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The Hellerstedt Decision and Operation Chokepoint
When Texas’ various abortion clinic restrictions were struck down by the Supreme Court earlier this year in the Hellerstedt decision, (full text found here) liberals cheered and conservatives were dismayed. The surface reasons for why each side felt as they did are obvious and not particularly surprising or interesting in and of themselves.
What isn’t as obvious is the fact that the reasoning underlying the decision would cut in the exact opposite direction of those parties’ normal rooting interests if it had been rendered on any other topic but abortion.
The underlying case in the Hellerstedt decision involves the Texas Legislature’s attempt to force abortion providers to have both hospital admitting privileges and the clinics they operate from meet the standard of an ambulatory surgical center. Without a doubt, these are both laudable goals. However, they are also without a doubt a very steep regulatory burden for potential abortion providers to meet. So steep in fact that the vast, vast majority of the abortion clinics in Texas couldn’t meet those standards and would have been forced to shut down. Hence, the lawsuit.
This situation is a fine example of Texas attempting to skin a cat by other means. Texas lawmakers know that they can’t ban abortion directly – the Supreme Court ruled that there is a right to it, and such a law would be struck down on Constitutional grounds within seconds of Governor Abbot’s pen touching the paper – so the Legislature did the next best thing by attempting to regulate the industry out of existence. This, they thought they would accomplish through a Trojan Horse; crafting legislation offering a “solution” to a problem which simply didn’t exist to any meaningful degree but whose real aim was to substantially damage the industry surrounding the underlying practice and therefore effecting a ban.
(The number of abortions resulting in complications requiring hospitalization is not negligible, but the number of deaths of woman reported in Texas due to the practice is zero. Even Operation Rescue couldn’t cite a specific case where a woman who had sought an abortion in Texas had died due to complications.)
The point of this article isn’t to discuss the appropriateness of abortion as much as it is to discuss the appropriateness of the Supreme Court’s rationale and its remedy to the situation. To wit, the Court struck down Texas House Bill 2 on the grounds that the regulations that it sought to impose were both excessive and represented an undue burden. Although I might disagree with the Justices about the underlying subject matter, I couldn’t agree with them more on the substance of the case. This is a fine example of State government overreach when it comes to the rights of the citizenry, and whether we agree with this particular expression of it or not, there is at least a measure of intellectual consistency within this decision given the Court’s position.
The costs that these regulations would have imposed in comparison to the relative benefits are also far out of proportion. That’s the hallmark of bad law.
In order to illuminate the point further we now need to turn to Operation Choke Point. For those who don’t know, OCP (no, not that OCP…) is an Obama Administration initiative designed to choke out “undesirable” industries, such as pay day lenders, porn shop operators, pot shops and yes, even gun or ammunition retailers by restricting their access to banking services. This they accomplish via urging the FDIC to refuse deposit insurance to banks who did business with such vendors. The business that can’t gain access to banking is generally toast, so OCP is the Obama Administration’s version of Texas’ HB 2. It is on its surface a well-intentioned policy meant to protect people, but in reality it’s a kind of non-legislative prohibition on certain activities; an infringement on peoples’ right to freely associate and engage in what is otherwise lawful activity.
Payday lender Advance America has filed suit to break the governments’ choke hold on them, and I suspect they will win with rationale similar to that employed in Hellerstedt.
It’s hard to justify these cases going in the other direction on the grounds under which they were brought if you’re a conservative. The consequences would be extremely dire. Imagine if you would the State of Massachusetts deciding that rather than trying to outlaw guns, they would simply impose a $1,000/round tax on ammunition? Perhaps they could impose a transfer fee on firearms (such taxes already exist on other property such as cars and houses) equal to ten times the value of the gun? They could generate any cockamamie justification for this under the heading of “recouping the costs from gun violence” or other such nice-sounding rot. (I can hear @Tommeyer screaming at me: “Don’t give them any ideas!”)
As onerous as they might be, these actions wouldn’t ban firearms – but they would make their acquisition or use extremely difficult. In my estimation they would also directly violate the spirit (if not the letter) of the Second Amendment and would constitute “excessive” regulations. One could only hope that the Court would see the potential case of People V. State of Massachusetts in the same light.
As conservatives, we should strive for fidelity to the law first and foremost. Allowing these sorts of legislative or regulatory workarounds might feel good when it comes to “getting your way” but on our side of the aisle, process should be paramount.
To that extent, Hellerstedt, and hopefully the pending victory by Advance America over the FDIC and their cronies at the Justice department will be wins for conservative jurisprudence.
Published in General
The point is that – no it wasn’t. It was a way to get around Roe.
Very good article, Majestyk. I’ve had the same thoughts but am too lazy to write about it.
There was a similar case in Wisconsin that was even more egregious than that in Texas: the legislature gave abortionists 48 hours (which just happened to be a Saturday and a Sunday) to implement the changes and ignored the fact that Wisconsin abortionists were already required to have transfer agreements with local hospitals.
I must have been out of town when you published this last year.
48 hours for compliance is ridiculous, I don’t care what the law is for.
I agree with @majestyk that the Texas legislature was mendacious about its intents, which quite clearly was about banning-through-regulation rather than ensuring safety, and that this sets a very bad precedent.
I also agree with @skipsul that the differences between Choke Point and the Texas abortion bills are substantial, though I don’t think it distracts from Maj’s main point.
It’s an interesting case. Of note, the Feds made the (weird and dangerous) argument that Casey basically demands that women have access to abortion, which should horrify anyone this side of sanity.
Analogizing it to gun laws, this would be like saying that the second amendment means that I have a right to a conveniently-located gun store.
Well, that’s your opinion. After seeing the carnage in the Kermit Gosnell case, it is perfectly reasonable for the state to require more oversight and protection of women AND babies. Of course the court disagreed, but it is very malicious of you to deny that there was ever any intent other than to “get around Roe.”
UGH!
If that’s what they were intending then going about it this way was hamhanded and counter-productive. Driving legal abortion practitioners out of business, as this law was clearly intended to do, only creates more Gosnell’s.
Depends on what you mean by “oversight.”
The Gosnell case obviously exposed a systemic failure, but that’s doesn’t necessarily mean that legal reform was necessary. It also doesn’t mean that these particular remedies were the best. Again, in Wisconsin, abortionists were already required to have relationships with local hospitals.
I’ll put it this way: Omar Mateen’s case exposed a systemic law-enforcement/counter-terrorism failure, but that doesn’t mean the new legislation was the proper remedy.
Well, creates additional incentives for more Gosnells.
From a pro-life perspective, I think the main problem here is that the legislatures got careless: if they’d played a more conservative strategy, they’d probably have gotten some reforms. Instead, they’ve got nothing but egg on their face.
Yes, but what he was doing inside the butcher shop (#NotAUnderstatement) was illegal. That’s why he’s in prison for murder.
That people ignore the law sometimes does not necessitate new laws, just he enforcement of existing ones. See: Gun Control, Conservative Arguments Against
Right, but it took a long time (and public exposure) before it was shut down. What happened there was known well beforehand.
Correct. Enforcement problem, not a law problem.
No less serious a problem for it, just different.
It does, however, point out something I was alluding to earlier – abortion and gun ownership, one a penumbra “right”, the other an actual enumerated right, are treated fundamentally differently under both the culture and the law. This is in no small part why there was an enforcement problem with Gosnell – extreme reluctance to prosecute “one of their own” until he was actually caught red handed. This is also why OCP is still perennially ignored by the media (along with Fast and Furious and numerous other petty and vindictive schemes).
Two words: Kermit Gosnell
This law would not have prevented another Kermit Gosnell.
Why not? More inspections of facilities? Surgical standards for surgery? Yeah, it’s all just a way to get around Roe v. Wade.
Not that getting around Roe v. Wade is a bad thing. It’s a remarkably good thing. If it was ham-fisted, more the better. We like a bit of ham-fistedness in Texas.
I don’t agree with Jamie that it would not have prevented Gosnell (maybe I’m missing something). But stipulating that I’m more familiar with the Wisconsin law than the Texas one, these laws would likely still be on the books if they’d been more narrowly crafted.
You like getting your state legislature’s laws over-ridden by SCOTUS?
No. I like my state’s legislature being bold to try and make things right. It wasn’t assured that their law would be overturned.
You’re okay with the law being used this way as long a the ends justify it? Do you see how such a philosophy could easily be turned against you? The system of government you advocate is one solely based on raw power and not one of limited, defined powers.
I think you are seeing this law as an end run around Roe v. Wade. I see it as a way to make abortions safer. You can impugn my motives all you want, but it doesn’t change how I view that law. It is perfectly rational to require safe practices when conducting surgery, even when killing children. Just because some people think that it is unreasonable to have safe practices does not make them right, even if those some people are on the Supreme Court. Remember this is the same Court that decided to allow separate but equal, Kelo, and other monstrosities over the past couple hundred years. Just because they think killing babies is in the Constitution doesn’t make them right.
“Law” is not a pure abstract. Law is pure power. It has been used against justice repeatedly. They institute racism by requiring quotas at schools but insisting that they don’t. They say the government has the right to force me to buy broccoli and health insurance and call it freedom. Don’t tell me that WE need to be nice and sweet while they trample all over the law.
Let me put it bluntly, I’m pretty sure the courts would state that a man has a right to an abortion, regardless of the fact that it is impossible. Abortion is held by court precedent to be a greater right that any freedom under the First Amendment. As abortion is basically our state religion at this point, I don’t see why any legal tactic should be off the table.
There is no way this case will stop Operation Chokepoint.
Majestyk and Jamie could not care less about abortion, so they see this as a clear-cut case of regulation. The left does not care if we stand on principle, most people do not care if we stand on principle, the courts do not care if we stand on principle. If I have to start the libertarian vs. SoCon war again, so be it, but I fail to see the upside in this decision.
Excuse me but you don’t know what the hell you’re talking about. Stop reading our minds and stick to what you actually know.
No disagreement on this whatsoever.
Where we do appear to disagree is on whether this particular Texas law was a good means toward the end of increasing safety (for the mother, at least).
Taking the example I know better, Wisconsin passed a very similar law, at roughly the same time, that would have had nearly the same effect, and that was also overturned. Regardless, the existing Wisconsin law that required Wisconsin abortionists to have transfer agreements with local hospitals is still on the books and, according to one pro-life Ricochetti doctor, is likely to be up to the task.
I don’t know the Wisconsin law. The Texas law required an association with a hospital and also that the clinic itself have hallways wide enough for a gurney and other fairly routine facility requirements. It was not an unreasonable law at all. The left screamed bloody murder (how ironic) because abortion clinics have been back alley shops that don’t have these basic safety requirements. They hollered that almost all would be shut down.
No clinics would have shut down. That was absurd. They would have just rented new facilities. It was a burden, but a reasonable and certainly attainable burden.
From what I understand, admitting privileges are a fairly heavy burden and similar protections are available through much lower standards. Again, in Wisconsin, abortionists were required — and still are required — to have transfer agreements with local hospitals.
If any of Ricochet’s MD’s would care to jump in — @docjay, @doctorrobert, @georgesavage — it be appreciated.