[The Supreme Court came down with four controversial and ideologically contentious decisions in June, and I apologize for taking almost a month to cover them all. One of the reasons Ethics Alarms occasionally launches a series like this one is to ensure that developing ethics stories of importance do not push important issues to the sidelines. The fact that this four part series had only finished parts 1 and 2 was an irritant to me, as well as some readers.]
In Whole Woman’s Health v. Hellerstedt, decided on June 27, the Supreme Court held in a 5-3 majority that two provisions of a Texas law, one requiring physicians who perform abortions to have admitting privileges at a nearby hospital and another requiring abortion clinics in the state to have facilities comparable to an ambulatory surgical center, places a substantial and unconstitutional obstacle in the path of women seeking an abortion, because they constituted an undue burden on abortion access.
Life would be so much simpler if our elected officials and activists employed an adaptation of the Golden Rule, and looked objectively at issues from the other side’s point of view. This is especially true in the realm of rights. Second Amendment absolutists insist that virtually any laws regulating who can purchase guns, when and where they can purchase them, and how and how quickly they can be purchased are efforts to whittle away the right to bear arms. They also argue that such regulations have the ultimate goal of eliminating that right entirely, which, in many instances is the case, especially if you listen carefully to the rhetoric of the legislators proposing such measures. There is little difference from this and what anti-abortion advocates are attempting to do with laws like House Bill 2 (H. B. 2).
The bill ostensibly is designed to make abortions safer, thus protecting women’s health, just as many gun laws are promoted as safety measures. Oddly, virtually all of the supporters of the Texas bill would make abortion illegal if they could. I’m sure it’s just a coincidence, just as it’s a coincidence that the authors of bills requiring potential gun owners to jump through increasingly burdensome hoops and deal with mandatory trigger locks and “safe gun” technology would gladly repeal the Second Amendment if they could. The ethical principle is the same in both matters: a right isn’t a right if legal obstacles make it difficult to exercise that right.
The question is, what’s a reasonable obstacle? Any regulation imposed on a constitutional right must not create “a substantial obstacle” and must be reasonably related to “a legitimate state interest.” The Supreme Court uses the language and logic of case precedents, which are its previous examinations of these issues and the balancing they require. One such case, though I did not find it mentioned in the majority opinion or dissents in Hellerstedt, would be the voter ID decision of many years ago, in which a strong majority ruled that the state interest in preventing fraudulent voters and maintaining the integrity of the election process justified inconveniencing those who were subjected to the extra burden of obtaining appropriate identification. In recent years, this decision has been questioned because many believe the motive behind voter ID laws is not really to protect the franchise, but to keep likely Democratic voting blocs from the polls.
Is there a difference legally between a bill that is authored with the intent to restrict the right to vote of older, poorer, and darker citizens while claiming that its sole purpose is to make sure non-citizens don’t affect the results of elections, and an identical bill that is genuinely intended to safeguard the voting rolls, without any political motive at all? No, or at least there shouldn’t be. The Court’s job is to evaluate what the law does, not try to read the minds and hearts of those who wrote it. Justices only should try to do the latter when there is a debate over what the law says.
Ethically, however, there is a significant difference between a law using a public purpose as a sham to accomplish unethical ends, and a law with a legitimate purpose that has some negative side effects. Trying to restrict a citizen’s rights because one doesn’t respect those rights (or perhaps the citizen) is unethical.
The SCOTUS majority, in its typical examination of a balancing case like this, looked at whether there was a sufficient public safety benefit to a law that had resulted in a precipitous reduction in abortion services:
…[A]s the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20; this decrease in geographical distribution means that the number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%; the number of facilities would drop to seven or eight if the surgical-center provision took effect, and those remaining facilities would see a significant increase in patient traffic; facilities would remain only in five metropolitan areas; and the cost of compliance with the surgical-center requirement would most likely exceed $1.5 million to $3 million per clinic….
Meanwhile, based on the lower court’s findings and stipulations,
” [B]efore H. B. 2’s passage, abortion was an extremely safe procedure with very low rates of complications and virtually no deaths; it was also safer than many more common procedures not subject to the same level of regulation…”
Supreme Court decisions are fascinating reading, and often not so technical that a layman with reasonable intelligence can’t understand them. They seldom analyze cases based on right and wrong, however, because that can be attacked as subjective. This majority opinion mostly dwells on the question of whether res judicata, which means that the issue has already been adjudicated decisively in the same matter, applies. The same plaintiffs in this case had challenged the law initially and lost. That was before the full results of the law were known, however, and on that basis, the majority agreed that this was in essence a new case because of new developments. The substantive conclusion of the majority, however, is here:
The record contains adequate legal and factual support for the District Court’s conclusion that the admitting-privileges requirement imposes an “undue burden” on a woman’s right to choose. The requirement’s purpose is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure, but the District Court, relying on evidence showing extremely low rates of serious complications before H. B. 2’s passage, found no significant health-related problem for the new law to cure. The State’s record evidence, in contrast, does not show how the new law advanced the State’s legitimate interest in protecting women’s health when compared to the prior law, which required providers to have a “working arrangement” with doctors who had admitting privileges. At the same time, the record evidence indicates that the requirement places a “substantial obstacle” in a woman’s path to abortion. The dramatic drop in the number of clinics means fewer doctors, longer waiting times, and increased crowding. It also means a significant increase in the distance women of reproductive age live from an abortion clinic. Increased driving distances do not always constitute an“undue burden,” but they are an additional burden, which, when taken together with others caused by the closings, and when viewed in light of the virtual absence of any health benefit, help support the District Court’s “undue burden” conclusion.
The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an “undue burden” on their constitutional right to do so. Before this requirement was enacted, Texas law required abortion facilities to meet a host of health and safety requirements that were policed by inspections and enforced through administrative, civil, and criminal penalties. Record evidence shows that the new provision imposes a number of additional requirements that are generally unnecessary in the abortion clinic context; that it provides no benefit when complications arise in the context of a medical abortion, which would generally occur after a patient has left the facility; that abortions taking place in abortion facilities are safer than common procedures that occur in outside clinics not subject to Texas’ surgical-center requirements; and that Texas has waived no part of the requirement for any abortion clinics as it has done for nearly two-thirds of other covered facilities….
Then there was this damning statement:
“We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”
The long and technical dissents by Justice Alito and Justice Thomas involve complex analysis of res judicata and challenges to the majority’s legal reasoning. Thomas, however, makes another argument that goes to the intense ideological hypocrisy that I began with in this post. He writes…
The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.
Thomas is on record, and repeats this in his dissent, of believing that there is no right to abortion under the Constitution. That position established, he seems to be aiming this part of his dissent in the Texas abortion case at the disconnect between the majority’s “undue burden” analysis in Hellerstedt and its willingness to accept legislative burdens imposed on Second Amendment rights. Shortly after this decision was announced, in Voisine v. Unites States, by a 6-2 vote, the Court gave a thumbs up to a federal law prohibiting gun possession by persons convicted of a “misdemeanor crime of domestic violence.” The paragraph in the Hellerstedt dissent was written by Thomas knowing that Voisine was coming. In that dissent, he argued that the Court was applying a double standard: “undue burdens” on gun ownership were still reasonable and constitutional, but burdens on abortion must fall.
I see the legal point, and I agree that it is important to establish consistent standards for what protections are due constitutional rights. Thomas’s concerns are legitimate, and important to consider.
Ethically, however, Hellerstedt is an easy call. The Texas law used imaginary safety concerns to eliminate the right to abortion as much as possible. That was the real objective, and it was an unethical one.
The decision was an ethical one.
Pointer: Neil Dorr, who reminded me that it was high time I finished this series. One more installment coming!