Sadly, the recent US Supreme Court decision dealing with abortion clinic regulations from Texas has shown just how far divorced many of the justices are from the Natural Law. By using the so-called “undue burden” legal standard, a misnomer to be sure, shows just how these five justices simply do not hold to the traditional sense of what is meant by the term “justice”. Rather, justice is merely something that is to be determined by those who happen to sit on the Supreme Court for the current majority.
What stands out horrifically is the majority opinion where it concludes, “Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations” (See Whole Woman’s Health v. Hellerstedt, pg. 27). Firstly, this understanding of law shows either a complete ignorance of what law really is or a complete disregard as to what it should be. While true that it may not have stopped Kermit Gosnell, it may have and furthermore, it may convince others to behave in a manner that is consistent with other areas of medical practice. However, the need for such legislation to prevent cases such as Gosnell is not properly considered by Breyer et al and rests upon the dubious legal abortion jurisprudence principle known as the “undue burden” standard.
The “undue burden” legal principle is first created in the infamous Planned Parenthood v. Casey decision. It is essentially defined as having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” (Planned Parenthood v. Casey, 505 US 833, 877). It is in this decision one can clearly see that the Supreme Court has left Natural Law jurisprudence behind. Here, specifically, the virtue of justice has clearly lost its meaning under the civil law. Rather, the Court has decidedly twisted the meaning of what is reasonable and for the common good under this standard. No surprise given the statement given by Justice Kennedy in this decision, “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (Planned Parenthood v. Casey, 505 US 833, 851). This “mystery of life” clause is so divorced from reality that the justices indicate their preference for legal positivism. In essence, the Court’s adherence to the idea that not just an individual, but the Court as well, can define its insane view of existence has separated itself from a universal moral standard in which true justice can be based upon. The “undue burden” standard is merely whatever the majority of the Court determines it to be.
This outlook on justice has resulted in the “undue burden” standard being asserted in a way that somehow Texas’ laws (that mandates that abortionists have admitting privileges and that abortion clinics maintain the standards of ambulatory surgical centers) are somehow unreasonable, that is they are unjust in so far as these directives were not properly due to a woman’s so-called right to abortion. Unfortunately, the majority writes that these laws are unconstitutional. But is this really case or is the US Supreme Court itself acting contrary to law from a moral perspective?
With this current type of judicial interpretation, it is little wonder that the majority of the Court has no realistic vision of law. But just how far is the Court’s view from the Church’s position on what law is? Consider the Church’s official teaching within the Catechism of the Catholic Church, “Law is a rule of conduct enacted by competent authority for the sake of the common good” (see no. 1951). This teaching is a restatement of St. Thomas Aquinas’ definition as found in the Summa Theologica, “the definition of law may be gathered; and it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (I-II, 90, A. 4). For Aquinas, there are 5 elements to a law and they are: 1) The law must be ordered, 2) it must be reasonable, 3) it must be for the common good, 4) it must be made by proper authority, and 5) it must be made known.
While the US Supreme Court majority tries to label the law as unreasonable by stating, “In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding” (see Whole Woman’s Health v. Hellerstedt, pg. 26). This “reason” coupled with dubious statistics that are cited that allegedly indicate the increase of women of child-bearing age in rural areas that may have to drive more than a 100 miles or more in order to obtain an abortion was the reason for them to declare the Texas laws unconstitutional. But were these Texas laws unreasonable? It seems a stretch that increased standards to protect women from unscrupulous abortion providers is somehow unjust regardless of the distance they may have to drive. It is common practice within the medical community for those doctors who practice day surgery also must have admitting privileges to a nearby hospital. Why? To ensure continuity of care of the patient. The US Supreme Court seems to believe this to be unnecessary for some strange reason.
Put in simplistic terms, the US Supreme Court will continue to allow abortionists to be less than credentialed when it comes to medical care. It will continue to allow practices such as Kermit Gosnell’s to continue. And it is this that helps to explain just why the “undue burden” standard is contrary to at least two elements of the definition of law. Firstly, the standard is contrary to reason itself. The most basic reason is because abortion itself is unreasonable. The standard bases itself on the notion that abortion is a reasonable thing. However, since abortion is contrary to what is due to the unborn child, namely life since it is innocent, then it is unreasonable to unjustly kill the child. As a result, since it is contrary to justice, it then is also contrary to the common good which the Church defines as, “the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily” (Catechism of the Catholic Church, no. 1906). But what does this term “fulfillment” mean? Is the Church speaking of license to do whatever one wants? If this were the case then what Kermit Gosnell committed could never be deemed immoral. However, there are limits to this idea of autonomy. Again, as the Catechism states, “First, the common good presupposes respect for the person as such. In the name of the common good, public authorities are bound to respect the fundamental and inalienable rights of the human person” (no. 1907). The most foundational right is the right to life. If this is not respected, then it is virtually impossible to logically uphold any other right of the human person.
So now turning back to the majority decision of Whole Woman’s Health v. Hellerstedt, one can see why it was wrong. By using the “undue burden” standard it presupposed that abortion was a good, which it is not. As a result, it failed to recognize the wrongness of past decisions such as Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey. But it also failed to recognize the reasonableness of the Texas laws as well, namely that all people have the right to step into a medical facility that is safe and can handle medical emergencies. Furthermore, it failed to recognize the importance of having doctors that can continue care in the case of emergency hospitalization. As a result, the decision acted contrary to the common good, meaning that it acted contrary to justice since it did not recognize respect for the human person. In essence, the court thinks it more important to have Gosnell-type situations rather than reasonable regulations to ensure that those sorts of circumstances do not become a common occurrence.
The reality remains it does not matter where any day surgical center operates, it must be regulated in order to ensure that it is safe and sanitary regardless of how far one should drive to get there. Yet as long as the US Supreme Court is determined to impose the mystery of life standard there will be little justice expected from that body of judges. It will be as Justice Clarence Thomas stated in his dissenting opinion, “Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear” (Whole Woman’s Health v. Hellerstedt, dissenting opinion by Thomas, pg. 16). Thomas is correct in his analysis. Unless, the court sees that the civil law is to mirror the Natural Law it will continue to decide in an inconsistent way that is a far cry from justice.