The next Supreme Court showdown over abortion starts in March and some physician groups are already entering the fray in support of preserving abortion access.
In a joint brief sent to Supreme Court justices in early January, the American College of Obstetricians and Gynecologists, the American Medical Association, the American Academy of Family Physicians, the American Academy of Pediatrics, and the American Osteopathic Association are all urging the Supreme Court to strike down a Texas law (HB2) that they say imposes unnecessary demands on abortion providers and creates restrictive requirements for abortion facilities.
“Restrictions such as those in HB2 that make it harder for women to access quality abortion care only make it less safe,” Dr. Hal C. Lawrence III , executive vice president and CEO of ACOG, said during a recent press conference. “How? By delaying women’s access until later in pregnancy, when the risk of complications associated with abortion – while still quite low – does increase. Worse, some women will simply not be able to access safe, legal abortion.”
The Supreme Court agreed to hear Whole Woman’s Health v. Cole in late November 2015. The case centers on two 2013 Texas regulations – both part of HB2 – mandating that abortion providers have admitting privileges at a hospital within 30 miles of an abortion clinic in order to provide the service, and that all abortion clinics meet the same requirements as ambulatory surgical centers (ASCs).
The plaintiffs, who are clinics and doctors, argue that both restrictions are unnecessary and limit access to abortion services. But defendant Kirk Cole, commissioner for the Texas Department of State Health Services, argues that the restrictions are reasonable and effective measures that raise the standard of care for abortion patients and ensure health and safety.
The case has ramifications for physicians and patients outside Texas. The plaintiffs are asking the Supreme Court to reaffirm prior rulings that outline when a new abortion law imposes an “undue burden” on a patient’s right to end a pregnancy. The standard results from a 1992 Supreme Court decision, Planned Parenthood of Southeastern Pennsylvania v. Casey , in which the justices affirmed abortion rights established in Roe v. Wade .
The plaintiffs are also asking the Supreme Court to instruct lower courts to weigh whether new state restrictions on abortions really serve to protect patient health. The 5th U.S. Circuit Court of Appeals refused to answer this question when it ruled in favor of Texas in 2015, stating that courts must accept that new laws brought before them would serve the public interest.
The 1992 Casey decision made it clear that the Constitution does not permit states to enact unnecessary health regulations that create undue burdens for women seeking abortion services, said Nancy Northup , president and CEO for the Center for Reproductive Rights, during the recent press conference.
“Texas has sought to sneak around the Casey decision by using the pretext of advancing women’s health as a cover for doing what the Constitution does not permit – blocking women’s access to safe and legal abortion,” Ms. Northup said. “So we’re back at the Supreme Court to ensure the rule of law prevails and the rights of women are respected.”
The Center for Reproductive Rights, as well as 45 other groups and organizations, issued friend-of-the-court briefs to the Supreme Court on Jan. 4 in support of the plaintiffs.
At press time, the state of Texas had not yet filed a brief following the Supreme Court’s acceptance of the case. In its initial brief requesting that the high court refuse the case, Texas officials argued that the state’s abortion regulations are rational and meet the state’s interest in patient health. The admitting-privileges requirement “ensures doctors are qualified, promotes continuity of care in the case of complications that require hospitalization, and reduces communication errors and time delays when a patient must be treated at a hospital,” the brief stated. The requirements placed on abortion clinics guarantee that “patients will not be relegated to substandard clinics, ensuring enhanced pain management options for patients and providing a sterile operating environment for surgical abortions,” according to the brief.
But ACOG and other physician groups counter that claim. In the Jan. 4 brief to the Supreme Court, the associations argue that the restrictions are inconsistent with accepted medical practice and provide no benefit to patient care.
“There is no medically sound reason to assume that abortions performed in a hospital or ASC setting are safer than those performed in a clinic or office, and requiring abortion clinics to meet the standards for ASCs has no medical purpose given the nature and simplicity of abortion procedures,” the groups wrote.
The Supreme Court justices are scheduled to hear arguments in Whole Woman’s Health v. Cole on March 2.
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