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.

Your Tax Dollars At Work: $600K for PPNNE

With a nod to Cornerstone Action, and with full disclosure that I’m a Cornerstone communications consultant, let me link you to this morning’s headline from the Cornerstone blog: “Title X Grantees Announced.” Among the recipients of this federally-disbursed family planning money, with no messy intermediate stop at the New Hampshire Executive Council: Planned Parenthood of Northern New England.

From Cornerstone’s post:

[The federal Department of Health and Human Services] has announced grant awards for Title X family planning funds for the grant period of April 1st  2019- March 31st  2020 and Planned Parenthood of Northern New England will be the recipient of $600,000 of taxpayer money.

As you may recall, President Trump’s new rule was rumored to prohibit federal taxpayer dollars to go to organizations that promote and administer abortion as a form of birth control.

…Not satisfied with federal dollars, Planned Parenthood continues their fight to secure your state taxpayer dollars 

https://www.nhcornerstone.org/latest-news/title-x-grantees-announced/

This round of 90 family planning grants for fiscal year 2019 does include some recipients of an abortion-free persuasion who had not received Title X money before, and it includes as always a lot of federally-qualified health centers which do not perform abortions. But please, don’t let anyone tell you that abortion providers have been cut out of Title X. It just ain’t so.

Quick review: Title X [that’s Roman numeral ten, not letter X] is a federal program that funds “family planning” efforts. Title X funds, while federal, are usually block-granted to states, and the states decide which contractors can most effectively carry out the Title X requirements. Abortion is explicitly excluded from Title X activity.

That’s how it’s usually (not always) done in New Hampshire, with the state Department of Health and Human Services (DHHS) receiving the federal money, then seeking bids from contractors and submitting the resulting contracts to the Executive Council for approval. It’s common for up to eleven contracts to be awarded in New Hampshire, with each contractor covering a different part of the state. Most of the contractors are federally-qualified health centers, but three are abortion providers: the Equality Center in Concord, the Lovering Center in Greenland, and PPNNE.

Each of those abortion providers solemnly swears as part of the Title X contract that none of the money will be used for abortion. That’s the extent of the firewall. To my knowledge, no one has figured out how to divvy up the money between the abortion and non-abortion use for the utilities, equipment, office space, and staffing of a facility.

Therefore, taxpayers wanting to divest completely from involvement in the abortion industry are out of luck. You’d think a $23 million agency like PPNNE could figure out a way to separate out abortion from authentic health care: separate facilities, staff, accounts. But no. You’ve got civil rights, but the right not to subsidize abortion providers isn’t on the list.

There are two New Hampshire grantees in the latest round announced by the feds: the state HHS department, which will get $800,000 for Title X, and PPNNE, which has a $600,000 grant all to itself.

from https://www.hhs.gov/opa/grants-and-funding/recent-grant-awards/index.html

The state HHS grant for Title X will go through the usual state contract bidding process, ending with an Executive Council vote that will probably hand over the money to the usual contractors. (I’m guessing a 4-1 vote, but don’t hold me to that.)

The PPNNE Title X grant, on the other hand, goes directly to PPNNE. Does that mean PPNNE won’t reach for more money from general funds in the state budget, now being drafted? Big fat “no.” Check out this Concord Monitor article from last weekend.

Don’t blame one political party over another. There’s plenty of responsibility to go around. You can start by letting the President know what you think of the handouts from the federal HHS department. It’s an executive agency, and he’s Chief Executive.

“Gosnell” to be released October 12

Ever since seeing the rough cut of the film Gosnell last year, I’ve looked forward to the film’s release. Financing and finding a distributor took awhile. Finally, a release date has been set for the drama based on the trial of Kermit Gosnell: October 12, 2018.

Anyone looking for a sensationalized Gothic horror story can look elsewhere. This is a crime story, with much of the background taken from the Gosnell grand jury report. The focus for much of the movie is on the investigators and prosecutors, none of whom has an axe to grind one way or the other regarding the right to life. The story is about ordinary people, doing their jobs diligently, who are brought up short when political considerations get in the way of investigating homicides.

The portrayal of Kermit Gosnell is chilling in its restraint. It would have been easy for the screenwriters to render him in caricature. They didn’t.

I don’t know where the film will be screened locally, but I’ll watch for it.


The producers of the film are the authors of Gosnell – The Untold Story of America’s Most Prolific Serial Killer. Here’s my review of the book from 2017. 

 

Another Round of Abortion Provider Contracts Coming to Exec Council

The New Hampshire Executive Council will take up ten family planning contracts on Wednesday, November 8, three of them with known abortion providers.

The Council meeting is scheduled for 10 a.m. in the Council chambers on the second floor of the State House in Concord.

The contracts themselves are for non-abortion services.  The Equality Center in Concord is on track to receive $179,800; the Lovering Center in Greenland is on the list for $222,896. Those amounts are divided between state and federal funds. Planned Parenthood of Northern New England is set to receive a cool half-million dollars, all of it from New Hampshire general funds.

This is the same Planned Parenthood affiliate that spent $2 million dollars on “public policy” in 2016, and yet is urging the Council to send more money, hashtagging their appeal “#fundPP.”

That $2 million figure is no longer available to the public on PPNNE’s annual report, where that number has been rolled into the “patient services” category, the better to obscure it. Drill down into the contract, though, and there it is: first you go to the Council page, then you find the meeting agenda, then you find the contract listing, then you click on the contract number, then you scroll down to page 646. Thus do we carry out transparency in government.

Note the million dollars for fundraising, too, as PPNNE urges the Councilors to #fundPP lest health care be denied to patients. No reports that fundraising and public policy might take a hit.

Page 644 of the same contract confirms that PPNNE enjoyed more than $22 million in revenue in 2016.

The last time the abortion providers were at the Council table, the contracts were for HIV/AIDS-related programs. Every Councilor but David Wheeler (District 5, R-Milford) voted to award the contracts.

Contact information for each Councilor is available at the Executive Council web page: Joe Kenney in District 1 (R-Union), Andru Volinsky in District 2 (D-Concord), Russell Prescott in District 3 (R-Kingston), Christopher Pappas in District 4 (D-Manchester), and David Wheeler.

Governor Sununu has a contact page as well. He has no vote on the contracts, but the Department of Health and Human Services staff that negotiated the contracts answers to him.

Lest We Forget
  • Any public funds – family planning funds, for instance – received by an abortion provider who also provides health care, help to subsidize abortion. Those funds keep the lights on, pay salaries of support staff, and let the organization pay lobbyists to try to keep abortion unregulated.
  • Why do PP and its smaller counterparts stake the health care of so many women on abortion, which is supposedly a minuscule part of their business? Because the current business model is working, thanks to timid state officials. For abortion providers to remain government contractors without involving taxpayers in abortion, they would have to stop embedding abortion with health care in such a way that a strike against abortion or abortion funding meant casualties for authentic health care.
  • Recall that then-Councilor Chris Sununu, along with Joe Kenney and Dave Wheeler, voted to reject a PP contract in August 2015. At that meeting, Kenney and Sununu both cited the Center for Medical Progress videos as a factor in their vote. Those videos feature PP employees from affiliates elsewhere in the country discussing trafficking in body parts, with a PP medical professional describing her willingness to alter abortion procedures not to provide the best care to women but to extract the most lucrative intact fetal organs.

 

A notable D.C. vote

The U.S. House voted by a very narrow margin today to pass a health insurance act (H.R. 1628) which faces grim prospects over in the U.S. Senate. Among other reported provisions, the act passed today would prevent federal funds from going to abortion providers including Planned Parenthood for one year.

Some things might be de-funded under the act, but women’s health isn’t one of them.  From Steven Ertelt at LifeNews.com:

“The pro-life bill would eliminate more than $390 million (over 86%) of over $450 million in annual federal funding to Planned Parenthood, from all mandatory spending programs. The measure also redirects funding to community health centers which outnumber Planned Parenthood facilities 20 to 1 and offer a wider array of health care services, but not abortion. AHCA also repeals Obamacare abortion subsidies, adds reforms to give states more flexibility and lower costs, and provides families more options.”

But as I mentioned – now it goes to the Senate.

Members of Congress Shea-Porter and Kuster voted against the measure.