High court rejects Texas’ ploy to restrict abortions

The fatal flaw in the Texas abortion clinic laws that were overturned this week by the Supreme Court of the United States was that those laws were built on a lie.

That lie was that the laws were designed to protect the lives of Texas women, when the laws were really meant to do one thing: stop women from getting abortions.

Of course, the lie was necessary, because if the legislators had articulated their intent, the unconstitutionality of House Bill 2 would have doomed it from the start. The Texas laws required doctors who performed abortions to have admitting privileges at nearby hospitals and established hospital-like standards for outpatient surgery. This, the legislators said, was for the protection of some 60,000 to 70,000 Texas women who sought abortions each year.

But as the court found, the total number of deaths in Texas from abortions was five in the period from 2001 to 2012. Childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in a patient’s own home. Colonoscopy, which generally is done outside a hospital or surgical center, has a mortality rate 10 times higher than abortion, and the mortality rate for liposuction is 28 times higher than abortion.

Abortion targeted

Clearly, if Texas legislators were concerned with the well being and lives of patients, there were better places for them to look than abortion clinics. The legislators chose to target abortion, and to do so, they lied about their intent.

And because of the lie, it took three years for the case to be litigated before five of the eight sitting justices on the Supreme Court finally stated the obvious: H.B. 2 provided few, if any, health benefits for women, it posed a substantial obstacle to women seeking abortions and it constituted an undue burden on their constitutional right to do so.

Nonetheless, during those three years it took before the court ruled in Whole Woman’s Health v. Hellerstedt, the anti-abortion legislators got much of what they wanted.

The number of clinics operating in the state plummeted from 40 to 19 and tens of thousands of Texas women found themselves far from a safe place where they could get the medical treatment to which they have a right.

Some, no doubt, gave birth to children they didn’t want or didn’t feel they could adequately support. We wonder how much postpartum support the Texas legislators provided those women. Others turned to do-it-yourself abortifacients available from Mexico. Much as it was before 1973, when states try to outlaw abortion, some women will be so desperate to have one that they will take risks that they shouldn’t be forced to take.

Abortion in the United States has become divided along largely religious grounds, and that is the problem. This has been a secular nation from its founding. All religions are free to practice what they preach, but none is entitled to have its doctrine enshrined in law.

Any religion or sect can find abortion abhorrent. It can preach against it, and it can even predict everlasting damnation for those who violate the law of God as it sees that law.

But when any religion fails to convince its own members or those outside its bounds that, in this case, abortion is wrong, it cannot expect the government to do its job.

The court has finally recognized an anti-abortion law for what it is: a paternalistic attempt to circumvent the Constitution under the guise of protecting women from their perceived bad judgment.

Damage done

The Texas laws have been undone, but not the damage that has been done to the infrastructure that had been built up over decades to provide safe abortions to women in need. Lower courts will now be obliged to enjoin the enforcement of similar laws in Alabama, Kansas, Louisiana, Mississippi, Oklahoma, Wisconsin and Tennessee. Other states likely to see new abortion restrictions challenged are Michigan, Missouri, Pennsylvania, Virginia, South Dakota and Utah.

But those are the states that have tried to enforce the most draconian restrictions on abortion providers and the women they serve.

Scores of other states – Ohio among them – have managed to enact laws mandating waiting periods between the time a woman seeks an abortion and when she can have the procedure or requiring tests and lectures designed to discourage a woman who is seeking an abortion. These are barriers that no man faces for any medical procedure he wants.

Like Texas’ H.B. 2, these laws are not enacted for the woman’s benefit, but are part of a guerrilla war designed to take from women the right to control their own bodies, a right memorialized by the Supreme Court in 1973 in another Texas case, Roe v. Wade.

Unfortunately, the courts have found that many of these tactics – while they may be inconvenient -- do not rise to the level of placing an “undue burden” on the woman.

Perhaps that will change with Justice Ruth Bade Ginsburg’s warning to lawmakers in her concurring opinion that laws that “do little or nothing for health, but rather strew impediments to abortion … cannot survive judicial inspection.”

And perhaps those who oppose abortion will stop relying on the government to enforce their moral code on others. But that may be too much to ask.