On Wednesday, the U.S. Supreme Court will hear a challenge to Texas’ law imposing stringent new requirements on abortion providers. The justices will analogize and distinguish important legal precedents in what some are calling the biggest abortion-related opinion since 1992. For we amateur jurists, though, there’s an alternative way of considering the case.
Watch a few minutes of videotape, and you’ll see that the case — Whole Woman’s Health v. Hellerstedt — could be over before it is argued. By blowing abortionists’ cover, Planned Parenthood, a nonparty to the lawsuit, might already have lost the case for its allies.
To see how, consider the arguments made by abortion providers about Texas’ HB 2, arguments belied by video footage released last year by the Center for Medical Progress. First, plaintiffs objected that there is no basis for requiring abortion providers to have admitting privileges at local hospitals. Testifying on behalf of the state, doctors explained that privileges ensure physician competency and continuity of care, prevent patient abandonment, and enhance complication management. But plaintiffs claimed the required credentialing violates physicians’ and patients’ due process rights and has no positive effect.
In the video, a Houston Planned Parenthood facility — by no means an atypical provider — suggests otherwise. Second-trimester abortions at the center aren’t uncommon, with at least six different physicians performing them. According to Planned Parenthood’s own employee, quoted in the video, “there’s more opportunity for complication” with them because “obviously the procedure itself is more complicated” and takes longer. “Right,” she says, “there’s going to be more [problems].”
Even if admitting privileges often make only a minuscule difference, these statements show that they could benefit some subset of difficult cases, for example by ensuring that emergency rooms without OB-GYNs on call are staffed to treat abortion-related complications. So the law has a rational basis, and the state has ample reason to enact it.
Plaintiffs in the Whole Woman’s Health case challenged a second requirement, too, that abortion facilities qualify as ambulatory surgical centers (ASCs). They argued that compliance with building regulations was exorbitantly expensive.
But an equally important motivation for the opposition easily could be other ASC requirements related to reporting, research and patient rights. These include requirements for informed consent, or a verbal explanation of sonogram results, and a notification that patients be made aware of their right to refuse to participate in research.
Again, the Center for Medical Progress footage is telling. In one video, employees speak of “moving away from standardized policy” and consent that’s “very specific.” In another video, a procurement technician recounts that “the co-workers I had … would not consent the donors. If there was a [fetus of] higher gestation and the technicians needed it, there were times they would just take what they want. And these mothers don’t know.”
Even if some form of nominal permission is being obtained for the harvesting of fetal remains — which, based on California footage released last August, appears dubious — the detailed ambulatory surgical center requirements represent an inconvenience that plaintiffs’ legal arguments steer clear of mentioning. The apparent culture of laxity and coarseness, with jokes about embryos “all mixed up together in a bag,” clashes with additional stringency and assurances of patient respect.
Of course, extrapolating facts from the videos and superimposing them onto a case involving different parties and complexity is an imperfect exercise. Nonetheless, if the videos don’t entirely debunk abortion advocates’ legal arguments against HB2, they do sow doubt.
As abortion providers now shift their defense from the court of public opinion to the eight highest members of the nation’s judiciary, one wonders what effect this lingering doubt will have on a Scalia-less court. For he surely saw what the public already knows: Detailed legal arguments, undermined by the footage, are camouflage for real moral costs a legislature retains the power to mitigate.
There’s a human hand at the 13:22 mark of the Houston tape. One that, severed from a body, will never be held.
John D. Colyandro and F. Cartwright Weiland work at the Texas Conservative Coalition Research Institute, a public policy think tank in Austin. They were involved in the preparation of several amicus briefs filed on behalf of the state in Whole Woman’s Health vs. Hellerstedt. Reach them through email@example.com.