A lot will be said about which way the Supreme Court might swing on the biggest abortion debate of the year. But it was out of an unlikely justice's mouth that the most profound question may have been asked. "How do [we] deal with this?" For Justice Stephen Breyer, even 24 years on the court don't offer a clear answer. "I have read the briefs. I understand there are good arguments on both sides." In a country where people have "very strong feelings" about abortion, days like this, he admitted, are difficult. Maybe, some of us thought sitting there in the Supreme Court chamber, because the court shouldn't be deciding these issues to begin with.
"I think, personally, the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people," Breyer said honestly. The people who think abortion is morally wrong -- and the people who believe the opposite. It was a surprising moment of candor from the 81-year-old justice. In many ways, it was confirmation of what so many Americans believe: that we should be trying to find legislative solutions on life, not court-created policy.
Of course, that's exactly what the Louisiana legislature tried to do. Now, six years later, they're having to defend a law that was democratically passed -- all because a money-hungry abortion industry can't spare a cent on the safety of women. The state isn't asking for much. It isn't trying to overturn Roe v. Wade or put abortion centers out of business. All Louisiana's done is treat abortion doctors like medical doctors and require them to have a back-up plan if something goes wrong -- which, we know from as recently as March, it does. Nothing about that should be controversial for a business that's spent the last several years insisting it cares about women.
But, it turns out, the abortion industry isn't willing to put its policies where its mouth is. They've gone to great expense, suing every state that tries to bring these "clinics" in line with any other outpatient surgery center. In this case, abortion activists are arguing that hospital admitting privileges are never necessary -- despite so many horrifying stories to the contrary. Jeffrey Wall, from the Justice Department, pushed back on the idea that just because botched abortions are rare doesn't mean precautions aren't necessary.
"The medical director at Hope," he reminded them, "has said that he has, on occasion, had a patient who develops a problem like a perforated uterus and [must be] admitted into the hospital [to be] treated. Now, granted, we don't know how often it happens and, Justice Kagan, I'm prepared to concede that it may not happen all that often. I don't think anybody knows the real rate. But the point is that it does happen. And when it does it's very serious."
Wall also took aim at the plaintiffs challenging the law. After all, he pointed out, these are abortion activists trying to say they're arguing on behalf of women when "their interests are not necessarily aligned." The abortion industry is driven by profit, and women are driven by "health and safety." In other words, how can abortionists say they're looking out for women when they're fighting the laws designed to protect them? It was a powerful argument, one that I hope the Court will take seriously. States ought to have the right to regulate abortion clinics, especially when they've proven time and time again how insincerely they take women's health.
Twenty years ago, as a Louisiana legislator, I heard one shocking testimony after another of women who'd been treated with rusty, blood-encrusted instruments. I listened to the employees talk about doctors roughing up women and then refusing to call 911. It's why a young Rep. Mike Johnson (R-La.) and I worked so hard to pass the first abortion clinic regulations in the country -- to stop these doctors from operating in filthy, disgusting conditions. If they won't hold themselves accountable, then it's up to this Court to decide if anyone can.
For more on the stakes of the Supreme Court case, check out my Washington Times op-ed with Congressman Mike Johnson. And for more on my observations from inside oral arguments, don't miss Wednesday's edition of "Washington Watch."