Abortion, Ethics, and Whole Woman’s Health v. Hellerstedt

protest SCOTUS

The Supreme Court heard arguments yesterday in a major abortion case, Whole Woman’s Health v. Hellerstedt. The case was brought by several Texas abortion clinics and three doctors who perform abortions in the state. They seek to strike down two restrictions in a law enacted by the Texas Legislature in 2013 that requires all abortion clinics to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing, and also requires doctors performing abortions to have admitting privileges at a hospital.

Abortion rights groups argue that the restrictions are expensive, unnecessary and specifically designed to put many of the clinics out of business. In fact, the law has already caused many clinics to close. The number of abortion clinics in Texas has dropped  to about 20 from more than 40.

The Supreme Court will measure the law against the court’s 1992 decision in Planned Parenthood v. Casey, which held that states were not permitted to place undue burdens on the constitutional right to an abortion before the fetus was viable. Undue burdens, include “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

Legally, it’s a tough case, like all SCOTUS cases. Ethically, it’s pretty repugnant. All of the supporters of the bill, including the drafters, are adamantly anti-abortion, though the law is ostensibly aimed a making abortions safer. While the briefs to the court argue that the restrictions were put in place to foster safety, it’s a sham argument, crafted to meet the Casey test. Make no mistake about it: the purpose of the law is to make abortions as difficult to get performed in Texas as possible. There are literally no lawmakers behind the law nor supporters of the law who don’t want abortion banned. What a coincidence! Yesterday, at the huge demonstrations in front of the Court, the groups weren’t divided into  “Safer abortions” and “More accessible abortions.” The armies were pro- and anti-abortion, and intensely so. Thus the Supreme Court is going to decide if a law designed to interfere with a Constitutional right should be upheld because it can be justified on legitimate medical safety grounds.


The law may pass constitutional muster, but it is an unethical law, and the arguments in its favor are disingenuous, intentionally hiding the real–unconstitutional— intent. The claim that this charade is ethical would be that the phony rationale is justified if it makes it harder to take human life under a wrongly decided case, Roe v. Wade. In other words, the ends justify the means. That rationale can’t be tolerated in the law. (Not to open up two cans of worms at once, but this is also the controversy in voter ID cases. Are advocates using a reasonable rationale—requiring voters to identify themselves to ensure the integrity of the system—to accomplish the unconstitutional goal of making it harder for the poor and aged to vote?)

This is also a case where Scalia’s death makes a difference. If the Court deadlocks, 4-4, the Texas law will stand.

Meanwhile, pro-abortion advocates are again doing their level best to make the mots extreme efforts of anti-abortion activists look good even as they lie about their abortion-restricting law. On ABC’s Nightline last night, #ShoutYourAbortion writer Amelia Bonow used the current case to repeat her repugnant position that goes to the core of what is wrong with the abortion defenders’ rhetoric. She described her abortion as “positive” experience, and said (again),

“Plenty of people still believe that on some level – if you are a good woman – abortion is a choice which should be accompanied by some level of sadness, shame or regret. But you know what? I have a good heart and having an abortion made me happy in a totally unqualified way. Why wouldn’t I be happy that I was not forced to become a mother?”

The are two reasons someone could say this honestly. One would be if she has completely convinced herself that no human life other than hers is involved in an abortion, and that her conduct has not, by it very nature, prevented a human being that she created from being born. That is a delusion, though one politically dictated by the pro-abortion lobby. The other is if she is a monstrous narcissist. It isn’t too much to ask that a mother ending the life of an unborn infant feel a little sadness for the child who never had a chance to be. In fact, it is a realistic, ethical and compassionate response. It is reasonable for her to be happy that she was able to employ a legal procedure to take control of her own life, but to feel happy that she had to snuff out a nascent life to do it shows deep denial or deep ethics rot.


Sources:CNNSalonNYT1, NYT2


45 thoughts on “Abortion, Ethics, and Whole Woman’s Health v. Hellerstedt

  1. I say let it deadlock and let the law stand. The Kermit Gosnell case showed what a hands-off approach to abortion clinics can lead to. The pro-choice side is morally and ethically repulsive when you consider all they are about is getting sex without consequences and spewing anger. P.S. Read Amy Brenneman’s editorial about her happily slicing and dicing her own child into oblivion if your blood pressure isn’t sufficiently high.

  2. I’m actually a fence sitter on this “ambulatory surgical centers” topic.

    I completely understand the arguments on both sides and I completely agree that there have been and will continue to be unethical arguments on both sides.

    I have a close friend and his wife that actually went through an abortion due to full term medical risks and the wife nearly died because the facility didn’t fit the bill as a “ambulatory surgical centers” and was not properly prepared for the complications. You could call it a botched abortion if you want but sometimes there are unforeseen severe life-threatening complications that take place. I don’t know the actual statistics but I have family members working in local hospitals that, over the years, have seen a fair number of women rushed into emergency rooms with life-threatening problems due to “botched” abortions.

    I agree that this is legally going to be a tough case.

    • I personally think (Eeyore that I am) that this case will be a slam dunk for striking down the law. The imposed burdens trump the mandate for safety.

      • luckyesteeyoreman said, “The imposed burdens trump the mandate for safety.”

        Might be true, but that sure sounds a lot like an argument that Black Lives Matters and the New Black Panthers would use to restrict the police from entering inner city ghettos. 😉

        • Thanks Zoltar; I would not have imagined connecting the dots that way. Great point! (no sarcasm intended)

          To elaborate on my statement in hopes of clarifying, “The imposed burdens trump the mandate for safety:” I mean (and I believe you follow me) that I expect the Court to rule that the burdens imposed by the Texas law can in no way be justified over the “right” of persons to obtain abortions, and, can in no way be justified as means to override any real or perceived deficiency in the safety of the facilities, such that the right of persons seeking abortions to access those facilities for the purpose of obtaining abortions, as affirmed through many precedents, may be infringed. (Apologies, if I have made myself even less clear.)

      • Actually I’d like to discuss this concept that “the imposed burdens trump the mandate for safety” some more so here is my way of inspiring open discussion regarding this statement…

        There are many, many things in our society where the mandate for safety far overrides the imposed burdens, and it’s not as if our constitution specifically states the right of the people to obtain an abortion, shall not be infringed so why should this particular instance be different and “the imposed burdens trump the mandate for safety”?

        Ok; discuss.

        • True, “There are many, many things in our society where the mandate for safety far overrides the imposed burdens,” but I expect that in this case, the case law (if I am using the right terminology) would uphold the right to an abortion as if the Constitution said exactly what you said in italics.

      • If the Supremes strike down the law, this would call “reasonable” gun regulations into question. Unless somehow undue burdens are permissible for enumerated rights, but not for the invisible right to an abortion…

        • Michael Ejercito said, “If the Supremes strike down the law, this would call “reasonable” gun regulations into question. Unless somehow undue burdens are permissible for enumerated rights, but not for the invisible right to an abortion…”

          That’s certainly a possible consequence.

          On the flip side of that argument is there is the argument that there is a difference between an enumerated right and an implied right; if it’s constitutional to impose undue burdens on an enumerated right then why would it not be constitutional to impose undue burdens on an implied right?

          Personally I think it’s quite likely that the Supreme Court will strike down the law too; but I’d still like to have an open discussion about “the imposed burdens trump the mandate for safety”

          • Well, this is remotely analogous to the efforts from awhile back to pass laws prohibiting gun stores from operating within a mile or a half mile of schools, for the notional “safety” of the schools. That sloppy logic was really designed to essentially ban gun stores literally everywhere.

            • And it’s just a matter of time before that logic reigns supreme for now and forever in America – especially with (dis)respect to guns.

              • From “campus carry” to “campus-based community cleansing.” Wait and see just how far the pendulum swings back…and forth (thanks to lawless plebes emulating their lawless, unaccountable rulers)…

                • On the flip side of that argument is there is the argument that there is a difference between an enumerated right and an implied right; if it’s constitutional to impose undue burdens on an enumerated right then why would it not be constitutional to impose undue burdens on an implied right?

                  Because of outright hostility to the enumerated right in question.

                  As Judge Alex Kozinski wrote: “
                  Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or … the press” also means the Internet, see Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and that “persons, houses, papers, and effects” also means public telephone booths, see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases — or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir.1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

                  It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be

                  consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.”

                  Silveira v. Lockyer, 328 F.3d 567 at 568-569 (9th Cir. 2003 Kozinski, J., dissenting from denial of rehearing en banc)

                  This is what disturbs me. I can understand the rationale of someone who believes the Supreme Court should do away with the concept of constitutional protections not explicitly enumerated. Enumeration is a principle that can apply equally in constitutional interpretation.

                  However, as Judge Kozinski noted, there are judges who want to do away with enumerated rights even as they defend unenumerated rights from even the most tangential intrusions. There is no principle for that. except hostility to the enumerated right in question.Going this course would mean that judges would ” constitutionalize our personal preferences”.

                  This is also why I support the Senate blocking any of President Obama’s Supreme Court nominees that is not Alex Kozinski. There were four justices who opined that a handgun ban does not vuiolate the Second Amendment. Not a time, place, manner restriction, a ban.

                  Our civil rights are at stake by these unprincipled judges.

                  • The Constitution and freedom has been and will always be under attack from fringe elements that want to limit the power of the people to control the government, which is supposed to serve the people, and to turn the table on the people so the people end up willfully, or by force, serving the government which will then “control” them. Our Constitutional freedoms, which are the very core of this nation, are under direct and indirect attack from these forces, it’s irrelevant whether these forces are willfully and openly directly attacking it or indirectly attacking due to utter constitutional ignorance, the Constitution is being attacked. The Constitution is being twisted to the point where the very words are being squeezed out like droplets of water from a sponge which will leave a blank piece of scrap parchment that has no meaning or useful purpose in our society and it will be gradually wiped from the memory of the masses.

                    I personally believe that we as a nation are rapidly ascending to the point where we will be precariously perched on the precipice of the complete destruction of that solid base which is the core of freedom in the United States of America – the Constitution; there are very few options for the people to regain control of its government when we reach that point and teeter off the wrong side of that precipice.

                    I don’t know how to fix it and I honestly don’t know if it’s fixable until we actually reach the precipice and the masses are abruptly woken up from their apathetic ignorance. I’ve heard it said many times that when the majority of the people ask the government to do everything for them the government will eventually oblige the people and freedom will be lost for all. Is it defeatist at this point to think that it’s inevitable for freedom to crumble or is it eyes wide open to recognize the “natural progression” and that the same enumerated powers granted in the Constitution are being used to attack and squeeze out the words from the very Constitution that gave them the power to attack it? How do “we” wake up the apathetic masses, use the enumerated powers granted in the Constitution to save the Constitution, and return genuine sanity to how our government operates?

                    Was it a “natural progression” for all that to come out of a discussion regarding “the imposed burdens trump the mandate for safety”?

  3. The problem is there are plenty of non-abortion clinics performing surgery that do not have to comply with these restrictions. If they had to comply too, I would have fewer issues with the law.

    • T.M. said, “The problem is there are plenty of non-abortion clinics performing surgery…”

      That is way to general of a statement and wide open for assumptions, after all some might consider stitching up a cut or pulling a tooth in a dentist office to be surgery; so, can you provide some real world examples of this “surgery” you’re talking about so we can better understand your comparison?

      • I’ve had uterine surgery (non-abortion) as out-of-hospital procedure. It required a nurse, a doctor, recovery time, and a ride home. I’ve had multiple skin surgeries (pale white skin) done as out-patient surgeries. Colonoscopies are routinely performed as out of hospital surgeries. Actually, the list is pretty long.

        • Colonoscopies = surgery? Really? My doctor calls them an exam and he still chooses to do them either in the hospital. I don’t know of any non-virtual Colonoscopies in our area being done outside one of the three local hospitals and in fact the virtual Colonoscopy I had done when I turned 50 was done in a ambulatory surgical center.

          Question Beth: was the place you had the uterine surgery done in a facility that would be considered “ambulatory surgical center”?

          Both my wife and I have had multiple surgical procedures done outside of hospitals too, every single one of them were done in an ambulatory surgical centers.

          Maybe it all depends on the particular procedure/surgery or how surgery is defined. You just called a Colonoscopy surgery, do you consider an abortion to be surgery?

          • Well, it depends. My understanding is that most early abortions simply involve giving the patient a pill. So, no, those aren’t surgeries. But a D&C — a procedure needed when a woman’s pregnancy terminates naturally but the fetus doesn’t expel — CAN be done outside of a hospital. It depends on your doctor. Importantly, a D&C is virtually identical to a surgical abortion — so should the state be regulating D&Cs as well? Also, check your insurance bills — a colonoscopy is billed as an outpatient surgery because of the sedation involved. So, the insurance industry at least classifies it as surgery, you don’t need to take my word for it.

            • Beth said, “…surgery because of the sedation involved…”

              I do have a history with a D&C in the 80’s that was done in a local hospital but I’m unclear how a modern day abortion is perform; do they administer sedation to the woman having the abortion?

              Beth said, “…the insurance industry at least classifies it as surgery…” I had absolutely no clue; “you don’t need to take my word for it” I have no reason to not believe you. Thanks for the information, I’ll look at my paper work for my next one coming up “relatively” soon.

              • Just a local is administered for first trimester — similar to getting a toenail removed, mole removed, etc. I think sedation can get more complex (IV or general) if it is second trimester. But the vast majority of abortions are first trimester. This is not my area of expertise though.

                • This is where the doc and patient involved make the ‘same’ procedure vary widely. My D&C was for a miscarriage, but the technical DX was actually a “missed abortion,” which is no heartbeat but the uterus hasn’t done anything about it yet. It was 10 weeks in. My insurance and doc prefer sedation (twilight) and an ASC. But just a few weeks earlier, the EXACT same procedure could have been perfomed in the office, local sedation. Saying ABORTION like it’s all the same procedure isn’t accurate. Too many variables. And if ALL doc’s offices that perform a myriad of procedures that have surgical components had to conform, this would be a VERY different discussion/law.

                  The basis that TX was using was kneecapped by their choices in many ways at oral argument, too. NM doesn’t have the same stringent standards, so by their logic = less safe. But they were saying it’s not an undue burden to go to NM, except IF this is SAFER in TX, then Texan women shouldn’t be forced to go to NM, right?

                  • Becky said, “The basis that TX was using was kneecapped by their choices in many ways at oral argument, too. NM doesn’t have the same stringent standards, so by their logic = less safe. But they were saying it’s not an undue burden to go to NM, except IF this is SAFER in TX, then Texan women shouldn’t be forced to go to NM, right?”

                    Can you expand on those points a little more; it’s probably just my reading of it but I not exactly sure what you were trying to say.

                    • Well, women in Texas CHOOSE to go to New Mexico. That is a self-imposed burden; they aren’t “forced.” At least until the Equality of Access to Abortion Act passes.

  4. So, Jack, is this a case where a law is unethical because of the intent but has some arguably positive outcomes? I wonder how many other laws, throughout our history, would fit that description. I imagine that many laws which do some good things were created in order to accomplish other things under disagreement as to their value, constitutional or otherwise. INTENDED consequences.

  5. I hate this kind of shiftiness. Ideas are either good enough to stand on their merit, or they aren’t, and you shouldn’t need to trick someone into behaving the way you want them to. This is similar to the woman who bought the abortion clinic, left all the promotional material up, but closed the building and set up an anti-abortion counselling center next door. Well intentioned… perhaps… but unethical.

    I’m still scratching my head over what part of the constitution allows an abortion, and why that same section wouldn’t logically allow doctor assisted suicide. No one has ever been able or willing to explain either, although everyone seems to take the former for granted.

    • The against unreasonable searches and seizures has been extended to a general right to privacy, which has been extended to include the right to bodily control, hence abortion. Suicide has not been included in that. Total bodily control is a myth – you can’t legally inject heroin into your veins, or attempt suicide, and the state can still take your body, stuff it in a uniform, give it a gun and send it off to war. Abortion has become the holy grail of the liberal left, though, which is why it’s such a third rail issue.

    • The Constitutional right to abortions was bootstrapped from Griswald, which held that the right to privacy guaranteed a right to birth control. Even a lot of pro-abortion lawyers agree that Roe was a classic example of the courts deciding what result it wanted and then figuring out some way to justify it. The distinction between allowing citizens to buy birth control pills and allowing abortion on demand is material. The right, if it exists, is among the broad rights asserted in the Declaration.

      • Like I keep saying, people are biased and partisan, even judges. They know what they want (or who they want to help and who they want to shaft) and will twist themselves up into logical pretzels to justify it, even resorting to saying “the law says whatever I interpret it to say” instead of giving it its plain meaning. I’ve been on both ends of this, with one judge making a very costly ruling against me because he hated my client, and another making a questionable ruling for me that shut the other attorney’s client out because he was mad at the other lawyer.

        • Of course a Human Life Amendment, specifically addressing the humanness of the life that we know is inherent to the “product of conception, meaning the union of human egg and sperm cells” and resident in a “pregnant person’s” body, might (MIGHT) help to clarify the boundaries between ethics and law. But it would likely never be enacted.

          In a silly moment, I thought of proposing a law that mandates use of one or more guns (to include shooting of them, with live bullets – handguns, shotguns or rifles, makes no difference) as a prerequisite and concurrent action in every case of abortion. The idea is to set up the law so that one thing cannot be banned without banning the other. That way, at least the police forces of the police state would have additional opportunities to remain proficient with the tools that eventually only they (and no one else in society) will be allowed to possess or use. Like I said, silly.

  6. I love the “My (uterus) is not public property” sign. As if it’s that simplistic.

    Neither are my fists…so by that logic, no one should ever be able to dictate how I use them, ever.

    Neither is my kidney…so by that logic, no one should ever be able to dictate whether I can sell one of them or not.

    Neither is my independent thought…so by that logic, no one should ever be able to dictate whether I can self mutilate, have to wear a helmet, sell myself for sex, or any other host of things.

    Because it’s really all about me my body, and no one else is affected, amirite?

        • I want to preface this by saying that I’m not an expert. But on a regular monthly basis I come across stories about relatively prominent male feminists who disgrace themselves being caught exhibiting the same behavior they decry in others. I wonder what percentage of the men in the movement genuinely support the movement, what percentage uses it as an in with women, what percentage uses it as cover, and what the Venn diagram between the three looks like.

          • Bill Clinton and Hugo Schwyzer leap to mind. The first is obvious, the second is lesser known as a male feminist leader / professor who slept with a bunch of his uni students and a porn start while married. He’s 100% excommunicated from the mainstream feminist world… he got the treatment that Bill Clinton should have received.

      • Speaking of slogans, how about this one? I carried it outside Fairfax Hospital (protesting abortions done there), in the 1980s, around Iran-Contra scandal-time: “Ollie shreds paper – here, they shred CHILDREN!”

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