Virginia v Abortion Clinics, A Play In Infinite Acts

by evanmcmurry

After an ill-conceived experiment in Mississippi, states are back to using the cloak of “concern for women’s health” to pass non-sensical abortion restrictions. Yesterday, a Virginia law that would require all clinics that provide abortions—including the 20 clinics already standing—to meet the “strict architectural standards” of new hospitals just cleared an important administrative hurdle. The law’s implementation will force most of the existing clinics to close, as they could not possibly have been built in compliance with a future regulation. Which, of course, is exactly the point, but all parties involved are maintaining that the regulation is in the interest of women’s health:

“The women of Virginia deserve safety in any medical situation, abortion included…The abortion industry should want to provide the best standards of care for their clients.”  (via the Virginia-Pilot)

Note the lack of explanation. The “undue burden” part of Casey v. Planned Parenthood has been so narrowly applied by the courts that states need only invoke the motive of protecting women to pass any restriction they want, no matter how onerous, or how irrelevant to women’s heath. What forcing 20 existing clinics conform to regulations on new construction has to do with women’s health doesn’t matter; the claim need only be made.

This is the exact type of move that Mississippi may have endangered when it didn’t even bother to invent an excuse for its most recent abortion restriction that mandated OBGYNs who perform abortions have admitting privileges in local hospitals (the hospitals refused their requests, completing the trap). The bill was such a blatant attempt to close the last remaining abortion clinic in MS that a George W Bush appointed judge struck it down, citing a complete lack of evidence that it was enacted in the interests of women’s health.

The question now is whether Mississippi just accidentally tipped the entire pro-life movement’s hand—i.e., can the motives of a legislature that passes a bill like Virginia’s now be taken credulously, when their play is so obvious? It’s like catching someone at a poker table cheating; how much are you going to believe their next hand of four aces?

It will be interesting to see if higher courts strike down Mississippi’s law for good, and how broadly they write their opinion if/when they do so; they may decide Mississippi has gone too far, and that Casey needs to be applied more actively to all abortion restrictions. If so, it would be nice poetic justice if this bill Virginia just passed is struck down because it doesn’t meet the demands of a future law.