In 2013, the Texas Legislature passed House Bill 2 (H. B. 2). The intent of the bill was to ensure the safety of women who were undergoing abortions. Many states enacted similar legislation due to the Kermit Gosnell case in Philadelphia. Gosnell ran an abortion clinic and was convicted of murder of three infants that were born alive and of manslaughter of a patient. It was felt that requiring abortion clinics to have the same requirements of an ambulatory surgery clinic would shut down the type of facility run by Gosnell. People opposed to the Texas law felt that it called for unnecessary health regulations whose primary purpose was to prevent a woman from obtaining an abortion.
The two provisions in question were (1) the admitting-privileges requirement which required the physician performing the abortion to have admitting privileges at a hospital within 30 miles of the "abortion facility", and (2) the "surgical-center" requirement which required the "abortion facility" to meet the same requirements of an ambulatory surgery center under Texas law.
Before the law went into effect, a group of abortion providers filed suit (the Abbott case), in which they lost a challenge to the constitutionality of the admitting privileges provision. After the law went into effect, another group of abortion providers filed another suit claiming that both the admitting privileges and the surgical-center provisions violated the Fourteenth Amendment.
After a trial, the District Court held that the surgical center requirement and the admitting privileges requirement created an undue burden to all women seeking a pre-viability abortion. The Fifth Circuit reversed the District Court holding that res judicata barred challenging both the hospital privileges and the surgical-center provisions of the law.
The Supreme Court agreed to hear the case and held that the admitting privileges requirement and the surgical-center provisions created an environment which would lead to an undue burden for those women seeking a pre-viability abortion; this burden on abortion access was deemed to be a violation of the Constitution.
Res judicata is a doctrine whereby cases that have been previously litigated could not be litigated again. There must be finality in the law or cases might go on forever. Assuming that the Supreme Court's conclusion that res judicata did not attach based on the previously litigated Abbott case, did the two contentious provisions create an undue burden for women seeking an abortion or did it just create a burden for those physicians providing the procedure?
The Admitting Privileges Requirement
Recognizing that complications can occur during an abortion, the Texas legislature decided that the practitioner should have admitting privileges at a nearby hospital. This would allow for the transfer of a patient to a higher level of care if needed. It is hard to see how this requirement would lead to an undue burden for the women seeking an abortion, and it would allow for Texas to better ensure the safety of its women seeking abortions.
It is not hard to get hospital privileges. The hospital would check on the licensure, training and experience of the provider and would query the National Practitioner Data Bank to see if there were any incidents of negligent care of the provider which led to a financial payment to a plaintiff. They would also query to see if there were any entries in the Federation of State Medical Boards (FSMB) to check for any actions against the practitioner's license. Letters of recommendation would be required.
Call requirements may be required to obtain hospital privileges but these can be waived if the practitioner has good reasons to avoid the work.
Any practitioner who could not get hospital privileges should probably not be allowed to do abortions anyway!
Plaintiff's argued that this requirement would cause some providers to leave their practice which could have made it more difficult for women to get an abortion. The District Court should have required proof that these providers would leave rather than obtain hospital admitting privileges and that other nearby clinics could not have provided the care for the women affected.
Previous Court decisions came up with a 150 mile distance in order to meet the undue burden standard (Planned Parenthood v. Casey. 505 U.S. 833). Women who had to travel more than 150 miles due to their clinic closure would have an "undue burden." Again, the plaintiff should have had to prove this undue burden requirement.
There was a severance clause in H.B. 2 which would have allowed the courts to sever any provisions of the law that were deemed to be unconstitutional. This clause could have been used to keep the other parts of the law intact.
Even if the admitting privileges requirement had been proven to cause an undue burden for women seeking an abortion, it would have been within the Court's power to sever this requirement for those areas of Texas where it was applicable, keeping in place the rules for other areas of the State. Texas' interests and women's interests could have both been met.
An alternative to this requirement could have been done utilizing the Emergency Medical Treatment Active Labor Act (EMTALA) whereby a patient suffering a complication could have been directly transferred to a nearby hospital which, by the law, would have been required to do, at least, a medical screening exam looking for an emergency medical condition or active labor. If the patient was deemed to have such condition, medical or surgical therapy to stabilize the condition would then be required. After this stabilization requirement was met, other care which may have been required would have to be provided as a doctor-patient relationship would have attached triggering medical negligence law if the patient were not cared for appropriately.
It is hard to see how this admitting privilege requirement would have limited the women's access to abortion, but it may have kept them out of the hands of a suspect surgeon.
The Surgical-Center Provisions Requirement
No one would argue that the states have a right and obligation to do what they can to ensure the safety of their citizens undergoing surgical procedures whether in a hospital or in an outpatient setting. In fact, in Planned Parenthood v. Casey, 505 U.S. 833, the Court recognized that the state may use its regulatory power "all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn." It is also clear that no State should so limit the access of women seeking an abortion that they would then seek the procedure from unlicensed or incompetent providers.
The State requirements for surgery centers are detailed and some requirements are costly. The architectural requirements could have cost thousands of dollars to have the older abortion clinics meet standards. However, with the severance clause, the requirements which were shown to cause an undue burden could have been severed from the rest of the law. Requirements to comply with medically accepted standards of care could have been kept. Shouldn't the right to have medically accepted standards of care be at least as important for women as a right to obtain an abortion? It's hard to see why the whole law had to be deemed unconstitutional especially since the plaintiff's did not show that all of the requirements would have resulted in an undue burden to obtain an abortion.
Some of the requirements that could have remained are (1) a fire alarm system and emergency communication system, (2) eliminate hazards that might lead to electrical shock, burns, or falling, (3) form policies concerning teaching and publishing by staff, (4) obtaining informed consent if patients were to be part of a research study, and (5) formation of a data driven patient safety program. In fact, any provision that was not mentioned in the plaintiff's complaint as causing an undue burden could have been left in place. For some reason, the Court chose not to do this.
Justice Ginsburg, in a concurring opinion, writes that "[i]n truth, "complications from abortion are both rare and rarely dangerous." She is speaking as a lawyer looking at abortion as a constitutional right. I look upon abortion as a surgical procedure.
As a surgeon, I know that bad things can occur with any operation. Anyone put to sleep for a procedure, including an abortion, can die. Patients undergoing procedures where they are sedated or put to sleep, should be cared for by someone who can monitor the vital signs, secure an artificial airway if needed, control bleeding, give medications for low (or high) blood pressure, and treat cardiac arrhythmias. We should expect no less from our providers whether they work in a hospital or an outpatient center where surgical procedures, including abortions are performed.
Judges should not take unnecessary shortcuts from their traditional processes of decision-making for "doctrinal expedients." They should interpret the law and force the parties to meet their legal burdens rather than decide based on preconceived social or political opinions. These steps would go a long way in restoring the electorate's faith in our judicial system.
The states have a right and an obligation to ensure the safety of their citizens undergoing surgical procedures. The Supreme Court should have let Texas meet this obligation. The case could have been sent back to the District Court to have the plaintiff's present evidence to prove what restrictions of the law would actually result in an undue burden for women seeking an abortion in their state. Under the law, any restriction meeting the burden of proof could have been severed from the statute while letting the rest of the law stand. That's what I would have done.
Dr. Weiman's website is www.medicalmalpracticeandthelaw.com