Casey and the clinic closings: when "protecting health" obstructs choice

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Date: Mar. 2016
From: Yale Law Journal(Vol. 125, Issue 5)
Publisher: Yale University, School of Law
Document Type: Article
Length: 16,579 words
Lexile Measure: 1870L

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A. The Justification for Admitting Privileges Laws

States claim to protect women's health by requiring abortion providers to have admitting privileges at a local hospital. (121) Yet there are deep questions about whether evidence supports the alleged benefits to women's health. Abortion during the first trimester of pregnancy, when eighty-nine percent of abortions take place, (122) is extremely safe, with complications that require a hospital visit occurring in less than (0). (05) % of early abortions. (123) Of this small number of complications, many are minor, presenting symptoms similar to those of early miscarriage, which is a common reason for emergency-room visits and a condition that emergency-room physicians are accustomed to treating. (124)

Despite the safety of abortion procedures, states single out abortion for restrictions not imposed on procedures of comparable risk. In Texas, the district court found that at the time of passage of the state law imposing admitting privilege and ambulatory surgical center requirements on abortion, "abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.... [It was] much safer, in terms of minor and serious complications, than many common medical procedures not subject to such intense regulation and scrutiny." (125) (As the state's safety record might suggest, prior to passage of the Texas law, abortion procedures were already subject to rigorous health regulation.) (126) The district court found that, despite this safety record, the legislature had singled out abortion clinics for restrictions that were not imposed on facilities providing comparable medical services. (127) In Wisconsin, the state stipulated before trial that for no other outpatient procedures were doctors required to have hospital admitting privileges. (128) The state explained neither the reason for singling out abortion for special treatment nor the rush to pass its law, which was enacted "precipitously" in 2013. (129)

In defending the need for admitting privileges, states assert that the requirement serves important credentialing and monitoring functions, assures necessary "continuity of care," and prevents patient abandonment.* 130 While the states' claims imply that doctors who receive admitting privileges are superior in quality, that is not necessarily the case. Requirements for admitting privileges may have nothing to do with quality of care. (131) Many hospitals condition the award of admitting privileges on a certain number of patient admissions, setting quotas impossible for most abortion providers to meet when their patients so rarely need hospital care. (132) Hospitals may refuse to extend admitting privileges to doctors who perform a procedure to which the hospital's governing body has religious objections, (133) or may withhold admitting privileges for other unspecified reasons. (134) Patient care is not likely to be improved by requirements that are medically unnecessary and sufficiently burdensome to shut down the very facilities at which patients seek care. (135)

A further concern about the quality of the evidence supporting admitting privilege requirements has emerged in recent litigation. An activist named Vincent Rue has organized the set of witnesses who testify across state lines...

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Gale Document Number: GALE|A451229986