In the Vietnam War the Second Battle of Quang Tri was a pivotal moment in the war. Quang Tri was a provincial capital, and was highly vulnerable to attack. It was also an important symbolic target since if the Army of the Republic of Viet Nam could not defend, or at least quickly retake, the city then it allowed for North Vietnam propaganda to lay claim to holding a provincial capital even though the military value of the city wasn’t high. The North Vietnamese Army was able to take Quang Tri, and 81 days later the Army of the Republic of Viet Nam was able to retake the city. President Nixon hailed the victory as proof that the Vietnamization of the war was sound policy. In truth, the battle was the first cracks in the dam that lead to South Vietnam’s fall because of unsound policy. The Supreme Court ruling today is the right to life movement’s Quang Tri.
Make no mistake, the decision is a gut punch to the right to life cause. It’s also a defeat of their own making. I have previously written about the importance of how to draft and defend legislation. This piece of legislation was doomed from the moment it was drafted. Why? Because it was 1) clearly an antiabortion law that was not drafted with defense in mind, and 2) was not defended in a manner that left open the possibility for a partial victory. Of these two areas, the drafting was where the bill failed; the defense was unimaginative, but legally the safe route to go.
Now if this post sounds angry it’s because I am angry. Not at anyone or organization in particular, but at the inertia and groupthink that the right to life (and for that matter religious freedom) organizations display. What follows is a brief section I submitted to a group who had standing to file an amicus brief. This was not incorporated into the brief submitted.
As case law developed in Gonzales v Carhart the Court also defined what was not an undue burden stating, “When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations.” 550 US 124… In Gonzales the Court indicated that the threshold is very low stating, “Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.” Marginal safety is the threshold needed to support regulation. At first blush this may seem to be an exceptionally low standard – regulating the masses for the benefit of the margins – but the marginal safety standard is a common threshold for regulation. As an example, the Environmental Protection Agency uses a how many deaths or illnesses per 1,000,000 people is acceptable as a basis of their calculations for enacting regulations. The masses are required to abide by the environmental regulations designed to protect the margins of the population.
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[W]ith the Affordable Care Act decision precedent has been established that Constitutional interpretations of the law, even if not found in the plain language of the statute, is now permissible. This arises from the Commerce Clause not being the basis of the affirmation of the Affordable Care Act, but rather taxing function being the fifth vote to hold the act Constitutional when the administration insisted the penalty was not a tax. Upon reflection, this is an argument better raised at the Supreme Court level rather than at the relatively friendly Fifth Circuit since raising the argument prematurely gives the other side notice of the argument and therefore the ability to address it in amicus briefs of their own when this matter reaches the Supreme Court.
Closely related is the argument that the Affordable Care Act establishes that the government has an interest in establishing universal minimum levels of healthcare. At first blush this argument seems to have merit, and so long as the two [competing] standards can both be complied with there is no preemption issue. However, after rereading the legislation again, the plain language of the legislation does not allow that conclusion as the legislative findings relate to the care of the child not the mother.
Go back and track the first paragraph’s language against the Fifth Circuit’s decision. Then look at the amicus briefs and see if the supporting argumentation regarding what constitutes an acceptable level of harm to warrant regulation is present. Then look at the Supreme Court amicus briefs and see if it’s there. Then look at the Supreme Court decision and ask yourself, would it have tilted the scales? We can’t know the answer, but at least it directly addresses the reasoning by the majority regarding the benefit portion of the undue burden equation and makes the conclusion, “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes” less likely.
Now look at the second two paragraphs. Would they have tipped the scales? Nope. The Supreme Court treated the case as was set forth in these two paragraphs. So why include them? The Court noted, “Unlike in Gonzales, the relevant statute here does not set forth any legislative findings. Rather, one is left to infer that the legislature sought to further a constitutionally acceptable objective (namely, protecting women’s health).” This means that the Court didn’t have any data set forth in the bill in order to use to justify the constitutionality if they wanted to. As such, the Court relied on amicus briefs by those opposed to the bill. Had the bill been set forth as a health and safety bill rather than an antiabortion bill and established the amount of benefit to be balanced against the burden it’s a much stronger argument to be had. We don’t know what point would have tipped the scales for Justice Kennedy, but a strong defensible bill and argumentation that the bill follows existing patterns of law makes for a much higher chance of success.
I’m all for creative attacks on abortion; if there’s going to be any serious inroads made a direct attack isn’t going to be successful. However, creative attacks need to be well conceived and defensible. The defeat today was at least partially avoidable. Remember, the challenge against the bill was on unconstitutional as applied grounds. This means a well crafted bill would have allowed for a defense along the lines of if the Court disagrees remand back with instructions to ascertain what areas need to be allowed to have access without admitting privileges and ambulatory surgical centers, and what areas are already well serviced so that any new center must meet the requirements. What’s the benefit? The principle of law set forth in HB2 would stand even though application would be a fact specific determination. Once the principle of law is affirmed then it’s a beachhead from which to tweak and pick away at abortion from the fringes.
The right to life movement has hit upon a great strategy in indirect attacks against abortion. The problem that the right to life movement currently suffers from is the inertia that is built into getting legislation passed precludes thoughtful constructive criticism from sympathetic sources. Since the law also limits who can submit an amicus brief group think sets in and outside ideas aren’t able to be forwarded into the argument. As a result the groupthink becomes insulated from outside thought. Today’s decision was a gut punch, but not a knockout blow. There’s still time to get up off the mat and fight the good fight. This is the right to life’s Quang Tri moment. The Vietnamization policy had become ingrained because of inertia and groupthink and prevented needed adjustment. The question we face today is has the same thing occurred with the right to life movement?