WASHINGTON — Abortion-facility regulations are under assault by pro-abortion activists in federal courts across the country, because they believe those regulations cause too many abortion facilities to close their doors.
Arguing that constitutional law prevents states from imposing an undue burden on women seeking abortions, the pro-abortion lobby has secured significant recent victories in blocking laws in Alabama and Mississippi that would have required abortionists in those states to have local hospital-admitting privileges.
Meanwhile, a federal judge in Texas heard arguments last week from the Center for Reproductive Rights, a pro-abortion organization that alleges a 2013 state law that requires abortion facilities to comply with ambulatory surgical center building codes is medically unnecessary and unconstitutional because it will leave Texas with fewer than 10 abortion facilities. That would force women in some parts of Texas to drive more than four hours to the nearest abortion facility.
“This is a patently unconstitutional and potentially life-threatening assault on women’s rights and health, and we look to the court to block its enforcement before it places any more women in harm’s way,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, in a prepared statement.
However, pro-life activists and legal experts question the argument that health-and-safety regulations such as hospital-admitting privileges, intended to protect women’s health, are unconstitutional because a majority of abortion facilities cannot or will not comply with those standards. The Texas law also mandates admission privileges, along with its building-code stipulation.
“If this were any other kind of ambulatory surgical facility, there would be no question about the need for admitting privileges. It would be a no-brainer. It’s only in the context of abortion that you get this cart-before-the-horse kind of analysis,” said Robert Destro, a law professor and founding director of the Interdisciplinary Program in Law and Religion at The Catholic University of America’s Columbus School of Law.
Destro told the Register that the federal courts have repeatedly held that an otherwise valid health regulation is not made unconstitutional because doctors will not comply with it.
“The question in constitutional law is, ‘Is there a reasonable basis for the rule?’” Destro said.
Given several recent high-profile cases of unsanitary and unsafe conditions in abortion facilities — including the notorious Kermit Gosnell’s Pennsylvania facility, where babies were killed after botched abortions — and itinerant abortionists who perform abortions and then leave the communities where the facilities are located, pro-life activists say the need for stringent health-and-safety standards for abortion facilities has never been more necessary.
“The record of the abortion-industry malfeasance is even more problematic now than what it was 20 years ago,” said Denise Burke, vice president of legal affairs for Americans United for Life (AUL).
Admitting-privilege requirements are not new. In the 1980s, Missouri passed a law that said only licensed physicians with surgical privileges at hospitals that offer obstetrical or gynecological care could provide abortions. A federal appeals court upheld that law in 1989.
In the mid-to-late 1990s, several states began enacting comprehensive health-and-safety requirements for abortion facilities, with some of those laws requiring hospital-admitting privileges.
“It is important to note that these regulations were litigated and largely upheld, including in Arizona, where AUL led the successful defense of the state’s facility regulations,” Burke said.
According to Americans United for Life, 13 states currently have an enforceable admitting-privileges requirement for abortion providers. Three states — Ohio, Pennsylvania and Virginia — require abortion providers to have transfer agreements to facilitate hospital admissions and continuity of care for abortion patients. Louisiana and Oklahoma have admitting-privilege laws that take effect later this year.
However, besides Alabama and Mississippi, federal courts have blocked admission-privilege requirements in Kansas and Wisconsin, while other courts have upheld similar laws in Texas, Utah, North Dakota, and Tennessee. In June, the U.S. Supreme Court refused to hear an appeal of a preliminary injunction granted against the Wisconsin admissions requirement. A federal judge heard arguments for and against the Wisconsin law in May but has yet to issue a ruling.
Meanwhile, a host of other abortion-related restrictions are percolating in the federal courts. Idaho and Arkansas are asking federal appellate judges to overturn lower court rulings that struck down laws limiting the time frame for when women can get abortions. In Arizona, state officials have said they plan to petition the U.S. Supreme Court to overturn a federal appellate court’s stay on a state law that would prevent women from using the abortion-inducing drug RU-486 after the seventh week of pregnancy.
The Center for Reproductive Rights is petitioning the entire U.S. Court of Appeals for the 5th Circuit to rehear arguments on Texas’ hospital admitting-privileges requirement that a three-judge panel of the 5th Circuit upheld in October. The court has not indicated if it will take up the case.
The Center for Reproductive Rights argues that admitting privileges are unnecessary and are a thinly veiled tactic by pro-lifers to squeeze abortion facilities out of business. The American Medical Association and the American Congress of Obstetricians and Gynecologists have come out against requiring admitting privileges and facility building standards not required of other similarly situated surgical procedures.
However, even considering abortion providers’ routine claims that only 2.5% of women who have a first-trimester abortion undergo “minor complications,” while fewer than 0.3% require hospitalization, that still works out to 26,500 women experiencing complications and approximately 3,180 women requiring post-abortion hospitalization in 2011, according to the latest available abortion-related data from the Guttmacher Institute.
“These numbers are obviously not insignificant, and, instead, reveal a serious public-health concern,” Burke said.
Likely Headed to the Supreme Court
If different federal district and appellate court judges continue to issue conflicting opinions on admitting privileges, the U.S. Supreme Court could be asked to decide the issue, according to several legal analysts.
“We’re going to see a split of opinion in different districts. There will be appeals. This issue could very well end up in the Supreme Court,” said Dana Cody, president and executive director of the Life Legal Defense Foundation.
U.S. Supreme Court Justice Stephen Breyer signaled the high court’s interest in the issue when he wrote a dissent last November in the court’s 5-4 decision not to enjoin Texas’ admitting-privilege requirement while litigation over its constitutionality continued. Breyer wrote for the justices who favored enjoinment: “The underlying question — whether the Texas statute is constitutional — is a difficult question. It is a question, I believe, that at least four members of this court will wish to consider irrespective of the 5th Circuit’s ultimate decision.”
In the Mississippi case, a panel of the 5th Circuit on June 29 blocked the admitting-privileges requirement because it would have closed the state’s lone abortion facility. Judge E. Grady Jolly wrote that Mississippi had a responsibility to ensure access to abortion within its borders, and the judge said Mississippi could not shift that obligation to neighboring states.
‘Bizarre’ Reasoning in Ala. Decision
In Alabama, U.S. district Judge Myron Thompson wrote a 172-page decision on Aug. 4 that blocked enforcement of the admitting-privileges law because it would have closed three of the state’s five abortion facilities. Thompson said he would issue a final order after hearing additional arguments from attorneys. Alabama Gov. Robert Bentley has said he would support an appeal of Thompson’s decision.
Eric Scheidler, executive director of the Pro-Life Action League, said it was a “bizarre” argument: that it is unconstitutional to require people to drive a certain distance to the nearest abortion facility.
“Is Alabama obligated to open an abortion facility within an hour of every woman in the state? It’s a ridiculous idea,” Scheidler said. “This bizarre notion that, somehow, the U.S. Constitution guarantees not only some kind of right to abortion, but a right to abortion close by to your house, is really a radical expansion of Roe v. Wade.”
The Alabama and Mississippi rulings were particularly disappointing for Cody and the Life Legal Defense Foundation, which have been closely involved in the legal effort to help pro-life advocates in both states counsel women and hold abortion facilities accountable.
“We were hopeful that, in Alabama, the court would uphold the physician admitting-privileges requirement because we saw women being injured in Alabama abortion facilities, being taken in emergency vehicles to the hospital, and the physicians who injured them weren’t going with them,” Cody said. “It’s a shame that none of these justices in any of the courts will go out and watch what happens at any abortion facility. They would see the people creating the problems are not the ones with the life-affirming message.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.