Analysis Abortion

How the ‘Whole Woman’s Health’ Decision Could Affect Abortion Care Nationwide

Teddy Wilson

Reproductive rights advocates say that should the Court rule in favor of the Texas Department of State Health Services this summer, the second-largest state in the country will be down to nine or ten clinics providing abortion care.

Read more of our coverage of Whole Woman’s Health v. Hellerstedt here.

The U.S. Supreme Court heard arguments Wednesday in a case challenging a portion of an anti-choice law passed in Texas, HB 2, and the Court’s decision is expected to affect similar measures passed by Republican-held legislatures in other states.

Whole Woman’s Health v. Hellerstedt challenges the requirement that physicians have admitting privileges at a hospital that is located no more than 30 miles from where an abortion is performed, as well as the requirement that every abortion clinic meet the same building requirements as ambulatory surgical centers (ASCs).

Reproductive rights advocates say that should the Court rule in favor of the Texas Department of State Health Services this summer, the second-largest state in the country will be down to nine or ten clinics providing abortion care. Other states that have passed similar bills may see a wave of clinic closures as well.

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Republican lawmakers nationwide have introduced bills similar to Texas’ HB 2, often arguing that the anti-choice measures are needed to protect the health and safety of pregnant people.

Abortion in the United States is already highly regulated and overwhelmingly safe.

Bills requiring admitting privileges have been passed by 14 states since 1986, but half of those have been blocked by the courts. Those states in which similar provisions have been blocked by the courts could see those orders lifted and the provisions be allowed to take effect if the Roberts Court rules against providers in Whole Woman’s Health, according to Jessica Mason Pieklo, RH Reality Check’s vice president of law and the courts. 

Mississippi Gov. Phil Bryant (R) signed HB 1390 into law a year before former Texas Gov. Rick Perry (R) signed HB 2. Bryant said the the legislation was intended to protect the “health and safety of women,” but he added that he would continue to work to make Mississippi “abortion-free.”

Mississippi also requires the physician who provides abortion services to be either a board-certified obstetrician-gynecologist or eligible for certification.

After two of the three physicians at Jackson Women’s Health Organization (JWHO), the only clinic providing abortion services in the state of Mississippi since 2002, were unable to obtain admitting privileges for the remaining providers, the Center for Reproductive Rights filed a lawsuit on behalf of JWHO challenging the law. The Fifth Circuit ruled against the Mississippi law, blocking the measure, and the state has appealed to the Supreme Court. It remains unclear whether the Roberts Court will take on the case.

Dr. Willie Parker, the physician who provides abortion services at JWHO, told the Washington Post that he was not surprised by hospitals’ reluctance to grant admitting privileges to abortion providers. “In fairness to the hospitals, they were thrust in the middle of a very political situation,” Parker said. “For a hospital to do that, it would be making a conscious decision to take on the state legislature.”

Sylvia Cochran, who operates clinics in neighboring Baton Rouge and New Orleans, told Rewire that it used to be common for abortion providers to have admitting privileges at a hospital.

“Many clinics have always had doctors who had hospital privileges,” Cochran said. “Then many of the hospitals started denying them privileges because they didn’t want the pressure of having protesters appear.”

Cochran said that in many instances, doctors were not able to get hospital privileges “sometimes for good reasons and sometimes for artificial reasons.”

Former Louisiana Gov. Bobby Jindal (R) signed a bill into law similar to those signed into law by the governors of Mississippi and Texas. HB 388 included restrictions on abortion access like the admitting privileges requirement, but did not include the requirement that abortion services be provided in an ASC. The U.S. Court of Appeals for the Fifth Circuit ruled in February that the law can take effect.

According to Rewire analysis, eight bills in four states—Florida, Indiana, Kentucky and Missouri—have been introduced this year to either require physicians that provide abortion service to obtain admitting privileges or modify that requirement. There are also eight bills in four states—Indiana, Illinois, Kentucky and Missouri—that would require abortions service to be performed in ASCs.

There are a number of building requirements for ASCs, including rules for construction-related conditions such as square footage requirements, type and finish of the floors and wallsstaff lounge and lockers, the placement of janitorial closets, and the number of parking spaces.

In Texas there is a $5,200 initial licensing fee and an additional $5,200 license renewal fee every two years. ASCs also must submit to inspections by state regulators, and the state may investigate or inspect the facility “at any reasonable time to make a survey or an investigation to ensure compliance.”

Dr. Donna Harrison, executive director of the American Association of Pro-Life Obstetricians and Gynecologists, told the New York Times that the ASCs requirement is “just good medicine.”

An amicus brief filed by the National Abortion Federation (NAF) in support of Whole Woman’s Health argues that the ASC requirements “have no impact on, or connection to, the quality of abortion care.”

Physicians who specialize in reproductive health care argue that requiring abortion take place in ASCs can be a detriment to the quality of care patients receive. Whole Woman’s Health Director of Clinical Services Marva Sadler previously told Rewire that the ASC requirements can create an environment that is devoid of comfort for patients, even in the recovery room.

“A lot of times a woman has put on their strong face, until it’s over, and this is where the emotion happens. There’s no room for emotions in this room,” Sadler said. “Because of the limited staff and lack of escort, there are times when she is left alone, and that’s really hard for us because that’s not who we are.”

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