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.

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.

Cecile’s Legacy

Originally posted at DaTechGuy blog, 5/2/18.

Seen at NH March for Life 2018.

The Twitterverse murmured #ThankYouCecile the other day to mark the end of Cecile Richards’s tenure leading the Planned Parenthood Federation of America. Hats off to the Babylon Bee for skewering that bit of social media hashtagging: “Woman Celebrated for Killing 3.5 Million People.”

That satirical bull’s eye came just a few days after another one from the same source: “Planned Parenthood Defends Bill Cosby: ‘Sexual Assault Is Only 3% Of What He Does’”. I wish I’d written that.

But in all seriousness, Richards is a consequential woman. It would be a mistake to pretend otherwise. Planned Parenthood has had high-profile leaders before and will have them again. What sets Richards apart are the sheer bloody numbers and her solid brass determination. Continue reading “Cecile’s Legacy”

Trust Women, You Say? Start Here

A New Hampshire legislative committee had a hearing this week on a proposal for a bill on informed consent for abortion. I was only able to stay for the first hour, by which time the room was still filled to capacity with people anxious to go on record.

I signed the blue sheet familiar to Legislative Office Building regulars, noting that I was in favor of the bill and did not wish to speak. By the time my hour at the hearing was up, there was plenty I wished to speak about.

Anyone can read the text of HB 1707. In summary, the bill sets up requirements for information abortion providers need to give an abortion-minded woman, and it sets up a 24-hour reflection period between the time a woman receives the information and has the abortion or takes the abortion prescription. The 24-hour provision would be waived in cases of medical emergency.

It also gives a woman the right to know 24 hours in advance who’s going to be performing the abortion.

Last time I checked, roughly two dozen states had reflection periods in effect for abortion, ranging from 18 to 72 hours, as part of informed consent for abortion. Even in Texas, some of whose laws were struck down in the Hellerstadt case that established women’s right to substandard medical care, a 24-hour waiting period is on the books. Such laws, properly drafted, have been consistent with Roe for a long time now. This is not groundbreaking healthcare policy. But this is New Hampshire, as Gosnell-friendly a place as one could find, and HB 1707 faces an uphill battle.

One provision of the bill that apparently shocked a committee member – a physician, as it happens – says that no abortion provider gets paid before the woman has had the 24 hours to review the information about the procedure. “Not even a co-pay?” he enquired of one of the bill’s co-sponsors.

That’s right. Not even a co-pay, if the bill means what its plain language says.

As the legislator-physician asked about the co-pay, I thought of Catherine Adair‘s description of her work at Planned Parenthood in Boston: “The first thing – the first thing – that happens in an abortion clinic is the money changes hands. You’re not getting anywhere until you pay for that abortion.”

Another physician, who comes faithfully to every hearing on every bill he perceives as threatening Roe v. Wade, was present to tell the committee, “I’m listening to a lot of people [at the hearing] who don’t trust women and don’t trust the medical system.”

Trust women. Makes as much sense as trust men. Which ones? To do what? What about the three women who co-sponsored HB 1707? What about me?

I’ll give him full marks for speculating about not trusting the medical system, though. I have tremendous respect for the technical skills of health care professionals, and the potential such people have to make the world a better place. There are individual providers who have earned my trust. But trust a “system” with my health? Trust the “system” that has endorsed a public policy that says women are inherently broken and need to be fixed? Trust people for whom abortion – and assisted suicide, for that matter – are considered “health care”?

No.

More from the doctor: rates of pregnancy terminations “have dropped dramatically.” Not by New Hampshire’s measure, since New Hampshire does not collect abortion statistics, which this doctor knows perfectly well.

I heard in that hour more than a few deferential remarks about health care professionals who do abortions. As I expected, I heard criticism that the bill refers to abortion providers as “physicians,” which leaves out the nurse-practitioners who do the job.

In that first hour, no one – nary a sponsor, committee member, or member of the public – mentioned the fact that New Hampshire has no restriction on who may perform abortions. There is no requirement for medical background or training or certification.

If anyone on the committee wishes to change that, HB 1707 provides the opportunity. The committee could amend it to add nurse-practitioners. Then again, perhaps a majority of committee members prefer the status quo, and all the talk about how abortions are safely performed by medical personnel is so much sand in our eyes.

The bill is silent on certification and licensing of abortion facilities, but testimony and committee questions brought it up anyway. Maybe the committee members got the information they needed from someone who spoke after I left, but I’m going to put this in writing and send it to the committee anyway: this is from a New Hampshire Sunday News article from May 19, 2013 (reported in an earlier post), written in the wake of the Kermit Gosnell trial:

“Kris Neilsen, communications director for the state Department of Health and Human Services, explained in an email that abortion clinics like Planned Parenthood and the Concord Feminist Health Center are exempt from state licensing and inspection requirements because they are considered physician offices. Twenty-three health care providers such as hospitals, hospices, nursing homes, and dialysis centers are licensed by the state, but not abortion clinics. ‘In New Hampshire, there is no such thing as an abortion clinic – the majority of abortions are done in doctors offices … and doctors’ offices are exempt from licensure under RSA 151:2 II,’ Neilsen said. ‘Because they are exempt, we have no jurisdiction over them, and neither does anyone else.'”

The House Health, Human Services and Elderly Affairs committee will vote on the bill within a few weeks.

N.H. Informed Consent Bill Hearing Scheduled for Jan. 17

HB 1707 will have a hearing before the New Hampshire House Health, Human Services and Elderly Affairs committee on January 17 at 11:00 a.m. in room 205 of the Legislative Office Building in Concord. This Abortion Information Act requires a physician who performs an abortion, or the referring physician, to provide the pregnant woman with certain information at least 24 hours prior to the abortion, and to obtain her consent that she has received such information.

Among the information to which a woman would be entitled 24 hours in advance is to the name of the person performing the abortion or prescribing the drug for a chemical abortion. Not a face-to-face meeting, but a name.

A woman would be entitled to written information 24 hours in advance, which she need not read; all she’d sign for is confirmation that she received the written material. No reflection period would be imposed in case of medical emergency. Some of the information to which women would be entitled under HB 1707:

Medically-accurate information including a description of the proposed abortion method; known risks associated with the procedure or medication; known risks of carrying the pregnancy to term; and abortion alternatives.

Information on medical assistance benefits may be available for prenatal care, childbirth, and neonatal care.

Notification that the father of the child is liable to assist with child support; this information may be omitted if the pregnancy resulted from rape or incest.

A reminder that she is free to withdraw consent to the abortion at any time.

 

Furthermore, no abortion provider could take payment until the end of the 24-hour reflection period.

The bill refers to “physicians” as the ones performing abortions, which will annoy the nurse practitioners for whom abortion is within scope of practice. So let someone on the committee propose an amendment to expand the provider list, if that’s a concern. Under current law, or lack thereof, there is no restriction on who may perform abortions; no medical training whatsoever is required. Maybe that’s OK with the bill’s opponents.

Sponsors: Reps. Jeanine Notter (R-Merrimack), Victoria Sullivan (R-Manchester), Kevin Verville (R-Deerfield), Kathleen Souza (R-Manchester)

To express your view: email the Committee (HHSEA@leg.state.nh.us) or attend the hearing (room 205 of the LOB, a block behind the State House). If you attend, options are to speak about the bill (fill out a pink card near the entrance to the hearing room), submit written testimony (either email it, or bring 20 hard copies to distribute to committee members), or simply sign in on the sheet that should be on the end of the committee table nearest the entrance to the hearing room.

After the initial hearing, the committee chairman might name a subcommittee to examine the bill further, or the committee could vote on the bill within a few weeks. I’ll keep you posted.