I was going to attempt to put together an editorial on this matter, but the subject is a bit too controversial for everyone to agree on just what to write. Accordingly, I’ll be going solo on this one.
First, the bill, which was previous titled “SB5,” has two new names in the Second Special Session: “HB2” and “SB1.” The contents of the bills, however, remain the same. As I have explained in many previous posts, the bill consists of four parts. First, the 20 week ban. Second, a requirement that abortion doctors have admitting privileges at a nearby hospital. Third, a requirement that abortion doctors administer all pertinent drug in person. Fourth, a requirement that all abortion clinics be converted into ambulatory surgical centers. This last requirement is the kicker. The fourth requirement is what would close 37 of the 42 clinics in the State.
This is what really ticks me off about the mainstream media’s coverage of the bill. The most contentious part of legislation is not the 20 week ban. That is not why Wendy Davis was filibustering and it is not why thousands upon thousands of women came out of the woodwork to protest the bill. When the national mainstream media (I’m talking about YOU, Ezra Klein) uses the shorthand “20 week ban” for SB5 or its successors, it makes Wendy Davis and Texas Democrats look like supporters of late term abortion.
Generally, I become uneasy at the prospect of an abortion taking place after 15 or 16 weeks without good reason. Ethically and personally, I do not think that I would support such action. However, the Supreme Court is very clear that abortion should, for the most part, be legal upon request until 24 weeks. That is the law.
But it is the ambulatory surgical center requirement, not the 20 week ban, that inspired the protests. I am repulsed and disgusted as much as the next person by the horrendous actions committed by the likes of Kermit Gosnell. And I am sure that nearly all of the Democrats protesting these measures are as well. That is because, for the upteenth time, THIS IS NOT ABOUT DEFENDING LATE TERM ABORTION. This is about pushing back against burdensome restrictions that would close 37/42 clinics.
Originally, in Roe v. Wade, the Supreme Court held that abortion should be legal for the first two trimesters and held that restrictions on abortion should only be allowed under “strict scrutiny.” That was 1973, most people know that. However, what many gloss over is how Roe got significantly weakened in 1992, and nearly overturned. In Planned Parenthood v. Casey, the Court replaced the trimester test with the point of viability. That point is roughly 5.5-6 months, but the intention was for it to be reduced as time goes on. However, much more notably, the “strict scrutiny” standard was replaced by the “undue burden” standard, much less strict. This has given the green light to many of the archaic, awful restrictions currently in the law.
That being said, a Federal Court would probably throw out the brunt of SB5/SB1/HB2. The 20 week ban is unconstitutional on its face, for violating the viability requirement. The other restrictions would probably be unconstitutional as an undue burden towards accessing an abortion.
Now, for solution. I must credit Erica Greida from Texas Monthly for this awesome idea. From Twitter:
For the record, I still believe the ambulatory surgical center requirement is unnecessarily burdensome. Despite what Dewhurst and just about every State Senator’s Facebook and Twitter profile says, the point of these regulation is still ostensibly to protect women’s health. If that is the case, the Government should put up the money for the improvements. For my part, I still have no idea how much money this would cost. There has been a painfully small amount of facts injected into this debate–Democrats included.