Pro-lifers hopeful Supreme Court will now revisit “undue burden” test
To no one’s surprise, U.S. District Court Judge Myron Thompson, pictured right, ruled on August 4 that Alabama’s law forcing abortionists to have admitting privileges at local hospitals was unconstitutional.
This is the same judge, after all, who forced the removal of the Ten Commandments monument from the Alabama capitol building. He’s a devout liberal, handpicked by the abortion industry to rule on this case. Noted Dr. Michael New at First Things:
However, this development is not unexpected. Planned Parenthood Southeast shopped for a sympathetic judge and found one in Thompson - an appointee of Jimmy Carter who frequently rules against pro-life legislation.
The abortion industry claims such a law would force three of the state’s five remaining abortion clinics to close.
Ironically, two of them are presently closed anyway, by no one’s doing but their own.
Planned Parenthood Birmingham’s clinic shut down in December 2013 after one of its nurses was caught selling RU-486 in the parking lot and the entire staff was fired. (Read more juicy details on this in Thompson’s decision, beginning at page 152.)
Alabama Women’s Center in Huntsville closed in June because it couldn’t meet new regulations requiring the state’s abortion clinics to follow the same building requirements as ambulatory surgical centers. The clinic is trying to move to a new location.
Yet, even abortion proponents are not jumping for joy by this favorable decision. Noted Think Progress:
It is an open question, however, whether Thompson’s decision will survive further review. Thompson’s opinion will appeal to the United States Court of Appeals for the Eleventh Circuit, a court which includes some very conservative judges. Moreover, even if it upholds Thompson’s decision, the conservative Fifth Circuit recently upheld a similar Texas law. When federal appeals courts divide in similar cases, the Supreme Court often steps in to resolve the dispute.
If the justices do step in, that is probably bad news for Team Choice. Justice Anthony Kennedy, the ostensible swing vote in abortion cases, has not cast a pro-choice vote in the last 22 years.
It does appear likely that the ultimate decision about laws requiring abortionists to have hospital privileges will be made by the Supreme Court, since lower courts have split on allowing them to go forward. The Guardian explains:
Similar laws have been blocked by federal courts in Kansas and Wisconsin [and Mississippi], while they have taken effect in Missouri, North Dakota, Tennessee, Texas and Utah.
There’s more to know about Supreme Court swing voter Anthony Kennedy, pictured right. Thompson ruled that a law forcing abortionists to play by the same rules as legitimate doctors would create an “undue burden” to abortion access:
Indeed, the court is convinced that, if this requirement would not, in the face of all the evidence in the record, constitute an impermissible undue burden, then almost no regulation, short of those imposing an outright prohibition on abortion, would.
The “undue burden” threshold has been used to both uphold and strike down admitting privilege laws.
From where did the concept of an “undue burden” t0 abortion arise? It came from the Supreme Court’s 1992 Planned Parenthood v Casey decision. Who wrote that decision? Anthony Kennedy. An August 6 memo from the Southeast Law Institute, which I recommend reading, notes:
Depending on what the Eleventh Circuit does, these cases will provide an excellent opportunity for the U.S. Supreme Court to revisit the abortion issue, which it has not done in a long time. With the present makeup of the U.S. Supreme Court, whatever opinion will be written will be a five-four decision, with Justice Kennedy being the swing vote. Kennedy wrote the Casey decision and we would be hopeful he would take offense at using his “undue burden” reasoning to diminish women’s healthcare.
[HT for Southeast Law Institute memo: Fr. Terry Gensemer of CEC for Life]
Jill Stanek is a nurse turned speaker, columnist and blogger, a national figure in the effort to protect both preborn and postborn innocent human life.
Hmm. So is “Team Choice” what they’re going to identify as now, instead of pro-choice? Doesn’t sound quite as cool as Team Rocket, but whatever.
“Hmm. So is “Team Choice” what they’re going to identify as now, instead of pro-choice?”
I’m assuming it’s just a placeholder that they are using until they can think of something better. We may be seeing it for a while, though.
This really is an excellent news site! I do not know anywhere else that provides this sort of court analysis and links to the actual written decisions.
The reference to “p. 152” and the nurse selling abortion drugs in the parking lot: That is some twisted analysis by the judge. It goes like this:
1) The admitting privileges law protects patients from bad doctors who injure women and then cannot provide a reasonable standard of care.
2) During discovery, we learned that this clinic has a history of poor management, bad hiring practices, and lax security.
3) This law regulating the doctors would not have prevented the management problems encountered at this clinic.
4) So we will allow the clinic to continue to operate with lax control on the doctors. Legislators should come up with a process to cure the problems of poor management.
To a common-sense person, if the management problem is irrelevant to the doctor problem — then dismiss the argument and tell us again why the law is not need to protect women’s health and safety.
But most common-sense people would also say that a clinic that is that negligent about controlling their dangerous drugs and hiring professional people would very likely be lax about maintaining health standards, financial records and fraud, covering up child abuse, and hiring quack doctors.
Navi: Doesn’t sound quite as cool as Team Rocket, but whatever.
“Liked” post; Pokemon reference. :)
Jill, the link to the August 6 memo from the Southeast Law Institute is broken.
Andrew, Thanks, but it works for me…. Anyone else having trouble with it?
How weird. I am getting a Not Found 404 error when I click on it.
I concur with Andrew, it doesn’t work for me.
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