Why abortion ‘patient safety’ laws may actually hurt women


State laws requiring admitting privileges at hospitals are the latest legal battleground for abortion access. (Photo by Chris Greenberg/Bloomberg News)

For the second time in a matter of days, a federal court on Monday rejected a state law requiring abortion providers to have admitting privileges at local hospitals. Alabama had argued its 2013 law was necessary to protect the safety of women undergoing the procedure, but U.S. District Judge Myron Thompson on Monday said the law would have forced three of the state's five abortion clinics to close, placing an unconstitutional limit on a woman's access to the procedure.

A law passed under the pretense of patient safety, Thompson wrote, would actually hurt women seeking abortions. The closure of the clinics could provide a hurdle in particular for low-income women who'd have to travel further to obtain an abortion, increasing the likelihood that they delay the procedure. The closures would also "create a greater risk that women would attempt to obtain an abortion illegally, without medical supervision."

Abortion opponents have generally described such laws as necessary to protect patients. Then there's Mississippi Gov. Phil Bryant, who has been pretty open about his motivation for the state's 2012 admitting privileges law, which could shut down Mississippi's only abortion clinic. "My goal, of course, is to shut it down," the Republican governor said last year.

Five states have admitting privileges laws on the books, and that will increase to seven later this year when laws in Louisiana and Oklahoma take effect, according to a Guttmacher Institute analysis last month. These laws are part of a growing effort to place tighter restrictions on abortion clinics in the name of patient safety — but with the goal of shutting down the clinics, Guttmacher says. The number of states with so-called TRAP laws — for "targeted regulation of abortion providers" — has grown from 11 to 26 in almost the past 15 years, according to the group.


(Guttmacher Institute)

Thompson, a Democratic-appointed judge, offers a pretty thorough rebukeof Alabama's apparent overreach in his 172-page opinion issued yesterday. In it, Thompson argues that the Alabama law prescribes unachievable standards for doctors providing abortions at three clinics and fails to meet patient safety goals claimed by the state.

The state's law sets up some difficult hurdles for the four doctors working at clinics in Birmingham, Mobile and Montgomery, Thompson writes. To get admitting privileges at hospitals, the doctors usually have to live close enough to the hospital or see a certain amount of patients. All four of the doctors come from out-of-state — including one who lives in Nigeria — to perform abortions. Two of those doctors, in orderto gain admitting privileges at a local hospital, would have to document performing at least 25 non-abortion procedures from the past year, yet these doctors provide only abortions.

Another doctor, who lives in Georgia and has admitting privileges there, said she wouldn't be able to get similar status at nine hospitals near the Birmingham clinic where she provides abortions. She didn't meet proximity requirements for five of them, while another three hospitals are Catholic-affiliated and oppose abortion. She said she was rejected from the final hospital at the University of Alabama-Birmingham because the department chair opposed abortion and wanted to avoid getting involved with a politically sensitive issue.

What about patient safety concerns? The state makes a case that patients need an ensured care plan if there are complications after an abortion. Thompson, who points out just how rare complications are for early-term abortions performed at the clinics, found that the clinics — which are already regulated — had strong policies in place that worked when these isolated cases did emerge. And these instances are rare; one clinic reported that just one out of an estimated 3,500 patients in a nearly four-year time frame wound up in the emergency room following an abortion.

Thompson's opinion is far from the final word on these state laws. Separate panels of the 5th Circuit Court of Appeals recently issued opposite opinions about two other state laws, and Alabama has vowed to fight Thompson's decision. The Supreme Court less than two months ago declined to intervene in a case involving a similar Wisconsin law that had been blocked by the lower courts. But the high court may have to step in if conflicting appellate decisions, like the ones from the 5th Circuit, pile up.

Jason Millman covers all things health policy, with a focus on Obamacare implementation. He previously covered health policy for Politico.
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