For decades, the Supreme Court has held that abortion is a constitutional right, forcing those who oppose the practice to limit it in subtle ways that can withstand judicial scrutiny. These began with mild restrictions with a small but important effect on abortion rates, such as providing ultrasounds or notifying parents whose minor children were undergoing the procedure. But in more recent years, conservative states have turned to safety regulations, sometimes passing laws strict enough to shutter most abortion clinics.
Under the Texas regulations at issue in the case, abortion doctors must have “admitting privileges” at a local hospital, and abortion clinics must meet the requirements of an “ambulatory surgical center.” The former means a doctor is part of the hospital’s staff and can admit patients there personally; the latter entails an extensive array of standards governing everything from hallway dimensions to nursing staff to traffic flow through the building.
Critics say these laws exist not to ensure patients’ safety, but rather to shut down clinics—and therefore represent an unconstitutional “undue burden.” They point out that admitting privileges are not necessary to get a patient into an ER in the event of a complication, and they claim abortion is an “incredibly safe” procedure (at least for the adult involved) even outside of ambulatory surgical centers. In response, defenders of the law point to the horrors of Kermit Gosnell as an example of what happens when abortion clinics are not adequately supervised.
The Supreme Court’s majority, led by Stephen Breyer, agrees with the critics, saying the laws would close about half the abortion clinics in Texas and require many women to drive long distances while having little impact on health. (Abortion results in “virtually no deaths,” we are assured.) It also directly confronts the Gosnell case, noting that the doctor ignored numerous laws in Pennsylvania, was convicted of murder and manslaughter, and operated for more than 15 years without an inspection.
Samuel Alito’s dissent (joined by the other two conservatives) largely focuses on the mind-numbing intricacies of “claim preclusion”—which I’ll spare you—but on the constitutionality of these restrictions, it mainly picks at the “crude inferences” of the majority. For example, it argues that the remaining clinics might be able to handle the influx of patients from the closed clinics, and it floats the possibility that the closed clinics either were unsafe or closed for unrelated reasons. Alito also suggests a more selective approach to striking the law down, such as doing so only in areas where clinics would close or leaving some but not all of the ambulatory-surgical-center rules intact. In a similar vein (but a separate, solo dissent), Clarence Thomas suggests that when abortion regulations’ benefits are “medically uncertain,” justices should defer to the judgment of state legislatures.
I was surprised not to see a more passionate defense of these regulations from the conservative justices. Aside from claiming that the rules might have stopped Gosnell, they offer little in the way of concrete evidence that they would make abortion safer. Their circumspection may reflect the fact that, to some degree, the critics are probably right: if these laws reduce abortion, many will support them simply for that reason.
At the root of this controversy is, of course, Roe v. Wade itself, which declared one side of an intense national argument to be illegitimate, a violation of the “penumbras” of the Constitution. Unless and until the Supreme Court’s balance tips, that side has remarkably few avenues through which to pursue its agenda—especially now that the most promising avenue has been closed.
Robert VerBruggen is managing editor of The American Conservative.