On Halloween night, the Fifth Circuit Court of Appeals ordered that Texas’s health and safety regulations of abortion clinics could go into effect immediately, even while Planned Parenthood’s challenge to the law continues.
The 5th Circuit held that Texas’s requirement that abortionists must have admitting privileges at a local hospital in the case of complications, could go into effect immediately. And the provision that restricts abortions after 20 weeks on unborn children who can feel pain, since Planned Parenthood did not even challenge this provision, is also now in force (Wendy Davis’ filibuster notwithstanding). The only part of the District Court judge’s previous order the 5th Circuit left standing was a judge-created “health exception” for chemical abortions (RU-486) to be executed according to the FDA’s proscribed protocol. This begs the question: When is there a need for such a “health exception,” and who should determine when to use it?
Planned Parenthood and its allies in the abortion industry have a long history of undermining laws that actually protect women’s health and restrict the most grotesque abortion practices by claiming that they are necessary for women’s health. In Doe v. Bolton, the companion case to Roe v. Wade, abortion advocates got the broadest possible health exception – requiring that a law limiting abortion must have exceptions for any physical, emotional, and even “familial” health impact of the pregnancy. Thankfully, The Supreme Court permitted a much stricter health exception for abortion regulations in Planned Parenthood v. Casey, upholding an exemption only for situations where there is a “serious risk of substantial and irreversible impairment of a major bodily function.”
Yet even with this limited health exception, the abortionist makes the determination – the proverbial fox guarding the henhouse. And Planned Parenthood knows that if it can keep that arrangement, with abortionists who profit from making unreviewed determinations of when a woman’s health requires the exception, the exception can always swallow the rule.
But why would such an exception be necessary in the case of the RU-486 chemical abortion regimen, when surgical abortion, the method in use for decades before RU-486, would remain an option? The Texas law simply requires abortionists to follow the protocol that the FDA already instituted. After reviewing evidence for years, the FDA has not concluded that some women need chemical, as opposed to surgical, abortions for health reasons after the 7th week. In fact, every woman who has ever died after taking RU-486 was off FDA protocol.
As usual, Planned Parenthood just asserts that it’s theoretically possible. That’s fine – lotsof things are possible. But who gets to determine that this is the incredibly rare case where a woman has a health reason for having a chemical- instead of a surgical-abortion between the 7th and 9th weeks of pregnancy?
The history of abortionists demanding a need for a health exception to an abortion method demonstrates why this matters. In Gonzales v. Carhart, the Supreme Court upheld the Partial Birth Abortion Ban Act despite its lack of a health exception, respecting Congress’s conclusion (supported by medical evidence) that the choice of the partial birth abortion method was never needed to protect a woman’s health. Abortion advocates decried the ruling as an assault on women’s health. They claimed that as many as 2,200 partial birth abortions were performed annually – all medically necessary to protect a woman’s health.
But the Court called Planned Parenthood’s bluff. It invited a “pre-enforcement challenge,” a claim by an individual woman or doctor to show that in their case such an exception was necessary. Justice Ginsburg warned: “One may anticipate that such a pre-enforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.”
It didn’t happen. It has never happened. Not a single exemption request has ever been filed in the six and a half years since the decision.
CLICK LIKE IF YOU’RE PRO-LIFE!
Evidently, despite the rhetoric, abortion advocates have not had confidence in any “medical necessity” to bring a claim before a court. However, if the Court had carved out an exception and placed abortionists in charge of monitoring it – as the Texas court did – I expect an abortionist would have found “health reasons” to permit the abortions to go forward.
The lesson of the Gonzales decision is that more important than the scope of the “health” exception is who makes the determination. To really protect women’s health, when the 5th Circuit considers this case again in January, it should follow the lead of the Supreme Court in Gonzales and take Planned Parenthood’s guard-foxes away from the henhouse door.
LifeNews Note: Casey Mattox is senior counsel with Alliance Defending Freedom.