As Supreme Court arguments loom next week for a significant abortion-rights case involving clinic regulation in Texas, the New York Times on Sunday went all-in on abortion, with its former Supreme Court reporter and fervent abortion supporter Linda Greenhousemaking the case on the front of the Sunday Review section with “The Facts About Abortion Rights.” The paper also devoted its lead editorial, “Showdown on Abortion at the Court,” to defending the “constitutional right” (as of 1973, anyway).
While Greenhouse claimed a factual approach, she predictably attacked the Texas clinic regulations as an obvious smoke-screen for an anti-choice agenda.
Greenhouse herself certainly has a strong opinion on abortion and many other things, including the "inflammatory" Antonin Scalia, who she criticized just a few days after his death.
In 1989 she marched at an abortion rights rally organized by the National Organization for Women.
In 2006 she delivered a commencement address at her alma mater railing about how "our government [i.e. the Bush Administration] had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism."
Two weeks ago Greenhouse took the death of Justice Antonin Scalia as an opportunity to unload on the dangerously partisan and conservative Supreme Court, and to call the recently deceased Justice Scalia names.
In the days since Justice Antonin Scalia’s death, there has been plenty of talk about the substantial impact his absence will have on the Supreme Court’s docket. I’d like to shift the focus to the Roberts court itself.
Fate has handed the justices a chance to hit reset.
If that seems an uncharitable, even tasteless observation, so be it. I’ve become increasingly concerned, as my recent columns have suggested, that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution. Justice Scalia’s outsize role on and off the bench contributed to that dangerous development to an outsize degree.
His frequent parroting of right-wing talking points in recent years may have reflected the contraction of his intellectual universe. In an interview with the writer Jennifer Senior (now a New York Times book critic) in New York magazine in 2013, Justice Scalia said he got most of his news from the car radio and from skimming The Wall Street Journal and the conservative Washington Times. He said he stopped reading The Washington Post because it had become so “shrilly, shrilly liberal” that he “couldn’t handle it anymore.”
These insights might help explain why someone as smart as Antonin Scalia seemed so un-self-conscious about his inflammatory rhetoric. He was simply giving voice to those he spent his time with. His world was one that reinforced and never challenged him.
By contrast, Greenhouse strained to come across as objective while discussing abortion on Sunday.
At the core of the most important Supreme Court abortion case in a generation is a series of questions about facts. In deciding the constitutionality of a law that would shut down most abortion clinics in a state in the name of protecting women’s health, which facts about the law’s rationale and its impact may a court consider? Which facts must a court consider? Are there facts a court must ignore entirely?
Granted, that’s not how the Texas abortion case that is scheduled to be argued on Wednesday is usually described. I’ll explain. But first, for context, I’ll put on the table a few facts about House Bill 2, the 2013 Texas law that requires abortion clinic doctors to have hospital admitting privileges and the clinics themselves to be fitted out as mini-hospitals, even those that simply dispense the pills that bring about a nonsurgical abortion.
Greenhouse listed three “facts,” the final one seemingly most troubling:
Fact No. 3: After the bill, originally known as Senate Bill 5, or S.B. 5, cleared the State Senate, David Dewhurst, then the lieutenant governor, tweeted a map that opponents had circulated showing all the abortion clinics that would have to close. “We fought to pass S.B. 5 thru the Senate last night, & this is why!” he exulted. A subsequent tweet found him back on message, explaining that “I am unapologetically pro-life AND a strong supporter of protecting women’s health. #SB5 does both.”
Why would the lieutenant governor -- perhaps on the advice of the state’s lawyers, but that’s just a guess -- water down his triumphant tweet by throwing health into the mix? The answer lies in abortion politics and abortion law. Both are highly relevant to Whole Woman’s Health v. Hellerstedt, the case before the Supreme Court.
That detail also made its way into the paper’s lead Sunday editorial.
Laws that predictably close clinics through unattainable regulations don’t inform and don’t persuade. They destroy the infrastructure on which women necessarily depend for the exercise of their constitutional right. States can’t impose such regulations in the name of protecting unborn life. They need to find another justification.
Greenhouse concluded, based on her reading of the “facts” that the Supreme Court should overturn the Texas regulations.
Evidence matters to courts. Courts take evidence all the time. That’s why we have trials, and judges. The notion that when it comes to restricting abortion, facts shouldn’t count, is to give “abortion exceptionalism” a new meaning. It is a meaning the Supreme Court will reject if it is true to its precedents and principles.
The paper’s lead editorial also flatly stated that there is a “constitutional right to an abortion,” as if that was on the minds of the men in Philadelphia.
Since Roe was decided in 1973, there have been countless efforts by anti-abortion activists to enact state laws that restrict abortion rights, often in the guise of protecting women’s health. But few laws have gone as far as the Texas statute, which places so heavy a burden on hundreds of thousands of women across the state -- particularly those in poorer rural areas -- that it has effectively destroyed their constitutional right to an abortion.
One suspects something is up when the liberal Times comes out against government bureaucracy.
Admitting privileges are often hard for doctors to get for bureaucratic reasons, and they have no bearing on the care a woman receives. Surgical-center standards are prohibitively expensive to meet and medically unnecessary, since abortion is one of the safest of all medical procedures, with a complication rate of less than one-tenth of 1 percent. That is true whether an abortion is performed in an outpatient clinic or a doctor’s office, as the vast majority are, or in a hospital. Meanwhile, Texas law does not require these same staffing and equipment standards for clinics that perform procedures with far higher complication rates, like colonoscopies.
But Justice Anthony Kennedy, who was a co-author of the Casey decision, only has to look to the words of that opinion to overturn the appeals court ruling. He should see that both in effect and in intention, the Texas law demolishes the constitutional liberty that he affirmed in Casey.