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Pro-Lifers Discover Again the Perils of Indirection

For pro-lifers and conservatives, June has been for years now the cruelest month at the Supreme Court. The Court waits until the end of the term to deliver its decisions on the cases that have been the most consequential and divisive. And with one notable exception the record has been a long string of disappointments.

We run the risk now of sounding like Claude Raines in Casablanca if we say that we were “shocked-shocked” to discover that the Court, on Monday, was willing to strike down that carefully drafted law in Texas to upgrade the surgical suites involved in abortions, and to upgrade as well the quality of the “surgeons” who perform these procedures. [Whole Woman’s Health v. Hellerstedt]

And once again, it was the flip of Anthony Kennedy that managed to produce this decision. In the ledger, unseen, chalk up another accomplishment for Joe Biden: Kennedy’s appointment came as a result of the malicious blocking of Robert Bork to the Court, with Biden as the chairman in charge. Bork died, but Kennedy is the gift that (for Democrats) never stops giving.

The law in Texas required that a “physician performing or inducing an abortion. . .must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that. . .is located not further than 30 miles from the location at which the abortion is performed or induced.”

The ostensible purpose was to insure that women have access to the best hospitals in the area if things take a bad turn in abortion – not for the innocent child, whose demise was taken for granted, but for the woman who was undergoing the procedure. And there lay the key to the incomprehension that has marked both sides in the reaction to this appalling decision.

We have heard the complaint now from pro-lifers that, in their zeal to protect “abortion rights,” the majority was willing to engage in what Justice Alito called “carpet bombing,” sweeping away all parts of the legislation, even when they were aimed simply at improving the quality of surgical suites.

But was the Court really opposed to the improvement of medical facilities for women? And were the pro-lifers really outraged here by a want of concern for women suffering the hazards of abortion?

Whole Woman’s Health in San Antonio, Texas [AP Photo/Eric Gay]

The pro-lifers seemed to miss the point that, when the legislation was cast, not as a move to protect the unborn child, but to protect the woman, the case was teed up then for the liberal justices to point out that in only 1 per cent of abortions in Texas has there been a need for admission to a hospital. Or: that there have been far more emergencies of that kind emanating from colonoscopies and liposuctions.

The partisans of abortion suspect – and suspect rightly – that the purpose of this regulation was not to make abortions safer, but to discourage the abortions altogether.

When seen in that perspective, Justice Breyer made a point that ran beyond his own comprehension when he wondered why it was so necessary to the health of women seeking abortions that the operating room must have “a clear floor area of at least 240 square feet” in which “[t]he minimum clear dimension between built-in cabinets, counters, and shelves shall be 14 feet.”

For me the scheme brought back another notable venture in legislating by indirection: the municipal laws brought forth years ago in New York City to combat the brothels that were advertising themselves as “massage parlors.”

The authorities responded by insisting that real massage parlors, henceforth, must have swimming pools of at least 1500 square feet, and squash courts of these dimensions: 25 by 45 by 20 feet. I called this the “ritual of empty exactitude” that legislators go through when they are reluctant to name the wrong they are trying to reach, or when they cannot summon the reasons to explain why it is a wrong that the law should forbid.

Good, liberal New Yorkers were always sheepish about condemning prostitution when it was an activity that commanded the consent of the participating adults. In Texas, the legislators assumed that they were blocked by the courts from saying explicitly that the killing of the unborn child was the evil they were trying to reach.

They thought they were compelled to treat the problem, as they could, by indirection, by professing their concern rather for the women who might be injured by these surgical instruments gone off their aim.

But in a curious way they had to accord themselves then with the lens by which Justice Breyer and his allies viewed the situation. What are we to make of the sensibility and understanding of Justice Breyer – and the colleagues who joined him – as they quoted the District Court in Texas in denying the need for this law? Namely, that “before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.”

About 60,000 to 72,000 abortions per year. And virtually no “deaths”?  For Justice Breyer and his friends, the “deaths” of the unborn are screened out, because those lives don’t count as human lives.

The legislators in Texas imposed on themselves the same lens. They sought to deal with the tools they had, but the board was tilted against them precisely because they did not think they could name the wrong they really wished to forbid.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.