Among the raft of abortion restrictions passed by states in the past few years, one did not initially gain much notice – a requirement that doctors performing abortions obtain admitting privileges at a local hospital.
But the measure, which 11 states have passed in some form, has proved an especially high hurdle for abortion providers to clear and a potent tool for antiabortion activists seeking to shut down abortion clinics.
Already, more than a dozen clinics have been shuttered in Texas as a result of that state’s admitting-privileges law, and at least one closed in Tennessee. Groups say clinics in Oklahoma, Louisiana and Wisconsin face the same fate if new laws there are permitted to take effect. Three of Alabama’s five clinics, and the last remaining clinic in Mississippi, would have shuttered if not for court decisions this month that stopped an admitting-privileges law from going into effect.
The state laws, on the surface, seem like a paperwork matter. They require physicians who perform abortions to forge relationships with hospitals so that they may treat patients there – a common-sense measure that will protect women’s health in case of a botched abortion, foes of the procedure say.
In practice, many clinics have found getting these privileges very difficult. Their doctors often live too far away from the hospitals or cannot commit to admitting the minimum number of patients required for such a relationship. In other cases, hospitals have religious objections or have been reluctant to become embroiled in such a politically charged issue.
A doctor at the sole clinic in Mississippi, for instance, said his staff reached out to 13 hospitals to try to comply with the law. Six did not respond to their inquiries, and the rest informed them he would not qualify, he said.
Courts have differed in their opinions of such laws, and the matter may be taken up by the Supreme Court. If they are ultimately upheld, the impact could be “huge” compared with other abortion restrictions that have been passed recently, said Elizabeth Nash, state-issues manager for the Guttmacher Institute, a research organization that supports abortion rights.
“It has just really taken over, in a sense, because it has such the potential for shutting down clinics,” she said.
Antiabortion groups contend that if clinics are shutting down, that is only because they cannot meet basic safety standards. Requiring admitting privileges ensures that abortion doctors are vetted by their peers and prevents abortion doctors from simply abandoning their patients in trouble at the emergency room. “The need for admitting privileges requirements is clear,” Denise Burke, vice president of legal affairs at Americans United for Life, said in an email.
Abortion rights proponents, however, argue that admitting privileges are medically unnecessary because anyone can be admitted to an emergency room. They regard the bills as a back-door attempt to shut down clinics in the wake of the antiabortion movement’s inability to overturn Roe v. Wade, the 1973 decision legalizing abortion nationwide.
The admitting-privileges rule has proved so hard to meet in part because abortion doctors often live out of state, flying in to places such as Mobile and Birmingham, Ala., to practice. One doctor in Alabama periodically travels to Montgomery from Nigeria, according to court papers. And large numbers of abortion clinic patients typically do not end up needing hospitalization, the providers and abortion advocates say.
Federal law prohibits hospitals from discriminating against doctors who provide abortions. But doctors say the hospitals have nevertheless been hesitant to extend privileges because of a reluctance to involve themselves in the abortion debate, the advocates argue.
For example, one Dallas hospital revoked the admitting privileges of two abortion doctors after it became a target of antiabortion protests. The hospital reinstated their privileges after the doctors filed suit.
In his opinion last week striking down the Alabama law, District Judge Myron Thompson related testimony from one Birmingham abortion doctor who had privileges at two teaching hospitals in Atlanta, where she lived. Her residency in Georgia barred her from getting privileges at five Alabama hospitals, Thompson wrote. Three others were affiliated with the Catholic Church, which strictly opposes abortion.
The doctor finally approached the University of Alabama at Birmingham, where she had previously been on the faculty. But the chairman of the obstetrics and gynecology department “explained to her that he would not hire her because of her work providing abortions and serving as medical director for Planned Parenthood,” Thompson wrote. “Because the university hospital is a state-funded institution, the chair did not want to involve his department with what he considered to be a politically contentious organization and procedure, that is, abortions.”
Willie Parker, the doctor at the Jackson Women’s Health Organization, Mississippi’s only abortion clinic, said in an interview that he was not surprised that so many hospitals did not respond to his staff’s requests or rejected him outright. He currently has admitting privileges at an out-of-state hospital and previously had privileges at Northwestern Memorial Hospital in Chicago, where he lived until recently.
“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.”
The laws are part of a wave of state bills passed by state legislatures in recent years, driven by a conservative shift in those bodies as well as a change in strategy on the part of antiabortion activists, who have turned their focus away from Roe v. Wade in favor of laws that reduce access to the procedure.
Clinic regulations have been part of that push, and the efforts gained momentum last year when a Philadelphia abortion doctor who operated in filthy conditions was convicted of murder for killing babies born alive during abortion procedures. A suit being litigated in Texas is challenging a law there scheduled to go into effect in September that would require abortion clinics to have the amenities of an emergency room rather than a doctor’s office. Abortion rights advocates say it would lead to the closure of more Texas clinics if enacted.
That law, similar versions of which are in place in other states, may require clinics to buy or renovate property.
Some antiabortion activists acknowledge they are not sorry to see clinics close shop. But they say they also want to see more safeguards to protect women who make the decision to end a pregnancy.
“Many of us have realized Roe v. Wade is here. Now what can we do in light of it?” said Bob Foust, a longtime antiabortion activist in Birmingham. “To be honest, we’d like to see clinics close, but if they’re going to be open, they need to provide the best of care and have a physician with admitting privileges.”