Yesterday a federal district court judge in Texas ruled that a major portion of the new Texas abortion law was unconstitutional. Specifically, the judge ruled as unconstitutional the new state requirement that abortionists have hospital admitting privileges within 30 miles of their abortion clinics.
People can disagree about whether the outcome of the ruling is just, but it is difficult to read the judge’s ruling and come away believing it is anything other than a crime against logic. Here are just three examples of why the ruling is a complete mess.
1) No Consideration of Women’s Health As A Rational Basis for Hospital Admitting Privileges Requirement
First, completely missing from the judge’s discussion of the principles that must govern court consideration of abortion regulations is any mention of how those regulations may exist to protect a woman’s health, rather than to merely restrict abortion access (his only mention of a woman’s health is in reference to the legality of abortion if a woman’s life is at risk). The principles cited by the judge, in order, are 1) a woman has a right to an abortion prior to the baby becoming “viable,” 2) any law that places an “undue burden on a woman’s decision” before viability is unconstitutional, and 3) the state may only ban abortion post-viability (except in cases where a pregnancy may place a woman’s life at risk).
It seems odd to exclude women’s health from a discussion about the rational basis for a law that supporters say exists to protect women’s health. If you are tasked with determining whether speed limits are constitutional and proceed to deliberately ignore any and all arguments that high-speed wrecks are deadlier than low-speed wrecks, that high speeds lead to high-speed wrecks, and that the state has an interest in preventing deathly automobile accidents, of course you will decide there’s no rational basis for speed limits.
Likewise, if you completely ignore the stated rationale of the hospital admitting privilege requirement — to protect a woman’s health if she chooses to have an abortion — of course you’ll assume there’s no rational basis for the law. The state has an obvious interest in protecting the health and welfare of its citizens, which is why so many current health regulations exist unchallenged. And given what we now know about Kermit Gosnell’s house of horrors — namely his conviction for causing the death of a healthy woman at his clinic during an abortion — only someone completely disconnected from reality could argue that the state has no interest in or rational basis for regulating abortions.
2) Deliberate Conflation of Burdens on Providers Vs. Consumers
Second, the judge deliberately conflates the distinct issue of burdens on providers versus burdens on consumers. It simply defies logic to state as a matter of fact that a requirement that abortionists have hospital admitting privileges somehow places an undue and unavoidable burden on women seeking abortions. Why? Take the following example.
In Texas, by law, only certain licensed medical professionals may write prescriptions. Using the logic of the judge’s ruling, that law creates an undue, and therefore unconstitutional, burden on women seeking an abortion. Many abortions are “medically induced,” or initiated by the application of prescription-only abortifacients such as mifepristone. Not only can that particular drug only be prescribed by a licensed physician, the FDA also requires that it only be administered “in a clinic, medical office, or hospital, by or under the supervision of a physician.”
If a hospital admitting privilege requirement places an undue burden on women seeking an abortion (it doesn’t, but I’ll grant the premise for the sake of the argument), then clearly state laws and federal regulations governing the prescription and administration of abortifacients place an even greater burden on individual women, requiring those laws to be found similarly unconstitutional.
And yet, no serious person challenges the rational basis of laws that allow only physicians to prescribe certain medications. Why? Because anyone can see that basic regulations about who can provide medical care have a rational basis. In fact, in his ruling, the judge specifically concedes that the FDA’s rules regarding the administration of mifepristone, while far more burdensome than off-label administration of the drug, do not rise to the “undue burden” threshold.
“Taken as a whole, the FDA protocol is clearly more burdensome to a woman than the off-label protocol,” the judge declares. “However, the record before the court, when viewed through the prism of the Supreme Court’s controlling precedent, establishes that [the undue burden] threshold has not been met.”
In the same section, the judge even quotes a specific passage from the Supreme Court’s 1992 Casey decision, which stated that “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.“ And yet, the judge tasked with adjudicating the Texas law argued in his conclusion that the hospital admitting privilege requirement is unconstitutional because it “places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her.” How can those two sentiments possibly be reconciled?
3) Determination That Hospital Admitting Privileges are Entirely Unrelated to Patient Care
Finally, the judge — based, no doubt, on his years of experience working in the medical profession — concluded that “admitting privileges have no rational relationship to improved patient care.” By way of comparison, the American Congress of Obstetricians and Gynocologists, or ACOG — the liberal, abortion-supporting licensing organization for OB/GYNs — doesn’t even go so far as to make that claim, which is facially absurd to anyone with even a passing understanding of the medical profession. Admitting privileges exist to ensure that only qualified, licensed medical personnel can practice medicine in certain medical facilities.
Interestingly enough, the Supreme Court has actually weighed in on the propriety of hospital admitting privileges. In 1984, the court issued a unanimous ruling that it was constitutional for a hospital to restrict its admitting privileges to anesthesiologists whose medical practices had exclusive contractual relationships with the hospital. The case was initially brought by an anesthesiologist whose application for admitting privileges to a hospital in Louisiana was rejected because he did not work for the firm that had an exclusive anesthesiology services contract with the hospital. While the case centered around anti-trust law, the court nonetheless weighed in on whether admitting privileges had a legitimate purpose.
In their concurring opinion, Chief Justice Burger and Justices O’Connor, Powell, and Rehnquist wrote, “The [hospital admitting privilege contract] improves patient care and permits more efficient hospital operation in a number of ways.”
“Such an arrangement, which has little anticompetitive effect and achieves substantial benefits in the provision of care to patients,” they concluded, “is hardly one that the antitrust law should condemn.”