Supreme Court Justices Ginsburg and Kagan Just Destroyed a Right-Wing Abortion Myth

In the oral arguments for Whole Woman's Health v. Hellerstedt -- the case before the Supreme Court concerning Texas' anti-choice law, HB 2 -- Texas Solicitor General Scott Keller relied on a common right-wing media myth to justify medically unnecessary restrictions on abortion. In his argument, Keller made the long-debunked claim -- pushed for years by right-wing media -- that HB 2 was passed to prevent another "Kermit Gosnell scandal," in which illegal operations led to multiple deaths at a Philadelphia clinic.

Supreme Court Heard Challenge To Texas Law Restricting Abortion Access

"Landmark" Abortion Case "Could Shape Abortion Rules For Years To Come." The Supreme Court heard oral arguments for Whole Woman's Health v. Hellerstedt on March 2. The case involves a Texas abortion law that "requires abortion doctors to be affiliated with nearby hospitals and also limits abortion to ambulatory surgical centers," according to The New York Times. Pro-choice advocates and "major medical groups say [the law] will not enhance patient safety and will only reduce women's access to abortion." The Times wrote that the challenge is seen as a "landmark case" that "could shape abortion rules for years to come":

On March 2, the Supreme Court is scheduled to hear arguments on the challenge to the Texas law, which requires abortion doctors to be affiliated with nearby hospitals and also limits abortion to ambulatory surgical centers. Abortion opponents say such measures are needed to protect women, but major medical groups say they will not enhance patient safety and will only reduce women's access to abortion.

Overruling a lower court's injunction, the Fifth Circuit appeals court allowed the Texas admitting-privilege rule to take effect throughout the state in 2013, immediately shuttering about half of what had been more than 40 abortion clinics, although exceptions were later granted for geographically isolated clinics in McAllen and El Paso. The second requirement, mandating costly surgical center facilities, has been temporarily stayed by the Supreme Court, but it would force still more reductions if upheld.

At stake in the case, Whole Woman's Health v. Hellerstedt, is not only the future of abortion access in Texas and in the nine other states that, like Alabama and Louisiana, have adopted similar physician rules. It could also affect dozens of other regulations of disputed medical value that have been adopted by numerous states, including limits on nonsurgical drug-induced abortions, mandated building standards for clinics and two-day or three-day waiting periods. [The New York Times, 2/24/16]

Texas Solicitor General Invoked Right-Wing Media Myth That HB 2 Prevents Another "Gosnell Situation"

Solicitor General Keller: HB 2 Restrictions "Passed In The Wake Of The Kermit Gosnell Scandal That Prompted Texas ... To Reexamine Their Abortion Regulations." In oral arguments for Whole Woman's Health v. Hellerstedt, Texas Solicitor General Scott Keller was asked why the state of Texas needed to change its regulation of abortion clinics, to which he replied that HB 2 was "passed in the wake of the Kermit Gosnell scandal" in order to improve patient safety. As Justices Kagan and Ginsburg explained, however, the case of Kermit Gosnell -- which concerns the illegal operations of a Philadelphia abortion provider -- is actually an example of Pennsylvania's failure to regularly inspect medical facilities and not a evidence of a widespread lack of safety in abortion care. From the transcript of the oral arguments (emphasis added):

JUSTICE KAGAN: General, could -- ­­ could I ask ­­ -- could I go back to a question that -- ­­ something that you said earlier? And tell me if I'm misquoting you. You said that as the law is now, under your interpretation of it, Texas is allowed to set much, much higher medical standards, whether it has to do with the personnel or procedures or the facilities themselves, higher medical standards, including much higher medical standards for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work. And you said that that was your understanding of the law; am I right?

MR. KELLER: Correct, in this Court's ­­ -- in Simopoulos.

JUSTICE KAGAN: And I guess I just want to know why would Texas do that?


MR. KELLER: When there are complications from abortion that's in the record, Texas can enact laws to promote safety.

JUSTICE KAGAN: No, I know, but -- ­­but the assumption of the question, and I think you haven't challenged this assumption, is that there are many procedures that are much higher risk: Colonoscopies, liposuctions, we could go on and on. And --­­ and you're saying, that's okay, we get to set much higher standards for abortion. And I just want to know why that is.

MR. KELLER: Justice Kagan, this bill was passed in the wake of the Kermit Gosnell scandal that prompted Texas and many other States to reexamine their abortion regulations.

JUSTICE KAGAN: But, of course, the --­­ I mean, Texas' own regulations actually have made abortion facilities such that that can never happen, because you have continual inspections, I mean, to your credit. So that was really not a problem in Texas, having a kind of rogue outfit there. Texas has taken actions to prevent that.

So, again, I just sort of --­­ I'm left wondering, given this baseline of regulation that prevents rogue outfits of ­­-- like that, why it is that Texas would make this choice. And you say you're allowed to make this choice, and we can argue about that. I just want to know why Texas would make it.


JUSTICE GINSBURG: Random ­­-- Texas, under the prior law, has the right to make random inspections. Was --­­ the problem in Pennsylvania was this filthy clinic hadn't been looked at by anyone from the State in 16 years. But Texas can go into any one of these clinics and immediate­­ -- immediately spots a violation? It says you can't operate till you come up to speed.

So Texas has had, as Justice Kagan pointed out, its own mechanism for preventing that kind of thing from happening.

MR. KELLER: Texas did have existing regulations, but increasing the standard of care is valid, particularly not only in light of­­ --

JUSTICE SOTOMAYOR: It's valid only if it's taking care of a real problem.

MR. KELLER: And there were - ­­the -- ­­abortion complications and underreported questions ­­--

JUSTICE SOTOMAYOR: Well, no, no, no. A real problem, meaning, Gosnell, the governor of Pennsylvania, said was a regulatory failure. And only in that, not ­­-- this clinic had not been inspected for 15 years. He -- ­­the doctor was fabricating his reports. That could happen almost in any setting. Anyone who intends to break the law is going to break the law, whatever the regulatory rules are.

You're going to have doctors, as happened pre our laws, who were performing abortions without permission in their offices or without licenses. And I don't want to suggest that we should presume that's going to happen, but it will happen.

MR. KELLER: The constitutional standard for whether a State can make abortion safer can't be that it can only prevent the Gosnell situation, and there are complications.

JUSTICE SOTOMAYOR: Well, but ­­-- yeah, but --­­ but you have to see, as Justice Breyer asked you earlier, why are the problems? Isn't this a self-­created problem? What happened in Texas independent of Gosnell that raised the Gosnell­-like situation concerned in Texas that made ­­ --


JUSTICE SOTOMAYOR: ­­ -- the legislature so after so many years about taking care of this greater risk in abortions, as opposed to all the other procedures that are performed in non­-ASC facilities?

MR. KELLER: Because there are complications in abortion, and this was a top ­­ --

JUSTICE SOTOMAYOR: But there's complications in colonoscopies, and colonoscopies are, what, 15 times --


JUSTICE SOTOMAYOR: 28. Justice Breyer just corrected me.


JUSTICE SOTOMAYOR: 28 percent higher. [Supreme Court of the United States, Oral Arguments, Whole Womans' Health v. Hellerstedt, 3/2/16]


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