I. Artificial Barriers
Earlier this week, a Louisiana lawmaker forcefully explained why HB 388, a bill that would force the closure of three of the state’s five abortion clinics by establishing a series of superfluous licensing and facilities requirements, is bad policy. Quoting (bold mine):
State licensing requirements can impose unnecessary burdens on medical practitioners, also limiting access to health care. Given that the supply of doctors is not expected to keep up with projected demand, policy-makers should allow other medical professionals to utilize more of their expertise to provide more affordable and convenient care for patients.
In 2011, the Institute of Medicine recommended that all professionals should be empowered to practice to the full scope of their professional training.
States should modify their licensing requirements to remove artificial barriers impeding the ability to provide high-quality care.
States must also act prudently to protect patient quality and maintain high standards. Doing so would expand access to care, allowing Minute Clinics and other similar entities to treat patients quickly and at lower cost than hospital emergency rooms or other sources of care (footnotes omitted).”
As the lawmaker points out, the imposition of unnecessary licensing requirements creates “artificial barriers” to health care services and disempowers physicians from practicing “the full scope of their professional training.” And this, of course, is precisely the intent of HB 388, the misnamed “Unsafe Abortion Protection Act.”
2. The Twitter Amendments
I first sounded the alarm on HB 388 a few weeks ago. In its initial iteration, among other things, the bill changed the statutory definition of “first trimester” for the purposes of the state’s Outpatient Abortion Facility Licensing Law from “6 to 14 weeks after the first day of the last menstrual period” to “up to 14 weeks after the first day of the last menstrual period.” Given that it also expanded requirements for doctors who “prescribe(s), dispense(s), administer(s), or provide(s) any drug or chemical to a pregnant woman for the purpose of inducing an abortion” (bold mine) and given that many on the religious right (including Gene Mills of the Louisiana Family Forum, who claimed to be “working” with Representative Jackson on this legislation) believe, contrary to science, that the morning after pill is an abortifacient, I was concerned that the broad language of the bill could be interpreted as enabling the strict regulation of emergency contraception.
Importantly and notably, RU-486, the so-called abortion pill, cannot be administered until at least the fifth week of pregnancy, so it is suspicious and troubling that the bill’s authors seek to dramatically change the statutory definition of “first trimester” in the state’s licensing laws.
After I published my concerns, the story was picked up nationally by both Salon and Jezebel and by The Times-Picayune. State Representative Katrina Jackson told the Times-Pic that there was nothing in the bill that would do what I claimed it could do, that her bill was the victim of misinformation.
Then, Representative Jackson blocked me on Twitter.
I’m pleased, of course, that Representative Jackson amended her terrible bill, but as I have previously stated, any concerns about the potential strict regulation of emergency contraception pale in comparison to concerns about what the bill expressly accomplishes.
Representative Jackson publicly denied working with Gene Mills and the Louisiana Family Forum. Via Twitter:
And here is Representative Jackson only a few days later:
It certainly didn’t take much time for Katrina and Gene to become friends.
3. What Would Happen If We Banned Abortions?
For decades, abortion has been the single most controversial and single most divisive issue in American politics and American law.
Among its fiercest opponents, the issue is fairly simple: Murder is illegal, abortion is murder, and therefore, abortion should be illegal as well. To be sure, many opponents of abortion support the procedure in rare and extreme circumstances- rape, incest, and when the mother’s life is in imminent danger- but nonetheless, the end goal is clear: Overruling Roe v. Wade and either enacting a federal ban on abortions or allowing states the ability to pass their own laws banning abortions.
As I have stated previously, I agree with President Bill Clinton, who said, memorably, “Abortion should not only be safe and legal, it should be rare.” In my opinion, President Clinton provides a workable and realistic framework by which to evaluate public policy on abortion. But it requires abortion opponents to make a major concession: It requires them to agree that abortion should be legal.
For many, this is likely impossible. Their position on the issue of abortion isn’t primarily informed by legal analysis or statistics; it is informed by deeply-held religious beliefs on the very nature and definition of life itself.
I doubt I will change anyone’s mind here, but I think it is absolutely critical to consider: What actually happens if the United States Supreme Court overturns Roe v. Wade and the Congress and the President ban abortions except in the most limited circumstances?
First and most obviously, a ban on abortion would result in a dramatic increase in unwanted pregnancies being brought to term and, with that, according to economist Steven Levitt, an increase in crime.
Even if you disagree with Levitt’s provocative theory, one thing is for certain: Banning abortion would not eliminate abortion. Instead, it would force abortions into the “back alley;” the procedure would be criminal, completely unregulated, and significantly more dangerous, resulting in an increase in abortion-related deaths.
Quoting from a 2007 report published by The New York Times (bold mine):
A comprehensive global study of abortion has concluded that abortion rates are similar in countries where it is legal and those where it is not, suggesting that outlawing the procedure does little to deter women seeking it.
Moreover, the researchers found that abortion was safe in countries where it was legal, but dangerous in countries where it was outlawed and performed clandestinely. Globally, abortion accounts for 13 percent of women’s deaths during pregnancy and childbirth, and there are 31 abortions for every 100 live births, the study said.
The results of the study, a collaboration between scientists from the World Health Organization in Geneva and the Guttmacher Institute in New York, a reproductive rights group, are being published Friday in the journal Lancet.
“We now have a global picture of induced abortion in the world, covering both countries where it is legal and countries where laws are very restrictive,” Dr. Paul Van Look, director of the W.H.O. Department of Reproductive Health and Research, said in a telephone interview. “What we see is that the law does not influence a woman’s decision to have an abortion. If there’s an unplanned pregnancy, it does not matter if the law is restrictive or liberal.”
But the legal status of abortion did greatly affect the dangers involved, the researchers said. “Generally, where abortion is legal it will be provided in a safe manner,” Dr. Van Look said. “And the opposite is also true: where it is illegal, it is likely to be unsafe, performed under unsafe conditions by poorly trained providers.”
This is hugely important, and it’s why legislation like Katrina Jackson’s HB 388 is so misguided and dangerous. No matter how hard you may try or how earnest your spiritual beliefs about the sanctity of life may be, abortion has been a part of human society since ancient Egypt, and we can’t legislate it out of practice. When we try, we only make it exponentially more dangerous.
4. Why Katrina Jackson’s Bill Is Based On A Lie
Representative Jackson claims that her bill will make abortions “safer.” That is, unquestionably, a wholly unsubstantiated lie.
This isn’t about making abortions “safer;” it’s about shutting down the majority of the state’s abortion clinics. You may think that is a good thing, but still, let’s be honest about the real intent and true purpose of this legislation: It has nothing to do with the safety of abortions. Ms. Jackson’s bill is nothing more than a cynical attempt to unduly burden and intimidate the physicians who provide abortion services and the women who seek those services.
First, there is no evidence whatsoever that, under Louisiana’s current regulatory regime, any of the state’s five abortion clinics are engaging in unsafe or dangerous practices. There is no evidence whatsoever that the physicians who work at these clinics are or have ever been negligent or that they are, in any way, unqualified. The entire premise of Ms. Jackson’s bill is based on a lie.
Second and perhaps more importantly, the real meat of the bill- the requirement that physicians who perform abortions have admitting privileges at a hospital within thirty miles- has nothing to do with ensuring “safety” standards and everything to do with professionally devastating abortion providers. Hospitals do not have to automatically provide “admitting privileges” to any physician who requests them, and in a state dominated by a network of Catholic and Baptist hospitals, there is no incentive for any hospital to provide admitting privileges to a physician who performs abortions.
Either way, the “admitting privileges” requirement is also based on a lie. Gloria Bilchik of The Daily Kos explains (bold mine):
Anti-reproductive-rights advocates and legislators would have us believe that, if a medical emergency occurs during an abortion, the doctor in charge needs to have admitting privileges at a nearby hospital in order to ensure the safety of the woman. On the surface, that argument sounds plausible. But, in reality, it’s a fraudulent concept—and proponents know that.
Why? Because, when there’s an emergency, admitting privileges become irrelevant. Under a 1986 federal law known as EMTALA, hospitals are required to provide care to anyone who needs emergency care [with or without insurance, by the way.] This requirement includes pregnant women who need a life-saving abortion, are in labor, or are suffering the effects of a botched abortion.
Ms. Bilchik is exactly right: EMTALA already ensures that any man, woman, or child in need of emergency care must be treated and stabilized. Requiring abortion providers to maintain “hospital admitting privileges” may sound like a reasonable requirement, but it’s a farce, or, as Ms. Bilchik states, “a fraud.”
5. What Does This Mean? Surveying the Legal Landscape After Roe and Planned Parenthood
Currently, there is only one physician in the entire state of Louisiana who performs abortions and has hospital admitting privileges. This physician’s admitting privileges are with a hospital near clinics in Shreveport and Bossier City. And although the physician also travels to Baton Rouge to perform abortions in its clinic, under the proposed law, the physician would subsequently become prohibited from performing abortions in Baton Rouge, because the physician’s admitting privileges are at a hospital much more than thirty miles away- in Shreveport. None of the two clinics in New Orleans employ physicians with hospital admitting privileges.
What does this mean?
It means that the clinics in Baton Rouge and New Orleans will be forced to close and that a woman from New Orleans or Slidell or Marrero seeking an abortion in Louisiana will be forced to take an 800 mile round trip to a clinic in either Shreveport or Bossier City.
It means that the State of Louisiana is actively considering legislation that would unduly burden a woman from exercising her fundamental right to obtain an abortion, a fundamental right the courts have routinely defined as being located in the Due Process Clause of the Fourteenth Amendment, specifically the clause that relates to the protection of liberty interests.
As much as abortion opponents and many on the religious right oppose, without any reservation, the decision in Roe v. Wade, it established that a woman’s fundamental right to an abortion is no longer considered “fundamental” once the fetus is considered viable. Hence, after Roe, state legislatures all over the country began passing bans on late-term or partial birth abortions.
Nineteen years after Roe v. Wade, the Supreme Court in Planned Parenthood v. Casey, reaffirmed its support of Roe, and considered the constitutionality of series of laws, including spousal consent and, in the case of minors, parental consent. As Justice O’Conner, Justice Kennedy, and Justice Souter wrote in the plurality opinion (bold mine):
Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps *851 in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 850-51, 112 S. Ct. 2791, 2806, 120 L. Ed. 2d 674 (1992)
And further down (bold mine):
From what we have said so far it follows that it is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman’s liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.
That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman’s liberty to determine whether to carry her pregnancy to full term.
We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare decisis. Any judicial act of line-drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at 759, 106 S.Ct., at 2178; Akron I, 462 U.S., at 419–420, 103 S.Ct., at 2487–2488. Although we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent **2817 with Roe‘s statement that the State has a legitimate interest in promoting the life or potential life of the unborn, see infra, at 2823–2824, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe.It is that premise which we reaffirm today.
The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. See Roe v. Wade, 410 U.S., at 163, 93 S.Ct., at 731. Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw. And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, see supra, at 2811, but this is an imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter. The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.
The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.
On the other side of the equation is the interest of the State in the protection of potential life. The Roe Court recognized the State’s “important and legitimate interest in protecting the potentiality of human life.” Roe, supra, at 162, 93 S.Ct., at 731. The weight to be given this state interest, not the strength of the woman’s interest, was the difficult question faced in Roe. We do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions.The matter is not before us in the first instance, and coming as it does after nearly 20 years of litigation in Roe‘s wake we are satisfied that the immediate question is not the soundness of Roe‘s resolution of the issue, but the precedential force that must be accorded to its holding. And we have concluded that the essential holding of Roe should be reaffirmed.
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 869-71, 112 S. Ct. 2791, 2816-17, 120 L. Ed. 2d 674 (1992)
If you’ve kept up with me so far, hang in for just a few more minutes. Admittedly, I have given you a lot to consider, but for a good reason.
This, I believe is the most important part of the Planned Parenthood holding. Quoting (bold mine):
A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.
To the extent that the opinions of the Court or of individual Justices use the undue burden standard in a manner that is inconsistent with this analysis, we set out what in our view should be the controlling standard. Cf. McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 1467, 113 L.Ed.2d 517 (1991) (attempting “to define the doctrine of abuse of the writ with more precision” after acknowledging tension among earlier cases). In our considered judgment, an undue burden is an unconstitutional burden. See Akron II, 497 U.S., at 519–520, 110 S.Ct., at 2983–2984 (opinion of KENNEDY, J.).
Understood another way, we answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed **2821 to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability could be constitutional. See, e.g., Akron I, 462 U.S., at 462–463, 103 S.Ct., at 2509–2510 (O’CONNOR, J., dissenting).
The answer is no.
Some guiding principles should emerge. What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose. See infra, at 2832 (addressing Pennsylvania’s parental consent requirement). *878 Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.
Even when jurists reason from shared premises, some disagreement is inevitable. Compare Hodgson, 497 U.S., at 482–497, 110 S.Ct., at 2961–2969 (KENNEDY, J., concurring in judgment in part and dissenting in part), with id., at 458–460, 110 S.Ct., at 2949–2950 (O’CONNOR, J., concurring in part and concurring in judgment in part). That is to be expected in the application of any legal standard which must accommodate life’s complexity. We do not expect it to be otherwise with respect to the undue burden standard. We give this summary:
(a) To protect the central right recognized by Roe v. Wade while at the same time accommodating the State’s profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State’s profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman’s choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.
(c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.
Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.
We also reaffirm Roe‘s holding that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Roe v. Wade, 410 U.S., at 164–165, 93 S.Ct., at 732.
Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 877-79, 112 S. Ct. 2791, 2820-21, 120 L. Ed. 2d 674 (1992)
In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court explicitly advised lawmakers, I repeat, “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.” Those regulations and laws, therefore, are unconstitutional.
Once again, there is absolutely no evidence that requiring that physicians who perform abortions maintain admitting privileges within thirty miles of their clinic is even remotely necessary. Already, Louisiana’s five abortion clinics are subject to much more regulation and oversight than our Surgical Ambulatory Centers, which perform much more complex medical procedures and operations. HB 388 is precisely what the plurality of Supreme Court justices were referencing: A completely unnecessary regulation, ostensibly done to improve health, but actually designed to “impose an undue burden” on the right of women to seek abortions.
6. Back to the Beginning
Which brings me back to the Louisiana lawmaker’s point about our healthcare system being bloated with ridiculous bureaucratic licensing requirements and constrained by artificial barriers that prevent patients from getting the care they need in local, neighborhood clinics and prevent physicians from doing their jobs.
He’s right, and Representative Katrina Jackson’s HB 388 is a perfect example.
To be fair, I doubt he ever considered Representative Jackson’s bill when he published his analysis, but, either way, I just hope he takes the time to heed his own advice.