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.”

Roundups Law and Policy

Gavel Drop: Welcome to the New World After ‘Whole Woman’s Health’

Imani Gandy & Jessica Mason Pieklo

With the recent U.S. Supreme Court ruling, change may be afoot—even in some of the reddest red states. But anti-choice laws are still wreaking havoc around the world, like in Northern Ireland where women living under an abortion ban are turning to drones for medication abortion pills.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

The New York Times published a map explaining how the U.S. Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt could affect abortion nationwide.

The Supreme Court vacated the corruption conviction of “Governor Ultrasound:” Former Virginia Gov. Bob McDonnell, who signed a 2012 bill requiring women get unnecessary transvaginal ultrasounds before abortion.

Ian Millhiser argues in ThinkProgress that Justice Sonia Sotomayor is the true heir to Thurgood Marshall’s legacy.

The legal fight over HB 2 cost Texas taxpayers $1 million. What a waste.

The Washington Post has an article from Amanda Hollis-Brusky and Rachel VanSickle-Ward detailing how Whole Woman’s Health may have altered abortion politics for good.

A federal court delayed implementation of a Florida law that would have slashed Planned Parenthood’s funding, but the law has already done a lot of damage in Palm Beach County.

After the Whole Woman’s Health Supreme Court ruling in favor of science and pregnant people, Planned Parenthood is gearing up to fight abortion restrictions in eight states. And we are here for it.

Drones aren’t just flying death machines: They’re actually helping women in Northern Ireland who need to get their hands on some medication abortion pills.

Abortion fever has gone international: In New Zealand, there are calls to re-examine decades-old abortion laws that don’t address 21st-century needs.

Had Justice Antonin Scalia been alive, explains Emma Green for the Atlantic, there would have been the necessary fourth vote for the Supreme Court to take a case about pharmacists who have religious objections to doing their job when it comes to providing emergency contraception.

Commentary Abortion

Looking Beyond ‘Whole Woman’s Health’: Challenges Remain in Dozens of States

Thomas M. Gellhaus MD

Even if we are able to celebrate a favorable outcome in the case Monday, the battle for reproductive health will continue in dozens of states across the country.

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

Reproductive health physicians are nervously awaiting the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt this week. Rightly so: the outcome of this case will dramatically affect the ability to access safe, legal abortions in Texas, and could extend to other states with restrictions that are similar to HB 2, the law at the heart of the case.

But we also recognize that even if we are able to celebrate a favorable outcome in the case, the battle for reproductive health will continue in dozens of states across the country.

The two provisions of HB 2 before the Court are presented by supporters as improvements to abortion safety and protective of women. But the reality is quite contrary to this. For one thing, abortion is already one of the safest medical procedures; women do not need to be “protected” by politicians.

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For another, the requirements imposed by the lawmandating that abortion providers have admitting privileges at a local hospital and forcing abortion facilities to meet ambulatory surgical center (ASC) standards—do not directly or indirectly have a positive affect on the care provided before, during, or after abortion.

In practice, these targeted regulation of abortion providers (TRAP) requirements only restrict access to abortion. Few clinics have the resources needed to make the costly (and medically unnecessary) updates needed for ASC standards, and physicians can be refused hospital admitting privileges for a wide range of reasons unrelated to the quality of care that they provide.

Instead of improving care, TRAP law restrictions cause clinics to close, and prevent qualified, trained, experienced, dedicated health professionals from providing abortions to patients who need them. Fewer abortion providers means that some will have to wait much longer for their abortions, delaying care until later in pregnancy when the risk of complications—although still small—is increased.

TRAP laws also make abortion completely inaccessible for some women. The reasons can be complicated, involving factors such as geographical limitations, prohibitive cost of travel, and inability to obtain child care or take additional time off work. Regardless of the cause, the result is the same: Abortion restrictions force some women to carry their pregnancies to term, actually exposing them to greater risks associated with pregnancy and childbirth.

Not surprisingly, these laws disproportionately affect low-income women, only heightening the disparities that they already face day-to-day.

Even as our eyes are turned toward the Supreme Court, we must remember that Texans are not the only ones facing restrictions on their ability to access abortion care. Similar TRAP laws have been passed in other states, and in some cases, their implementation will depend on the outcome of Whole Woman’s Health. In addition, lawmakers have adopted a variety of creative approaches to limit abortion access.

In Indiana, state legislators passed a bill that would ban abortion for specific reasons; that law is awaiting judicial review. In Utah, a new law forces doctors to provide anesthesia to the fetus in an abortion performed after 20 weeks, despite there being no medical method for doing so and despite robust evidence that at that stage in development, a fetus does not feel pain. In Kansas and Oklahoma, state lawmakers banned physicians from using the preferred procedure for second-trimester abortion, subjecting women to less-than-standard methods; despite these laws currently being enjoined, five other states have followed suit.

None of these attacks are grounded in medicine, none of them are supported by the American College of Obstetricians and Gynecologists (ACOG) or the American Medical Association, and unfortunately, none of them would be struck down by a favorable decision from the Supreme Court. Even if access is restored in parts of Texas, advocates cannot rest on our laurels.

OB-GYNs do not have to be abortion providers in order to see the significant effect that an unintended pregnancy can have on overall health and well-being. We do not have to provide abortions ourselves in order to recognize that access to abortion is essential for the patients whom we provide care for every day.

As an OB-GYN and the president of ACOG, I remain hopeful and optimistic that we will see access to abortion restored and protected nationwide. But I urge reproductive health advocates to remain vigilant as state politicians continue to strip away access to care.