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As previously discussed at Ricochet, there have been several recent federal court decisions regarding the constitutionality of new laws that require abortionists to gain admitting privileges at nearby hospitals. One of these cases is wending its way to the Supreme Court and we’re likely to see a decision on it next year.
I’ve generally been skeptical of this legislation, as the genuine health and safety concerns seemed to take a back seat to finding new means of restricting abortion. Now, I want abortion to be more restricted than it is because I think abortion-on-demand-for-any-reason-at-any-time is monstrous, but I also have a gut feeling that these laws were masking that (legitimate) motivation behind a screen of health concerns. On the other hand, I would never have imagined that it was possible for something like Kermit Gosnell’s clinic to exist, and I also assume that any stance taken by Planned Parenthood is mendacious and wicked until proven otherwise, so there was that to account for.
With all this in mind, I decided to read the most recent of these decisions, this one regarding a small part of an anti-abortion law passed in Wisconsin in the wake of the Gosnell case. The relevant portions under review concerned the passage that required abortion providers to gain “admitting privileges in a hospital within 30 miles of the location where the abortion is to be performed” within two days of the law’s passage. The process for gaining admitting privileges is lengthy and capricious, and the two days in question were a Saturday and Sunday. The timing was so egregious that the court put a unanimous injunction against this particular provision’s enforcement in order to give abortionists time to meet the new requirement. This case then reviewed whether the injunction should be lifted or made permanent. The majority’s decision by Judge Richard Posner argued that it should be permanent, while Judge Daniel Manion dissented.
Posner’s argument was essentially that the law in question was written in such bad faith that it could not possibly be defended as-written. In addition to the impossible-to-accommodate deadline imposed — which would have put most abortionists out of business for something on the order of a half year — Posner argued that: 1) The state was largely unable to present evidence that there was a problem in need of a remedy; 2) Didn’t account for other safeguards against abuse, such as Wisconsin’s preexisting requirement that all abortion clinics have “transfer agreements” with local hospitals; and 3) appeared to regulate abortionists more rigorously than other “medical” — scare quotes intentional — providers whose practices appear to cause more complications than abortion:
When the transfer agreements and the availability of emergency-room care and the rarity of complications of abortion that require hospitalization are compared to the impact this statute would have on access to abortion in Wisconsin, it is apparent that the defendants have failed to make a dent in the district court’s opinion granting the permanent injunction sought by the plaintiffs.
Affirmed. [emphasis original]
In other words, health and safety were the means toward the end of running as many abortionists out of business as possible. However well that might fly morally — your mileage may vary — that can’t hold up legally so long as Roe and Casey are the law of the land, which they currently (and sadly) are.
I was all ready to sign onto this analysis before I read the Judge Manion’s dissent, which — to my surprise — I found convincing. Recall first that Manion agreed with the initial injunction against the statute on the grounds that the timetable it required was unrealistic and unjustifiable. He argued that once this egregious error was corrected, and abortionists had been granted time to come into compliance, the question should become less a matter of whether the arguments in favor of the legislation were convincing to the court, but whether they were defensible at all. In other words, the now-infamous “rational basis test.” Such arguments were available in spades, Manion argued, and the court erred in dismissing them out of hand simply because they did not find them convincing (as I didn’t and still don’t).
Toward the end, Manion makes a further argument that — while I think it goes a little far in this particular case — makes an excellent point regarding the Left’s general attitude toward abortion:
The plaintiffs argue that the state creates an undue burden under Casey when a regulation designed to protect the health and safety of pregnant women decreases the availability of qualified abortionists. The implications of this argument are astounding. Taken to its logical end, this argument would require the state to assume some affirmative duty both to provide abortion services and to do so in a manner that is convenient for consumers of abortion and with no regard for the quality of healthcare professionals that a state’s naturally occurring marketplace provides. The state bears no such obligation or duty…
While the Supreme Court has limited a state’s ability to regulate abortions, it has never required a state to establish a command economy in order to provide them.
It’s impossible to tell, but I wonder whether the decision would have gone differently if Wisconsin’s legislators — and Governor Scott Walker — hadn’t overplayed their hand and passed such an absurd timetable that guaranteed such trouble and added a little more poison to an already corrupted well.Published in