Planned Parenthood and Its Progeny

[street_lawyer]

By 2013 the composition of the Court had changed. Texas passed a law that required doctors who performed abortions have hospital admitting privileges. Also, the law imposed greater restrictions on abortion facilities. As a result many abortion clinics were no longer in compliance with the new law.

When Whole Woman’s Health was decided Justice Scalia had died a few month earlier. The Court struck down the Texas law based on their decision in Planned Parenthood. Since Chief Justice Roberts would have upheld the law, he was not part of the majority and according to tradition the most senior member of the majority decides who is to author the opinion. Justice Breyer was chosen. He held that the higher standards were not necessary to protect the health of the mother and would make it more difficult for a woman to have access to abortion facilities. The law therefor imposed an undue burden on a woman’s right to choose. This holding is patiently ridiculous. If health regulations were not designed to protect patients, they would not be necessary and therefore would impose an undue economic burden on the practice of medicine. . The reason for requiring doctors to be qualified can only be to protect the wellbeing of their patients. Abortion presents the dangerof uterine perforation which would require hospitalization. According to the CDC, 2012 four woman died from legal abortions, yet the Court found no such problem in Texas. In 2011 two additional deaths occured as a result of a legal abortion, in 2009 eight deaths were attributed to legal abortions. In 2008 twelve mothers died because of undergoing a legal abortion. All these deaths could have been reduced or avoided if the procedure was conducted in a hospital rather than in an abortion clinic.

Justice Thomas found no application for Planned Parenthood since it did not use a balancing test. Here the Court weighed the health benefits of the regulation as against the reduced access to abortion facilities. He also did not agree with protecting unenumerated “putative rights like abortion” in the same way as the Court must protect enumerated rights. Abortion, according to Thomas, does not involve discrimination against “discrete and insular minorities.” He wrote: “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.” Justice Thomas concluded, “The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.”

In other words, the Constitution specifically protects the enumerated right to life, but what the Court has done is create an unenumerated right to an abortion at the expense of the enumerated right to life. By deciding that an unborn child is not a person within the meaning of the Constitutional protection of life, the Court has conveniently avoided a direct conflict with existing laws governing murder and enumerated rights. Since life in the womb is not protected life according to Roe, a husband has no say in the death of his child while in the womb, but the moment the child takes a breath of air, the husband’s right to say what happens to his child is also born. The distinction if not ridiculous is at the very least not supported by medical science, either now or when the Roe decision was made. When the Court or legislature make up arbitrary distinctions the usual result is absurd unintended consequences, which then have to be further artificially distinguished in order not to present an obvious conflict with precedent.

[Svartalfiar]