There is no question that the Supreme Court’s decision yesterday in Whole Woman’s Health v. Hellerstedt is a win for abortion clinics and their doctors. Whether the decision is a victory for women and for liberty, we ought not be so sure.
Abortion-rights organizations quickly claimed that the decision was this generation’s Roe v. Wade, and in certain ways, they are right. First, Roe was first and foremost a victory for doctors, whose rights, Justice Harry Blackmun later suggested, were the real objective of his opinion. In this case, abortion doctors and clinics putatively acted on behalf of their patients (as allowed by a procedural exception atop an exception). Yet clinics’ pecuniary interest to avoid additional health-and-safety standards, like that of other businesses that lobby against the same, stands athwart the interest of their patients. So when the clinics win, as they did yesterday, can we be so sure that women facing unexpected pregnancies have won as well?
Second, in yesterday’s decision as in Roe before it, the Court relied on an inadequate and ill-informed basis of facts as foundational to its judgment of law. When working to ascertain whether the purpose or effect of the law was undue, under the standard set out in Planned Parenthood v. Casey, the trial court did not have before it evidence that purported to show that HB 2 had caused clinic closings, nor that the remaining clinics could not meet abortion demand in the state. The district court was asked to make an inference from the clinic closings alone, and it obliged. This is not unlike the inference from inadequate facts that led to the sweeping decision in Roe.
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