Missouri Right to Life received the following alert from National Right to Life. Missouri passed the law requiring that abortionists have hospital privileges at a hospital within a 30 mile radius and that abortion clinics be licensed as ambulatory surgical centers in 2005. The Missouri law is at the heart of the current conflict involving the Columbia Planned Parenthood abortionist and abortion facility.
Should the US Supreme Court overturn the 5th Circuit Court of appeals decision, the Texas law and any other similar law in the country including Missouri's would be overturned as well.
Last week the National Right to Life Committee (NRLC) filed a friend-of-the-court brief in the U.S. Supreme Court supporting Texas against a challenge to its quality standards for abortion providers. Texas requires, as do many states, that abortionists have hospital admitting privileges and that abortion clinics meet the same standards as other ambulatory surgery clinics. The U.S. Court of Appeals for the Fifth Circuit upheld the Texas laws.
Key to the case is the level of scrutiny federal courts should apply to decide if such laws are constitutional. The NRLC brief addressed the Court's "undue burden" scrutiny, explaining that the Fifth Circuit correctly followed that applicable test.
The brief put the undue-burden test in the context of the Supreme Court's early adoption of the role of national medical board, substituting its judgment for that of legislatures and striking quality-control regulations of abortion providers. It did this though it originally said, in Roe v. Wade (1973), that states could enact such regulation.
The brief then explained how Justice O'Connor argued in her dissent in Akron (1983) that the Court should adopt a more deferential undue-burden test. The brief noted that NRLC submitted a friend-of-the-court brief in Casey (1992), stating what would be necessary to make an undue-burden test workable. In Casey, the Court adopted key aspects of that approach, in a decision that Justice O'Connor co-authored. Casey's lower-scrutiny, more deferential, undue-burden test got the Court out of the medical-board role.
The brief explained that the nature of the undue-burden test from Casey must be understood in light of Justice O'Connor's understanding of it in her Akron dissent. The brief showed that Casey's undue-burden test, properly understood, supports the Fifth Circuit's analysis. And it explained that the concerns that caused the Court to reaffirm Roe generally in Casey while abandoning the medical-board role by greater deference require the Court to not abandon the proper understanding of the undue-burden test (unless the Court wants to overrule Roe).
James Bopp, Jr., NRLC's General Counsel and co-author of NRLC's brief here and in Casey, comments: "After striking many reasonable medical regulations, the Supreme Court decided to abandon the medical-board role in Casey. It did so with a lower-scrutiny, undue-burden test. The Texas challengers want the Court to again be the national medical board by reviving strict scrutiny. That would damage the rule of law and the Court's legitimacy."
The case is Whole Woman's Health v. Cole (15-274). Briefs are available here and here.
Missouri Right to Life is the Missouri affiliate to National Right to Life. Please help us continue our pro-life efforts.