A Fort Worth, Texas, hospital says it has no choice but to keep a pregnant woman on life support until the fetus she is carrying can be delivered, something her family says goes against her end-of-life directives.
Marlise Munoz collapsed in her home on November 26 when she was 14 weeks pregnant, and has been hospitalized and on life support ever since.
Her husband, Erick Munoz, told local new outlet WFAA that he and his wife, who are both paramedics, had talked specifically about not wanting “to be kept alive by machine.” But because of Marlise Munoz’s pregnancy, that decision has now been made for them by the State of Texas. According to state statute, “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.”
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J.R. Labbe, a spokesperson for John Peter Smith Hospital (JPS), the county hospital where Munoz is being kept on life support, told Rewire via email, “Our responsibility is to be a good corporate citizen while also providing quality care for our patients.” Labbe added that there has “not been a case with similar circumstances” anywhere previously in the hospital network.
“Advance directives are governed by state law,” she said. “At all times, JPS will follow the law as it applies to healthcare in the state of Texas.”
Labbe was unable to estimate the cost of Munoz’s hospitalization in the coming months, calling it a “secondary issue to providing the best care we can for the patient.”
In the Munoz case, that “best care,” as defined in a 1989 state law, does not align with what Munoz herself wanted. According to WFAA, the Munoz family would have to secure an injunction or court order to be able to carry out Marlise Munoz’s final wishes.
Erick Munoz, who has a toddler-age son with his wife, told WFAA that he doesn’t agree with the law, and that he worries about the health of the fetus his wife is carrying. According to Munoz, it will be mid-February before doctors can make another determination about the fetus’ health and when it might be delivered. “They don’t know how long the baby was without nutrients and oxygen,” he told WFAA. “But I’m aware what challenges I might face ahead.”
The fire department where Munoz works has been collecting diapers, supplies, and money for Munoz since early December, and because of the outpouring of support, they’re now asking solely for financial contributions to help the family.
According to a preliminary analysis, at least 23 states, including Texas, do not authorize either the patient or the patient’s agent to withhold life-sustaining care if the patient is pregnant.
In a CNN town hall Tuesday night, Paul Ryan agreed with an audience member's baseless sentiment that the Supreme Court had struck down “commonsense health and safety standards at abortion clinics" in its Whole Woman's Health v. Hellerstedt ruling.
During a CNN town hall on Tuesday night, House Speaker Paul Ryan (R-WI) pushed falsehoods about the anti-abortion provisions at the center of the recent U.S. Supreme Court decision in Whole Woman’s Health v. Hellerstedt being necessary for patient health and safety. Ryan nonsensically then used the decision as a launch point to promote House Republicans’ Conscience Protection Act, which passed in the House Wednesday evening and supposedly shields those who object to abortion from discrimination. The only things Texas’ provisions and the legislation have in common, however, is that they’re all about blocking access to abortion care.
Town hall audience member and executive director of New Jersey Right to Life Marie Tasy claimed during the event Tuesdaythat the Supreme Court had struck down “commonsense health and safety standards at abortion clinics,” in its landmark ruling against two provisions—the admitting privileges and surgical center requirements—of Texas’ HB 2.
“Absolutely,” Ryan said in response to Tasy’s remarks. “I agree with that.”
But the provisions of the law in question were not about keeping anybody safe. As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”
All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”
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Despite this, Ryan then used the falsehood at the center of HB 2 as a call to action for yet another anti-choice restriction: the Conscience Protection Act. After fielding the question from Tasy about how anti-choice issues could be advanced in Congress in the wake of the Court’s decision, Ryan pivoted to claim that the government is “forcing people to conduct [abortion] procedures”:
Actually, tomorrow we are bringing a bill that I’ve been working on called the Conscience Protection Act. I’m pro-life. I think you probably know that. And I would like to think we could at least get consensus in this country that taxpayers shouldn’t be funding abortions. That the government shouldn’t be forcing people to conduct procedures, especially health-care workers, against their own conscience.
Our First Amendment is the right of conscience, religious freedom. Yet our own government today, particularly in California, is violating that right and not allowing people to protect their conscience rights, whether they’re Catholic hospitals or doctors or nurses. Tomorrow we’re bringing the Conscience Protection Act to the floor and passing it. It’s Diane Black’s bill. And it is to give those citizens in America who want to protect their conscience rights their ability to defend those rights. That is one thing we’re doing tomorrow to protect the conscience, because I believe we need to cultivate a culture of life. And at the very least, stop the government from violating our conscience rights.
Ryan would go on to make similar remarks the next day while speaking on behalf of the bill on the House floor, though this time he added that the “bill does not ban or restrict abortion in any way …. All it does is protect a person’s conscience.”
As Rewire‘s Christine Grimaldi previously reported, the Conscience Protection Act would codify and expand on the Weldon Amendment. According to the Department of Health and Human Services (HHS), the amendment prohibits states that receive federal family planning funding from discriminating against any health care entity-including physicians, health-care professionals, hospitals, and insurance plans, “on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
The Weldon Amendment currently must be passed each year as part of annual appropriations bills.
Grimaldi noted that the act “would give health-care providers a private right of action to seek civil damages in court, should they face alleged coercion or discrimination stemming from their refusal to assist in abortion care.”
Ryan proposed similar conscience protections as part of his recently released health-care plan, though, as Grimaldi wrote, “the Conscience Protection Act goes a step further, allowing providers to sue not only for threats, but also for perceived threats.”
But those whom Ryan and his colleagues are claiming to defend already have protections that impede access to abortion care, according to critics of the measure.
Ryan, for example, suggested in both his CNN appearance and his House floor speech the next day that California’s requirement that insurance plans must cover elective abortions under “basic health services” violates “religious freedom.” But a June investigation by the HHS Office for Civil Rights into whether California’s requirement violated the Weldon Amendment rejected similar complaints by anti-choice group Alliance Defending Freedom.
“Let’s be very clear—right now, current law says that hospitals, insurers, and doctors may refuse to perform an abortion or provide coverage for abortion, which already greatly limits women’s access to legal procedures,” said Rep. Jan Schakowsky (D-IL) Wednesday, speaking after Ryan on the House floor during remarks before the Conscience Protection Act passed.
“More importantly, when a woman’s health is in danger, providers would not be required to act to protect the health of that mother. This bill would allow them to refuse to … facilitate or make arrangements for abortion if they have a moral objection to it,” continued Schakowsky. “They could also refuse to provide transportation to another hospital if a woman is in distress if that hospital provides abortions.”
Debra L. Ness, president of the National Partnership for Women & Families, explained in a statement following the passage of the legislation in the House that the measure is about blocking access to abortion. “The Conscience Protection Act is dangerous, discriminatory legislation designed to block women’s access to abortion care,” said Ness.
“For example, a hospital could rely on the Conscience Protection Act to turn away a woman in an emergency situation who needs an abortion or refuse to provide a woman information about her treatment options. This legislation is a license for providers to discriminate against women and undermine their access to essential, constitutionally protected health care,” Ness said.
"To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall," said Jessica Mason Pieklo, vice president for law and the courts at Rewire. "The good news is that the Supreme Court's decision in Whole Woman's Health provides advocates with a solid foundation to begin those next fights."
The U.S. Supreme Court struck down Monday two provisions in Texas’ anti-abortion omnibus law known as HB 2, and with that ruling the dominos began to fall. Similar anti-abortion laws in Wisconsin and Mississippi were blocked Tuesday by the Supreme Court, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.
However, significant obstacles remain to ensure access to reproductive health care throughout the country. A number of states have in place slightly different variations of the requirements struck down by the Court, which means it remains to be seen how lower courts may apply Monday’s ruling to restrictions that aren’t exactly like those included in Whole Woman’s Health v. Hellerstedt.
Monday’s decision is a significant victory for patients and providers, but it doesn’t guarantee that targeted regulation of abortion providers (TRAP laws) across the country will start to fall immediately, explained Jessica Mason Pieklo, vice president for law and the courts at Rewire.
“To the extent that similar state laws have different provisions, like those that contain transfer agreements for example, those laws will need to be litigated individually to fall,” Pieklo said. “The good news is that the Supreme Court’s decision in Whole Woman’s Health provides advocates with a solid foundation to begin those next fights.”
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Dozens of states in recent years have passed TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to clinics and physicians in other medical fields.
As Rewirepreviously reported, key players in the development of HB 2 were deeply connected to AUL and other conservative lobby groups.
The Supreme Court ruled in Whole Woman’s Health v. Hellerstedtthat two TRAP provisions under HB 2 placed “a substantial obstacle in the path of women seeking an abortion,” and constituted “an undue burden on abortion access.”
Specifically, the Court struck down the requirement that physicians who provide abortion care must have admitting privileges at a hospital within 30 miles of the facility where the physician will provide abortion services. The Court also struck down the requirement that facilities providing abortions meet ambulatory surgical center (ASC) requirements, which involve prohibitively expensive medically unnecessary building renovations.
There are 16 states that have passed laws mandating that physicians who provide abortion care have admitting privileges or similar requirements. In addition to laws that have been struck down in Alabama, Mississippi, Texas, and Wisconsin, courts have also blocked similar laws in Louisiana, North Dakota, and Oklahoma.
These laws typically require physicians have admitting privileges at a hospital near the facility where they provide abortion care. Some of these laws require that the hospitalsprovide OB-GYN services, and some require the physician to be board certified in OB-GYN medicine.
Other laws require that the hospital be no more than 30 miles from the facility where the abortion is performed, or have varied in defining the geographic boundary.
The law that was struck down in Mississippi required the admitting privileges be obtained at a “local hospital.” And Utah’s current law requires the hospital be within a “travel time of 15 minutes or less,” while Florida’s recently passed law requires the hospital be within a “reasonable proximity.”
There are 24 states that have passed laws requiring facilities in which surgical abortion services are performed to meet ambulatory surgical center standards that go beyond what is needed to ensure patient safety, and another 17 states require clinics that may only provide medication abortion to meet these same standards, according to the Guttmacher Institute.
As Nick Bagley, an assistant professor at the University of Michigan School of Law, told Vox, similar laws that have been passed in other states may face legal challenges in the wake of Whole Woman’s Health, but the details of those challenges may vary. “The Supreme Court only applies to Texas,” Bagley said. “Other states will have slightly different laws with slightly different facts to argue over.”
Florida and Indiana TRAP Laws Set to Take Effect
This year Florida passed its own Texas-style anti-choice omnibus law, which takes effect Friday. However, there are some differences between the two laws, including differences in the types of regulations of physicians who provide abortion care.
Clinics that offer abortion services in Florida will be required to have a written patient transfer agreement, which includes the transfer of the patient’s medical records, with a hospital within “reasonable proximity” to the facility. Physicians also will be required to have admitting privileges at a hospital within “reasonable proximity” to their clinic.
The law also mandates annual inspections of all licensed abortion clinics, requires any medical facility in which abortions are performed to submit a monthly report, and prohibits state or local governments from entering into contracts with organizations that provide abortion services.
State Sen. Kelli Stargel (R-Lakeland), who voted for the bill, expressed concern after the senate vote that the bill’s language could become an issue in the courts. “Those clauses gave me concern that it would make it as though our intent was to close down all abortion clinics in the state,” Stargel told the Tampa Bay Times. “That was not the intent of this bill.”
After the Supreme Court’s ruling on Monday, Stargel reiterated that despite the bill’s similarities to the Texas law, it was not lawmakers intent to restrict access to abortion. “In Florida, we passed [the law] to safeguard women’s health, not to close abortion clinics,” Stargel said in a statement, reported the Florida Sun Sentinel.
Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, told the Miami Herald that the language of the bill may be different, but that Florida lawmakers had the same intent as Texas lawmakers: to shutter abortion clinics.
“It’s definitely different language,” said Goodhue. “But the intent is the same.”
Planned Parenthood has filed a lawsuit challenging the law, however, the organization is not challenging the admitting privileges requirement.
Goodhue told the Florida Sun Sentinel that the organization will determine if there are grounds for other lawsuits in the future. “Right now, we’re seeking emergency relief on the other three provisions, but we’ll make sure that access to care is protected,” Goodhue said.
Gov Rick Scott (R), who signed the bill into law in March, said during a press conference Monday that his administration is reviewing the Supreme Court’s decision, reported the Miami Herald.
Lawmakers in Indiana have in recent years passed multiple laws to restrict access to abortion, including laws that have provisions mandating that physicians have admitting privileges and other reporting requirements.
Mike Fichter, president and CEO of Indiana Right to Life, said in a statement that the Supreme Court showed “utter disregard for women’s health and safety,” and defended a similar law passed state lawmakers this year.
“We will be reviewing the Supreme Court’s decision thoroughly to see how this legal precedent could affect Indiana’s laws on admitting privileges and abortion facility building standards,” Fichter said.
An omnibus abortion bill passed in 2011 contained multiple abortion restrictions, including a provision that a physician performing an abortion must have admitting privileges at a hospital located in the county where abortions are provided or a contiguous county.
The law also allowed for a physician to meet the requirement by entering into an agreement with a physician who has admitting privileges at a hospital in the county or contiguous county.
The law created a requirement that a written agreement between a physician performing an abortion and a physician who has written admitting privileges at a hospital in the county or contiguous county be renewed annually.
The law also requires the state department of health to submit copies of admitting privileges and written agreements between physicians to other hospitals in the county and contiguous counties where abortions are performed.
Ali Slocum, spokesperson for Planned Parenthood of Indiana and Kentucky, told the Indianapolis Star that the organization does not have any immediate plans to challenge the law in court. “We are focused on what is currently in the pipeline. It is possible that the standard that the court set [Monday] could be used to challenge restrictions in other states,” Slocum said.
Efforts in State Legislatures to Repeal Laws
In some states lawmakers and advocacy groups may push to repeal similar laws following the Whole Woman’s Health decision.
Arizona lawmakers have passed several anti-choice laws in recent years and, like Texas and Florida lawmakers, justified those regulations as necessary to ensure the health and safety of women in the state.
Jodi Liggett, vice president of public affairs for Planned Parenthood Arizona, said in a statementthat the Supreme Court made a “clear statement” that laws that restrict access to abortion care are unconstitutional.
“Arizona is a large state, with population spread across many rural areas. Laws that delay care, require travel over great distances and overnight stays certainly place real-life burdens on women seeking our care,” Liggett said.
Arizona Senate Minority Leader Katie Hobbs told the Arizona Republic that she will lead the effort in the legislature to repeal similar laws. “No woman or doctor should be punished for receiving or providing essential medical care,” Hobbs said. “These restrictions have never truly been about women’s health.”
However, repealing anti-choice laws in the GOP-dominated Arizona state legislature may prove difficult.
Republicans hold an 18-12 majority in the state senate and a 36-24 majority in the state house, and they have introduced dozens of anti-choice bills in the past several years. There have been seven laws to restrict access to abortion passed by Arizona lawmakers, including a law similar to Texas’ HB 2which requires abortion providers to have admitting privileges.
Those efforts have been spearhead by the Center for Arizona Policy, a conservative think tank that promotes anti-choice, anti-LGBTQ, and so-called religious freedom legislation.
Cathi Herrod, president of the Center for Arizona Policy, said in a statement that the Supreme Court’s decision eliminated “common-sense safety precautions” for women seeking abortion care. “To give the abortion industry a blanket exemption from laws applicable to every other medical facility is unconscionable,” Herrod said.
Josh Kredit, general counsel for the Center for Arizona Policy, told the Arizona Republic that the Supreme Court’s decision suggest that abortion providers should be treated differently that other health-care providers.
“They are arguing they should be exempt from garden-variety health and safety regulations,” Kredit said. “It was clear that Texas, when it passed these, was focusing on protecting women, just like many of our laws that we pass in Arizona.”
Dr. Thomas M. Gellhaus, president of the American College of Obstetricians and Gynecologists, said in a statement that the Court’s decision made it clear these laws do not improve the health and safety of patients seeking abortion. Said Gellhaus: “As the court found, it was clear that the ambulatory surgical center and admitting privileges requirements at the heart of Texas law HB 2 did not improve the safety of women, and served only as a barrier to women’s ability to access safe, legal abortion when needed.”
“Of course, this is not the end of the battle when it comes to abortion access,” Gellhaus added. “In dozens of states, women are living under laws that impede access in a variety of ways, for example banning certain abortion procedures, setting gestational limits, mandating that medically inaccurate information be provided to patients, and more. None of these have a basis in medicine, and all of them represent political interference in the patient/physician relationship. We will continue to oppose these laws and to promote safe access to legal abortion for our patients.”