Opinion

Supreme Court likely to review admitting-privileges requirements for abortionists

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Opinion,Op-Eds,Supreme Court,Abortion,Stephen Breyer,Kermit Gosnell

Even as we await the Supreme Court's decision on the coercive Obamacare mandate and its requirement that most health insurance plans cover life-ending drugs mischaracterized as “contraception,” both pro-life advocates and pro-abortion activists are anticipating the high court's “next, big” abortion case.

As a result of state legislators' commitment to protecting women from the all-too-common substandard conditions and practices in abortion clinics, momentum is building for the justices to decide the constitutionality of laws requiring abortionists to maintain hospital admitting privileges.

Despite protests to the contrary, the need for such lifesaving requirements is clear. Relying on the abortion industry’s own conservative estimates of complication rates, plus the pro-abortion Guttmacher Institute’s latest report on induced abortions, in 2011 alone, more than 26,000 women experienced abortion-related complications, and more than 3,000 of these women required hospitalization.

Admitting-privileges requirements are necessary to ensure that these women receive high-quality, post-abortive and emergency care from qualified doctors.

Fifteen states currently require abortionists to have admitting privileges or a patient-transfer agreement with a physician who maintains such privileges.

Despite the fact that these requirements are designed to protect women's health and safety and to facilitate proper care in a medical emergency, abortionists and abortion-advocacy groups have filed federal legal challenges against recently enacted admitting-privileges requirements in Alabama, Mississippi, Texas and Wisconsin, callously contending that the requirements are burdensome and unnecessary.

Late last year, the Seventh Circuit Court of Appeals refused to overturn a lower court's preliminary injunction prohibiting enforcement of Wisconsin's admitting-privileges requirement, finding that the legislators had acted “improperly.” In March, Wisconsin asked the Supreme Court to review this decision.

Meanwhile, the Fifth Circuit Court of Appeals reached the opposite conclusion, as a panel of three female judges determined that Texas’ admitting-privileges requirement was constitutional and clearly protective of women’s health.

Notably, the Fifth Circuit explicitly rejected the Seventh Circuit’s flawed analysis. As to the “need” for admitting privileges, the Fifth Circuit found that Texas had a rational basis for enacting the requirement: the “desirable protection of abortion patients’ health.”

Importantly, the “specter of Kermit Gosnell” precipitated an acknowledgement that the credentialing process entailed in the admitting-privileges requirement “reduce[d] the risk that abortion patients would be subjected to woefully inadequate treatment.”

Abortion advocates recently asked the Fifth Circuit to reconsider the ruling. Regardless of the ultimate outcome of this request, the Texas admitting-privileges requirement is also likely to end up before the Supreme Court.

The conflicting decisions from the Seventh and Fifth Circuits increase the probability that the Supreme Court will decide to review one or both cases.

The Supreme Court’s own words would also appear to increase the chances of the Court weighing in on the constitutionality of admitting-privileges requirements for abortionists.

In November 2013, abortion advocates asked the Supreme Court to enjoin enforcement of the Texas requirement while litigation over its constitutionality continued.

By a 5 to 4 vote, the Supreme Court refused this request. However, in a somewhat unusual move, Justice Stephen Breyer, writing for the four Justices who felt that the law should have been enjoined, specifically stated that:

“The underlying legal question — whether the new 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 Fifth Circuit’s ultimate decision.”

As review is granted upon the votes of only four Justices, this sentiment would strongly suggest that imminent Supreme Court review of state laws requiring abortionists to maintain hospital-admitting privileges is likely.

Such an outcome would provide a welcome opportunity to demonstrate both that the requirements are medically justified, and that abortion is not “safe” for either women or their unborn children.

Denise Burke is vice president of legal affairs for Americans United for Life.
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