Well, our friends on the left finally found a regulation they don’t like. And an occasion to be honest about the fact that, in the famous Clintonian formula of keeping abortion “safe, legal and rare,” they’re concerned first and foremost about the “legal” part:
In a 5-3 ruling, the Supreme Court on Monday overturned two key elements of a Texas abortion law. The law had required 1) abortionists to have admitting privileges at a hospital within 30 miles of the abortion clinic, and 2) abortion clinics to meet the same minimum standards as ambulatory surgery centers in the state. The court’s left wing — which these days reliably includes Anthony Kennedy — found the law to be not just an affront to their personal policy preference of abortion anytime, anywhere, for any reason. They also deemed it an affront to the Constitution, finding the regulation placed an “undue burden” on women’s right to have an abortion — which itself famously emanates from the penumbras of actual constitutional rights, according to the justices in Roe v. Wade.
The truly amazing thing about this ruling — what leads it into the territory of, as Justice Clarence Thomas wrote in his dissent, “applying different rules to different constitutional rights” — is its finding that the Texas law was unconstitutional in part because not that many women suffer medical emergencies during the course of a legal abortion.
Before continuing with Thomas’ argument, let us marvel at exactly how contrary the majority’s logic is to, oh, I don’t know, the left’s approach to gun control:
According to a data set compiled by Mother Jones, there were 439 people killed in U.S. mass shootings between 1982 and 2011. During the same time period, there were 268 women who died during legal abortions. Given the far higher rate of gun ownership in this country — about one gun per person, vs. 0.015 abortions annually per woman of child-bearing age (that’s the average rate over previous decade of reported data) — one might think providing better medical care for women undergoing abortions would be a pressing government interest than restricting gun ownership. Unless, that is, one happened to be so zealous about abortion rights as to make the NRA look like a bunch of squishes when it comes to the Second Amendment. Like, you know, pretty much every card-carrying Democrat in this country.
But wait, there’s more. As Thomas explains, the precedents on which the majority relied (namely the 1992 opinion in Casey v. Planned Parenthood) do not require a balancing of benefits and burdens. In fact, under Casey, even an “undue burden” could be placed on abortion rights if the state had a “rational basis” for doing so. This rational-basis test means “the courts will uphold a law if it is rationally related to a legitimate government purpose. The challenger of the constitutionality of the statute has the burden of proving that there is no conceivable legitimate purpose or that the law is not rationally related to it.” But in the Texas abortion case, the opposite was true: The Supreme Court held that it was up to the Texas Legislature, not the law’s challengers, to prove there was a conceivable legitimate purpose for the statute. And then the court ruled that the possibility of preventing a medical emergency wasn’t conceivably legitimate, as long as the possibility is small. Unbelievable.
By raising the bar rather than relying on the current one, the court today didn’t adhere to existing law regarding abortion legislation; it created new abortion law. And it did so in stark contrast to the way it recently handled another controversial case out of Texas, the Fisher v. University of Texas at Austin race-based admissions case. Again, from the Thomas dissent:
“This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test. All the State apparently needs to show to survive strict scrutiny is a list of aspirational educational goals (such as the ‘cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry’) and a ‘reasoned, principled explanation’ for why it is pursuing them — then this Court defers. Yet the same State gets no deference under the undue-burden test, despite producing evidence that abortion safety, one rationale for Texas’ law, is medically debated.”
That’s not the only contrast between abortion rights and other rights. It strikes me that many of the same people cheering this higher legal standard in the name of constitutional law have spent the past few years demonizing Georgia’s attempt to pass a state version of the Religious Freedom Restoration Act, which would raise the legal standard in free-exercise cases. One of their main arguments against RFRA? That constitutional rights don’t require such “additional” protections, because hey, they’re constitutional rights.
But as this case demonstrates, laws can infringe on such rights if courts give them the lighter protection of a lower legal standard. The court simply wasn’t willing to do that in an abortion case. Most grotesquely, by applying a test that Thomas describes as “something much more akin to strict scrutiny” — which happens to be the legal standard set by RFRA laws — the court is effectively protecting abortion rights at a higher level than free-exercise rights enjoy in Georgia. Do liberals believe abortion is more of a fundamental right than the free exercise of religion? Their words and actions indicate they do.