Robin Fretwell Wilson is the Roger & Stephany Joslin Professor of Law and Director of the Epstein Health Law & Policy Program at the University of Illinois College of Law.
Last month I lost someone close to me after an infection that began as double pneumonia ravaged her body. In the space of a day, a mother of nine in the prime of her life slipped away. It was so improbable. So permanent. And if that loss was not tragedy enough, the husband she left behind contracted MRSA, an antibiotic-resistant bug that can be deadly. MRSA lurks in the very facilities that care for us. According to the Centers for Disease Control and Prevention, over 90,000 people die from healthcare-associated infections every year, more than double the number of people who die in auto accidents.
That my friend could die from an infection so suddenly is hard to process. But complications often arise during the course of medical treatment, including at large hospitals and small clinics.
This forum considers the Supreme Court’s decision in June Medical Services v. Gee to stay Louisiana’s latest regulation of abortion providers — one that the sponsoring legislator explained as providing “a safe environment … that offers women the optimal protection and care of their bodies.” Louisiana would require physicians performing abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic.
Two simple questions have occupied me: Are women experiencing medical complications when having abortions? Would Louisiana’s new requirement actually help them if the cataclysmic occurs?
What I’ve learned
In the most recent year for which CDC provides data, 2013, the number and rate of reported abortions across the nation reached “historic lows,” due, in part, to increased access to contraception. In that year, four women died as a result of complications from legal abortions — a year in which medical professionals performed 664,435 abortions.
Between 1973 and 2014, 437 women died from complications after a legal abortion — women whose deaths are as devastating as my friend’s death from septic shock brought on by pneumonia. These women also leave behind families, friends and futures cut tragically short.
Abortions carry risks including blood clots, heavy bleeding, cuts, tears, perforations, and infection.
Simply being in a healthcare facility carries risk: Roughly 4.5 infections occur for every 100 hospital admissions, a risk that extends to office-based surgical suites and free-standing surgical centers. Still, given the tens of millions of abortions performed since Roe v. Wade, the procedure is remarkably safe.
Didn’t we decide this already?
It feels like we just had this conversation about admitting privileges, in Whole Woman’s Health v. Hellerstedt. There, the Supreme Court struck down Texas’ dual regulation of abortion — an admitting-privileges requirement and a requirement that abortion clinics meet the physical-plant rules for ambulatory surgical centers. The court held that both requirements imposed an undue burden on a women’s right to seek a pre-viability abortion.
Like Louisiana, Texas required physicians to “have active admitting privileges at a hospital that … is located not further than 30 miles from the location at which the abortion is performed or induced.” Previously Texas required that a physician have privileges or a relationship with a physician who does. Texas justified the stricter requirement as “help[ing] ensure that women have easy access to a hospital should complications arise during an abortion procedure.”
The rub: Statistics and testimony showed it is “extremely unlikely that a patient will experience a serious complication at the clinic that requires emergent hospitalization.” Instead, most complications “occur in the days after the abortion, not on the spot.”
Abortion-rights advocates skewered Texas for requiring abortion providers to have privileges while ignoring dentists, cosmetic surgeons and other providers whose patients also experience complications.
And at oral argument Texas’ attorneys could not cite a “single instance in which the new requirement would have helped even one woman obtain better treatment.”
The requirement erected a “substantial obstacle in the path of a woman’s choice.” Why? Because some Texas hospitals will not extend privileges unless the physician admits so many patients per year. Indeed a physician who had “delivered over 15,000 babies” across 38 years “was unable to get admitting privileges at any of the seven hospitals within 30 miles of his clinic.” The Supreme Court ultimately concluded that “the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics.”
All eyes on Kavanaugh
Already, observers are reading the tea leaves about whether the Supreme Court’s new composition will affect the outcome in June Medical.
In a striking dissent from the grant of the stay, Justice Brett Kavanaugh emphasized the “intensely factual” question of physician admitting privileges.
Because the law had not taken effect, he observed, “the parties have offered, in essence, competing predictions about whether those three doctors can obtain admitting privileges”:
Louisiana has three clinics that currently provide abortions. As relevant here, four doctors perform abortions at those three clinics. One of those four doctors has admitting privileges at a nearby hospital, as required by the new law. The question is whether the other three doctors—Doe 2, Doe 5, and Doe 6—can obtain the necessary admitting privileges. If they can, then the three clinics could continue providing abortions. And if so, then the new law would not impose an undue burden for purposes of Whole Woman’s Health. By contrast, if the three doctors cannot obtain admitting privileges, then one or two of the three clinics would not be able to continue providing abortions. If so, then even the State acknowledges that the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health.
The district court concluded that the three doctors likely could not obtain admitting privileges and enjoined the law. The U.S. Court of Appeals for the 5th Circuit concluded they could and lifted the injunction.
Facts will matter, as will the justification for the law
Already, two courts have made wildly different predictions about Louisiana’s law — based on facts surmised in a facial challenge.
The 5th Circuit chalked up the possibility that a physician might struggle to get privileges to the physician’s own “intervening … failure to apply for privileges in a reasonable manner.” The “almost-universal requirement” by Texas hospitals that their medical staff “maintain minimum annual admissions” operated as “a per se bar.” But here:
There is an insufficient basis in the record to conclude that the law has prevented most of the doctors from gaining admitting privileges. Similarly, any clinic closures that result from the doctors’ inaction cannot be attributed to Act 620.
What drives admitting privileges?
Importantly, Louisiana’s legislature offered a different spin on requiring admitting privileges. It heard testimony that Louisiana women experiencing complications “had been treated harshly by the provider.” A patient who “began to hemorrhage, [was told] ‘to get up and get out.’”
For Louisiana lawmakers, admitting privileges were crucial not only for responding to complications, but also for ensuring “continuity of care, qualifications, communication, and preventing abandonment of patients.” This meant all patients. Louisiana’s requirement brought abortion providers “into the same set of standards that apply to physicians providing similar types of services in [ambulatory surgical centers].”
Admitting privileges have long operated to bind patients to their physician: When a person seen in the emergency room is admitted to the hospital, their primary-care physician takes over their care, assuming that physician has privileges. This both ensures continuity of care and avoids patient abandonment. It makes good on the duty of physicians to follow through in caring for patients during the spell of illness. It also prevents hospitals from poaching every emergency-room patient who is regularly seen by a member of the hospital’s medical staff.
The weakness of this traditional model is obvious: Not everyone has a primary-care physician and not everyone gets sick near their physician’s hospital. Over time, hospitalists developed to admit patients to the hospital when their own primary-care doctors could not. But that development has largely passed Louisiana by. Although the number of hospitalists in the U.S. has grown from 10,000 in 2003 to over 50,000 in 2016, in 2013, Louisiana had the lowest number of hospitalists in the country. This places an even greater premium on one’s physician having privileges somewhere.
Some reflexively assume that Louisiana hospitals, many of which are religiously affiliated, will deny privileges to doctors who perform abortions. After all, Louisiana, like Texas, is a stronghold for opposition to abortion. Louisiana is a heavily Catholic state.
Although requirements for admitting privileges differ from institution to institution, the one thing facilities that receive certain federal funds cannot do is “discriminate” against physicians based upon their religious or moral beliefs about abortion. These conscience protections have insulated physicians who want to do abortions in their private offices or clinics from losing their livelihoods, just as they protect abortion objectors.
What does all this mean?
Perplexingly, few people seem to be asking these fact-dependent questions. Instead, ideology about abortion seems to drive how many view Louisiana’s law.
If Louisiana’s law could prevent the kind of loss I recently experienced, I think many people would approach it with an open mind. But without a thicker factual record– without more from lawmakers about the value and feasibility of the physician-privileges requirement or, at this juncture, without waiting to see whether the doctors can in fact obtain admitting privileges and what effect this has on access–it is hard to tell whether Louisiana’s law will actually do that.
And that is part of the problem. In what remains the most divisive conflict in America, lawmakers would do well to develop the facts instead of asking for our blind trust.
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Past cases linked to in this post:
Roe v. Wade, 410 U.S. 113 (1973)
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)
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