The U.S. Supreme Court 5-3 Whole Women’s Health v Hellerstedt ruling June 27th is not the huge victory abortion supporters claim. However, there is no question that “Hellerstedt” is a truly troublesome ruling, as it:
- undermines the Court’s former support for the compelling interests of state legislatures,
- makes the Supreme Court the nation’s medical board, and
- encourages activist courts to indulge in subjective judgment of abortion regulations.
Ultimately, it’s a setback for the pro-life movement both nationally and in Kansas. However, looking at the long game, Supreme Court decisions are not set in stone.
As a reminder, the Court struck down a ban on partial-birth abortions in 2000 and then in 2007 upheld the ban. Why? The language of the ban was tweaked, the public became educated (and outraged) and the composition of the Supreme Court changed. This is why presidential elections matter.
Hellerstedt has abandoned any pretext that the Court is only involved to guarantee “safe and legal” abortion. They have overruled protection for women in order to protect abortion business profits. The Court has reinforced its schizophrenia that demands abortion be treated as a medical procedure, but not be subject to the ordinary state oversight other medical facilities must obey.
Kansas has had plenty of abortion horror stories. A staff whistle-blower took photos in 2003 at the inner city “Affordable Abortions” clinic of Krishna Rajanna (now closed). She was so worried about the filth there she would wipe down the surgical bed with rubbing alcohol whenever she could.
The abominable majority opinion last Monday, written by Justice Breyer, absurdly tries to justify striking down Texas’ clinic regulations, asserting that having such laws in place would not stop the “very bad behavior” of “determined wrong-doers” like Kansas had at the “Affordable Abortions” clinic and elsewhere. With that logic, no laws would ever be passed.
The Hellerstedt ruling is harshly criticized by the dissenting justices (Thomas, Alito and Roberts) for breaking procedural rules and being “so riddled with special exceptions for special rights” that it violates “the promise of a judiciary bound by the rule of law.”
Planned Parenthood has announced now they’ll fight abortion regulations in eight states: Arizona, Florida, Michigan, Missouri, Pennsylvania, Tennessee, Texas and Virginia– “with more to come” against similar laws across the country. National Right to Life Committee president, Carol Tobias, expects only measures identical to those blocked by the Supreme Court will be vulnerable to appeal.
HOW IS KANSAS AFFECTED?
The office of Kansas Attorney General Derek Schmidt has so far announced that the legal team is studying the Hellerstedt ruling with respect to three ongoing lawsuits filed by Kansas abortionists. The A.G. team has prevailed in all other concluded abortion litigation since 2011. (Read more about Kansas abortion clinics and lawsuits here.)
Most directly related to Hellerstedt is the 2011 Kansas comprehensive abortion clinic licensure & inspection law which has never been in effect due to a “temporary” injunction and to an unjustifiable 4 1/2 year delay from Shawnee District Court Judge Franklin Theis.
That law includes building safety standards, injury & death incident reporting, abortion-specific protocols and a requirement that abortions be performed by Kansas-licensed physicians. Relative to Hellerstedt, it
- does mandate hospital privileges for abortionists within 30 miles of the abortion site, but
- does not require an abortion facility to be licensed as an ambulatory surgical center (ASC).
The admitting privilege (#1) does mirror that of Texas, but the context in Kansas is not the same. All four Kansas abortion businesses (2 in Wichita and 2 in Overland Park) claim to have access to abortionists with hospital privileges.
As for #2, although some of the Kansas facility requirements do resemble those of ASCs, those provisions would not automatically need to be struck down. Also, two Kansas abortion businesses(Planned Parenthood and SouthWind) are already licensed as ASCs.
However, following Hellerstedt, activist courts will be more encouraged to subjectively critique –and potentially reject–duly-passed medical oversight laws.