The Silver Lining in the Supreme Court’s Rejection of Texas Health and Safety Standards for Abortion Providers

Following the Supreme Court’s ruling in Whole Women's Health v. Hellerstedt, abortion advocates claimed it was “game over” for health and safety standards designed to protect women from abortion industry abuses. Headlines like “Abortion Restrictions Poised to Fall Like Dominoes in Wake of SCOTUS Ruling” littered the Internet. How wrong they are.

The pro-life movement will never abandon women to the whims of an under-regulated, predatory abortion industry.  In fact, the Supreme Court’s recent decision is not a censure of legislative efforts to expose and remedy abortion’s negative maternal health consequences; instead, it is an implicit “stamp of approval” on the strategic effectiveness of the movement’s dominant “mother-child” strategy which seeks to protect and advance the interests of both a mother and her unborn child. Understanding how the recent ruling actually affirms health and safety standards is important today as voters evaluate the approaches legislators advocate as they seek elected office and announce their strategies to protect life.

In its opinion, the five-justice majority placed a clear priority on maintaining mere access to abortion facilities, accepting at face value the self-serving claims of abortion advocates that enforcement of the Texas requirements would force abortion facilities to close.  Contrary to established legal principles, the Court also improperly placed the burden on state officials to prophetically prove that any proposed health and safety requirements will benefit women. 

In doing so, the Court fully embraced its self-assumed role as the “National Abortion Control Board,” under which it will routinely substitute its judgment for that of state policymakers as to the need for specific health and safety requirements.

This profoundly anti-woman decision and its future application by federal and state courts will make it more difficult to enact laws addressing the epidemic of substandard abortion care in America.  The abortion industry will profit, and women will pay the price. Americans United for Life has documented that, over just the last six years, nearly 200 abortion providers in states across the nation have faced investigations or been cited for violating state laws and medical regulations governing the provision of abortion. 

However, the Court also provided guidance for pro-life efforts to protect women and their unborn children from the scourge of abortion.  The Court asked for more evidence of the harms of abortion, and pro-life advocates will answer the challenge.

State officials, now charged with carefully documenting the future benefits of proposed abortion regulations, will need to carefully marshal evidence in support of any proposed health and safety initiatives.  Legislators should welcome every opportunity to dispel the persistent and pervasive myths that abortion is “safe” and to rebut the abortion industry’s self-serving assertions about abortion’s purported benefits with the growing body of international medical evidence demonstrating the negative impact of abortion on women.

The Hellerstedt majority implicitly suggests that states, armed with the requisite medical and other evidence supporting the efficacy of their legislative proposals, may still regulate abortion facilities to ensure some degree of patient safety and to address dangerous, predatory abortion providers.  In doing so, the Court specifically acknowledged that the "Kermit Gosnell scandal," where a Philadelphia abortionist operated a dangerous and unsanitary clinic for years before being investigated and prosecuted for homicide and more than 200 violations of state abortion laws, was “terribly wrong" and involved “deplorable crimes." The Court also recognized the importance of abortion facilities being "inspected at least annually" and the inclusion of appropriate enforcement mechanisms, such as civil and criminal penalties, in abortion regulations and limitations.

As states prepare for the 2017 legislative sessions, AUL’s groundbreaking Enforcement Module that promotes comprehensive inspections for abortion facilities and includes the strongest enforcement options for pro-life laws is the perfect response to this controversial decision. 

Further, legislators should also continue to promote a variety of important and protective abortion regulations including enhanced informed consent requirements for both surgical and drug-induced abortions, the prevention of coerced abortions, and increased protections for minor girls and parents’ rights to be involved in the abortion decisions of their daughters. 

They should also consider the component legislation contained in AUL’s Infants’ Protection Project which protects unborn infants from barbaric late-term abortion procedures, affords legal protection and recognition to unborn children outside of the context of abortion, and ensures that mothers facing poor prognoses for their unborn children are informed about the availability of hospice care for their families.  The Project also includes new model legislation recognizing a deceased unborn infant’s right to dignified treatment including, at the mother or family’s request, a respectful burial.

These two critically important initiatives are naturally complementary. Both spotlight model legislation designed to protect unborn children and their mothers, exposing the lies propagated by the abortion industry that abortion is beneficial to women and that a woman’s interests are often at odds with those of her unborn child.  They also encapsulate the pro-life movement’s “mother-child” strategy and are well suited to advancing the cause for life after Hellerstedt.

Denise M. Burke is Vice President of Legal Affairs, Americans United for Life