Momentum Building For The Supreme Court’s Next Abortion Case

Denise Burke Vice President of Legal Affairs, Americans United for Life
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Abortion will be on the docket as the U.S. Supreme Court begins its term this week. With states continuing to enact innovative, life-affirming legislation, the Court will be asked to clarify the scope of the states’ authority to protect maternal health, while simultaneously confronting the dangerous, profit-driven practices of the abortion industry.

First up for the Court will be an Arizona law, based on model legislation from Americans United for Life, requiring that the abortion-drug RU-486 be administered in accordance with the FDA-approved protocol. Notably, even when administered properly, RU-486 has a troubling safety record.

For example, the FDA has reported that, in the decade after its September 2000 approval, RU-486 precipitated 2,207 “adverse events” including 14 deaths, 612 hospitalizations, and 339 blood transfusions. Of the 14 deaths, eight followed administrations that violated the FDA protocol.

The significant health risks associated with RU-486 are exacerbated by the abortion industry’s admitted and widespread defiance of FDA restrictions prescribing the precise dosage and timing of the two-drug, multi-day regimen and limiting how far into pregnancy the drugs may be used. Acknowledging the maternal health risks posed by this “off-label” use of RU-486, the Fifth and Sixth Circuit have upheld Texas and Ohio laws restricting its administration.

However, the Ninth Circuit has blocked enforcement of Arizona’s law, ignoring a detailed legislative record providing the medical justifications for it. Instead, the appellate court created a new standard of review for abortion laws, one that improperly discounts the state’s interest in protecting maternal health and directly contravenes the “undue burden” standard adopted by the Supreme Court more than 20 years ago.

Hospital admitting privileges requirements for abortionists will provide a second opportunity for the justices to build on the protective legacy of their 2007 decision upholding the federal ban on partial-birth abortion and opening the door to regulations and standards for abortion that make good medical sense.

Seventeen states have enacted laws requiring abortionists to maintain hospital admitting privileges or a patient transfer agreement with a physician who has such privileges.

Admitting privileges requirements protect women’s health and counter the abortion industry’s penchant for employing “circuit rider” abortionists who travel in from out-of-state, spend the day performing abortions, and then leave, abandoning women to deal with frequent complications on their own.

As the Fifth Circuit noted in upholding Texas’ admitting privileges law, the benefits supporting such a requirement include providing a more thorough evaluation of physician competency, ensuring continuity of care, optimizing complication management, and preventing patient abandonment.

Callously dismissing the obvious patient benefits conferred by these requirements, the abortion industry has challenged admitting privileges laws in Alabama, Louisiana, Mississippi, Texas, and Wisconsin. While Texas’s requirement has been upheld, admitting privileges laws in Alabama and Mississippi have been invalidated. In each case, the court adopted a controversial and novel approach in order to side with the abortion industry.

In Alabama, federal district judge Myron Thompson erroneously equated abortion to the rights conferred by the Second Amendment, conveniently ignoring the fact that, unlike abortion, the right to bear arms is explicit in the Constitution. Meanwhile, a split panel of the Fifth Circuit used a 1938 Supreme Court ruling that, under the 14th Amendment, a black student from Missouri had to been given an opportunity to attend a state law school to invalidate Mississippi’s admitting privileges requirement.

In striking down both the Alabama and Mississippi laws, the courts relied heavily on the fact that some abortionists are unable or unwilling to secure admitting privileges. The courts also adopted a dangerous and unprecedented standard: every state must provide access to abortion within its borders – apparently without regard to whether abortion providers comply with established medical and safety standards.

Even before these disjointed and disturbing rulings, the Supreme Court signaled its interest in evaluating admitting privileges requirements. In November 2013, in response to a refusal by the Court to enjoin enforcement of Texas’ requirement while an appeal to the Fifth Circuit continued, Justice Steven Breyer opined that “at least four Members of this Court will wish to consider” the requirement’s constitutionality “irrespective of the Fifth Circuit’s ultimate decision.”

As review is granted upon the votes of only four Justices, it seems highly probable that the Supreme Court will soon give states the welcomed opportunity to demonstrate that admitting privileges requirements and other health and safety standards for abortion are needed to protect women and to counter a dangerous and predatory abortion industry.