In Texas this week, some of the news included a federal
judge ruling on the changes in abortion law voted on by the Texas Legislature
in special session this summer. The ruling was mixed. [Entire ruling here.]
There was nothing related to prohibiting abortions after 20
weeks that was found problematic. This part is consistent with many other
states, and is in line with recent scientific evidence of pain in the fetus
after that gestational age. That part of the bill is set to go into effect
September 1, 2014.
Monday’s ruling mainly focused on the requirement that
abortion doctors have admitting privileges at a hospital within 30 miles of the
clinic. If doctors do not seek and receive such privileges, then 13 abortion
clinics in the state could be closed—and that was set to be enforced this past
Tuesday, so the judge’s ruling agreed with an injunction against enforcement.
As the Houston
Chronicle reported, US Federal District Judge Lee Yeakel “said the requirement for admitting
privileges was unconstitutional because it poses an undue burden on women
seeking an abortion and has no ‘rational relationship to improved patient
care.’”
My son Political Sphere is looking at the case from a
lawyerly point of view. It appears the case was ruled on using the wrong
basis—strict scrutiny rather than undue burden, and probably based on burden on
the wrong person. I don’t understand the terms as well as he does, but I’m
going to attempt to describe the ruling and what went wrong, in lay terms that
I understand.
A finding of lack of rationale does not necessarily lead to
an undue burden ruling. But if there is a rationale, the law must be considered
constitutional unless there is a significant and certain undue burden. In this
case, the judge ignored rationale and decided that any burden was “undue.”
Texas AG Greg Abbott defendant in the case photo from Houston Chronicle |
There was no actual citation of a case, no plaintiff, where
a woman was caused an undue burden; the law had yet to go into effect. But the
law itself imposed no burden directly on women; it imposed a requirement on
doctors. Yet there was also no case of a doctor attempting to meet the
requirements of the law and being unable; that may have happened, but there is
no such plaintiff in this case. The plaintiff is Planned Parenthood and
affiliates against the State of Texas (technically against Attorney General
Greg Abbott), simply claiming the law could
conceivably cause an undue burden on women seeking an otherwise legal
procedure.
All of this was discussed during the legislative hearings,
but one of the main points of the legislation is that currently there is an
exemption for abortion clinics that is not available for all other ambulatory
surgical centers, which do require doctors to have hospital admitting
privileges. For the sake of women’s health, is there a reason for exempting
only abortion clinics? The legislature could not find such a reason. On the
other hand, the legislature could see a rationale for upgrading abortion
clinics to bring them in line with similar medical providers.
For comparison, let’s say a surgical center that specializes
in hand surgery has a problem with a patient during the procedure. Let’s say
it’s something like unexpected bleeding where a transfusion is needed, or a
negative reaction to anesthetic causing cardiac arrest or breathing
difficulties. The doctor would rush the patient to the nearest hospital, where
he would continue as the primary doctor, get the patient admitted without
stopping for paperwork (because the doctor has all the information on the
patient), and the doctor continues to treat the patient with the additional
help of equipment and specialists available at the hospital.
Note that there is no handoff at the hospital door at which
time the patient ceases to be that doctor’s patient and is now a new emergency
patient at the hospital, with new doctors quickly having to familiarize
themselves with the patient, assessing what has happened and what should be
done. Continuity with the doctor is a plus for the patient in these rare
circumstances, and that is why it is required of ambulatory surgeons.
It’s similar also to a regular OB-GYN, who sees the patient
repeatedly at an office or clinic during the pregnancy and then meets the
patient at the hospital they’ve agreed upon when it’s time for the delivery.
Some OB-GYNs have birthing centers, where most deliveries can be done. But if
there is a rare but severe emergency, the hospital where the doctor has
admitting privileges is the backup plan. The doctor who knows the patient
continues as the primary physician—with the additional help the hospital
offers. Again, continuity with the doctor is a plus for the patient, and that
is why admitting privileges are required.
It’s different for paramedics, who give limited emergency medical
care and then turn the patient over to a hospital emergency team. The
paramedics have a preliminary job—to care for the patient until the hospital
can take over. They are likely to go to whichever hospital is most convenient.
The paramedic doesn’t need admitting privileges, because the paramedic will not
serve as the primary physician once the patient has been turned over to the
hospital for care. Nor was the paramedic a doctor engaging in a surgical
procedure the led to the emergency need for care.
In the abortion ruling, Judge Yeakel seems to have based his
decision on testimony from an emergency room doctor from Houston:
Jennifer Carnell, an emergency room physician at Ben Taub Hospital
in Houston, Texas, testified that she has never had an occasion to consider
whether an incoming patient’s physician has admitting privileges at the
hospital. Additionally, she would not have treated any patient differently if
she were aware of that fact. [ruling, p.
11]
What this testimony described was a handoff—as in the case
of a paramedic, rather than an admission as in the case of an ambulatory
surgical emergency. The testimony is irrelevant—unless you’re questioning the
legitimacy of asking any ambulatory
surgeon to have admitting privileges, which was certainly beyond the scope of
the case. All the other types of doctors continue caring for their patient
after admittance to the hospital. Abortion doctors do not. There is no reason
given for why they are not expected to continue care for their patient. Why are
they the exception to the rule? Is it better for the woman’s health to have the
care of their doctor cut off when they reach the hospital? The judge’s ruling
says yes.
On the radio, after the ruling, the top of the hour news kept
repeating the statement that the injunction against implementing the law was
given because it was found that doctor admitting privileges “weren’t shown to
improve health for the mother and the baby.” That’s right—the statement
included the health of the baby. Let’s be clear: the purpose of the abortion
was to kill the baby, but the ruling was reportedly partially based on whether
the baby’s “health” would be improved by having doctor admitting privileges.
Ironically, if the abortion doctor were to continue care of
mother and child in the hospital, that could lead to worse health outcomes for
the child than being handed over to an emergency room—because the doctor’s
purpose is to see to the death of the child.
Note, however, that the ruling itself does not include any
mention about the health of the fetus, baby, or child—only mention of the
mother’s health. So that was just a reporting error.
Back to strict scrutiny as opposed to undue burden. If I
understand correctly, strict scrutiny is a higher standard, and it is being
required of the state, rather than the plaintiff, to prove not only that there
is rationale for the requirement, but also to prove that there are no cases in which a single person could
be deprived of a legal right. The undue burden level would be lower; the state
could simply show that there is a rational reason for the requirement, and that
alternatives remain for those seeking abortion services.
When there is no case of any actual person being harmed,
making the ruling the way Judge Yeakel did is probably both the wrong approach
and the wrong standard.
The next step is the 5th Circuit Court of
Appeals; they previously overturned Yeakel’s ruling against Texas’s requirement
for a sonogram to be shown prior to an abortion. AG Greg Abbott believes, however
the 5th Circuit rules, the case will be appealed to the US Supreme
Court.
My opinion is that Texas did not overstep its bounds by
requiring abortion clinic doctors to comply with the same rules as other
ambulatory surgical centers; there is a rationale, and not all options are
eliminated.
While hospitals set their own standards about who gets
admitting privileges—and therefore it is possible some abortion doctors could
be prevented from meeting the requirement—there is no evidence yet of a doctor
trying to comply and being unable. There is only the hue and cry that the law might make getting care less convenient
for some hypothetical abortion seeker.
Sen. Wendy Davis, from Houston Chronicle |
State Sen. Wendy Davis, who filibustered the bill in the
first special session back in June, which led to its easy passage in a second
special session, carefully avoided mention of “abortion” in her response. She
said, “Texas families are stronger and healthier when women across the state
have access to quality health care.” That is liberal-speak. Women, particularly
women in families, have many many options for health care.
Women seeking abortions are rarely in families, and since
families include children but abortions snuff out the life of children, Davis’s
statement is pretty much a lie to cover up the ugly baby-killing facts of
abortion. She also went on to say, “I would rather see our tax dollars spent on
improving our kids’ schools than defending this law”—completely missing the
irony that, if the law hadn’t been attacked, no money would have to be spent
defending it, so she ought to connect Planned Parenthood with unnecessarily
using up state funds, because the state is required
to defend its laws.
Davis is running for governor—based solely on her notoriety
following the abortion filibuster. She has no other experience to recommend her
to the top executive job in one of the biggest states. Yet she is afraid to say
the word. In an odd way, I find that comforting after a bad day in the courts.
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