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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
It was my understanding that the Texas Law was a correction to a de facto special regulatory consideration that exempted Abortion providers from Health Code inspection and standard regulatory requirements for operation.
I am sure many of the Physicians who post here could corroborate what relatives of mine, (Physicians running a free standing Clinic in a state made famous by Kermit Gosnell’s fabulous clinic who are inspected quarterly and ad hoc), stated when they saw the requirements that Texas imposed on Abortion Clinics as being the minimal standards of care mandated for all non-abortion clinics but especially for surgical clinics.
It is odd how equal application of regulatory standards are burdensome for some clinics but not others for political reasons.
Indeed.
Again, I point out that the transfer agreement requirement in Wisconsin appeared to be far less burdensome while still accomplishing the same goal; importantly, it is still on the books.
I also agree completely that abortionists should be held to the same standards as comparable medical* professionals, but this particular legislation appears to hold them to an unnecessarily high standard, higher than providers whose services contain similar risks.
Moreover, even if the Texas law merely applied the same burden to abortionists as others, I think we should at least consider whether those “normal” standards are, themselves, overly burdensome. That is, if this law was leveling the field, perhaps it was doing so in the wrong direction. Don’t we generally think that the medical industry is too controlled and overburdened by regulation?
* asterisk required when speaking of abortion.
If the Texas law brought the clinics to the same standards as other medical facilities, then the court was incorrect in tossing out the requirements and, as I suggested earlier, would be yet again treating abortion as somehow legally distinct and more protected than it otherwise would be.
If the court was, then, being consistent with itself, it should have tossed out such requirements for all medical facilities.
Agreed.
Not necessarily. I don’t think it’s the court’s job to evaluate whether the law in question is wise or foolish, so long as it is consistent and fair.
If abortion clinics = medical facilities, and if Texas requirements on clinics were made to equal requirements on other medical facilities, then if said requirements on abortion clinics were needlessly burdensome, such requirements on all facilities are needlessly burdensome.
ergo: the court was being inconsistent and should have struck such requirements on all medical facilities.
It’s worth noting that the law in question was specifically targeted at abortion providers. It’s almost a bill of attainder in that sense, and another reason why the law was suspect.
It would be one thing if this were a law generally spread across all medical providers, but the legislature went out of their way to target a particular class of healthcare providers for nakedly political reasons.
Right, and that’s a good counterpoint. It all goes down to whether the clinics were actually being brought up to the same standards as other medical facilities, or if they were held to higher standards without just cause.