Ah, for the day when money was no object.
Among the many things clarified by last week's Supreme Court ruling on a Texas omnibus abortion bill-Whole Women's Health v. Hellerstedt-was the irresponsible (laissez faire?) attitude of the North Dakota Legislature toward wasting taxpayer money on abortion laws in recent years. In 2013, the Legislature set aside $400,000 to litigate sure-to-be-contested abortion laws. Just to be safe, legislators voted another $400,000 in 2015.
What a difference a year makes.
In light of today's massive state budget shortfall, $800,000 is a significant amount of money. In 2013 and 2015, however, legislators treated it as chump change. So, here we are, anticipating another election and another legislative session. Dare we hope legislators won't waste taxpayer money so cavalierly again? Isn't it important that taxpayers know how candidates in the races for governor and for House and Senate seats answer the following questions: Do you intend to put forward anti-abortion laws? Where will the money come from if those laws pass the Legislature and are challenged in court?
With its emphasis on what constitutes "undue burden" in the Texas case, the court put evidence (facts to back up legislated claims) back into the balance. No more rubber-stamping state legislatures that claim abortion laws passed are to protect the health of women if evidence does not support those claims. In Whole Women's Health v. Hellerstedt, the Supreme Court held that the factual impact of abortion laws must be considered to determine whether the benefit to women who seek abortion outweighs the burden the laws cause for them in accessing abortion.
Longtime legal analyst and Supreme Court commentator Linda Greenhouse described the ruling as "evidence-based medicine meets evidence-based law." A telling point in the opinion read by Justice Stephen Breyer was that those arguing for the Texas legislation were unable to provide one example where abortion clinics would have had better patient outcomes if their doctors had admitting privileges to nearby hospitals. Not one. The same could be said of the other law struck down, which required abortion clinics to be the architectural equivalent of ambulatory surgical centers. In other words, the Texas legislative health claims had no evidence to back them.
We should note that requiring admitting privileges also is on the North Dakota books. North Dakota's law has not been litigated because Sanford granted admitting privileges to doctors serving the abortion clinic. Regardless, in light of the Supreme Court decision, the Legislature should get rid of the law.
The Texas laws struck down are typical of so-called TRAP (targeted regulation of abortion providers) laws. Having figured out many years ago that direct assault on Roe v. Wade was unlikely to succeed, anti-abortion groups gravitated to regulating-"incrementalizing"-abortion clinics out of business. The old saw "death by a thousand cuts" comes to mind.
The laws are cynical ploys, wink and nod stuff, which have mostly been given a pass legally. As a result, they have become more and more prevalent. Of the 1,074 abortion restrictions enacted since the 1973 Supreme Court decision in Roe v. Wade, 288 (27 percent) have been put in place since 2010. TRAP laws include longer and longer waiting periods, increased numbers of clinic visits with doctors, ultrasounds (including the infamous penetrating wand for trans-vaginal ultrasound), and legislature-written scripts doctors are forced to read to patients with information doctors, themselves, deem unnecessary or completely untrue.
In 2013, flush with oil money and hubris, the North Dakota Legislature passed a fetal heartbeat bill (strictest in the nation), a bill the weak governor called "a legitimate attempt ... to discover the boundaries of Roe v. Wade."
Unfortunately, the only thing discovered was how expensive litigation can be. North Dakotans should be sure to elect a new governor and new legislators who don't make the same mistake.