George Mason University Law Professor Helen Alvare joined Dan & Amy to discuss the most significant Supreme Court decision on abortion since Casey v. Planned Parenthood more than two decades ago.
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Dan Proft: Dan and Amy, so a couple of important decisions chanted on by the Supreme Court yesterday. The most impactful of which is striking down a Texas law, that was signed in the law by Governor Rick Perry, that would do two things: require abortionist to have admitting privileges at a hospital within 30 miles of the abortion facility in which they work; number one, and number two, it would require that abortion facilities comply to the same standards, in terms of safety and cleanliness and the like, of ambulatory surgical centers. Is that extreme? Amy Jacobson: So it’s the same standards if you’re getting elective surgery, such as augmentations or facelifts. That’s the same level of standard. Dan Proft: Right, so would you want medical facilities like that inspected to ensure that they were safe. Would you want somebody that engages invasive surgery to have admitting privileges at the hospital, to say something about their competence at their job? Apparently not; apparently that is an undue burden, so said a majority of the court in a 5-3 decision – thanks Anthony Kennedy once again. He’s more of an op-ed writer than a Supreme Court Justice, who engages in legal opinions, but at least we weren’t treated to his thinking on the topic; he just signed onto the majority. And this is being hailed as the most important decision on the topic since Roe v. Wade. It’s being celebrated. It’s odd, it’s morbid the way that it’s celebrated on the left. Let me give you an example. The Daily Show tweet, after the decision was rendered: “Celebrate the #SCOTUS ruling! Go knock someone up in Texas!” Now I know that purports to be a comedy show, but I think it also is an unintentional insight into the attitude of the left. Once upon of time I thought that pro-choice people just wanted safe, legal and rare. Now they don’t want safe and they don’t want rare, they just want legal underneath circumstances. And by the way, let’s have a reminder of who we’re talking about here, particularly with respect to Planned Parenthood, the nation’s largest abortion service provider. Dispense even even with the whole illegally trafficking in baby body parts for a minute. Remember what happened to Susan G. Komen Foundation a few years ago? They have been giving a lot of money to Planned Parenthood. Amy Jacobson: Right. Dan Proft: Susan G. Komen Foundation; you know, pink, ribbons and all the marathons. Amy Jacobson: I’m very familiar with the month of October. Dan Proft: Everyone knows this is one of the highest profile breast cancer research non for profits, right? So they decide to stop providing funding for Planned Parenthood for breast cancer research because Planned Parenthood wasn’t doing any breast cancer research. Seemed like a good reason. The reaction was Susan G. Komen was treated by Cecile the Lion just like I would be; as the enemy. And they went on the offence, they attacked the Susan G. Komen Foundation, they dried up funding. Susan G. Komen Foundation saw a 22% decline in their revenue that year because of Planned Parenthood’s assault. Tells you something about Planned Parenthood; tells you something about the motifs underlying this issue. But for more on the legal reasoning behind the Supreme Court’s decision, we’re happy to be joined again by Helen Alvare; she is professor of law at George Mason University school of law. Helen, thanks for joining us again, appreciate it. Helen Alvare: Thanks for having me. Dan Proft: So explain to us the undue burden standard that was set forward in the Planned Parenthood v. Casey case in 1992, which is the standard the court used, and they said, “Yes, the Texas law presents an undue burden”. Helen Alvare: Here’s the thing; nobody could actually explain the undue burden standard to you, because the court changes its meaning from time to time. Dan Proft: There you. Helen Alvare: The language of it on itself – undue burden – and another way they refrained it is a substantial obstacle to a woman receiving an abortion. Even in its first iteration, which is the 1992 Supreme Court decision, which was Planned Parenthood versus Casey, then the governor of Pennsylvania, the descent said “What does this mean? Nobody really knows what it means”. What the court said yesterday, and this is Whole Woman's Health v. Hellerstedt case, was that if clinics closed as a result of being required to conform to the standards of other surgery centers, if they were being required to conform to the standards that, by the way, other surgery centers also have for their doctors, they want to know that the doctors that they have during abortions are the kind of doctors who a hospital would give an accreditation within 30 miles, because those would be doctors that people would judge to be good doctors, doctors who would be familiar with others in the medical community, such that if something terrible happened to one of their patients, they could quickly be in touch with the local hospital, know who to refer the woman to or themselves be able to take care of her. So these regulations the court held yesterday are an undue burden or substantial obstacle, why? Well, the court claimed without actually having the proof that the regulations that Texas passed were responsible for the closing of a bunch of Texas clinics. It’s quite possible, but it’s also possible that the drastic decline over the last number of years in abortion providers, and the drastic ramping up of the size of Planned Parenthood facilities was responsible for that. We don’t know. But the court just assumed it was responsible. Number two, they said that the existing clinics probably wouldn’t have enough capacity to handle the number of women in Texas who want abortions. Couple problems with that; again the court did not require Planned Parenthood and the other complainants to actually prove that, and it turns out Justice Aleto in his descent actually went and did the numbers and showed that the clinics that existed very likely had the capacity to do the high number of abortions that Texas still has, because Planned Parenthood is now building these mega-clinics to handle higher capacity. They set longer wait times, maybe less attention, this in itself constitutes a constitutional undue burden to women receiving abortions. What they didn’t countenance at all – and this is the underlying rationale for these regulations – is this: we know there are moral hazards in the abortion industry. And it’s not just that Dr. Gosnell in Philadelphia was basically killing newborns and also killing their moms through negligence in medical practice. We know many clinics, many have been cited, for pretty drastic failures in healthcare. There’s a moral hazard in the situation where desperate women, in an industry that’s often cash, are coming into clinics where doctors stand to make an enormous amount of money in the situation of these desperate women. There’s a moral hazard that and it makes a lot of sense that a state would say, “In the interest of protecting the women, and frankly, very frankly, in the interest of making you doctors who we don’t really trust” – by the way, the vast majority are not even OBGYN’s; they don’t know what they’re doing with a mother that is pregnant – “We’re going to set high standards for you. They’re not going to be higher than other surgery, but you’re going to have to at least meet those standards, because the moral hazards at your place are so high”. But the Supreme Court acting very much like a legislature in the abortion arena is basically scrutinizing every state’s response to this. I don’t think the court would do the same if there were severe regulations with banks or pharmaceutical companies that have injured their clients, but abortion is always treated as the exception. Amy Jacobson: So Helen, before this Texas state law passed, there were 32 abortion clinics, then it would drop down to 19. What happens now? Did those abortion clinics reopen, or is it a process? What do they have to go through? Helen Alvare: Well, isn’t that an interesting question, because in fact, probably many of those abortions clinics won’t open at all because already the numbers of abortions in the United States were declining. People are just having fewer abortions in the first place. The case for abortion has gone done. It’s wonderful, and the pro-life movement can take a lot of credit for that. The second reason is because those clinics were losing business in a drastic fashion to these Planned Parenthood mega-clinics, which could take, really, not just hundreds, but thousands more clients a year. So I think what you’re going to see – and this is something we should check in on six months from now – will these clinics reopen, now that they don’t have to obey commonsense medical standards. I think you’re going to find that they won’t, because these laws may not have been the reason for their closure in the first place. One other thing I think I just have to point out, Planned Parenthood bellyached in the case and afterwards that they were going to have to spend this extraordinary amount of money to bring their clinics up to these standards. Number one, that should kind of freak out your average female clients at Planned Parenthood, but number two, contrast that with Planned Parenthood’s willingness to spend, I think it was 6 million dollars on the last election cycle and 12 million on this one, I think for Hillary Clinton and other candidates like her. So they’ll be able to spend money on political races, but not on health and safety race. I think that tells the whole story. Dan Proft: I want to refer to something that Richard Posner, of course, on the 7th circuit court of appeals wrote recently – and it speaks to this issue; it even goes beyond the matter of abortion, to legislators in robes, which is what your suggestion occurred here as seems to be a recurring problem – he writes, “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation. Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.” That’s a rather startling statement to make from somebody who’s otherwise, in some circles, a well regarded court of appeals jurist, and I wonder, as a professor of law at a university, what your response to that is. Helen Alvare: For me, I regard the attempt to follow the Constitution as it’s written as respect for democracy. If judges want to make stuff up out of whole cloth, this is disrespectful for democracy. If we have a constitution, it’s not unamendable. If what you want as a right is not in the Constitution, it doesn’t mean you can’t get the thing done. It means you can pass a piece of legislation on it, which requires actual democracy and influent and electing particular legislators, and convincing your fellow men and women citizens to pass the law. Just because the Constitution doesn’t give you the candy that you want, doesn’t mean you don’t have good democratic possibilities for passing good laws. And if you go to the Supreme Court and say, “I want to find X in the Constitution”, and they say it’s not there, you still, if you want it, as a constitutional right, have the opportunity to amend the constitution. I think where we are now , I hate to be talking about what everyone’s talking, BREXIT, but they’re coming out today saying “The disconnect between the elite”, people who have the kinds of educations that we’re seeing on the Supreme Court, right, Harvard and Yale put a period on it, “The disconnect between people with dramatic money, the disconnect between corporations who are threatening states with loss of jobs if they don’t obey the corporation’s opinion on gender or marriage, etc., the disconnect between the well-off and the poor, between the privileged and the less privileged, the elitely educated and the working man and woman, it’s creating some very serious social effects”. The Supreme Court continuing to find what five people want in the Constitution is only going to fuel a kind of populist anger, and a kind of almost irrational revolt; in some cases it will be just rational commonsense being attempted to be put into the public debate. It’s a very scary pattern for five human beings to be able to tell 360 million Americans that something they have invented out of whole cloth is the last word. That’s what we have in abortion law, that’s what we have in marriage law, it’s what we have in cases of deciding about federal power to pass certain laws in the Constitution. What Posner is saying, I think, is fundamentally problematic. We should know what we think the founders meant by the Constitution, and how Americans have actually abided by. It’s not that we can’t say the country has lived in a particular way for 200 and some years and people understand the Constitution this way, okay, so be it. But five justices making stuff up, I really think that’s going to lead in an even greater risk in a democratic culture than you’ve seen so far. Dan Proft: She is Helen Alvare, professor of law at George Mason University school of law. Helen, thanks for joining us again, appreciate it. Helen Alvare: Thanks for having me.