Admitting Bias

Earlier this week a couple of stories appeared concerning abortion—specifically concerning whether abortion clinics can be required to meet the standards required of other ambulatory surgical centers. One story is that Texas’s law is having another day in court. The other is that a judge blocked such a law in Alabama.

Tuesday's Houston Chronicle front page

I’m dealing with the news section of August 5^th Houston Chronicle, front page above the fold, and A-7, where theoretically you get news instead of opinion. But what we get here is the news from the point of view of the “abortion-rights” side.

The Texas story’s first paragraph is:

Abortion providers returned to court Monday seeking to block a provision of Texas’ stringent new law that would require abortion facilities to comply with the standards of ambulatory surgical centers, a restriction opponents said would force more clinics out of business and leave hundreds of thousands of women without easy access to the procedure.

Stringent is a subjective term, not news. What the law actually did—in the wake of the Gosnell horrors—was cause abortion clinics to meet the standards expected already of other surgical centers. Why that is considered “stringent” is not mentioned. It should be noted that just days after the Gosnell verdict, Texas employees at an abortion clinic came forward with evidence of similar situations in Houston, with babies being killed.

US Rep. John Culberson gave this reaction to the story:

On the heels of Kermit Gosnell’s conviction, I am deeply saddened to learn about more atrocities committed against precious unborn babies, this time in our own backyard. Douglas Karpen of Houston, TX, has been accused of brutally murdering babies born after twenty weeks. He is innocent until proven guilty, but the descriptions from his former employees are gut wrenching and absolutely heartbreaking. Taking a baby from its mother’s womb and terminating its life is murder. Throughout my years in public service I have been committed to protecting the lives of the innocent, and as a Member of Congress, I will work with my colleagues to ensure that we put an immediate end to this practice in every corner of this nation. I will never stop fighting to protect the lives of the most vulnerable.

So the Texas legislature’s law had two missions: prevent abortions after 20 weeks, when it is now known the fetus feels pain (which also prevents the botched abortion-live birth killings that have been reported); and bring the clinics up to normally accepted health codes for the sake of women’s health.

This is the law, you may recall, that won Wendy Davis (now candidate for Texas governor) notoriety for filibustering, forcing a second special session to get a vote; it passed easily once a vote was taken. Afterward Davis seemed unaware of the actual provisions in the law, and seemed to think it was to outlaw all abortions. Maybe she just seemed confused while revealing she simply can’t bear the thought of any abortion ever being thwarted. Claiming that prevention of any abortion under any circumstances is a "war on women" is hardly a basis for leading the strongest state in the nation.

The providers testifying against the law weren’t led by people actually affected by the Texas law, but the New York-based Center for Reproductive Rights. Their lawyers spoke in front of US District Judge Lee Yeakel, asking him to block implementation of the law’s provision, scheduled for September 1^st. Judge Yeakel ruled House Bill 2 unconstitutional last year—his decision was overruled by the Fifth Circuit Court of Appeals. So going before this judge again is likely to go as before.

The pro-abortionists' main argument is that requiring abortion doctors to have admitting privileges at a hospital within 30 miles means that the clinics have to close. They also claim that these regulatory burdens are “not imposed on any other health care providers in Texas,” which is false on its face. There are various simple procedures, like dental extraction, that are done in doctor’s offices, but if they are procedures in which there’s a risk of bleeding to death or other serious complications, they are already done in surgical centers meeting the requirements, or in hospitals.

Let’s take a close look at the admitting privileges question. When this came up last year, my question was, “Why don’t the doctors just go get admitting privileges?” They were given ample additional time to do so. And everything I read made it sound pretty standard. But here are the abortionists still complaining that they can’t qualify.

So I looked it up. The main thing is providing credentials. There’s some paperwork involved, but any practicing physician probably has his/her diploma and licenses available. There are two levels of admitting privileges. There are courtesy privileges, which are simply that the doctor is allowed to occasionally use the hospital, to perform rounds with patients and do procedures within his/her specialty on an as needed basis—just in case a need ever arises. This level is relatively simple to get, and would meet the law’s requirements.

The second type is full admitting privileges. This may require that the doctor become a part of the hospital staff, attend staff meetings, and provide a certain number of patients to the hospital per year. Sometimes the doctor must belong to the same insurance group as the hospital. This is admittedly harder to get, and might not be possible for an abortionist to meet.

Here’s where I have a problem with the story—and with the abortionists’ argument: the story says, quoting a coalition attorney: “Almost half of the roughly 40 abortion facilities operating in Texas before the passage of House Bill 2 already have closed because of doctors’ inability to obtain admitting privileges.”

It is not necessarily that doctors couldn’t obtain admitting privileges; it is that they didn’t. An online story I found, describing what it takes to get admitting privileges, quotes the CEO of the untruthfully named abortion provider Whole Woman’s Health, talking about the process: "We’ve worked with at least 25 hospitals around the state in the last six months trying to get privileges on behalf of our physicians."

I see a couple of problems here. First, 25 hospitals isn’t that many. As of 2012 there were 630 hospitals in the state. There are 80 just in Harris County, where Houston is located. Why work with only 25 hospitals? Why not apply with all of them, or at least all that are within 30 miles of an abortion clinic? And how do we know whether these 25 hospitals were the least likely to accept the requests? Catholic hospitals, or other Christian supported hospitals, or possibly hospitals related to specific insurance groups? After all, these are people trying to provide evidence that the law is too restrictive, not people actually trying to meet the requirements. It also appears, from the descriptions, that only full admitting privileges were sought—possibly so that they would be turned down, and then they could claim they couldn’t meet the requirements of the law, giving them "evidence" for appeal.

Second, why is the abortion provider clinic organization, rather than the physician, doing the applying? At some point the doctor has to apply. And generally applications are available for download from a hospital website, so the intermediary isn’t really necessary. Apparently we’re just supposed to take it as fact that they’ve exerted every effort and failed, because the law is too stringent?

On that note, if requiring that a doctor be credentialed and not barred because of various malpractice complaints is too stringent, aren’t we really undervaluing women’s health?

Another problem with the story is the numbers. The pro-abortion coalition claims that there’s a particular shortage of clinics in El Paso and generally in the southwestern portion of the state: “That would leave some 900,000 women of reproductive age in the Rio Grande Valley and West Texas living at least 150 miles from a Texas abortion facility.”

They are counting all women, not just the relative few who choose abortion as their birth control method. Let me proclaim, loudly, that abortion clinics do not serve me. Nor any woman in my family. Nor any woman I know at church. Possibly not any woman in my circle of friends and acquaintances. They are vastly overestimating the number of women they “serve” by killing their babies.

And they’re assuming the state should go to great lengths—even to the point of dumbing down safety requirements that can affect women’s health—just to encourage more clinics where there hasn’t been enough of a market thus far.

This is similar to the argument in the Alabama story (Houston Chronicle p. A7, Tuesday, August 5): “Judge blocks Alabama’s Abortion Law.” In that state, with a law similar to Texas’s, the claim is that, because the abortion doctors live outside the state, they wouldn’t be able to get admitting privileges. The state has just five abortion clinics, and three have this challenge. The claim is, “it’s unlikely that local doctors would begin performing abortions because of a history of violence across the South that includes bombings, shootings, and arsons against clinics, the judge said.”

First, as if I need to say it, violence is not the right approach to persuading people not to commit abortions. And any such violence should be prosecuted according to the law—as it has been; most perpetrators are on death row, have been executed, or are serving life sentences. That said, I haven’t heard of abortion clinic violence in a long time. So I did a Wikipedia search. I found one case listed for Alabama, in 1998. The story says “the South,” so I broadened the search. There are two Florida cases, one in 1993, and one in 1994—with a follow-up bombing in 2012 at the same clinic. One in Kansas in 2009.

There are some additional incidents of attempted murder, death threats, and criminal mischief. I found one case of criminal mischief (breaking in, threatening, damaging equipment) in Alabama, in 1984.

So, my question is, why, if the damage is aimed at the clinics, does a doctor feel safe performing abortions in Alabama clinics, but not living there? And since Alabama is only part of the South, why do those doctors feel safe living across state lines but still nearby? The argument doesn’t hold water. What abortion clinics are saying is that, in some places they find it difficult to find doctors willing to enter into that profession—so they want government to lower standards for women’s health to make it easier for them to ply their grisly trade.

A similar problem is happening in Mississippi, where the single abortion clinic might close, and abortionists are asserting that each state should be required to make sure it has at least one abortion clinic, regardless of nearby access across state lines. They don't say why.

The subheading reveals bias

One more complaint about the Chronicle piece on the Texas law: One of the subheads is “Other Victories.” The paper is telling the story of the struggle of abortion providers; it is on their side. You can get facts about the issue from the story, but know that you might not be getting them all, because the reporter has revealed a pro-abortion bias.

If you think there’s reasonableness on that side, you need to read their protest signs: “Abortion on Demand & without Apology” and the absurdly irrelevant “Forced motherhood is female enslavement.” That is not exactly “safe, legal, and rare” message most pro-choice people would say they support. These religiously pro-abortion activists are perfectly willing to risk women’s health, as long as they press for what they want: to kill any baby up to birth, and even beyond. It’s an ugly business.

On the other hand, the signs at the anti-abortion prayer rally read, “Abortion harms women,” which it does. Not to mention women's babies. 

People need to rethink that whole “war on women” claim. Abortionists aren’t for women; they’re for profit. And they really resent being held to responsible standards if it could cost them money.

Texas Abortion Ruling

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 5^th 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 5^th 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.

Texas House Passes HB2

This is breaking news. Testimony was taken well into the evening Tuesday, so the vote came fairly late.  The unofficial total is 94 yeas, 51 nays, 1 present not voting. Good for Texas!

This is the bill that got Wendy Davis and her pink tennis shoes notoriety at the close of the first special session, when she filibustered to prevent the vote. (Bill text here.) 

The bill will still face a Senate vote before becoming law; the Senate has a companion bill, SB1, with hearings scheduled for July 11. I think it is very likely to pass. This bill is the main reason for holding this second special session.

The bill’s main purpose is to ban late-term abortions beyond 20 weeks gestation—the point at which evidence shows the fetus feels pain. Exceptions are made in critical health situations. The 20-month point is already well beyond limitations for abortions in most European countries. It is difficult to envision a situation in which a woman, knowing she is pregnant and not wanting to be, cannot act before five months gestation. So the bill is seen as not causing an undue burden.

Another purpose of the bill is an effort to avoid the lack of regulation that allowed for the filth and horror seen in the Gosnell case. Pro-abortionists claimed that case should not represent their purposes, because lack of regulation was the problem. So this bill requires that abortion clinics abide by the same standards as other ambulatory surgery centers, such as those that do Lasik eye surgery or colonoscopies. Opponents of the bill claimed this was an unfair burden, because it would require 37 of 42 abortion clinics in Texas to upgrade or close. Let me repeat that another way: currently 88% of Texas abortion clinics cannot meet the minimum standards of safety and health required of all other types of clinics—yet the opposition wants to keep the standard lower “for the sake of women’s health.” Right.

People who clamor for the “right” to behave in uncivilized ways will show their savagery in the process.

That was true at the end of the first legislative session, when their “free speech” was actually a raucous mob preventing civil society from functioning. Rallies have shown them hollering “hail Satan,” and hurling profanities at churches in particular and anyone who disagrees with them. They offer up death threats to the Lieutenant Governor and threats against family members of pro-life legislators.   

Their visual aid during Tuesday hearings was to carry coat hangers and claim the law would force women into using such devices on themselves—but of course without any logical connection between the actual law and the “need” to use a coat hanger on oneself. Choosing to stab an unborn infant with a coat hanger isn’t what horrifies them; it is that infanticide isn’t made more convenient for the woman choosing to kill the infant. That is savagery.

Their best argument about the “unborn pain” part of the law is, “not all science agrees.” They are not concerned with the infant’s pain. Nor can they give a decent reason for a woman—without medical need but only personal life choice of whether to be pregnant after engaging in behavior that led to pregnancy—to require the option of offing the child at will a full five months into the child's growth. She suddenly gets concerned about stretch marks? I’m not sure.

For reasons they don’t comprehend, uncivilized demands don’t persuade well in Texas.