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Abortion set back in Texas

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The gavel: a symbol of judgment and rule of law. It should not be consistent with Don’t tell your mother. But it is when it stands for judicial abuse. What happened to good judgment in America? Or are we left only with scandal?

A three-judge appellate panel today unanimously upheld a Texas law to set safety standards for clinics that offer abortion. As a result only eight abortion mills might stay open. More than that, this decision strikes a blow against a trial judge who went beyond the law and even the pleadings.

The abortion case opinion

Three judges on the Court of Appeals for the Fifth Judicial Circuit all agreed (per curiam) in the case of Whole Woman’s Health et al. v. Cole and Robinson (docket #14-50928). At issue: Texas House Bill No. 2. For the first time, the State of Texas sought to regulate the kind of clinic where someone might do abortions, along the same lines as any clinic where doctors do “day surgery.” First, only a doctor may do an abortion. Second, a doctor doing an abortion must have the privilege to admit a patient to a hospital thirty miles away. Third, such a clinic must have gas-delivery pipelines and other built-in equipment to deliver anesthesia, must have rooms and doorways at least of a certain size, and must be as clean as any day-surgery clinic must be. Fourth, an abortion clinic must have a license from the State Department of Health and let the Health Department inspect it regularly. And last, the law forbids an abortion beyond twenty weeks, when the unborn child can feel the pain. (According to LifeNews, those opposed to this law did not even challenge it on this ground.)

The Supreme Court will soon have to face the abortion question again.

The United States Supreme Court, with several March for Life participants in the foreground. Photo: CNAV files

According to Texas Tribune, the plaintiffs plan to petition for “cert” straight to the U.S. Supreme Court. They could have asked all fifteen Fifth Circuit judges to sit en banc and re-hear the case.

The three judges technically let the Whole Woman’s Health clinic in McAllen, Texas, stay open. That clinic has no doctor who may admit patients to a hospital 30 miles away. The judges felt the Supreme Court would never let them close the only clinic within 150 miles. But: as soon as any other clinic opens any closer to the Rio Grande valley, that obeys this new Texas law, the Whole Woman’s health clinic must either close for good, or make sure its medical staff get such admitting privileges. The McAllen abortion clinic hasn’t done abortions since 2013, and might not re-open in any case. (The problem: the McAllen abortion clinic cannot even recruit any doctor having admitting privileges within 30 miles to do abortions at their clinic. That might go to show fewer doctors today want to do abortions at all.)

The plaintiffs tried to get the appeals court to disallow any requirement that an abortion clinic work like an “ambulatory surgical center.” The panel in effect told them they should have filed that challenge in an earlier case a court had already decided. (Res judicata.) And even without that, the panel threw out the claim on its merits (or lack of them).

Americans United for Life filed its own friend-of-the-court brief in this case last November. “Profits before people,” said the head of AUL of the abortion clinics and the whole abortion industry.

Where does the case go from here?

As mentioned, the losers on this appeal plan to go to the Supreme Court. Denise Burke, writing at The Federalist on January 15, expected this. (Burke serves as Vice-President for Legal Affairs a AUL.) She also suggested the Justices might be itching for the chance to weigh in. The plaintiffs had asked the Supreme Court to enjoin Texas from enforcing its new law. The Court refused. But Justice Stephen Breyer specifically wrote: “[A]t least four Members of this Court will wish to consider” the question no matter what the Fifth Circuit did. The Fifth Circuit acted today. CNAV can probably name the four Justices who “will wish to consider” the case: Breyer, Ginsburg, Kagan, and Sotomayor.

As Burke says, the original Roe v. Wade opinion says the State has an interest in “[regulating] the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that may arise.” The Texas law addresses those precise questions.

What the Court will do, “we will soon find out.” Sadly, we will find out in the context of an alien de facto President who said, during his first campaign for the office, he would not have one of his daughters “punished with a baby.” Worse yet, the Supreme Court will not have time even to take the case up before its summer recess. So a decision will likely come down in June of 2016, in advance of the Republican and Democratic National Conventions.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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Lynn Blair

I’m not surprised at the government endorsement of religion…

Terry Hurlbut

That’s not what they did. They said they found no reason an abortion mill should not come up to the standards of any ambulatory surgical center. I wonder whether you have ever been inside a typical abortion mill. I’ve talked to those who have–and who have tossed their cookies on the strength of it. Would you care to have an invasive medical procedure done on you in a place like that?

Lynn Blair

Medical experts seem to disagree that it’s even necessary for it to be an ambulatory surgical center, or else every abortion clinic would be such. I’m going to trust medical doctors before religious politicians who pass such legislations not to protect patients, but to restrict access to the procedure. That’s all it is – a thinly veiled attempt to restrict abortion. Nothing more.

Terry Hurlbut

I have talked to medical doctors who wouldn’t be caught dead in an abortion mill–precisely because so many of them are as filthy as was Kermit Gosnell’s clinic.

Lynn Blair

So every abortion clinic besides the ones that are rich enough to be able to afford state certification are unsanitary? Got it.

As I said, this legislation is not about protecting patients. It is about restricting access to abortion. Period, end of story, do not pass go, do not collect $200. The Bible-thumping jerks that make up the Texas legislature knew exactly how to close most of the abortion clinics in Texas and those conniving sons-of-bitches did it.

Terry Hurlbut

Yes, you’ve got it. As difficult as it might be to accept, since you show no sign of having visited an abortion mill nor talked to those who have nor even seen a patient admitted from one of those places, what you think is sarcastic is exactly correct. Any abortion mill that does its work in tiny rooms with narrow doorways, with no way to deliver anesthesia, and whose doctors don’t have admitting privileges in any hospital less than thirty miles away, is not a safe environment even for the mother, much less for the unborn child.

Terry Hurlbut

And while we’re on the subject, why are you so hot to have those filthy places stay open? Now this wouldn’t be about having opportunities to roll in the hay without having anything to think about…would it?

Lynn Blair

As I consider procreation to be the ultimate moral crime, abortion in any circumstance is preferable to live birth. If I was a female and forced to carry and give birth to a child by the strong arm of the law I would commit suicide to prevent imposing the unfortunate state of existence upon a new, non-consenting individual.

Making someone travel 1000+ miles round-trip for a legal medical procedure is bullshit in the highest degree.

Terry Hurlbut

Did you say procreation is the ultimate moral crime? What do you base that on?

Lynn Blair

It would have been better for all living beings, human and non-human, to have never existed.

Terry Hurlbut

And what do you base that on?

Lynn Blair

The only way to never experience pain is to never exist.

Terry Hurlbut

That’s the purest expression of nihilism I have ever seen. I suggest you are suffering from dangerous clinical depression and should seek psychiatric attention at once.

Lynn Blair

Well, yeah, I am a nihilist and I own up to it. Dangerous? How so? In that I might sometime decide to commit suicide? Quite frankly suicide is a civil right and the government has no right to infringe upon that right.

Terry Hurlbut

As the holder of a medical degree and one-time licensee in at least three States, I am obliged to give such a warning to any person who displays suicidal tendencies in my presence or on social media, especially in a communication addressed to me. I would be derelict in my duty otherwise, as a matter of law, in addition to the Oath of Hippocrates.

Lynn Blair

Well, I ain’t going to put up with that [censored]. You will NOT say such things to me ever again.

Terry Hurlbut

Well, if that’s your final word on the matter, then I consider my duty discharged. But I find no provision in the Terms of Service of Facebook that would stop me from posting articles similar to this.

Lynn Blair

If you want it take it up with someone, take it up with South African philosopher David Benatar. http://vk.com/doc151440227_220518152

Terry Hurlbut

He’s crazy, too, and so is anyone who talks that way.

Lynn Blair

Dr. Benatar is professor and chair of philosophy at University of Cape Town, South Africa. Apparently he isn’t that crazy if Oxford Press published this work, and many other similar essays by him and other similar philosophers have been published in peer-reviewed journals.

Terry Hurlbut

I don’t care how many people you cite. First, neither argumentum ab auctoritate nor argumentum a populo are valid arguments. Second, no law says even a thousand “scientific peers” cannot all be suffering from manic-depressive psychosis or major depressive disorder.

Lynn Blair

Well, there is not one shred of evidence that points to existence being a good thing, so in the absence thereof, the null hypothesis is assumed true (better not to exist) until absolutely proven false.

Ron Chronicle

If you didn’t exist, you couldn’t have wrote that, or have the ability to think for that matter.

Lynn Blair

That’d be fine by me. Not existing would have saved me a lot of pain and suffering.

Ron Chronicle

Didn’t you ever have a good day?

Lynn Blair

That’s irrelevant. Even if life was 99.99999….% pleasurable and 0.00000…01% painful it would STILL be better never to exist to avoid that miniscule amount of pain. It is better to avoid pain than to experience pleasure, always.

Ron Chronicle

I don’t know you, but I wish there was something I could say to help you see things differently. If it’s any consolation, I care and I hope that sometime soon you would see things in a different light.

Ron Chronicle

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