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.

House to Vote On Abortion Insurance Mandate June 30

The New Hampshire House will vote on June 30 whether to agree with a Senate amendment creating an abortion insurance mandate bill. The House will vote to concur (agree) or non-concur (disagree) with the Senate’s changes to HB 685. The House intends to wrap up its session on the 30th, coming back only in September to consider vetoed bills.

If a majority votes to non-concur, HB 685 and the abortion insurance mandate will die. If a majority votes instead to concur, the bill will go to Governor Chris Sununu. The Governor has made no public statement on whether he’ll veto HB 685.

Reaching House members

To reach House members before Tuesday, June 30, look up your district and representatives’ names at the General Court website. Note that you may live in two districts, one for your town and another “floterial” district covering several towns. In that case, contact representatives from both districts.

To kill HB 685, the message is please vote to non-concur with HB 685.

Brief and courteous messages are always the way to go.

Reaching out to the Governor will be the next step if the House concurs. If you want to get a jump on that, call the Governor’s office at (603) 271-2121 and ask for a veto if HB 685 gets to his desk. Thumbs up to the staff at the Governor’s office, which fields all such calls and makes sure the Governor hears about them.

The sneaky swap: senate’s non-germane amendment

As previously reported, HB 685 bears no relationship to the original bill passed by the House. As introduced, HB 685 was about insurance for ambulance services. That’s what the House passed. The Senate, where a majority is more interested in abortion than in ambulance services, amended the bill by stripping out the original language altogether and replacing it with an abortion insurance mandate. The vote on the non-germane amendment – meaning the amendment has no relationship to the topic of the original bill – was 14-10 along party lines.

To add insult to injury, the Senate majority accepted a new name for the bill: “The Reproductive Health Parity Act of 2020.”

Even a House member who’s a fan of abortion mandates could take offense at the Senate’s casual dismissal of a House bill. Procedure alone is reason enough to torpedo HB 685 as amended.

There’s more: there was NO House hearing on the material in HB 685 as amended. No House member should be supporting that kind of sneaky process.

If this procedural nonsense succeeds, it will set a precedent for future legislatures. Its use won’t be limited to one party or the other. No House member should be willing to open that door. No representative voting to concur with HB 685 as amended will have any business objecting if his or her own pet bill falls prey to shenanigans in the future.

Because the House intends to finish this session’s regular business on June 30, without forming any conference committees, a vote to non-concur will kill HB 685.

I’ll add a link to the roll call after the House vote.

Second Abortion Insurance Mandate Bill Created in Rushed Process

Full sessions of the New Hampshire legislature are back in business after a 12- week recess due to the COVID-19 pandemic. Why not adjourn until next January? Because apparently there are some bills the current leadership considers important enough to rush along, short-circuiting ordinary procedure. Case in point: mandating that some health insurance policies cover abortion.

inventing a bill, or a short course in non-germane amendments

SB 486, misleadingly entitled “relative to insurance plans that cover maternity benefits,” was passed by the Senate last March in the last session before the COVID recess. The House has not taken up the bill due to the recess, and thanks to a procedural vote on June 11, the House is not likely to take it up now. (More about that later.)

So abortion advocates in the Senate Commerce Committee did something creative: they took an existing House bill on another subject (HB 685, insurance coverage for ambulance services) and amended it to remove the original subject matter entirely and replace it with the text of SB 486. The full Senate is likely to vote on the new-and-not-improved HB 685 on Tuesday, June 16.

But when was the hearing, you ask? The hearing AND the Senate Commerce Committee vote on HB 685 as amended was on June 11, via videoconference and YouTube. If you blinked, you missed it.

“parity” = “you gotta pay”

A quick review, from this blog’s coverage of SB 486 last March, keeping in mind that HB 685 as amended by the Commerce committee now contains the same mandate as SB 486:

SB 486 will force some health insurance plans that cover maternity benefits to cover abortion as well. Committee recommendation is “ought to pass,” party-line vote. SB 486 deserves an “inexpedient to legislate” vote. [Editor’s note: the Senate later passed the bill along party lines, Democrats in the majority.] Testimony at the hearing affirmed that most health insurance policies written in New Hampshire already cover abortion. That’s not enough for abortion advocates. They say “parity” demands that abortion coverage be mandated, since abortion is health care, too. Only it isn’t. For another view, you can read Planned Parenthood’s glowing endorsement of the bill.

leavenfortheloaf.com, March 9, 2020

If SB 486 or HB 685 (as amended) were to become law, you would be helping to subsidize abortion if you are an insurance provider covered by the bill, if you are a business owner who offers health insurance as a benefit to employees under a policy covered by this bill, and if you are an individual paying premiums for a policy covered by this bill.

Conscience rights? Not persuasive to the current Commerce Committee majority.

Remember the contraceptive mandate in Obamacare? That was just the preview. Now abortion advocates at the state level want to mandate abortion coverage in health insurance policies. While these bills purport to apply to only certain policies, the fact is that they open the door to treating abortion as a form of health care that must be covered by all health insurance policies that offer maternity coverage.

timing is everything

If the Senate passes the amended HB 685 at its June 16 session, as seems likely, then it will go to the House – not for a hearing, mind you. HB 685 already had a House hearing before crossover in March, on its original subject. Instead, the House would merely have to vote to concur with the Senate changes in order to send HB 685 to the Governor for his signature.

The House’s last session is June 30, so the clock is ticking.

what the…or why are there two bills?

Supporters of the original abortion mandate bill correctly surmised that the House would not vote to extend its calendar past June 30. (Basically, both chambers are trying to catch up on three missed months in three weeks.) SB 486’s supporters were afraid there wouldn’t be time for the House to go through its usual procedure with bills received from the Senate, including a public hearing.

So to guarantee that an abortion insurance mandate would get a House vote, the Senate Commerce Committee took the path of completely re-writing a bill that had already gone through the House: HB 685. If the Senate votes to pass the amended bill, all the House will have to do is vote to agree or disagree with the amendment. The current pro-abortion majority in Senate and House make passage a near-certainty.

what you can do

Civics lesson, free of charge: Never assume a legislator knows what you want, and never let a legislator say you weren’t heard from.

If you oppose HB 685 as amended by the Senate Commerce Committee, contact your senator and say so, before June 16.

Would Governor Sununu sign an abortion insurance mandate if it came to his desk? Stay tuned.

Three New Hampshire Pastors on Racism

There’s been so much grief and anger and even noise in our nation since George Floyd died in Minneapolis that I have hesitated even to put down in writing my own reactions. My social media feeds – and I can’t just drop them; they’re integral to my work – leave me feeling alienated and quite inadequate to rise to the occasion we’re in.

I have a couple of things to share with you that I hope you’ll find constructive.

a webinar worth your time

I’ve mentioned in the past that I’m a contractor with Cornerstone Action, dealing with legislation and communication. One of my Cornerstone colleagues, who’s on the Cornerstone Policy Research (non-political) side of the organization, facilitated a webinar this week with three Manchester-area pastors. Two are black, one is Hispanic, and each has something to say about his own experience in New Hampshire. This was an eye-opening hour for me.

You can register for the webinar recording at this link, which I believe will expire on or around June 17th.

I’m grateful to pastors Michael Worsley, John Rivera, and Isaiah Martin (a former UNH Wildcat football player, by the way) for their participation.

a thought for future reference

Say what you will about COVID-19 precautions and how they may or may not have been selectively enforced during recent public demonstrations in the wake of George Floyd’s death. My own takeaway is this: any response made by government and law enforcement to the peaceful rallies in Mr. Floyd’s memory is equally applicable to rallies and all other peaceful public witness to the dignity of human life, now and in the future, with or without public health emergencies.

It’s good to see how law enforcement was careful to distinguish the recent peaceful demonstration in Manchester’s Stark Park from violent demonstration. Peaceful pro-life witnesses have all heard at one time or another that our very presence creates “an atmosphere of violence.” We know better. Peaceful demonstration, even with an undercurrent of anger, isn’t on a spectrum with violence on the other end. Violence is in a separate dimension all its own.

Where Your Reps Stand: N.H. General Court Votes, 2019-2020

While the COVID-19 pandemic has interrupted The New Hampshire House and Senate (collectively, the General Court), most of 2020’s life-issue bills were dealt with before the mid-March suspension. Granite Staters can see how their representatives have voted and can follow up accordingly.

  • Look up the names of your state representatives and state senator. Note that you might be covered by two House districts.
  • Look up the votes for the bills listed below.
  • Remember in November. Acting sooner might be a good idea, too: the period to file declarations of candidacy for state offices is June 3-12. Want to run, or know someone who should? That’s when to make a House or Senate candidacy official.

Still pending is SB 486, a bill to require that certain health insurance policies cover abortion. The Senate passed the bill along party lines. The House will schedule a hearing sometime after it reconvenes on June 11. Governor Sununu’s position on the bill is unknown.

Notes on the votes

The bills listed below are the ones for which a clear roll call is available. If a bill you’ve been following isn’t on the list, the chances are that it was disposed of with a voice vote or a division vote. (A division vote reflects a numerical result without any indication of how a specific representative voted.)

For each bill I’m highlighting below, I’ve provided links to the most relevant roll call vote. As to who determines what a “preferred” vote looks like, that’s me exercising editorial discretion. Readers may reach different conclusions. I trust that there’s enough information here for anyone curious about these particular bills.

If you want a broader view of how your representative has voted, the General Court website is your source. Go to Who’s My Legislator? and click on your town. You’ll get a list of all the reps from your district. Click on any name and you’ll be directed to that rep’s information page. From there, click on the “Voting Record” box. That will lead you to your rep’s votes on every roll call from the current session. There are over a hundred roll calls so far.

Always keep in mind that “yes” is not always a vote in favor of the bill; it is actually a vote in favor of a particular motion. Motions may be Ought to Pass (OTP), Ought to Pass with Amendment (OTP/A), Inexpedient to Legislate (ITL), or Table (which prevents an up-or-down vote on the bill).

When a legislator is marked “excused,” that means the legislator notified the House Clerk in advance of the day’s session that she or he would be absent. “Not voting” is an unexcused absence, which could mean having to leave the session early, deliberately skipping a vote, or being elsewhere in the building when the Sergeant-at-Arms bellowed out “roll call!”

Senate

SB 741, born-alive infant protection

Upon a motion made and seconded by abortion advocates, the Senate tabled SB 741 on a 14-10 vote. The bill would have provided enforceable protection for infants surviving attempted abortion. Preferred vote: NAY on the tabling motion. (Vote #30, 2/13/2020)

Can a tabled bill be brought back for further action? As a technical matter, the answer is yes, if a sufficient number of senators vote to do so. As a practical matter, SB 741 is going to die on the table.

Related: Big Talk, Then a Whimper (2/13/2020)

HB 455, death penalty repeal

Overriding Governor Chris Sununu’s veto by the slimmest of margins, the House and Senate nudged HB 455 into law. As of May 30, 2019, New Hampshire courts will no longer sentence anyone to death. The Senate vote was 16-8 on the veto override, just making the necessary two-thirds needed. Preferred vote: YES on the override. (Vote #163, 5/30/19)

To call this one emotional is an understatement. Opposition to the death penalty is something on which I get lively pushback in conversation with some policymakers who are otherwise consistently pro-life.

Related: A Note on Death Penalty Repeal (5/22/19)

House

HB 124, buffer zone repeal

The House voted “inexpedient to legislate” on HB 124, an attempt to repeal the buffer zone law. The ITL motion passed 228-141. Preferred vote: NAY on ITL. (Vote #15, 1/31/2019)

The failure of the repeal attempt was a hollow victory for opponents of the First Amendment rights of peaceful pro-life witnesses. The buffer zone law itself remains on the books but is unenforced, with a court challenge certain to follow any attempt to put it into effect.

Links to this blog’s coverage of the buffer zone law since 2013 are here.

HB 158, abortion statistics

The House voted “inexpedient to legislate” on HB 158, regarding the collection and reporting of statistics on induced termination of pregnancy in the state. The ITL motion passed 218-144. Preferred vote: NAY on ITL. (Vote #79, 3/7/2019)

Related: New Stats Dispute Comes Up in Committee (5/9/2019)

HB 291, end-of-life study

Sponsors of HB 291 were candid in their public testimony: their idea of end-of-life “care” included assisted suicide. The House voted “ought to pass,” 214-140. Preferred vote: NAY on OTP. (Vote #88, 3/14/2019)

The Senate later amended the bill, but the House refused to concur with the Senate’s changes. The bill therefore died (fittingly).

HB 455, death penalty repeal

See my comments above on the Senate’s HB 455 vote. The override margin in the House was nearly as slim: 247-123. Preferred vote: YEA on override. (Vote #201, 5/23/19)

HB 1675, born-alive infant protection

The formal description of HB 1675 was “relative to the right of any infant born alive to medically appropriate and reasonable care and treatment.” That was too much for a majority of New Hampshire’s current House members, who voted “inexpedient to legislate,” 177-131. Preferred vote: NAY on ITL. (Vote #101, 3/12/2020)

Related: Video from House Committee Saying “No” to Born-Alive Bill (3/8/2020); House Votes Down Born-Alive Protection (3/12/2020)

HB 1678, prenatal nondiscrimination act

HB 1678 would have barred abortions performed for reasons of Down syndrome, other genetic anomaly, or sex selection. Penalties for violation would have applied to the abortion provider, not the mother of the child. In one of the last votes cast by the House before the COVID-19 suspension, House members voted “inexpedient to legislate,” 193-101. Preferred vote: NAY on ITL. (Vote #142, 3/12/2020)