Ladies’ Day: Supreme Court Decision in Texas TRAP law case

Whole Women's Health

The slip opinion is available here in PDF.  Dissents centered on the issue of res judicata, the idea that once a question is litigated it can’t be re-litigated, however the majority ruling says,

“Changed circumstances showing that a constitutional harm is concrete may give rise to a new claim. Abbott rested upon facts and evidence presented before enforcement of the admitting-privileges requirement began, when it was unclear how clinics would be affected. This case rests upon later, concrete factual developments that occurred once enforcement started and a significant number of clinics closed.”

In dissent, Justice Thomas is having none of this —

“This suit is possible only because the Court has allowed abortion clinics and physicians to invoke a putative constitutional right that does not belong to them—a woman’s right to abortion.

Above all, the Court has been especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child.

There are no “insurmountable” obstacles stopping women seeking abortions from asserting their own rights, the plurality admitted. Nor are there jurisdictional barriers.”

Notice, that for Justice Thomas the right to select a medical procedure is “putative,” and “purported.”  Nor should clinics, facilities, and physicians assert the claim that women have the right to obtain services (such as abortions) from them.  By Justice Thomas’s lights the only complaints to the court should come from those women whose rights have been denied.  He pitches the ‘third party litigant’ to the side, as if a union could not seek redress on behalf of its members, or a company should not appeal on behalf of its shareholders?

However, his final point in the list above borrows from the original anti-TRAP argument (‘insurmountable obstacles’) and bluntly tells women “if you want your rights to seek the medical procedures you feel are your right, then please feel free to file a lawsuit.”  Presumably, at your own expense.,

All this fails to answer a simple question:  How do any of the TRAP laws prevent rich women from seeking an abortion – or any other medical procedure for that matter?  They don’t.  And they were never intended to do so.

We should end on a high note, as usual provided by Justice Ginsberg:

Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”  (She cites tonsillectomies, colonoscopies, and in office dental surgeries.)  […]

“Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.”

Game. Set. Match.

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