Adapted from a talk given by Helen Cross at the 2016 Convention. It will appear in the summer issue of Massachusetts Citizens for Life Quarterly
In 2013, late-term abortionist Dr. Kermit Gosnell was convicted of first-degree murder in the deaths of three babies who were born alive and killed by having their spinal cords severed, and found guilty of involuntary manslaughter for the death of a woman who died of a drug overdose during an abortion. The Grand Jury report described Gosnell's clinic, the Women's Medical Society in West Philadelphia, as a “house of horrors with the remains of aborted fetuses stored everywhere, blood on the floor, and the stench of urine in the air. Semiconscious women scheduled for abortions were moaning in the waiting room or the recovery room where they sat on dirty recliners covered with blood-stained blankets.”
The Gosnell jurors had varying opinions concerning abortion; some were pro-life, some were not. However, they found it reasonable to conclude that the State should license abortion clinics as ambulatory surgical facilities with mandated yearly inspections and licensing. Page 249 of the Grand Jury report noted, "The regulations for Pennsylvania's ambulatory surgical facilities (ASFs) provide a comprehensive set of rules and procedures to assure overall quality of care at such facilities. The effect of the Department of Health’s reluctance to treat abortion clinics as ASFs was to accord patients of those facilities far less protection than patients seeking, for example, liposuction or a colonoscopy. There is no justification for denying abortion patients the protections available to every other patient of an ambulatory surgical facility, and no reason to exempt abortion clinics from meeting these standards."
Eleven state legislatures acted swiftly, enacting laws requiring abortion clinics to have the same standards as ambulatory surgical facilities and requiring abortion doctors to have admitting privileges at local hospitals. In Massachusetts, MCFL's legislative agenda for 2015-2016 includes H. 2039, "The Women’s Safety Act," which would amend the definition of clinic in the General Laws and expose the lack of licensing and inspection of numerous non-hospital abortion facilities in the state.
In the states where the laws were enacted many facilities failed to make the required changes and closed. Abortion advocates fought back by appealing to the courts, hoping to have the new safety standards repealed. They argued that the regulations amounted to barriers that impeded women's right to access abortions and were themselves unsafe.
The Supreme Court heard oral arguments on March 2 in Whole Woman's Health v. Hellerstedt, a challenge to a 2013 Texas law, HB 2, requiring that abortion clinics meet the same building standards as ambulatory surgical centers and requiring abortion doctors to have admitting privileges at a hospital within 30 miles of the abortion facility. The pro-abortion Obama administration filed a friend-of-the-court brief against the bill with U.S. Solicitor General Donald Verrilli saying, “Those requirements are unnecessary to protect–indeed, would harm–women’s health, and they would result in closure of three quarters of the abortion clinics in the state. The restrictions do not serve the government’s interest in protecting women’s health, and they would close most of the clinics in Texas, leaving many women in that State with a constitutional right that exists in theory but not in fact.”
After a legal challenge, HB 2 was upheld by 5th U.S. Circuit Court of Appeals with Judge Edith Jones noting, “Planned Parenthood conceded that at least 210 women in Texas annually must be hospitalized after seeking an abortion. Witnesses on both sides further testified that some of the women who are hospitalized after an abortion have complications that require an OB/GYN specialist’s treatment. Against Planned Parenthood’s claims that these women can be adequately treated without the admitting-privileges requirement, the state showed that many hospitals lack an OB/GYN on call for emergencies.”
Whole Women's Health appealed to the Supreme Court who agreed to hear the case. National Right to Life Committee Counsel James Bopp filed a friend-of-the-court brief on behalf of the NRLC arguing that the US Circuit Court of Appeals "upheld two key provisions of HB2. First, that abortion clinics be outfitted as ambulatory surgical centers. Second, that abortionists have admitting privileges at a nearby hospital in case of emergency."
Despite the provision in Roe v. Wade for states to enact their own regulations, the Supreme Court assumed the role of national medical board and overruled many laws enacted during 1973-1991. In 1992, the Casey decision upheld a woman's right to abortion, but also gave states leeway to enact regulations as long as they did not constitute an "undue burden."
Bopp wrote, “After Roe v. Wade, this Court slid into a period of extreme hostility to regulation of abortion as a medical procedure, from which it began recovery in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). The Court did so by returning to an undue-burden analysis along lines advocated by Justice O’Connor in Akron v. Akron Center for Reproductive Health (1983). Petitioners seek to return this Court to what it rejected in Casey, “the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States."
In November 2015, Wisconsin law requiring admitting privileges was overturned by the 7th Circuit Court of Appeals. In a dissent to the 2-1 decision Judge Daniel Manion wrote, "Under well-established Supreme Court precedent, the state may constitutionally regulate abortion so long as it has a rational basis to act and does not impose an undue burden. It is in the state's interest to ensure that medical procedures are performed under safe circumstances. Abortion–which is subject to less regulatory oversight than almost any other area of medicine–bears no exception.”
In 2003, the American College of Surgeons issued "Statement on Patient Safety Principles for Office-based Surgery Utilizing Moderate Sedation/Anesthesia, Deep Sedation/Analgesia, or General Anesthesia" along with the American Medical Association (AMA) and American College of Obstetricians and Gynecologists (ACOG). Core principles for patient safety included the importance of admitting privileges at a nearby hospital for physicians performing office-based surgery. Manion wrote, "Despite this, the AMA and ACOG have joined a joint amicus brief arguing that Wisconsin’s admitting-privileges law is unconstitutional. The requirement promotes continuity of care and helps to ensure that abortionists are properly credentialed and qualified."
His dissenting opinion continues, "Between 2009 and 2013 at least 19 women who sought abortions at Planned Parenthood in Wisconsin were hospitalized after their abortions. People want state measures to minimize risk and don't consider it an infringement on their constitutional rights." Manion noted that the Wisconsin law was enacted after the abuses at Gosnell's clinic in Pennsylvania adding, "Gosnell was aided by the idea that any regulation was an infringement of the constitutional right to abortion.
"The Wisconsin law is designed to curb risks and benefit the welfare of patients undergoing invasive procedures that pose significant health risks. The Supreme Court's decisions after Roe said the State has a legitimate interest in seeing that women have abortions under conditions that are 'safe.' States can regulate a doctor and his staff, the facilities, the availability of after-care, and the adequate provision for emergencies. A 2000 publication from the National Abortion Federation, "Having an Abortion? Your Guide to Good Care" said, 'in the case of emergency, the doctor should be able to admit patients to a nearby hospital (no more than 20 minutes away).'"
Manion found four main benefits for operating surgeons who have admitting privileges: providing a more thorough evaluation mechanism which better protects patient safety; acknowledging and enabling the importance of continuity of care; enhancing inter-physician communication; and optimizing patient information transfer and complication management and supporting the ethical duty of care for the operating physician to prevent patient abandonment. Continuity of care reduces the risk of injury caused by miscommunication and misdiagnosis when a patient is transferred from one health care provider to another allows for "optimal handling of a complication arising from a procedure" be best for the operating physician and the physician at the hospital to talk to one another. It would also benefit the woman who could have her care and confidentiality protected without delay.
Commenting on the Texas case now before the Supreme Court Professor Hadley Arkes said that positive law must be connected to a moral principle. "The judges are working within the framework of the positive law: the positive law that proclaims a high 'right to abortion' and screens the victim from view as a victim. They simply connect us to the fact that the law has sought to protect a right to destroy an innocent life. The law would fend off the efforts to subject that freedom to the kind of delay and reflection that could effectively discourage a person from exercising that freedom to kill. And thanks to the genius of the former Justice Sandra O’Connor, the attempts to cast up these gentle restraints on killing can be called an 'undue burden.'"