Today, the Supreme Court struck down one of the most pervasive scams in American politics today, the effort by Republican state legislatures to shut down abortion clinics in the name of protecting “women’s health.”
In a 5-3 decision, the Court invalidated a Texas law requiring that abortion clinics meet the same standards as outpatient surgical centers, and that doctors who perform abortions have admitting privileges at nearby hospitals. These restrictions create an “undue burden” on women’s right to abortion, a standard the court established in a prior case for evaluating the obstacles states throw up in front of that right. It was one of the rare moments when one might be at least a little bit reassured that although we have our persistent disagreements over policy, some forms of transparently dishonest baloney will, eventually, be defeated.
Bad faith arguments are not uncommon in politics; they are likely to crop up whenever one party has something they want to do, but which they fear will not be particularly popular. So they find some trumped-up justification they hope the public will be receptive to, and claim that it’s the real reason they want to do the thing they wanted to do all along. But there are bad faith arguments, and then there are bad faith arguments.
Simply put, there is no argument Democrats or Republicans have offered more disingenuously in recent years than the claim that the regulations one conservative state after another has passed on abortion clinics are only in the service of “protecting women’s health.” From the first moment, it was a fraud, a scam, a lie so transparent and obvious that it’s a wonder the Republicans making the claim didn’t dissolve into giggles every time they spoke it aloud. The only other example that comes close is the Republican claim that their efforts to make it harder for Democratic-leaning groups to vote is only for the purpose of stopping “voter fraud.”
But while it lasted, it was certainly effective. A few years ago, the pro-life movement made a tactical shift: instead of putting the primary focus of their public rhetoric on the fate of fetuses, which set up a conflict with the rights of women, they would instead argue that those who seek to restrict reproductive rights are women’s greatest defenders, the ones who have their true interests at heart. They only want to protect women from the dire consequences of their own foolish decisions, they insisted. So they spun out tales of abortion causing breast cancer and permanent mental anguish, and they devised a new way to shut down abortion clinics: by imposing regulations most clinics could not hope to meet.
The best idea they had was the requirement that doctors who perform abortions have admitting privileges within a certain radius of the clinics where they work. In case you don’t know, having admitting privileges at a hospital means that you can check your patient in without consulting other doctors there. You don’t need admitting privileges to send your patient to a hospital, or have her seen in the emergency room, or in any other way get that patient treatment in the unlikely event that there’s a complication from an abortion. In those rare instances, the woman will go the emergency room and be treated there; the hospital’s doctors will consult with the doctor who performed the abortion if they need to. The presence or absence of admitting privileges is immaterial. Justice Breyer pointed this out in today’s decision:
We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.
We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.
When you can’t find a single instance in the entire United States in which the regulation you’re passing to “protect women’s health” would actually have protected a woman’s health, that’s a pretty good sign that you’re completely full of it.
The diabolical genius of the admitting privileges provision was that it created an almost perfect trap. At a time when abortion providers are regularly harassed and occasionally assassinated, there are very few doctors willing to perform the procedure; they often have to fly in from out of state. Hospitals, fearing that like abortion clinics they could be targets of terrorist shootings and bombings if they cooperate in any way, want to have as little to do with abortion as possible, so they’re reluctant to formally grant admitting privileges to those doctors. The outpatient surgical facility standards, while absurd and financially onerous — for instance, they often mandate that abortion clinics must have hallways wide enough for two hospital gurneys to pass by each other — can at least be met in theory. The admitting privileges requirement, on the other hand, is in many cases completely impossible for a clinic to meet, if there are only a couple of hospitals in a particular area and they refuse to grant admitting privileges to anyone who performs abortions.
According to the Guttmacher Institute, which collects data on abortion, 11 states had passed admitting privileges requirements, five of which were actually in effect before today. But even as abortion rights supporters celebrate this decision, we should acknowledge that it won’t reduce Republicans’ zeal for keeping women from having access to abortion, and may make it only slightly more difficult for them to do so in practice. States like Texas may try to come up with entirely new requirements for abortion clinics, based on concerns about women’s health that are just as transparently dishonest as the ones the Court just struck down. It’s possible that as you read this, a group of Republican state legislators in Texas or Oklahoma or Alabama is sitting in a conference room, brainstorming new ideas. What if we mandate that all doctors performing abortions have to be left-handed? What if we say that abortion clinics must have a skylight in every procedure room, so that women can gaze up at heaven and contemplate their sinful nature while they have an abortion? How about requiring that each clinic have a string quartet playing in its waiting room, at least three of whose members must have graduated from Juilliard?
Those ideas may sound silly, but in practical terms they make as much sense as mandating admitting privileges. And they make as much sense as whatever Republicans will actually come up with next. Lower courts can use today’s decision as a template, not just on admitting privileges in particular, but on the broader principle that if you’re going to claim that a new requirement on abortion clinics is intended to protect women’s health, you need some evidence or logic demonstrating that it will actually protect women’s health. That would mean they’ll quickly strike down similar efforts to put bogus hurdles in front of women trying to get abortions.
But that that doesn’t mean Republicans won’t try. Even though this is a very good day for women’s reproductive rights, the larger battle is going to continue.