Tuesday, November 17, 2015

Planned Parenthood v. Casey II: Whole Woman's Health v. Cole

During the Planned Parenthood Case that was recently presented (at least in 1st period), it was briefly touched upon that there will be a new case that the court is expected to rule on later this year regarding a Texas state law passed in 2013 which purportedly is hindering women who wish to receive an abortion. I thought it may be appropriate to expand on that, as the Constitutional Law unit is coming to close. [Let us all take a moment to pause, take a breath, and try not to panic about the test tomorrow].
First, let’s examine a few of the provisions of that Texas law:
1.                          1-    Abortion providers must have admitting privileges at nearby hospitals (within 30 miles). What does this mean? This means that any physician who performs an abortion procedure (surgical, medicinal, etc…), must be able to admit, or “check-in” the recipients of the abortion procedure at a nearby hospital if need be. That means if there is a women’s health clinic that performs abortions that is not affiliated with a nearby hospital and the doctors there do not have admitting privileges at said nearby hospital, then that clinic runs the risk of getting closed down, an issue that we will explore later on
2.                           2-    Abortions must be performed in buildings with the same building standards as “Ambulatory Surgical Centers”. What is an ASC? Great question! It has nothing to do with the large truck with sirens and lights. Rather, they are clinics that operate independently from hospitals and specialize in surgical treatment. Almost 100% of the time, this is outpatient surgical treatment (walk in, get surgery, leave same day vs walk in, get surgery, leave week later). I am not about to dive in to the fascinating field of building codes and regulations, but essentially, many abortion centers would require additional renovation in order to meet this standard.
Now, here comes the problem. According to Planned Parenthood and several other organizations, more than half of Texas’s abortion centers have been forced to close because of the 2013 law. There used to be 42, and now there are 19. Opponents of the law argue that these closures came to be for several reasons. The first reason is that many of the clinics had physicians who did not have admitting rights at nearby hospitals. If this was the case and physicians were unable to obtain these admitting rights, then the clinic is in violation of the fist provision that was discussed earlier and therefore, must be closed down. The second reason is that many clinics were not up to standard with the same building codes as the ASCs. That does not mean that the clinics were unsafe in any way, (they may have been…it just is not something you can automatically assume), it just means that they were not built the same way as ASCs, which are used for various types of surgery (Orthopedics, Ophthalmology, Urology, Gastrointestinal, etc…).
         According to studies cited by Reuters, the closure of half the states abortion clinics has negative implications. The study estimated that between 100k-240k women aged 18 to 49 have attempted abortion procedure themselves, using practices like special herbal concoctions, teas, and sometimes medicines which are illegally  obtained from Mexico without a prescription.  Unfortunately, women of lower social classes are most often the victims of the closure of abortion centers, and constitute a large percentage of those who are attempting abortions themselves. But underprivileged women are not the only victims. Many women, instead of being able to use a local clinic, must travel long distances from their town to an abortion clinic ( Texas is a BIG state and if there are only 19 abortion centers within the entire state, well…you get the picture). By doing so, they are forced to take of more time from their jobs and/or find childcare for their children, both of which have negative economic impacts on women regardless of class, but especially in the case of poor women. In addition, another study found that the average wait time for an abortion was three weeks, adding to the stress of the long drives and time off work.
           In Planned Parenthood v Casey (1992) the Court held that it is permissible for states to put restrictions on abortions just as long as the restrictions were not unnecessary burdens. Now, Rick Perry, the governor of Texas, along with the law’s other supporters, claim that regulations like these are essential for public health. If a woman has complications arising from her procedure, then the physician who was conducting the procedure should be able to put her in a hospital in order for the women to receive adequate care. Opponents to the law cite studies which results show a very low complication rate in abortion procedures. One such example would be a NCIB study which showed that in legally induced abortions, the mortality rate was .6 deaths per 1000 procedures, which amounts to a 0.0006% mortality rate. Feel free to double check the math. Also, if you are going to have an abortion, supporters argue, you had better have it in safe facilities that are well-equipped to handle emergencies. I, personally, agree with that argument, BUT, does a well-equipped abortion clinic need to be as well-equipped as an ambulatory surgical center, which performs various, and often more serious, types of surgery?
Here is the essential question: Whether or not you are pro-life or pro-choice, from a strictly legal standpoint here, does the Texas law being challenged in the Supreme Court violate the “unnecessary burden” limit imposed by the decision in PP v. Casey?
The court will rule on the constitutionality of the two provisions of the law that we explored in a case called Whole Woman’s Health (an abortion clinic) v Cole (Texas commissioner of Dept. of State Health Services). Stay tuned for the decision.

           This brings up several interesting discussion points: How do you think the court will rule in regards to the “essential question”? Are the two provisions of the Texas law unnecessary burdens? Should lawyers and judges be able to make decisions about the building codes of hospitals? Why shouldn’t doctors be able to make their own decisions on what they need or don’t need for an abortion procedure? Should ASCs and abortion clinics be held to the same standards? Why or why not? Additional thoughts?

Sources:
 http://www.reuters.com/article/2015/11/17/us-texas-abortion-idUSKCN0T62C220151117#R8hqDWBJ7WVpPldo.97
http://www.reuters.com/article/2015/11/16/us-usa-court-abortion-states-idUSKCN0T30VV20151116#R5K14G07QpMSEteT.97
http://www.nytimes.com/2013/07/19/us/perry-signs-texas-abortion-restrictions-into-law.html
http://www.scotusblog.com/case-files/cases/whole-womans-health-v-cole/
http://www.ncbi.nlm.nih.gov/pubmed/22270271
http://www.advancingsurgicalcare.com/whatisanasc

5 comments:

Caroline Mameesh said...

I see the validity in both provisions of the Texas law, however, given the circumstances, I believe they are doing more harm than good. Closing down 23 clinics as a result of these provisions is worse, in my opinion, than having those 23 clinics open and running, just not up to par with what the Texas law sets out (high, high standards).
I do not know the condition of those 23 clinics, but I am going to assume that they were decent facilities that resulted in very few, if any, moralities while they were up and running.
PP v. Casey, as well as Roe v. Wade, argued heavily that in not permitting abortions, or in PP's case, making them unreasonably difficult to acquire, forced women into back-alley methods of abortions (unlicensed physicians, coat-hanger abortions, etc.). Before Roe v. Wade, as many as 5,000 women died per year because of unsafe abortions (http://www.ourbodiesourselves.org/health-info/impact-of-illegal-abortion/). Compare that to the 0.0006% that have died from actual, legal abortions. Which is the better outcome?
I doubt that even close to 5,000 women die, as of now, from illegal or self-induced abortions, however the precedent cases before this one set a very clear standard: abortion must not be an unnecessary burden. While the Texas law's provisions are reasonable in theory, 19 clinics for the entire space of Texas is too far apart, and I am sure it has and will deter women from abortions. In 2011, 93% of Texas counties had no abortion clinic. 35% of Texas women lived in these counties (https://www.guttmacher.org/pubs/sfaa/texas.html).
At a 0.0006% fatality rate, there isn't much to lose. I believe Texas' law does provide an "unnecessary burden," and part of me thinks it may be Texas' way of trying to deter women from having abortions. In making abortions harder and harder to acquire, more fatalities could result than would result from accessible abortions. The 14th Amendment's right to privacy was interpreted to allow for abortions, and it is crucial that these abortions not become a burden under various state laws. Selective incorporation exists for a reason.

Daniel Jun said...

Abortion... is a real hot button issue for many Americans. But, if we ignore any possible biases from "pro-life" or "pro-choice" propaganda, the argument effectively boils down to "do we prioritize extreme safety at the cost of potentially debilitating setbacks for those seeking abortions, or do we prioritize expediency and ease over the chance of potential fatalities at being unable to handle complications during or after the procedure?"

But in the real world, a world where hard facts and strongly held opinions apparently hold the same weight in an argument, my question gets bogged down by propaganda and observation, scientific studies and religious beliefs. However, the idea of prioritization still stands: safety vs expediency.

In theory, safety should take precedence, but what about the complications of childbirth? Or the complications of raising a child, feeding a child, having time for a job while caring for a child? The many facets of this argument, however, are tempered by the single word "unnecessary."

Saying "I want to reduce the number of abortion clinic because I want to ensure safety for the women who receive abortions" makes a hero of a man (or woman) who could have said "I want to reduce the number of abortion clinics because I, be it for religious, ethical, or personal reasons, don't want people to get abortions" and been viewed as simply another member of the pro-life crowd. This one implication of the prioritization of safety infinitely increases the persuasive ability of those who support the current law.

We live in a country where lawsuits are ridiculously common. The last thing abortion clinic supporters need is to get sued for negligence, or not having a hospital nearby enough to deal with complications. Perhaps I am worrying over nothing, or perhaps my fears of a lawsuit in the United States of America are completely legitimate.

In case it isn't clear in the above portions of the comment, I am stuck between both sides of this argument. While I believe women should receive the procedures they desire without undue obstruction, I also believe in better safe than sorry.

Bobby Sato said...

Obviously it is impossible to predict the outcome of a case without even hearing the appellant and respondent arguments, but we can look at possible precedent cases that will be applied. Under Roe v Wade's "essential holding," the state has legitimate interest in the health of the woman and life of the fetus. How far this interest can go before it becomes an undue burden is the ultimate question in this case. When compared to the Pennsylvania statute questioned under Planned Parenthood v Casey, the Texas laws do seem to be a greater burden. Despite causing a greater burden, they also seem to have a legitimate interest in the woman's safety unlike the spousal notice provision.

Going back to the case and some arguments already made, opponents of the law cited mortality rates when arguing low complication rates but these two are not synonymous. The average complication in an abortion does not result in death. Therefore the .00006% mortality rate can not be used to support a low number of complications in a state.

Nick Jadallah said...

Bobby-- Just in regard to your last point, I agree. The two are not synonymous, and therefore the evidence may be misleading. That is my mistake and I apologize. If you are interested, here is a study conducted by UCSF regarding abortion COMPLICATION statistics (which are still very low).
https://www.ucsf.edu/news/2014/12/121781/major-complication-rate-after-abortion-extremely-low-study-shows

Bobby Sato said...

Thank you for clearing that up for me Nick. Also I agree with what you are saying. The less than 2 percent mentioned in this article still supports your argument that complications are low. My apologies if my comment came off as too abrasive.