscitation to children born early, HHS guidance could lead to important progress in other areas of life-affirming activism. For one thing, this type of standard will directly impact the number of babies saved from abortion in states with loose statutory language regarding viability. Briefs filed in Roe vs. Wade cited medical authority declaring the lower age of viability to be 28 weeks. 9 With viability not only possible, but increasingly likely, at 22 weeks, this means a six-week extension of the timeframe of protection for children born in 20 states that rely on viability criteria for their abortion laws.10
HHS guidance could also help in the fight for life-saving treatment of children born alive after abortions. As medical standards catch up to the medical realities of life outside the womb for 22-week-old babies, it becomes harder and harder to justify denying these children medical treatment when they survive an abortion.
Although some physicians still insist on staying behind the curve of available medical technology, we believe the age of viability will be lowered as more children born prematurely survive because they are provided life-saving medical care. And we are hopeful that our politicians will celebrate the lives of all of those children—regardless of the circumstances of their birth or whether they are “wanted.”
5Kaempf J.W., Tomlinson M.W., and Tuohey J. “Extremely premature birth and the choice of neonatal intensive care versus palliative comfort care: an 18-year single-center experience.” J Perinatol. 2016 Mar;36(3):190-5.