John Rustin | March 24, 2016 | SHARE: 
This week, NC Family president John Rustin talks with Chris Gacek, senior fellow for regulatory affairs at Family Research Council, about an important case currently before the U.S. Supreme Court called Whole Women’s Health v. Hellerstedt, which involves a legal challenge to Texas’ abortion safety law.
INTRODUCTION: Chris Gacek is senior fellow for regulatory policy at the Family Research Council in Washington, DC. In addition to his great work at FRC, Chris has previously worked at The Heritage Foundation, the American Enterprise Institute, as a law clerk at the U.S. Court of Appeals for the Sixth Circuit, and at the Federal Communications Commission.
Chris is with us today to talk about an important case currently pending before the U.S. Supreme Court called Whole Women’s Health v. Hellerstedt, which involves a legal challenge to an abortion safety law that was passed in the State of Texas. Oral arguments in that case were heard earlier this month, and FRC was one of several pro-life groups to file a friend of the court brief in support of the Texas law. We’ll be talking with Chris about that case, why it matters, and when we can expect a ruling from the high court.
JOHN RUSTIN: As we begin, why don’t you give us a little bit of background on the Whole Women’s Health case, and what key questions are before the Supreme Court?
CHRIS GACEK: If you recall a few years ago, there was a pretty horrific abortion scandal that came out of the state of Pennsylvania, when authorities raided the abortion facility run by a doctor named Kermit Gosnell. There were prosecutions, and Gosnell’s in prison now, and people who worked with him went to prison. And one of the things that came to light was that there were a lot of unsafe medical conditions, and the state of Pennsylvania basically hadn’t regulated properly, and really hadn’t conducted audits or inspections of abortion facilities for decades. Well a lot of states reacted to this, and decided to reexamine their abortion regulations, and one of the states who did this was Texas, and if you recall there was just this huge battle in the state of Texas in 2013 over a bill, and a couple of the provisions are now being examined constitutionally up at the Supreme Court. And two of those provisions have to do with safety, and one in particular has to do with the fact that doctors performing abortions will be required to have admitting privileges at basically a hospital within 20 miles of the abortion facility, and so if you’re doing an abortion, you have to be able to admit your patient into a hospital. And then there was another provision that essentially upgraded the quality of the facility that could perform abortions. And so there’s also a category called ambulatory surgical centers, and it turns out that earlier in 2003, abortions after 15 weeks had to be carried out in these ambulatory surgical centers in Texas, but after the Gosnell event, the state of Texas said this applies to all abortions And those provisions having to do with something being an ambulatory surgical center, and with things like having hallways that are wide enough for gurneys to get in and driveway spaces that an ambulance can get to. And in the state of Texas, there’s something like 400 of these ambulatory surgical centers, so it’s not like this is a rare facility, and a number of the abortion facilities in Texas do meet these standards, in fact, the ones who perform late-term abortions. So that’s the crux of it. And these two provisions were challenged for imposing an undue burden on the right to have an abortion because they made it too difficult for doctors to do abortions, so that’s sort of the gist of the case.
JOHN RUSTIN: Thank you Chris, that’s helpful background information to have, and fortunately North Carolina in 2013, we sought somewhat similar legislation to what Texas passed, but I know that all eyes were really on Texas because of the litigation over HB2, and so as you stated there are several provisions of that legislation that have been the subject of litigation.
Now, the U.S. Court of Appeals for the Fifth Circuit ruled in favor of Texas in this case, fortunately. Talk a little about the Fifth Circuit’s ruling if you will, and why it is really important to the potential outcome of this case?
CHRIS GACEK: That’s right. The US Court of Appeals for the Fifth Circuit essentially upheld these provisions, and then the abortion clinics have challenged that ruling. The reason this is important is that with the death of Justice Scalia, if the Supreme Court were to have a 4 to 4 holding about the constitutionality of these provisions, essentially what would happen is that the Fifth Circuit decision would stay in place. And that’s the most significant thing. The decision it’s actually a very good decision and it’s written by Judge Edith Jones, and one of the things that they recognize that as a matter of fact from evidence presented by Planned Parenthood itself that there were somewhere in the order of 220 women every year in Texas who end up going to emergency rooms after having abortions, and so that’s quite a large number, and I think it kind of gives you the sense of why this is important. As we said at the opening of FRC’s brief, people who visit a dentist, eye doctor, dermatologist or ear nose and throat specialist do not typically leave in an ambulance, yet this is a frighteningly common occurrence that happens at abortion facilities, and it’s really not acceptable that you would have these kinds of health problems, and the Fifth Circuit took note of this. During these proceedings, Planned Parenthood conceded, , “That at least 210 women in Texas annually must be hospitalized after seeking an abortion.” That was a significant ruling, and a lot of time the lower courts don’t come out in favor of state regulations, but here they did.
JOHN RUSTIN: Chris, I think it’s important for our listeners to recognize that while we heard a lot about the Kermit Gosnell situation and the atrocities that took place at his clinic in Pennsylvania, this was really a reaction not only to that case but also just applying common sense to the circumstances where you’ve got a oftentimes an invasive surgical procedure that’s taking place, and because of Supreme Court rulings in past decades, abortion has been treated differently in many respects to other surgical types of operations. And so in many cases abortion doctors have gotten a pass on this and have not had to face the scrutiny and the real common sense restrictions that other surgical centers have to. And so, just like in the state of Texas and in discussions about this similar legislation in North Carolina, the lawmakers understood not only were they dealing with the atrocities that came to light as a result of the Kermit Gosnell case, but also just the real live circumstances of what’s taking place at abortion clinics across our nation. And that’s exactly what happened here in Texas.
Chris, let’s talk specifically about some of the arguments that were made by opponents of the Texas law, when this case appeared before the Supreme Court for oral arguments. I know that one is that the Texas regulations have resulted in the closing of a number of abortion clinics in that state. Is this an accurate argument, and why would this be an issue the Supreme Court might consider in how it ultimately rules in this case?
CHRIS GACEK: Let’s say it’s true that there have been some closures, that’s normally not a defense for a regulatory scheme that you would find in any other context, right? In fact, arguments going on in other places in the Fifty Circuit, in Mississippi for example, the claim is being made that all the abortion facilities in that state will have to close. It’s sort of like the regulators sort of holding a gun to its own head and saying you can’t regulate me or I’ll shoot, right? The way the law normally works is you say to people, the law will not allow there to be barriers to entry in the abortion business that place undue burden on abortion. And as I noted before these regulations about ambulatory surgical centers and these sorts of things are in place and there are clinics all over America that are working within the regulations, such as having admitting privileges for doctors. So, the way that the world normally works is somebody should have to enter the market and have a center that meets the standards and have doctors that are good enough they can get privileges somewhere. I think that’s the standard by which we operate, especially in Texas where there are a number of facilities that are open, and there’s no problem if you are in Texas getting an abortion, in fact Planned Parenthood’s no longer in the litigation, so they’ve all sort of dropped out and are not even part of the argument there. It shouldn’t be a defense against regulation that you’re not willing to meet the regulation. The way it normally operates is [we ask] is this a reasonable regulation? There are 440 facilities of various kinds in Texas that meet these regulations on facilities. Do other doctors have admitting privileges and also perform surgery? I mean these things seem pretty reasonable. There are plenty of facilities still open in Texas, and you shouldn’t analyze the problem in terms of the type regulation and whether it’s reasonable.
JOHN RUSIN: Chris, talk a little bit about your thought with respect to the significance of the Supreme Court’s ruling in this case, and when that might happen.
CHRIS GACEK: We know that there will be a decision by the end of June because that’s when the term ends. So what that means is you have four liberal justices who will vote to strike down the regulation, and let’s say Thomas Alito and Chief Justice Roberts are willing to uphold the regulation, the question then is whether Kennedy, who is one of the three justices who put the Planned Parenthood vs. Casey standard in place, whether or not he’s going to vote to uphold the regulations. Now, at the time of oral argument, there seemed to be some kind of issue as to whether or not there were some facts that need to be clarified, that there might be a remand back to the lower courts to have some questions answered. And the Supreme Court in that case, particularly Justice Kennedy may be looking to get some clarification on who is going to be the justice to fill Scalia’s seat, because maybe you might not want to approach this and make it have the final decision with just a four, four body up there. It may be that maybe that he’s going to side with the liberals and be a five, three decision, but after Justice Scalia died, the best that could happen in terms of a pro-life position is if Kennedy aligned with us on everything, then it would be a four to four tie, and there would be no essentially no ruling deciding the issue, and then the Fifth Circuit decision would stand. But that wouldn’t have any affect on cases in other parts of the country. And so if you came from a part of the country where these kinds of regulations were struck down, that court of appeals decision would be upheld. In a way, we’re all in sort of a holding pattern until that that position is filled, assuming that Kennedy would vote to uphold these. If he’s gonna go and vote against the Texas regulations, then that would be five to three, and the addition of another liberal let’s say wouldn’t matter, and the addition of a conservative would only make it five to four. So it’s just a matter of what Justice Kennedy’s going to do.
JOHN RUSTIN: We’ll definitely be keeping our eyes open, and be watching with great interest in this. Unfortunately with that, Chris, we’re nearly out of time for this week, but I want to give you an opportunity to let our listeners know where they can go to learn more about your work at the Family Research Council.
CHRIS GACEK: You can come to our website, www.frc.org if you’re interested in learning more about this case.
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