NRL News

Takeaways from Wednesday’s Supreme Court abortion case: Part One

by | Mar 3, 2016

By Dave Andrusko

NRLCstaffMarch2016reFollowing up on Wednesday’s initial story, today, Friday, and Monday we will running a series of posts about Wednesday’s oral arguments in Whole Woman’s Health v. Hellerstedt. Today’s will be both general–there was a lot of atmospherics about the pro-abortion challenge to two parts of HB 2, the omnibus Texas 2013 law, about which the Supreme Court heard oral arguments yesterday–and specific.

As our readers know, the two issues before the High Court are (1) that abortion clinics meet the same building standards as ambulatory surgical centers (ASCs); and (2) that abortionists have admitting privileges at a nearby hospital for situations of medical emergencies.

#1. Outside the Supreme Court building, a group of pro-lifers was engulfed by a small army of pro-abortionists. Talking to people who were there yesterday (and who’d also been in Texas in 2013 when pro-abortionists were temporarily able to derail HB 2), the behavior of the pro-abortionists was exactly what you would have anticipated.

The difference yesterday was the heightened level of physicality. The confrontations in 2013 were intense, but as one Texas pro-lifer told me this morning, she was shoved to the ground three times on Wednesday. The pro-abortion entourage encircled the pro-lifers and their behavior was intended to intimidate.

But what would you expect from a crowd whose manners were as crude as their mouths and who held signs with such thoughtful messages as “Abortion on Demand and Without Apology” and “No Uterus No Opinion”?

#2. I read the entire 93-page transcript and listened to some of the exchanges between the four pro-abortion justices and Scott Keller, the Texas solicitor general, who ably defended HB2. I had two primary reactions.

First, I was embarrassed by the rudeness of the justices who grilled Keller. I understand they’d already made up their minds but common courtesy would demand that you not interrupt constantly. If you have a question, give Keller a fighting chance to respond even if–as is your right–you immediately attempt to rebut his answers. That courtesy was rarely extended.

Second (again based primarily on the transcript), Keller gave a sterling performance. No matter how many times Justices Ginsburg, Sotomayor, and Kagan attempted to keep him from answering the questions they had asked, Keller never lost his composure.

Stephanie Toti, of the Center for Reproductive Rights, was less impressive. Enough said. And the justices gave something close to deference to U.S. Solicitor General, Donald B. Verrilli, representing the Obama administration, who supplemented Toti’s argument with a dire prediction of his own should the justices not strike down HB 2.

#3. There were many substantive issues raised; we’ll touch on many of them over the next few days, as will Dr. Randall K. O’Bannon, NRLC’s director of education.

Many commentators picked up on two arguments Toti and Verrilli made: supposedly that the requirements had resulted in delays, meaning more women had later abortions, and more surgical, as opposed to chemical abortions.

Safety: Toti and the pro-abortion briefs argue the law has led to more surgical abortions. They told the justices that surgical abortions have more complications that chemical abortions–at the same time they insist that abortions are safe, safe, safe.

But as Dr. O’Bannon has explained in great detail, chemical abortions have dangers that are part and parcel of the two-drug RU-486 abortion technique. Generally, earlier surgical abortions are safer than later surgical abortions, owing to the size of the baby and the reduced complexity of the procedure.

But it doesn’t necessarily follow that first-trimester chemical abortions would be safer than surgical abortions. Surgical abortions and chemical abortions have their own individual risks, according to Dr. O’Bannon, and women with failed chemical abortions often end up having surgical abortions anyway.

Moreover, an April 2011 FDA report requested by a U.S. senator found more that 2,200 “adverse events” associated with use of the mifepristone/misoprostol combo with 14 known deaths in the U.S. and at least five more in other countries. Deadly infections killed eight of the 14 in the U.S. That was nearly five years ago.

Without rehashing all the research Dr. O’Bannon has conducted, none of this is surprising. And it cannot be emphasized enough that these abortions are terribly bloody and almost unbelievably painful.

Later abortions: But it’s the other claim that is intended to raise even greater concerns: that because HB 2 has supposedly “caused” a reduction in the number of abortion clinics, the lesser number of abortion clinics resulted in delays for women, which meant more second trimester abortions.

As best I can tell the sum and substance of the support for this contention comes from the work of Daniel Grossman, who always manages to produce results which support the pro-abortion case.

But as Dr. O’Bannon has written

What about the claim that such laws lead to more later abortions? There is little evidence of any increase in 2nd or 3rd trimester abortions in recent years, in spite of the protestations of groups like Texas Policy Evaluation Project (TxPEP) that new laws would push women into later abortions. According to the U.S. Centers for Disease Control (CDC), abortions at greater than 13 weeks gestation have gone down, not up, since 1998 (probably earlier – earlier CDC charts break gestational dates down differently), pointing to their being fewer, not more of these later abortions since the advent of various pro-life laws.

Okay, but what about Texas specifically? They rely on calls the TxPEP project made anonymously over an 11 month period to abortion clinics, representing themselves as women seeking appointments for first-trimester abortions.

Even though (a) two of the larger cities saw no real increase in wait times over the study period; (b) times in another city peaked, dropped, peaked again with no identified obvious reason; and (c) the delays in two other cities were never more than eight days, TxPEP researchers claimed on the basis of these numbers that if other abortion clinics were to close, the increased wait times would have the result of pushing about 5,700 women into more dangerous second trimester abortions.

But, as Dr. O’Bannon explained, there are a host of other explanations why clinics close (besides the unmentioned fact that clinics were closing before HB2 was passed). Everything from new (and bigger) abortion clinics replacing older clinics, to the retirement of abortionists, to a reduced demand for abortion.

There is lots more to discuss, which we will on Friday and Monday.

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Categories: Supreme Court