U.S. Supreme Court, 5-4: Abortion Providers Don’t Need Hospital Admitting Privileges

The U.S. Supreme Court today struck down a Louisiana law requiring an abortion provider to have admitting privileges at a hospital within 30 miles of the abortion facility. The case was June Medical Services v. Russo. The vote was 5-4, with Justice Stephen Breyer writing for a majority that included Justices Ginsburg, Sotomayor, Kagan, and Chief Justice Roberts.

Justice Breyer concluded his opinion by saying that the Louisiana law placed a “substantial obstacle” between a woman and an abortion, thus making it in violation of the 1992 Casey decision. Anything that happens in the wake of an abortion – hemorrhaging, for example – is apparently none of the Court’s concern.

Breyer also cited the 2016 Whole Women’s Health decision, regarding a Texas law, in striking down Louisiana’s statute.

Separate dissents were filed by Justices Alito, Thomas, Gorsuch, and Kavanaugh.

The Louisiana law did not affect the legality of abortion itself, did not shutter any abortion facilities, and did not address the right to life. It was supposed to be strictly about women’s health. Women’s health lost. The June Medical decision, however Justice Breyer views his handiwork, is about the rights of abortion providers, period.

Chief Justice Roberts was the swing vote

The standard of care (so to speak) for abortion excludes the need for the abortion provider to have hospital admitting privileges in case a patient suffers a complication. Any medical professionals who take issue with that can complain to the Justices.

Don’t bother with Justices Breyer, Ginsburg, Sotomayor, and Kagan. Go straight to Justice Roberts. He agreed with the decision, but not for the same reasons as his fellow majority Justices, each of whom is well-known to be abortion-friendly. He concluded that the Louisiana law had to be overturned because the Court had ruled in 2016 that a similar Texas law be overturned. Stare decisis, don’t ya know. “The question today however is not whether Whole Woman’s Health [the Texas case] was right or wrong, but whether to adhere to it in deciding the present case.”

One wonders if this guy would have voted against Brown v. Board of Education back in the 1950s, since it overturned Plessy v. Ferguson, the “separate but equal” case that kept racial segregation in place for decades. Brown was a unanimous decision. Can you imagine a dissent like the one Roberts released today? The question today is not whether Plessy was right or wrong

I’m trying to imagine the Chief Justice as he tried to figure out how to agree with the majority without looking like he agreed with it. He could have just signed on to Breyer’s opinion without comment, as did the women on the Court. But no. He wanted to make sure everyone knew his hands were tied by stare decisis.

He could have arrived at a different conclusion if he had cared about a glaring procedural question in the case: the standing of the plaintiffs. Did abortion providers as a group have any business bringing the case, without a single named patient’s rights having been violated? The Court today said yes. A different conclusion by Justice Roberts would have changed the outcome.

I wish I could take credit for a Facebook post from an acquaintance of mine, posted a few minutes after the June Medical decision was released: “Are there any statues of Justice Roberts? Asking for a friend.” With nothing to pull down, I’m left with objecting to his concurrence.

Excerpts from four minority views

Justice Clarence Thomas dealt with the issue of standing at the very beginning of his 20-page dissent. “As is often the case with legal challenges to abortion regulations, this suit was brought by abortionists and abortion clinics. Their sole claim before this Court is that Louisiana’s law violates the purported substantive due process right of a woman to abort her unborn child. But they concede that this right does not belong to them, and they seek to vindicate no private rights of their own.” [emphasis added]

Thomas’s dissent didn’t rest on procedure alone, though. Earlier Court decisions on abortion “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled. Because we have neither jurisdiction nor constitutional authority to declare Louisiana’s duly enacted law unconstitutional, I respectfully dissent.”

Next up was Justice Samuel Alito, opening his dissent – respectful dissent, of course – by blasting his colleagues’ reasoning. “The majority bills today’s decision as a facsimile of Whole Woman’s Health v. Hellerstedt [striking down portions of a Texas law in 2016]…, and it’s true they have something in common. In both, the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.”

The most recently-confirmed Justices weighed in as well. June Medical is hardly a case where either one was called upon to rule on the right to life, but their dissents bear consideration nonetheless.

Justice Gorsuch: “The judicial power is constrained by an array of rules. …Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be. Today’s decision doesn’t just overlook one of these rules. It overlooks one after another….To arrive at today’s result, rules must be brushed aside and shortcuts taken.”

I’ll leave finer minds than mine to ponder how that squares with Gorsuch’s recent opinion that sex includes gender identity under Title VII.

Justice Kavanaugh, you may recall, got a confirmation vote from Sen. Susan Collins (R-ME) only after assuring her that he would respect Roe. Not a promising commitment. But in his brief dissent in June Medical, he agreed with one of Justice Alito’s points, that the factual record behind the case was incomplete. There simply weren’t enough facts in the record for him to be willing to throw out a duly enacted state law.

effect on new hampshire

New Hampshire has no requirement that abortion providers have admitting privileges, or even that they have any medical credentials whatsoever. In the last quarter-century, women’s health has never been enough of a concern to change that. June Medical therefore doesn’t overturn anything New Hampshire has on the books.

What will happen is that attempts to rectify New Hampshire’s situation will face an even steeper uphill battle than before.

Edited to clarify that the overturned law was “supposed to be” strictly about women’s health.

Sens. Shaheen & Hassan Blast Pro-life Bills

New Hampshire’s U.S. Senators have issued a joint statement condemning pending pro-life federal and state legislation. They used the term “extreme anti-choice bills” to refer to bills including born-alive infant protection acts.

Statement from Sens. Jeanne Shaheen and Maggie Hassan

A few thoughts on some of the state-level legislation that has the Senators in a lather:

Shaheen calls infanticide “already illegal,” ignoring the fact that existing New Hampshire born-alive law has no enforcement mechanism. The New Hampshire Senate recently tabled SB 741-FN which would have provided meaningful protection for children who are born alive following attempted abortion. A House committee will vote on a similar bill, HB 1675-FN, on March 4.

Hassan says, “Women in New Hampshire and across the country deserve respect and dignity. They deserve the chance to thrive, and they deserve equality in every way, including by making their own health care choices.”  She does not explain how failing to protect born-alive females is consistent with respecting the dignity of women. Let her ask abortion survivors about “the chance to thrive.”

Both senators use the term “gag rule” to criticize efforts to prevent taxpayer dollars designated for family planning programs from being used to promote or provide abortions.

I conclude that in the eyes of both of New Hampshire’s U.S. Senators, it is extremely “anti-choice” to protect children who survive attempted abortion by imposing penalties on medical professionals who fail to do so.

In the eyes of our Senators, it is “anti-choice” for taxpayers to refuse to fund abortion and subsidize abortion providers.

In the eyes of our Senators, it is “anti-choice” to recognize that abortion is not health care.

In the eyes of our Senators, it is “anti-choice” to tell Planned Parenthood to get its hands out of taxpayer pockets if it wants to continue doing abortions.

In the eyes of our Senators, it is “anti-choice” to advance protective legislation that reflects concern for mother and child.

At least three people have announced their candidacy for the Senate seat currently occupied by Shaheen, up for re-election next November. Let’s see if any of them – and perhaps other potential challengers – know how to push back effectively and persuasively on abortion extremism.

Contact form for Sen. Shaheen

Contact form for Sen. Hassan

And once again, the statement from Sens. Shaheen and Hassan

Shaheen: “We won’t go back”

U.S. Senator Jeanne Shaheen (D-New Hampshire) sends out occasional email updates to anyone who cares to subscribe. They are as smooth and polished as you’d expect from a savvy, experienced politician. Her most recent one, released close to the anniversary of Roe v. Wade, included a celebration of abortion, tucked in below a few other news items.

As you read this, bear in mind that then-Gov. Shaheen in 1997 signed the law that stripped New Hampshire statutes of 19th-century abortion laws, replacing them with nothing. She made New Hampshire Gosnell-friendly before we’d ever heard of him.

Bear in mind as well that Sen. Shaheen is running this year for her third term representing New Hampshire in the United States Senate.

Here’s a screenshot of the relevant portion of the January 2020 update, with text below in case the image fails to load. The photo in the screenshot is from the original email.

From Sen. Shaheen email to constituents, January 2020

Senator Shaheen’s words, from that screenshot:

This week marked the 47th anniversary of the Supreme Court’s Roe v. Wade decision, a landmark case that determined legal and constitutional safeguards for what many of us already morally believed to be true: women’s reproductive health care decisions belong to them, not their government.

Roe has had a dramatic impact over the past 47 years. The Supreme Court decision ushered in a new era for women’s health, reducing the number of dangerous back alley abortions and expanding access to family planning services and contraceptives, which have helped reduce abortion rates to historic lows.

As we look back on decades of progress, we do so knowing that the rights secured by Roe v. Wade have never been more in danger since the decision was first handed down. Republican efforts to overturn Roe, restrictive state laws that seek to shut down abortion clinics, and the Trump administration’s incessant attacks on family planning programs continue to put women’s health at stake.

“I’m inspired by the groundswell of activism by women and girls of all ages in response to these attacks on women’s health, and I believe that together we can fight off these efforts and keep pushing forward. We stand on the shoulders of generations of women who fought to get us here. We can’t go back. We won’t go back.”

I was struck as I read Sen. Shaheen’s message by how much I agree with that last paragraph. Fresh off my trip to the March for Life in Washington, I too am inspired by the groundswell of activism by women and girls of all ages – in response to attacks on human dignity and the right to life, that is. I agree that we can keep pushing forward. I stand on the shoulders of women who fought to get the pro-life movement this far. I won’t go back.

“A privilege that I was not given…the right to be born”

A Congressional committee or subcommittee held a hearing this week on something called “Threats to Reproductive Rights.” Melissa Ohden was there to provide some perspective, clarity, and honest language, which is hard to come by when the day’s theme includes the words “reproductive rights.”

You see, Melissa survived an attempt to abort her. “All of these people here today had a privilege that I was not given. And that is simply: the right to be born…” 

(If the video above is not displaying, look for it on the Facebook page for the Susan B. Anthony List under “videos.”)

I’ve written about her before in this blog’s “Voices to Trust” series. She continues to write and speak about her experiences, and to bring together other abortion survivors who want to tell their stories.

Her book You Carried Me is good to read and good to share. Maybe your local library, or your Member of Congress, could use a copy.

Gosnell Was Convicted Six Years Ago, and N.H. Remains Gosnell-Friendly

May 13, 2013, Philadelphia: Kermit Gosnell was convicted of murder, manslaughter, and a couple of hundred lesser offenses. He’s in prison for life. If he were released, he could set up shop in New Hampshire and commit with impunity some of the same actions for which he’s now imprisoned.

Gosnell snipped the necks of children who survived his attempts to abort them, one of whom he joked was big enough “to walk me to the bus stop.” Karnamaya Mongar, a woman who came to him for what she thought would be a safe and legal abortion, was sedated to death by the staff Gosnell was supposed to oversee, using protocols he had established to compensate for the staff’s lack of formal medical training.

The carnage was uncovered only accidentally, triggered by a 2010 drug raid at Gosnell’s “clinic,” which was a pill mill on top of its other charms. (Convictions on twelve drug offenses netted him another 30 years in prison.)

He got away with abusing women and children for a long time, because the one-time governor of the Commonwealth of Pennsylvania – a Republican named Tom Ridge, later entrusted with the Department of Homeland Security – ordered that abortion regulations not be enforced. They might have interfered with abortion access, and that was something Ridge wouldn’t countenance. Ridge’s policy prevailed for an appalling length of time.

Karnamaya Mongar isn’t around to offer her thoughts on Ridge’s defense of her rights.

New Hampshire differs from Pennsylvania in that we don’t have unenforced abortion regulations as far as we know; instead we have next-to-no regulations.

Read the rest of the post at GraniteGrok.