Wednesday, 20 November 2013 16:20

Supreme Court Declines to Block Texas Abortion Restrictions

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In a 5-4 vote on November 19, the Supreme Court declined to block a new Texas law that imposes some moderate restrictions on abortion. Consequently, the law will remain in effect pending an appeal at the Fifth U.S. Circuit Court of Appeals in New Orleans.

By its vote, the High Court refused the November 4 emergency application filed by Planned Parenthood and several Texas abortion clinics to overturn a preliminary federal appeals court ruling that allowed a key provision of the law — requiring doctors who perform abortions to have admitting privileges at a nearby hospital — to take effect.

The law, which requires any physician performing an abortion at a Texas clinic to have admitting privileges at a hospital within 30 miles of the clinic, was passed during a special session of the state legislature in July. A vote had been prevented on the measure during the regular legislative session after an uncontrolled pro-abortion mob, encouraged by the filibuster and strong rhetoric of state Senator Wendy Davis (now a candidate for Texas governor) disrupted the proceedings.

However, on October 28, federal District Judge Lee Yeakel handed down a ruling that blocked the law’s provisions requiring abortion doctors to have hospital admitting privileges within 30 miles of their clinic, as well as a provision requiring abortionists to follow FDA protocol for abortion-inducing drugs such as RU-486.

Texas Attorney General Gregg Abbott subsequently announced that his office would appeal that ruling, telling reporters that he had “no doubt that this case is going all the way to the United States Supreme Court.”

But on October 31, in response to an emergency appeal from Abbott, a panel of judges at the 5th Circuit Court of Appeals reinstated the requirement that abortionists have hospital admitting privileges. The ruling by the appeals court is temporary until a complete hearing is held on the law in January.

In its 20-page ruling, the court acknowledged that the provision “may increase the cost of accessing an abortion provider and decrease the number of physicians available to perform abortions.” However, the panel said that the U.S. Supreme Court has held that having “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate” a law that serves a valid purpose, “one not designed to strike at the right itself.”

While the court left in place Yeakel’s ruling that overturned the law’s restrictions on the dispensing of RU-486 and other drugs that can induce abortion in women, a key pro-life component of the law, a ban on abortion after the 20th week of pregnancy, was also not affected by legal challenge.

It was that reinstatement of most of the law by the court that prompted Planned Parenthood, et al., to file their latest plea, just rejected by the Supreme Court.

The case was Planned Parenthood of Greater Texas Surgical Health Services v. Gregory Abbott. In an e-mailed response regarding the plaintiffs’ emergency application for a stay, Lauren Bean, a spokeswoman for the office of the attorney general, wrote: “We believe the Fifth Circuit panel’s unanimous decision was correct and will continue to defend the law before the U.S. Supreme Court.”

Texas Governor Rick Perry praised the Supreme Court’s decision, saying, “This is good news both for the unborn and for the women of Texas, who are now better protected from shoddy abortion providers operating in dangerous conditions. As always, Texas will continue doing everything we can to protect the culture of life in our state.”

Cecile Richards, president of Planned Parenthood Federation of America (daughter of the late former Texas Governor Ann Richards, and former deputy chief of staff to the U.S. Rep. Nancy Pelosi), said the groups will continue the legal fight:

We will take every step we can to protect the health of Texas women. This law is blocking women in Texas from getting a safe and legal medical procedure that has been their constitutionally protected right for 40 years. This is outrageous and unacceptable — and also demonstrates why we need stronger federal protections for women’s health. Your rights and your ability to make your own medical decisions should not depend on your ZIP code.

Richards did not mention where in the U.S. Constitution this “constitutionally protected right” is found, probably since the document that serves as the supreme law of the land is silent on abortion.

Lauren Bean said on Tuesday that the attorney general's office is “pleased” with the Supreme Court's ruling, noting, “These are commonsense — and perfectly constitutional — regulations that further the state’s interest in protecting the health and safety of Texas women.”

It is difficult for abortionists to obtain hospital admitting privileges, and the new law’s requirement has caused approximately one-third of the abortion clinics in Texas to close, making it more difficult for an estimated 20,000 Texas women to terminate the lives of their unborn children.

The Christian Science Monitor quoted Elizabeth Graham, director of Texas Right to Life, who praised the high court’s action as a significant step forward. “This ruling signals that Texas is on the verge of a decisive legal pro-life victory,” she said. “The recent closures of abortion clinics, even if temporary, prove that [the Texas law] does have a major impact in protecting women and their unborn children from substandard care at abortion clinics.” 

Texas is but one of several states that have passed laws requiring abortionists to have nearby hospital admitting privileges. Other include Tennessee and Utah. However, courts have temporarily prevented enforcement of similar laws in Alabama, Kansas, Mississippi, North Dakota, and Wisconsin.

Speaking for the majority voting not to block the Texas law, Justice Antonin Scalia said that the appeals court’s earlier decision was based on its conclusion that Texas officials were likely to prevail in the case, with the new statute being upheld as constitutional.

The justices owed deference to the appeals court’s conclusion, he said. “It would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably unconstitutional,” Justice Scalia wrote. 

Prior to the Supreme Court’s 1973 Roe v. Wade decision, states were free to restrict, prohibit, or allow abortion, since abortion is not mentioned in the Constitution and the 10th Amendment states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Suddenly, after Roe, the court deemed abortion a fundamental right under the Constitution (which, as noted, ignores abortion) — thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny.

That such an interpretation of the Constitution was novel and unprecedented was brought home by Justices Byron R. White and William H. Rehnquist, who wrote dissenting opinions in this case. White wrote, in part:

I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. 

Rehnquist asserted that, with Roe, the court’s historical analysis was flawed:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.

Related articles: 

Federal Appeals Court Reinstates Texas Pro-life Measure

Federal Judge's Ruling Halts Key Portions of Texas Pro-Life Law

Pro-abortion Mob Continues as Texas Lawmakers Gather to Pass Pro-Life Bill

2 comments

  • Comment Link Heidi Preston Thursday, 21 November 2013 23:41 posted by Heidi Preston

    This is the story behind the Roe vs. Wade decision. "In September 1969, the month she turned 22, McCorvey became pregnant for a third time. Norma told her doctor, Richard Lane, that she did not want to bring this pregnancy to term. And she could not afford to travel to any of the six states where abortion was legal: Alaska, California, Hawaii, New York, Oregon, and Washington. Dr. Lane suggested that McCorvey consult an adoption lawyer in Dallas named Henry McCluskey, with whom he had a long-standing arrangement. “I would deliver the baby,” Lane, now 75, recalls. “He would then pick up the baby and deliver it to the adoptive parents.” McCorvey was interested in an abortion, not an adoption, but she agreed to meet with McCluskey, visiting him in January 1970.
    The short life of Henry McCluskey can be re-assembled from the sprawling mess inside the Dallas home—not to mention in the shed and garage, and on the back porch—where Henry’s sister, Barbara McCluskey Gouge, now lives. Here are his 1943 certificate of birth, his 1955 certificate of baptism from a Baptist church, his 1965 law degree from Baylor Law School, and his 1973 report of death. A man named David Hovila drugged and then shot McCluskey three times. Barbara is unsure how the men knew each other but says that, because both were gay, her father asked the local papers not to insinuate that they had been lovers. She adds, “Daddy had to get on the stand and identify some clothes. He broke down.” Hovila was convicted of murder and died in prison. Gouge says that her brother left behind 149 clients. Roughly a third of his cases concerned adoptions, and the rest involved an assortment of criminal work.
    In May of 1969, months before meeting Norma McCorvey, McCluskey filed a suit taking aim at an anti-sodomy law in Texas. The case, Alvin L. Buchanan v. Charles Batchelor, concerned a male client convicted of having consensual oral sex with another man. According to the book Liberty and Sexuality, by David J. Garrow, McCluskey had gotten advice about the case from a friend, Linda Coffee, a lawyer whom he had first met in a Dallas church when both were children. In January of 1970, after Norma came to see him, McCluskey returned Coffee’s favor by calling her with a tip.
    Coffee, McCluskey knew, was on the lookout for a plaintiff. Sarah Weddington, a former classmate of Coffee’s at the University of Texas law school, had been urging Coffee to find a way to file suit against the abortion statutes in Texas. Coffee and Weddington had been academic stars, and both were committed to advocacy on behalf of women. Coffee had clerked for the renowned feminist federal judge Sarah T. Hughes (who in 1963 administered the oath of office to Lyndon B. Johnson, aboard Air Force One). Weddington, for her part, had had firsthand experience with abortion laws in Texas, having felt compelled to go to Mexico for an abortion during law school. The two lawyers, both in their 20s, were not much older than McCorvey.
    Coffee and Weddington met their prospective client at an Italian restaurant in Dallas. Their needs were specific. As Coffee told a reporter in 1983, “It had to be a pregnant woman wanting to get an abortion. She couldn’t have the funds to travel to California or New York for a legal abortion. And we had to have someone who could take the publicity. We weren’t able to guarantee her anonymity.” Also, the pregnancy could not be too far along or the issue might be moot before the case was filed. Five months pregnant at the time, McCorvey seemed a perfect plaintiff.
    Coffee filed Roe v. Wade at the Dallas federal district courthouse on March 3, 1970. Though by now six months pregnant, McCorvey held on to the hope, she later wrote, that she might “be the first girl in Texas to get a legal abortion.” Meanwhile, Coffee and Weddington amended Roe to make it a class-action suit, ensuring that any ruling would apply to all women in Texas. They also successfully argued for continuing to designate the plaintiff as the anonymous “Jane Roe.” The hearing began in May and ended on June 17 when a three-judge panel struck down the Texas abortion statutes. But the state appealed the decision immediately, so for the time being the statutes remained law. McCorvey claims in I Am Roe that she asked Coffee how long the appeals process would take, since if it went quickly, she believed, she might still be able to get an abortion. According to McCorvey’s account, Coffee told her that, regardless, it was too late. And in the days following, McCorvey, in her own telling, was furious and “got drunk, and pounded my fists into my [pregnant] belly in frustration.”
    Coffee and Weddington seemed to be less interested, understandably, in the predicament of one plaintiff than in the rights of millions. And it is possible that they were not completely frank with McCorvey at the outset. (Any case of this magnitude would inevitably take more time than a pregnant woman has.) That said, McCorvey’s account of her post-decision conversation with Coffee is simply not true: McCorvey had delivered her third child even before the three-judge panel handed down its ruling. This baby was adopted immediately by a family that has kept its identity private." Shortly thereafter she met and lived with her lesbian partner Connie Gonzales.
    As you and anyone can see the whole issue wasn't about a woman's choice it was about setting a precedence in the court of law (Sarah Weddington had an Illegal abortion in Mexico in 1967).
    It takes two to make a child and yet the father's of these unborn children have NO rights when it comes to abortions with their wives and girlfriends. They can not demand an abortion or prevent them from having an abortion, yet they are legally bound to pay child support and can be thrown in jail for lack of it. Where is the other "equal" donors choice and freedom to choose? It doesn't exist because they don't have a strong lobby and funds behind them.
    "McCorvey’s former lawyer, Sarah Weddington, said, “All Jane Roe ever did was sign a one-page legal affidavit.” But Charlotte Taft, the women’s-rights advocate, regrets that the pro-choice camp did not make McCorvey feel more needed or more special. "
    And these characters are the ones that set the laws in place to kill their own species called human beings according to DNA and haphazardly kill future women who they profess to try to "protect" and the male donors have absolutely no say in the matter yet are held accountable should the woman "decide" to have a baby.
    Can we all say hypocrites.....

  • Comment Link Tionico Thursday, 21 November 2013 20:11 posted by Tionico

    One of the false mantras used to promote and "justify" the case that resulted in the Roe vs Wade decision was the cry over back alley, unsafe abortions (hey, we ALL know the procedure is unsafe for at least one of the "patients"). Now Texas pass a law that requires doctors doing these procedures to have admitting privileges at a nearby hospital. If I went in to a doctor's office to have some moles surgically removed, HE would have to have such an arrangement to do it. And I could just about cut out such a mole myself, put a butterfly patch over it to close the incision, and recover just fine. Abortion is a far more invasive procedure, so (to borrow an over-used liberal mantra) such a "common sense" restriction is not onerous. How is it that Planned BabyDeath are able to rewrite the rules for invasive medical procedures just because its their pet project?

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