Ken Herman’s columns in the Austin American-Statesman are among the paper’s few bright spots. I don’t always agree with Herman, whose brand of modern-style liberalism usually shines through. But he’s intelligent, analytical, witty, and fair.
I cringed inwardly this morning when I read this in Herman’s column (“Judgment on constitutionality, not on abortion,” behind a paywall):
Local U.S. District Judge Lee Yeakel showed a keen understanding of both sides of that equation this week in his decision striking down portions of Texas’ new abortion restrictions law. And, though a federal appeals court on Thursday lifted Yeakel’s injunction against enforcement of portions of the new law, he offered solid logic in throwing out the provision requiring abortion providers to have admitting privileges at a hospital within 30 miles.
“The court expresses grave reservations about allowing a hodgepodge of diverse medical committees and boards to determine, based solely on admitting privileges, which physicians may perform abortions,” he wrote, adding that the provision “places an undue burden on a woman seeking an abortion.”
What did the appeals court — a three-judge panel of the Fifth Circuit — have to say? This:
We first consider the hospital-admitting-privileges provision of H.B. 2 [the Texas law] and whether the State has made a strong showing that it is likely to succeed on the merits. We conclude that it has….
… The district court focused primarily on emergency room treatment of women experiencing complications following an abortion. This overlooks substantial interests of the State in regulating the medical profession and the State’s interest in “‘protecting the integrity and ethics of the medical profession.’” As the Supreme Court has noted, “the State has ‘legitimate concern for maintaining high standards of professional conduct’ in the practice of medicine.’” The Supreme Court has also consistently recognized that “[r]egulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.”
The State offered more than a “conceivable state of facts that could provide a rational basis” for requiring abortion physicians to have hospital admission privileges. The State offered evidence that such a requirement fosters a woman’s ability to seek consultation and treatment for complications directly from her physician, not from an emergency room provider. There was evidence that such a requirement would assist in preventing patient abandonment by the physician who performed the abortion and then left the patient to her own devices to obtain care if complications developed. The district court’s finding to the contrary is not supported by the evidence, and in any event, “a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”
The requirement that physicians performing abortions must have hospital admitting privileges helps to ensure that credentialing of physicians beyond initial licensing and periodic license renewal occurs….
The district court’s conclusion that a State has no rational basis for requiring physicians who perform abortions to have admitting privileges at a hospital is but one step removed from repudiating the longstanding recognition by the Supreme Court that a State may constitutionally require that only a physician may perform an abortion….
We similarly [to the U.S. Supreme Court’s opinion in Gonzales v. Carhart] conclude that the provisions of H.B. 2 requiring a physician who performs an abortion to have admitting privileges at a hospital, “measured by [their] text,” do not impose a substantial obstacle to abortions. Just as the Supreme Court concluded in Gonzales with regard to the federal Partial-Birth Abortion Ban Act of 200335 that “[t]here can be no doubt the government ‘has an interest in protecting the integrity and ethics of the medical profession,’”36 there can be no doubt that the State of Texas has this same interest, as well as an interest in protecting the health of women who undergo abortion procedures.
There is the possibility, if not the probability, however, that requiring all physicians who perform abortions to have admitting privileges at a hospital may increase the cost of accessing an abortion provider and decrease the number of physicians available to perform abortions. As the district court correctly recognized, the Supreme Court has nevertheless held that “‘[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.’”
There’s much more, but that’s enough to make this point: It should have been evident to Herman that Judge Yeakel’s “solid logic” wasn’t really solid.
I will give Herman the benefit of the doubt by suggesting that he didn’t have time to digest the Fifth Circuit’s opinion before he wrote his column. (The opinion was issued in the morning of October 31, and Herman’s column was posted at 7:28 p.m. on the same day.)
But I come to praise Herman, not to vilify him. What’s praiseworthy in his column are two paragraphs near the end:
In addition to being a most-divisive issue, abortion is one with little to no middle ground. And it’s marked by close to a total inability for one side to understand the other side.
One of the blindest spots in the argument is held by abortion rights supporters who believe the other side is driven by opposition to women’s rights. Abortion rights foes are motivated by a sincere belief that an unborn child or fetus, or whatever term you choose, is a form of life entitled to constitutional protection. You might agree, you might not. But if you don’t, it’s important that you understand that [anti-abortion] side isn’t driven by a desire to curtail woman’s rights. (Emphasis added.)
It’s hard to say it any plainer than that. Kudos to Herman for saying it, and for figuratively confronting the pro-abortion forces, which — in leftish Austin — must vastly outnumber the anti-abortion forces.
I expect Herman’s candor to be “rewarded” with irate and hateful messages from many abortion advocates. Herman must have anticipated such messages — and perhaps worse — before he published his column. I therefore admire not only his candor but also his intellectual courage.