Abortion Battle Rages On in Texas
Supporters of pro-choice abortion rights were delivered a victory by the United States Supreme Court early this week, as justices voted in favor of zapping away measures in a Texas law geared toward defunding abortion clinics across the state. Constitutional access to women’s health services was protected in a 5-to-3 vote.
If Texas’s House Bill 2, which then-governor Rick Perry passed in the summer of 2013, hadn’t been overturned by the Supreme Court, the number of abortion clinics in the state would have been diminished to the point of only being available in the largest cities. It’s not that the law in question explicitly damned abortion clinics to an extensive campaign of reduction — but it forced clinics to adopt cumbersome standards that very few would be able to meet.
At stake were two of the law’s provisions:
1. Admitting Privileges
According to the first controversial provision in the Texas Legislature’s House Bill 2, doctors may only work at abortion clinics if they have “admitting privileges” at a nearby hospital. What are admitting privileges? Well, according to the legal definition, they are “the right of a doctor, by virtue of membership as a hospital’s medical staff, to admit patients to a particular hospital or medical center for providing specific diagnostic or therapeutic services to such patient in that hospital.”
Translation: doctors cannot practice at an abortion clinic unless they are basically on the staff of a hospital within some range of the clinic. Actually, not just “some” range — specifically a 30 mile range.
If nothing else, this provision made it harder for doctors to be qualified to operate at an abortion clinic. It’s even kind of hard to figure out what purpose it serves in the first place, since doctors should all be qualified to perform procedures if they’ve got the training. Oftentimes, doctors are unable to get admitting privileges at hospitals just because some hospitals don’t hand out those privilege to people who aren’t, you know, already working there. Abortion clinics that rely on doctors who make visits were also put at a significant disadvantage. If you’re a “visiting doctor,” then you probably don’t work at a local hospital… or medical center.
2. The Surgical Center Standard
This is perhaps the more obviously restrictive provision. It did exactly what it sounded like: required abortion clinics to operate at facilities with the same minimum capabilities of an ambulatory surgical center. Texas Health and Safety Code defines an ambulatory surgical center as “a facility that operates primarily to provide surgical services to patients who do not require overnight hospital care.”
The aforementioned minimum standards of an ambulatory surgical center are described in Sec. 243.010, which lists various factors such as professional employees and general staff, facility design, medical equipment, sanitation, lighting, heating and ventilation, plumbing, and probably anything else you can come up with. This section itself is fairly vague, which is okay because medical standards can/should improve over time, but it doesn’t really say much in the way of exemptions for facilities that simply have no use for everything used in ambulatory surgical centers.
Supreme Court Justice Stephen G. Breyer put forward the following argument in favor of doing away with the surgical center standard for abortion clinics:
“Abortions taking place in an abortion facility are safe — indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical center requirements. Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home.”
And this is a good point. If Texas’s government feels strongly that abortions aren’t currently being conducted in a safe enough environment, what about all those other medical operations that happen in places that don’t meet the surgical center standard? Breyer’s comparison to childbirth is especially enlightening, since abortion is evidenced to cause less injuries and fatalities yet is subject to far, far more legislative restrictions than childbirth. It’s admittedly weird to look at these two procedures and say, “Doctors and hospitals should be required for one of them, but not the more dangerous one.”
The Other Side of the Argument
Of course, the Supreme Court’s decision to strike down Texas’s abortion laws wasn’t unanimous. There was some amount of disagreement between Justices over what an “undue-burden” is. According to a previous ruling in 1992’s Planned Parenthood v. Casey, American courts are supposed to take into account both benefits and burdens that would affect women’s access to abortion. Justice Clarence Thomas argued that this week’s majority ruling twists the nation’s federal standard of an undue-burden:
“Today’s opinion does resemble Casey in one respect: After disregarding significant aspects of the court’s prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come.”
That particular dissent isn’t terribly convincing, coming off more as a bureaucratic sniffling over semantics rather than an earnest push toward solving the problem. Justice Samuel A. Alito Jr. later offered a better counterargument to the court’s majority decision:
“The law was one of many enacted by states in the wake of the Kermit Gosnell scandal, in which a physician who ran an abortion clinic in Philadelphia was convicted for the first degree murder of three infants who were born alive and for the manslaughter of a patient.”
While Justice Alito’s reference of a very real tragedy related to abortion might conjure an emotional response, Justice Breyer pointed out that “emotional” is about all that argument is. Yes, it’s heartbreakingly terrible that an abortion doctor managed to kill three living babies and a patient, but was Kermit Gosnell capable of doing so due to loopholes Texas’s abortion restrictions would close? Of course not. If Gosnell had admitting privileges at a nearby hospital, he could have still committed the crime. If Gosnell’s abortion facility had all the same stuff as the most up-to-snuff ambulatory surgical center, he still had nothing stopping him from practicing murderous behavior.
Looking to the Future
This week’s SCOTUS ruling is undoubtedly a landmark case that 8th graders will be forced to know about in schools of the future. Of course, that’s assuming that anti-abortion efforts continue to be unsuccessful — if this case had turned out in favor of keeping Texas’s law, for example, the nation would be absolutely freaking out over an exceptionally obvious setback in the ever-present fight for women’s rights. As we celebrate a big step in the right direction, it’s important also to make sure we head toward more progress and not less. Women’s health is an important issue, one that should not have to wait, and certainly one worth our tireless efforts to protect it.
At Turner Law Offices, P.C., our team of attorneys has years of experience working with clients across a wide range of cases related to civil rights and personal injury. If you’re considering legal action for an incident involving abortion, whether that experience dealt with an infringement upon your civil rights or caused some sort of actual harm, the best course of action always starts with hiring a seasoned lawyer you can trust. The most successful cases are won by an early start, so don’t wait to seek legal representation! Call today, or go online to set up your free initial consultation, and meet with a skilled lawyer who’s ready and waiting to guid you toward the justice you deserve.
