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The back alley the justices created … and ignore

Five Supreme Court justices — Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor — canceled health and safety regulations for Texas abortion clinics in June with their decision in Whole Woman’s Health v. Hellerstedt. These were long-standing, generally applicable regulations for all ambulatory surgical treatment centers in that state. But when state health officials dared to apply them to abortion clinics, the justices threw them out. So now abortion clinics are virtually the only ambulatory surgical centers throughout Texas exempt from these health and safety standards.

Then last week, the Oklahoma Supreme Court threw out health and safety standards, and similar laws in Mississippi and Wisconsin are also on hold. These cases represent an ongoing legal tragedy made possible in part by justices who claimed that there is not sufficient evidence to support the laws. They were wrong.

A new, detailed, more than 500-page investigative report from Americans United for Life, “Unsafe: How the Public Health Crisis in America’s Abortion Clinics Endangers Women,” directly challenges the justices’ tragic decision and their assumptions about abortion and abortion clinics. The analysis details horrific abortion clinic conditions, documenting that 227 abortion providers in 32 states were cited for more than 1,400 health and safety deficiencies between 2008 and 2016, as well as hundreds of significant violations of state laws regulating abortion clinics.

In their infamous 1973 Roe v. Wade decision, the justices legalized abortion for any reason, at any time of pregnancy, in all 50 states and essentially took over abortion clinic management. Since they had no trial, no evidence, no factual record about abortion, they didn’t know what they were doing. But the result was a huge public health vacuum that would continue for decades.

Justice Sandra Day O’Connor frankly admitted what they did in 1983, noting “our continued functioning as the nation’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.”

Unfortunately, the Supreme Court is really the most incompetent agency in the country to manage abortion clinics. The justices have experience in law, not medicine or public health, and think of themselves as judges of law, not medical facts. Their only means of monitoring abortion clinics is through hearing cases, generally every few years, which obstructs rather than enhances a full factual record.

Despite saying in the Roe v. Wade decision that the states had a “compelling interest” in protecting women’s health, the justices have prohibited the states from regulating abortion clinics in the first trimester (when 90 percent are done). The contradiction was lost on them. When the states tried to fill the public health vacuum, the federal courts — led by the justices — blocked their efforts,

So the public health vacuum continues.

There is no federal law that requires even the reporting of the number of abortions, let alone reporting of injuries and complications. That annual national figure for the number of abortions in the U.S., dutifully reported by the media, is only an estimate. How accurate can that be when California, which is believed to do up to one-fourth of all abortions, hasn’t reported to the Centers for Disease Control & Prevention for years?

Only 2 national organizations collect data — the federal CDC and the private, abortion-rights advocacy group, the Alan Guttmacher Institute — and reporting to both is entirely voluntary.

Abortion injuries and deaths are laundered out of the U.S. public health system through a series of filters, starting with the fact that abortion clinics instruct women — as a matter of practice — to not return to the clinic but to go to the nearest emergency room. The clinics — by design — can’t report what they don’t see. ER procedures and medical coding procedures add to these filters, as does the fact that most abortions are paid for in cash. Death and birth certificates forms from the National Bureau of Vital Statistics also undermine accurate statistics about abortions and injuries.

The richly documented report by Americans United for Life presents the best available, most recent data on the substandard conditions of clinics and providers in this dysfunctional system, and includes an e-chart documenting abortion clinic incidences from numerous states.

The report documents clinics that failed to ensure a safe and sanitary environment, that operated with unlicensed, untrained staff, that failed to maintain essential medical equipment, and that failed to protect minor girls from sexual abusers. On top of these is the problem of “circuit-riding” abortionists who pass through performing abortions without forming a relationship with patients or following up on the surgeries.

There are policies that Congress and the states can adopt to address this public health crisis — like a federal abortion data reporting law — but none can be effective unless the justices stop their obstruction and get out of the way of the work of elected representatives and serious, experienced public health officials.

Originally published in the Washington Examiner on December 22, 2016.