Supreme Court Agrees To Review Texas Law Regulating Abortion Clinics

Supreme Court Has Agreed To Hear Challenge To Texas Abortion Law Which Has Wider Implications Beyond Texas. On November 13, the Supreme Court announced it had agreed to hear Whole Woman's Health v. Cole, a lawsuit which challenged a Texas law that passed in 2013 and requires all abortion providers to employ doctors that have admitting privileges at nearby hospitals and to meet the standards for “ambulatory surgical centers.” The case has wider implications outside of Texas; 10 additional states have enacted similar requirements for hospital-admitting privileges and six other states have passed laws “requiring hospital-grade facilities that mirror the Texas law.” [The New York Times, 11/13/15; Reuters, 11/16/15]

Fox News Cites Lawmakers' Assertion That Regulations Are About Patient Safety...

Fox's Trace Gallagher: “Texas Lawmakers Argue They're Simply Looking Out For The Well-Being Of Women.” On the November 13 edition of Shepard Smith Reporting, Fox News correspondent Trace Gallagher cited Texas lawmakers' argument that the requirements of the law in question “help alleviate the dangers that are associated with abortion” and that it will be argued that the “Supreme Court shouldn't be acting like the country's most powerful medical board with the power to set medical standards across the country.” From Shepard Smith Reporting (emphasis added):

TRACE GALLAGHER: Well Shep, Texas passed a law two years ago mandating that abortion clinics must have the same standards as surgical centers, which means passing certain building codes, having specialized equipment, and increasing the staffing. Doctors who perform abortions also need to have privileges at a nearby hospital, abortion clinics say it's just not financially feasible to comply with those strict standards and that 80 percent of the clinics, mostly in rural areas, would be forced to shut down because of that, and that would delay or prevent thousands of women from obtaining an abortion, or it would force them to get a risky abortion. Now Texas lawmakers argue they're simply looking out for the well-being of women, saying better equipment and more staffing helps alleviate the dangers that are associated with abortion. Shep.

SHEPARD SMITH: What kind of timeline are we thinking here for the arguments for the Supreme Court and then a decision by the court?

GALLAGHER: Well, so the court will likely hear the case in March or April of next year, with a ruling coming down sometime in June, just few months before we elect a new president. Opponents of the Texas standards will argue that states should not have the power to put regulations in place that violate a woman's constitutional rights. Texas will argue the Supreme Court shouldn't be acting like the country's most powerful medical board with the power to set medical standards across the country. Now, it's fascinating that Justice Anthony Kennedy stands to be the deciding vote here, because Kennedy is the one that wrote a key opinion back in 1992, saying, states do have a legitimate interest in regulating abortion but could not impose an undue burden, and now Kennedy will be left to decide if Texas, in fact, is imposing an undue burden. [Fox News, Shepard Smith Reporting, 11/13/15]

But Fails To Mention Medical Establishment Statements That Contradict Such Assertions

ACOG: “Abortion Is One Of The Safest Medical Procedures Performed In The United States, And Neither Of The Requirements Imposed By The Texas Law Would Make It Any Safer.” Following the announcement by the Supreme Court, the American Congress of Obstetricians and Gynecologists (ACOG) issued a statement that “applaud[ed]” the court's decision to review the Texas law, and stated it was “confident” the court “will agree” the law is “an unconstitutional attempt to attack the right of women to abortion care.” From ACOG (emphasis added):

ACOG applauds the Supreme Court for its decision to review the Texas law that, under the guise of protecting the safety of women, would actually restrict access to safe, legal abortion. We are confident that the Court will recognize the burden that this law imposes on women, and that it will agree that it is an unconstitutional attempt to attack the right of women to abortion care.

Access to reproductive services, including abortion care, is essential for millions of American women. By making it harder for women to get the care that they need, laws like Texas's ultimately jeopardize safety and are attacks on women's health.

Abortion is one of the safest medical procedures performed in the United States, and neither of the requirements imposed by the Texas law would make it any safer. Worse, this law clearly imposes an undue burden on a large number of Texan women, who would no longer have reasonable access to abortion care when needed, forcing them to wait longer before an abortion, travel across state lines for safe care, or even forego abortion care altogether. [American Congress of Obstetricians and Gynecologists, 11/13/15]

AMA And ACOG Had Filed Joint Brief Against Texas Law. In 2013, ACOG and the American Medical Association (AMA) filed a joint amicus brief to the Fifth Circuit Court of Appeals in support of repealing the Texas law. From an NBC News article:

“Abortion is a very safe procedure, and complications requiring hospital admission are extremely rare,” the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA) said in a joint amicus brief filed in a 2013 appeal against the law.

“There is no medical basis to require abortion providers to have local hospital-admitting privileges. Emergency room physicians, hospital-based physicians, and on-call specialists already provide prompt and effective treatment to all patients with urgent medical needs, including women with abortion-related complications,” it added.

“Moreover, there is no medically sound reason for Texas to impose more stringent requirements on abortion facilities than it does on other medical facilities that perform procedures with similar, or even greater, risks.” [NBCNews.com, 11/16/15]

Texas Hospital Association Opposed Requirements For Admitting Privileges Because It's Unnecessary For Patients. The Texas Hospital Association (THA), representing 450 hospitals, issued a statement before the Texas law was passed in opposition to its hospital admitting privilege requirement for doctors that provide abortions. The THA explained that such a requirement is unnecessary, since a patient suffering complications from an abortion simply needs to show up to an emergency room in a hospital to receive treatment (emphasis added):

THA agrees that women should receive high-quality care and that physicians should be held accountable for acts that violate their license. However, a requirement that physicians who perform one particular outpatient procedure, abortion, be privileged at a hospital is not the appropriate way to accomplish these goals. A hospital's granting privileges to a physician serves to assure the hospital that the physician has the appropriate qualifications to provide services to patients in the hospital. Thousands of physicians operate clinics and provide services in those clinics but do not have hospital admitting privileges. Requiring a hospital to grant admitting privileges to physicians who do not provide services inside the hospital is time-consuming and expensive for the hospital and does not serve the purpose for which privileges were intended; rather, the Texas Medical Board is the appropriate agency to address whether physicians are delivering appropriate care to patients, as the TMB regulates all physicians. Hospitals should not be required to assume responsibility for the qualifications of physicians who do not practice in the hospital.

Should a woman develop complications from an abortion or any other procedure performed outside the hospital and need emergency care, she should present to a hospital emergency department. Requiring that a doctor have privileges at a particular hospital does not guarantee that this physician will be at the hospital when the woman arrives. She will appropriately be treated by the physician staffing the emergency room when she presents there. If the emergency room physician needs to consult with the physician who performed the abortion, the treating physician can contact the doctor telephonically, which is often done in other emergency situations. [Texas Hospital Association, accessed 11/16/15]