Contributor Post Created with Sketch. Abortion and Good Faith

 

shutterstock_133423673-e1444998785546As 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.

There are 14 comments.

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  1. Mike Rapkoch Moderator

    I think Wisconsin did overplay its hand. That error seems to have been corrected.

    • #1
    • November 30, 2015, at 11:17 AM PST
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  2. PHCheese Member

    My opinions about abortion have changed over the years. I consider abortion at all times murder. I used to think anyone that didn’t share that opinion and had an abortion or committed an abortion also a murderer. Now I think that some people can actually believe it isn’t murder, how I am not sure but they can. However the rub is that by using tax payers money , they are making me an accessory to murder. They need to allow my beliefs and pay for their own abortions.

    • #2
    • November 30, 2015, at 11:24 AM PST
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  3. Doctor Robert Member

    Abortionists are almost without exception less competent, less caring, less qualified OBGs (or non-OBGs, as was Gosnell). Such has been the case in each of the four medium or large East coast cities in which I have trained or practiced. Good docs rarely choose to preform these offensive but very lucrative procedures. So a little extra scrutiny of abortion practices is not unreasonable.

    Apart from the 48 hour absurdity, the regulations proposed are logical and reasonable. This is simple regulation of surgical practice and should be treated as such.

    You haven’t lived until you have gone to surgery at midnight and cleaned up the perforated uterus and colon that a sloppy abortionist created in his abbatoir. I have. This was a patient whom he was unwilling to care for afterwards. Hysterectomy, partial colectomy and temporary colostomy should not be sequelae of legal abortion.

    • #3
    • November 30, 2015, at 11:51 AM PST
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  4. Tom Meyer, Common Citizen Contributor

    Doctor Robert: Apart from the 48 hour absurdity, the regulations proposed are logical and reasonable. This is simple regulation of surgical practice and should be treated as such.

    Do you think the transfer agreement requirement was inadequate to the task? From what I gather, Wisconsin was fairly unique in requiring that until recently.

    Doctor Robert: You haven’t lived until you have gone to surgery at midnight and cleaned up the perforated uterus and colon that a sloppy abortionist created in his abbatoir. I have. This was a patient whom he was unwilling to care for afterwards. Hysterectomy, partial colectomy and temporary colostomy should not be sequelae of legal abortion.

    Were there any repercussions for him? If not, do you recall why not?

    • #4
    • November 30, 2015, at 12:02 PM PST
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  5. Eric Hines Inactive

    Tom Meyer, Ed.: Posner argued that: 1) The state was largely unable to present evidence that there was a problem in need of a remedy;…and 3) appeared to regulate abortionists more rigorously than other “medical” — scare quotes intentional — providers whose practices appear to cause more complications than abortion….

    Taking your summary at face value (because I’m too lazy to read the ruling for myself), and arguing from principle and not from the petty details of case law, I offer a couple of things.

    On his Point 1: that the state was unable to present…a problem in need of a remedy is irrelevant, beyond the scope of the case, and an example of judicial overreach. Stipulate, arguendo, the accuracy of the claim. It may be bad law, but it’s not illegitimate law. It is, more importantly, a political matter, not a judicial one, and the court has no business intruding into it.

    On his Point 3: this is irrelevant. There’s no need to regulate that more rigorously than, or even as rigorously as, this. This was the object of the legislation. The decision whether to include other matters, related or not, again is a political decision and not a judicial one. This is another overreach.

    Finally, the Federal court system has no business intruding into the internal affairs of a State. Posner’s court has forgotten the 10th Amendment. I’m aware that the Supreme Court has legitimized such intrusion, see for example, NLRB v Laughlin Steel Corp. Then see Justice James Clark McReynolds’ prescient dissent. The Supremes have been wrong before.

    Eric Hines

    • #5
    • November 30, 2015, at 12:07 PM PST
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  6. Sabrdance Member

    If Pro-lifers are having to engage in subterfuge to get their laws and regulations through, I have zero sympathy for the abortionists -who first created the need for subterfuge by their outright sabotaging of the political process, undermining of the First Amendment, and barbarous practices.

    They are acting exactly like the British slave traders, who hid behind the bloody skirts of the French Revolutionaries and insisted that no action be taken against the slave trade that might destabilize an important counter-balance to the revolutionary forces.

    The abolitionists cheated, too. The Foreign Slave Trade Bill was passed as a war measure (as was, incidentally, the Emancipation Proclamation and the 13th Amendment).

    I am perfectly fine with nosus decipio.

    • #6
    • November 30, 2015, at 12:42 PM PST
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  7. iDad Inactive

    Tom Meyer, Ed.:

    Doctor Robert: Apart from the 48 hour absurdity, the regulations proposed are logical and reasonable. This is simple regulation of surgical practice and should be treated as such.

    Do you think the transfer agreement requirement was inadequate to the task? From what I gather, Wisconsin was fairly unique in requiring that until recently.

    Whether it was or not is a decision for the political branches. But Posner believes it’s his role to make the law.

    http://joshblackman.com/blog/2015/11/06/judge-posner-on-judging-birthright-citizenship-and-precedent/

    • #7
    • November 30, 2015, at 1:04 PM PST
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  8. Tom Meyer, Common Citizen Contributor

    iDad: Whether it was or not is a decision for the political branches. But Posner believes it’s his role to make the law.

    Well, as I said, I agree with Judge Manion’s dissent from Posner’s decision for that reason.

    • #8
    • November 30, 2015, at 1:30 PM PST
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  9. iDad Inactive

    Tom Meyer, Ed.:

    iDad: Whether it was or not is a decision for the political branches. But Posner believes it’s his role to make the law.

    Well, as I said, I agree with Judge Manion’s dissent from Posner’s decision for that reason.

    I know and I appreciate it. My comment was aimed at Posner – I don’t understand why so many conservatives afford him such respect.

    • #9
    • November 30, 2015, at 5:45 PM PST
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  10. Sabrdance Member

    Ramesh Ponnuru made a good point earlier in the day:

    Pro-choicers who want pro-lifers to stop saying that abortion kills unborn children aren’t objecting to the pro-life movement’s rhetoric; they’re objecting to its existence.

    The mendacity of the attacks on pro-lifers really is galling, and at a certain point I wish the pro-choicers would just get over themselves and throw down. Let’s all stop mouthing platitudes about how this is a complicated issue.

    The pro-choicers are baby-killers. Maybe because they think it’s justified, maybe because they think the baby isn’t a real thing. Hardly matters, but if you are going to engage in monstrous activity, don’t cover it in euphemism.

    Even the devil (OK, in Milton, but point stands) admitted that he was elevating Evil to be his Good.

    • #10
    • November 30, 2015, at 7:49 PM PST
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  11. Doctor Robert Member

    Tom (#4), the transfer agreement seems reasonable to me. Otherwise patients are dumped on some unknowing ER staff who has no access to procedure records from the abbatoir. As to the repercussions on the abortionist whose mess I cleaned up on that fateful October night, he had supervised procedures for some months, lost his admitting privileges at the hospital where I saw the patient and his crimes are exposed on his physician listing at our state website. To my astonishment, no malpractice claim is noted on the state website but I suspect that the patient was quietly paid off in such a way as to avoid legally-mandated reporting and scrutiny.

    • #11
    • December 1, 2015, at 7:31 AM PST
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  12. gts109 Member

    Yeah, two days is ridiculous amount of time to comply with a licensing regime. I have no idea why Walker, et al. thought that would hold up in court.

    But medical practice is a heavily-regulated, license happy market. It strikes me as reasonable to require that a surgical procedure performed outside a hospital be conducted by a locally-connected surgeon. That affords the patient assurances that she will have somewhere to go in the event of a complication, and is an added credential that will tend to improve the quality of care (likely having the effect of increasing the price of the service). I’m curious whether this sort of requirement is imposed in other settings (like if you go to a non-hospital surgery center for some other procedure, does your doctor have to have the same admitting privileges?). If that is, in fact, the case, then the pro-abortion argument (that this added measure of credentialing isn’t statistically necessary) strikes me as sophistry, i.e. a lawyer-fabricated argument standing at odds with medical practice established by experts in the field.

    • #12
    • December 1, 2015, at 8:11 AM PST
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  13. Tom Meyer, Common Citizen Contributor

    iDad: I know and I appreciate it. My comment was aimed at Posner – I don’t understand why so many conservatives afford him such respect.

    Got it. :)

    • #13
    • December 1, 2015, at 10:15 AM PST
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  14. jzdro Member

    Sorry to come in late here, but I’d appreciate an explanation of the distinction between “transfer agreement” and “admitting privileges.”

    Thank you all for the update and the education.

    • #14
    • December 3, 2015, at 4:42 PM PST
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