Court Kudos

It’s nice to be able to praise a court for getting things right. Last week the 5^th Circuit Court reversed the district court ruling, of October 28, 2013, that had claimed Texas’s HB2 law was unconstitutional. This was the law passed last summer, which got notoriety for Wendy Davis, for her “pro-feminist” filibuster, which caused the legislature to go into special session to pass it—which did indeed pass easily. An emergency stay of the district court’s order two days after the ruling kept the law from being enjoined (in other words, HB 2 continued to be treated as the law), since the state showed likelihood of success upon appeal.

The 5^th Circuit pretty well gave a smackdown to the district judge. It might be interesting to note that the three-judge panel was made up of three career-women, and the district judge was a man. The assumption that all thinking working women must be automatically pro-abortion is clearly false.

To review, the law did mainly two things: 1) prohibited abortions after 20 weeks, the point at which we now have evidence the fetus feels pain; and 2) required abortion providers to meet the health and safety requirements of other surgical centers.

The first point was not disputed by the plaintiffs: Planned Parenthood of Greater Texas Surgical Health Services, along with other Planned Parenthood entities and other abortion providers in Texas. The 20-week mark is only a few weeks before the previously set “viability” limit. It has been upheld in other states, and is the standard limit in most of Europe. So they didn’t even argue that main purpose of the law.

The second purpose had several provisions: doctors needed to have hospital admitting privileges; surgical centers needed to meet health and safety and cleanliness standards; and medication abortions must be held to the FDA requirements for use of those substances.

The plaintiffs took issue with the provision of the law regarding admitting privileges and limit to use of medication abortions. They presented four grounds for invalidating the law: violation of patients’ substantive due process rights, violation of physicians’ procedural due process rights, unlawful delegation of authority to hospitals, and vagueness. The opinion goes through each of these, explaining in pretty clear terms (considering it’s legal language) why the district court was wrong.

The state maintains the district court erred in these four ways: 1) granting standing to abortion providers to assert physicians’ and patients’ rights vis-à-vis the issues raised; 2) facially invalidating the admitting-privileges regulation; 3) creating a “broad and vague ‘health’ exception” to the medication abortion regulations; and 4) enforcing an injunction beyond the rights of the plaintiffs in this case.

While the ruling covers each of these carefully, the meat of the opinion relates to the requirement for admitting privileges. The standard is based on several cases that have essentially set abortion law requirements: Roe v Wade, which found a “right” for a woman to end a pregnancy by abortion; Casey, which ruled that the state had an interest once the fetus was viable, but couldn’t impose an “undue burden” on a woman seeking an abortion in earlier weeks; and Gonzalez, which added to the “undue burden” rule that the law must have a rational reason.

The plaintiffs claim, but fail to provide convincing evidence, that the requirement will limit availability to abortions by closing down. Much of what they provided was supposition without any actual cases. There were indeed specific clinics they showed would close down. But when they went through the specific clinics, there were doctors who couldn’t qualify because they were too old (already over age 65), unlicensed in obstetrics and gynecology, or unwilling to be recruited to the abortion industry in the first place (or, in the case of one doctor, unwilling to come to Texas to do abortions because of fear of anti-abortion sentiment here).

There were some hospitals—Catholic hospitals—that refused access to abortion service providers, but essentially all public hospitals are required to allow admitting privileges if abortion service is the only disqualifier.

That answered one question I had: why did they assume they couldn’t get admitting privileges if they hadn’t tried? Abortion providers who apply for admitting privileges must get them at most hospital if they meet all other requirements—but they might not qualify, or might not want to try, reasons that hardly show dedication to women’s health. Essentially, if a woman expects an OB/GYN physician to perform her surgical abortion, and to have him be her physician if an issue arises that requires hospitalization—as happens to 210 Texas women annually—Planned Parenthood says she should have no such expectation, and can just go to an emergency room, because her abortionist is done with her.

The state showed that there is a loss of care when a patient is handed over to a doctor who does not know her medical history. That is the reason other out-patient surgeons are required to have admitting privileges. So the rational basis for that provision of the law was met.

The plaintiffs tried to say that the number of abortion clinics that would be forced to close would cause a third of abortion clinics in the state to close. They added that this could prevent 22,286 women who were seeking abortions. They failed, however, to show that those numbers were scientifically derived; in other words, they were found to be speculation, just pulled out of thin air.

The district court opinion had found that the claim of  “24 counties in the Rio Grande Valley would be left with no abortion provider because those abortion providers do not have admitting privileges and are unlikely to get them” was invalid:

[The district court’s] opinion invalidated the admitting–privileges provision as it pertains to the entire state of Texas, but its only recitation of evidence concerned “24 counties in the Rio Grande Valley,” which it predicted would be left with no abortion provider. As an initial matter, the statement that both clinics in the Rio Grande Valley will close may be disregarded as clearly erroneous based on the trial court record. Hagstrom–Miller and Ferrigno each testified that there were two clinics in the Rio Grande Valley, yet the district court accepted testimony regarding only one of them. Even if we were to accept that both clinics in the Rio Grande Valley were about to close as a result of the admitting privileges provision, however, this finding does not show an undue burden. To put this “finding” into perspective, of the 254 counties in Texas only thirteen had abortion facilities before H.B. 2 was to take effect. The Rio Grande Valley, moreover, has four counties, not twenty-four, and travel between those four counties and Corpus Christi, where abortion services are still provided, takes less than three hours on Texas highways (distances up to 150 miles maximum and most far less). In addition, Texas exempts from its 24-hour waiting period after informed consent those women who must travel more than 100 miles to an abortion facility (pp. 20-21).

Yeah, it had been that badly ruled. I don’t know what was going through the district court judge’s mind, but he was clearly going above and beyond the law to try to ensure abortion under any circumstances, regardless of risk to women’s health.

I’m glad the 5^th Circuit got this one right. I wish we didn’t have to so often depend on courts to decide these life and death issues. But I’m glad when they use the rule of law.

There’s always more to say against abortion. I came across a piece this week, written I think over a decade ago, from the Ethics and Public Policy Center, detailing some of the negative costs to society of abortion. A lot of data, worth considering: “The Socioeconomic Costs of Roe v. Wade.”

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.