No Undue Burden

On Tuesday, the 5^th Circuit Court of Appeals ruled in favor of the state of Texas relating to its abortion law, HB2, passed in 2013.  So it was a good day, correcting a previous bad ruling.

To review, HB2 had two pain pieces. First, it prevents abortion after week 20 of gestation—time point at which science has shown the fetus feels pain, and in line with many other states and nations. While pro-abortion cultists have fought this provision (remember the Wendy Davis filibuster), there has been no challenge to this provision in the courts.

This NYT graphic shows the pre-HB2 number of clinics, left,
and the current number of clinics, right,
with the open circles likely to close after the ruling.

The other main piece requires abortion clinics to have the same standards as other ambulatory surgical centers: doctors need admitting privileges to a hospital within 30 miles, and certain safety and cleanliness standards need to be met.

Back in October 2013, US Federal District Judge Lee Yeakel ruled that the admitting privileges requirement was unconstitutional because it poses an undue burden on women seeking an abortion and has no “rational relationship to improved patient care.”

We discussed the ruling at that time. There were several problems. The judge used the wrong criteria—strict scrutiny rather than undue burden.  He failed to notice that the law puts no undue burden on women at all; it puts the burden on the clinics and their doctors. All the state has to prove is that it has a rationale for the rule—which it does—and then it must not cause a significant and certain undue burden on women seeking legal abortions. I know that sounds convoluted, but it’s the way the Supreme Court has carved out laws and requirements, even though the Court technically has no lawmaking authority.

Texas lawmakers knew the requirements when they carefully crafted the law. If the clinics had their doctors get admitting privileges, there would be no closings. If the clinics met basic health and safety standards, there would be no closings. The state of Texas has singled out exactly zero clinics to close down regardless of standards. The clinics choose to close rather than meet the standards, which are both sensible and attainable.

There have been no plaintiffs, no examples of any woman actually suffering an undue burden. The judge made his ruling on the supposition that some hypothetical woman might someday be burdened, and declared that a significant and certain undue burden. He was overstepping, as activist judges do.

Judge Yeakel had the 5^th Circuit throw out his ruling against Texas’s requirement for a sonogram to be shown prior to an abortion. Again, there was a rationale (fully inform the patient, as with other surgical procedures), and no significant undue burden (a quick sonogram procedure in a clinic that provides sonograms). So one needs to start asking, what was he thinking? Not about the actual law, but about his personal preferences. Judges like that are in the way of justice.

The ruling Tuesday wasn’t a total win for Texas. The Court carved out a single exception, a single doctor, in McAllen, Texas, is not required to get admitting privileges. That could only make sense if there is no hospital within a 30-mile radius that will allow that doctor at that singular clinic to have admitting privileges (for example, if all of the nearby hospitals are religion-affiliated hospitals who choose to refuse him). I don’t know for certain the circumstances yet.

There will still be around ten abortion clinics in Texas, spread out so that travel for a woman is not considered an undue burden. Note that Texas is not required to make sure there are any abortion clinics; the state is simply required to make only reasonable regulations of clinics; the clinics are free to meet the regulations or not do business. It may be that, even that excluded McAllen clinic will close if it chooses not to upgrade to the safety and cleanliness standards. The law will not have caused that; the free choice of the clinic will have caused that.

Governor Abbott predicted, at the time of the 2013 ruling, when he was Attorney General, that regardless of how the 5^th Circuit ruled, it would be appealed to the Supreme Court, and that is the next step. But Texas’ new Attorney General Ken Paxton feels certain Texas will win. My guess is that, if the Supreme Court takes it up, it will be in the 2015-2016 term, with an answer by June 2016. In the meantime, the law stands and continues to function.

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.

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.”

Angels of Death

There’s an update since Friday’s post on the Texas abortion law ruling. The 5^th Circuit wasted no time; they have lifted the injunction imposed by Judge Yeakel, and have set an expedited schedule to hear the case as soon as January. Already there is a wailing and gnashing of teeth, with the closing of nine Planned Parenthood clinics (about 25% of facilities statewide) that have not met the requirement of having doctors with admitting privileges. No word on why their doctors do not get those privileges to meet the requirement. My guess is that the quick move to lift the injunction means my assessment of error in the ruling, outlined in the Friday post, is probably on track.

Writing that post required me to spend some time thinking about abortion—always unpleasant. It’s one of the most uncivilized acts in a savage society.

Much of that post was about the part of the law concerning abortion doctors, who had been required by the new Texas law to get hospital admitting privileges, like all other ambulatory surgeons. So I was thinking about these doctors, wondering why they choose to do what they do.

For comparison: I have a longtime friend who became a doctor, eventually specializing in gastroenterology. She always planned on med school, but she didn’t start out in life thinking a gastroenterologist what she wanted to be, so I asked her how the decision came about. It was during the rotation process (of a residency program?), and gastroenterology was one of the specialties in the rotation. It wasn’t expected to be a favorite. Problems with that part of the body tend to be—unpleasant. But she found that the expected unpleasantries weren’t that bad to her; she wasn’t bothered by smell or sight or feces or gastric juices. In fact, the functioning of that portion of the body fascinated her, and she thought she could help a lot of people in that specialty. Which she has successfully done in the ensuing decades. Her decision process makes sense to me.

So I picture the decision process for a doctor specializing in abortion. What goes into that decision? They study many of the same things as an OB-GYN, and in fact might have qualified as an OB-GYN specialist. But they have not chosen to help with women’s reproductive challenges, nor help with the miraculous and beautiful process of bringing new babies into the world. Instead, they choose surgery to dispose of life that qualifies—by DNA, shape and growing form—as human. They have managed to get over the innate ickiness of that, have desensitized themselves to the repeated taking of life.

I don’t know that I’ve met an abortion doctor in person. I’m imagining a conversation with such a person at a neighborhood barbecue or school parent meeting.

Me: So, what do you do for a living?

Abortion Doctor: I’m a doctor.

Me: Oh, really. What kind?

Abortion Doctor: Um. I’m in women’s reproductive health.

Me: That’s great. Cindy, over there, was just telling me she thinks she’s pregnant and asking if I had any recommendations for an OB-GYN. Are you taking new patients?

Abortion Doctor: Um. No. It’s not that kind of practice.

Me (looking puzzled, not pursuing the conversation further)

There’s pretty much zero chance that such a person would show up in my civilized society and simply blurt out that he/she aborts babies for a living. That would sound worse than, “I have a meth lab in my basement so I can distribute at low cost to the local high school clientele.” Silence, stares, and moving away from such a person would ensue.

a purchase option for abortionist fans

Maybe in Sen. Wendy Davis’s circles, such an announcement could be made, and the response would be, “Thank you for your service; someone has to do it—for the sake of healthy families.” But it’s hard to imagine. Still, there are apparently such circles of savagery.

For reasons that mystify me, Facebook suggested a piece it thought I would be interested in, about the insidious effort to shut down women’s reproductive options. (Yet more evidence that metadata is misinformed about me.) Now that I’ve actually read it, I’m afraid Facebook will send more my way.

I’m still wondering, how does a person get into the dirty job of abortionist? One would think there must be other options for someone capable of graduating from medical school and adding a specialty. So why, with those abilities, would a person choose to abort babies? Even in those weird Wendy Davis social circles where there is approval, there wouldn’t be disapproval for choosing any number of other specialties.

I was talking this over with my son Political Sphere, and he said the reason is simpler than I’m trying to make it: They like to do it.

They have what he referred to as an “angel of death” kind of psychosis; they convince themselves they are doing good by taking human life. They can tell themselves, “It’s because the mother deserves the choice,” or “No unwanted child should be brought into this world,” or “This world is so terrible that I’m doing a favor to anyone whose birth I prevent.” But, however they may justify it, it’s not very different from the pathology of an angel-of-death serial killer, the kind that shows up on Criminal Minds, for example.

So I asked, “You mean every abortion doctor is in fact a psychopath?” Yes. Yes, they are.

We worked through the numbers. You shouldn’t compare the number of abortions to the number of OB-GYNs. They don’t turn to aborting babies because they are OB-GYNs; they go through the OB-GYN training so that they can abort babies.

I wasn’t able to get exact data on the number of abortion doctors. There are, however, 1793 abortion clinics (the main providers) as of 2008 (most recent numbers I found), which had remained essentially stable since 2005. In 2008 there were approximately 1.21 million abortions performed by those 1793 clinics, so about 675 per clinic. I don’t know how many doctors work per clinic, but let’s estimate 1-2 so we can round off to about 3000 total abortionists.

So, if we estimate there are 3000 abortionists in the US, out of a population of over 300 million, that’s a relatively small 1 in 100,000. A demographic we might not notice, especially if they only associate with people who approve of their behavior while the rest of us only associate with “normal” people who are disgusted and distressed by the killing of little humans.

Maybe they start out as an assistant in a clinic, and find that, because of their belief system or whatever reason, it’s not that hard to desensitize themselves to the taking of life that appears human. They not only aren’t bothered by it, they choose to keep doing it. Good or better money would be available to them in other specialties, so it’s not the money. They convince themselves they are doing good for society by taking human life—they’re angels of death, by definition.

When we apprehend a serial killer who stalks elementary school children and kills them with the belief they are doing the victim a favor, it’s pretty clear we’re dealing with a psychopath who must be stopped. Abortionists might appear more normal, and they get paid to do what they do. But they’re doing it nevertheless because they choose to. It requires a certain warping of the mind to come to believe savagery is a positive lifestyle choice.

I’m quite certain I’ll never find one teaching Sunday School at my church. But I wouldn’t want to find one coaching my child’s Little League team either. Or even handing out candy on Halloween. Sometimes there’s good reason a person is considered a pariah.

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.