Supreme Court should end over-regulation of abortion market

The death of Justice Antonin Scalia has allowed the Supreme Court to withdraw from major activity, issuing narrow rulings until a ninth justice is confirmed. To many, this may be a reprieve from “judicial activism.” Ironically, at this same time, the libertarian legal movement has been laying out the case for “judicial engagement,” urging judges to actively challenge and invalidate laws that infringe on individual rights and freedom.     

But if one’s aim is to advance liberty and protect individual rights, diminished activity by an institution that was designed to be the last and final defense against the usurpation of rights – by legislative majorities, the executive, or lower courts – is not a good development. As Randy Barnett, for example, recently explained, “judicial engagement” is the idea that judges are servants of the people, and their job is to be independent arbiters of justice when questions are raised about whether legislatures have exceeded their powers.

{mosads}One opportunity for proper (and necessary) judicial engagement is Whole Woman’s Health v. Hellerstedt. By the end of this month, the Supreme Court will decide the most important reproductive rights case in 25 years. It is an important case to understand, not only for its impact on women’s access to reproductive health services, but also for its effect on the larger concept of protecting personal liberties from government interference.

This case centers on the constitutionality of two Texas abortion regulations, the admitting-privileges requirement and the ambulatory-surgical center requirement, which are unprecedented legislative intrusions in the already over-regulated market for abortion services. These legislative dictates require physicians who perform abortions, usually an outpatient procedure, to have admitting privileges at hospitals and to have their outpatient facilities meet the same onerous regulations as ambulatory-surgical centers. If upheld, these cumbersome laws will result in the closure of more than 75 percent of all abortion clinics in Texas, a state where 5.4 million women of reproductive age live.  

While these provisions were supposedly enacted under the guise of women’s medical safety, the regulations are entirely disconnected from any such outcome. Instead, these laws are closing legal clinics and limiting access to safe and early abortions without a commensurate reduction in demand. This example of government over-regulation deprives women of innovations that would better serve their health and safety by making early abortion – through medical pill-based abortion, for instance – safer and more easily accessible. The ultimate result is that many patients will either delay treatment, dealing with longer wait times to even be seen for an appointment, let alone treated, or turn to riskier forms of treatment, such as self-induced abortions.

Because of the stakes involved in this case and its cascading implications for the practice of medicine and individual liberty, Dr. Adjala, along with other physicians and journalists, submitted an amicus brief demonstrating that the health and safety of abortion patients would be best served by a free market.

In short, arbitrary restrictions on who can perform an abortion and where it can be performed will limit the supply of abortion providers and distort the free market by driving provider and patient costs higher. Conversely, liberalization of health care markets would increase the supply of physicians and allied health professionals. The supply of medical providers is enhanced when medical professionals have the right to choose their areas of practice, to run their practices as they choose, and to embrace innovation.

The exact reverse of this scenario is what will occur with the admitting privileges requirement at issue before the Supreme Court. Neither improving health nor safety of patients, the admitting privileges requirement artificially restricts the limited supply of physicians who provide abortion services, in the midst of a larger shortage of physicians. It’s an unjustifiable — and wholly pretextual — burden on a market where physicians already face regulatory hurdles. Such a scenario, if left unchecked, negates the free market and abrogates individual choice for both physicians and patients.

The ideal of a free market in health care respects the liberty of patients – who are consumers of health care services and products – by allowing patients to choose services and products best-suited for their individual needs. A market process that promotes the availability of alternatives in health care is respectful of the freedom of doctors and patients to make health care decisions according to individual circumstances and personal preferences. The end result is a healthier public, with patients who have more and better choices – with their personal decision-making power and dignity intact.

The Supreme Court is now in a position to reject the charade of over-regulation on the pretense of patient health and safety.  The stakes involved in Whole Woman’s Health v. Hellerstedt cannot be minimized. We hope the minimalist post-Scalia court will truly engage on this issue, as “judicial restraint” and deference to legislatures in this case do no favors to personal liberty.  The challenged regulations, which are unsupported by any evidence, undermine liberty and autonomy and should be overturned. 

Dr. Amesh Adalja is an infectious disease specialist (board certified in internal medicine, emergency medicine, infectious diseases, and critical care medicine), and writes about capitalism, individual rights, and health care. Erin Culbertson is a litigation associate at Milbank, Tweed, Hadley & McCloy LLP and acted as counsel for Dr. Adalja and his co-amici curiae in this case. The opinion(s) stated in this piece are that of the authors and do not purport to represent the positions, strategies or opinions of their employer.