I came upon an interesting discovery this month while doing background research for my article on abortion in Ireland. The article itself focused on the massive uptick in Irish abortions following legalization, but it also took me to the most recent state-level efforts to regulate abortion in the U.S.—including the Louisiana admitting privileges ordinance that was just revoked by the Supreme Court. It was the Court’s first abortion-related case since 2016, though we might say that it was the same abortion-related case—except that the 2016 iteration emerged from Texas.
On the one hand, it shouldn’t surprise us that in both 2016 (Whole Woman’s Health) and 2020 (June Medical Services), the Supreme Court came to the same conclusion. In both cases, it ruled against the state ordinance which required anyone who performs or induces an abortion to have active admitting privileges at a hospital within 30 miles of the abortion facility. In 2016, it was a 5-3 decision (following the death of Justice Scalia). In 2018, it was 5-4. What is surprising is this. Justice Kennedy was one of the five Justices who voted against the state of Texas. He retired in 2018. His replacement, Brett Kavanaugh, and Justice Scalia’s replacement, Neil Gorsuch, both voted in favor of Louisiana. And yet, once again, the admitting privileges ordinance was struck down 5-4. Here enters Chief Justice Roberts.
In 2016, the Chief Justice voted in favor of Texas. In 2020, he voted against Louisiana. He explains his reversal this way. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” Such reasoning does not bode well for those of us who anxiously await the demise of Roe—including Justice Thomas. He wrote the following in his virulent dissent:
Today a majority of the Court perpetuates its ill-founded abortion jurisprudence by enjoining a perfectly legitimate state law and doing so without jurisdiction…
The plurality and The Chief Justice ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled…
The Constitution does not constrain the States’ ability to regulate or even prohibit abortion. This Court created the right to abortion based on an amorphous, unwritten right to privacy, which it grounded in the “legal fiction” of substantive due process… Despite the readily apparent illegitimacy of Roe, “the Court has doggedly adhered to [its core holding] again and again, often to disastrous ends.”… Even under The Chief Justice’s approach to stare decisis, continued adherence to these precedents cannot be justified. Stare decisis is “not an inexorable command”… Roe’s reasoning is utterly deficient—in fact, not a single Justice today attempts to defend it…
Without going into too much detail, Justice Thomas’ jurisdictional complaint owes to two things. First, third party entities like abortion clinics do not have legal standing to sue on behalf of other hypothetical victims—and yet they did. Second, the Fifth Circuit Court of Appeals had already ruled that Texas’ admitting privileges requirement did not create an undue barrier to abortion and the verdict was not appealed. A finalized and unchallenged verdict should not be revisited by the Supreme Court—and yet it was. Justice Alito—along with the Chief Justice— explained the problem like this in their 2016 dissent:
Shortly after Texas enacted House Bill 2 (H. B. 2) in 2013, the petitioners in this case brought suit, claiming, among other things, that a provision of the new law requiring a physician performing an abortion to have admitting privileges at a nearby hospital is “facially” unconstitutional and thus totally unenforceable. Petitioners had a fair opportunity to make their case, but they lost on the merits in the United States Court of Appeals for the Fifth Circuit, and they chose not to petition this Court for review. The judgment against them became final.
Under the rules that apply in regular cases, petitioners could not relitigate the exact same claim in a second suit. As we have said, “a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise.”
In this abortion case, however, that rule is disregarded. The Court awards a victory to petitioners on the very claim that they unsuccessfully pressed in the earlier case. The Court does this even though petitioners, undoubtedly realizing that a rematch would not be allowed, did not presume to include such a claim in their complaint. The Court favors petitioners with a victory that they did not have the audacity to seek.
Not only did the Court’s 2016 ruling strike down the two requirements it found unconstitutional, it struck down all of the indisputably constitutional ones as well—in open defiance of the normal and explicitly defined rules of severability. Look it up if you’re interested. The material point is that, in the words of Justice Thomas, “the Court employs a different approach to rights that it favors”—specifically, "the purported substantive due process right of a woman to abort her unborn child."
All that is the backstory to the discovery I referenced at the open. I share it all because I want you to appreciate the massive expenditure of time and money that has gone into this issue of admitting privileges. Louisiana’s ordinance first went into effect in 2014. It languished in the courts for six years. But why? Wouldn’t it have been simpler for aborting physicians to simply secure the mandated admitting privileges and be done with it? Wouldn’t that have saved the abortion lobby six years of lawsuits and appeals? Well, it’s not so simple. It turns out there’s a reason why so many abortionists don’t have hospital admitting privileges—and can’t necessarily get them.
In 2019, researchers from the Charlotte Lozier Institute published a new study, “Doctors Who Perform Abortions: Their Characteristics and Patterns of Holding and Using Hospital Privileges,” to the NIH journal Health Services Research and Managerial Epidemiology. The purpose of the study was to fill a void in the public record. The authors note that despite the ongoing controversy regarding abortion and hospital admitting privileges, “no research exists as to the extent to which [abortion-performing physicians] actually hold and use such privileges.” As a first step, “in a domain with literally no preceding research,” the authors began with all known Florida physicians who performed abortions between 2011 and 2016. There were 85, and these are the characteristics that emerged:
- 74% of Florida abortionists are male
- 62% have been in practice for 30 years or longer
- 2% have been in practice for less than 10 years
- 27% are graduates of foreign medical schools
- 55% are board certified.
- 48% had at least 1 malpractice claim, public complaint, disciplinary action, or criminal charge.
- 51% reported hospital admitting privileges
- 38% admitted at least 1 patient to a hospital
The first thing to note is that most abortionists are old men. This wouldn’t be at all surprising were it not for the fact that the abortion lobby works so relentlessly to convince the world that opposition to abortion is old and male while support for abortion is young and female. The reverse is far closer to the truth. We know this both statistically and anecdotally. As to the central question which the study set out to answer—Do women who suffer complications from induced abortion fare better in the care of providers with hospital admitting privileges?—they were not able to reach a conclusion. “A major barrier to advancing this domain of science,” they remarked, is the “lack of a universal and comprehensive reporting requirement for all induced abortions and the health-care professionals who perform them.” Nevertheless, they made some observations that are well worth sharing.
According to research from Finland and Denmark—countries which do comprehensively track and report all pregnancy outcomes—there is a 4 times greater risk of mortality following abortion than childbirth. In the United States it is commonly reported—in the absence of any hard evidence—that childbirth is more dangerous than abortion. The NIH study also made the following observations:
- There is a broad professional consensus that the process of credentialing and hospital privileging for physicians enhances their competency and the quality of care rendered to patients.
- Many insurance companies require that a physician hold admitting privileges as a condition of participation in their provider networks.
- The AMA’s core principles for office-based surgery and practice states that “physicians performing office based surgery must have admitting privileges at a nearby hospital…or a transfer agreement with another physician who has admitting privileges at a nearby hospital.”
The study also suggests that the “relatively advanced age distribution and large percentage of abortionists with some malpractice claim, disciplinary action, public complaint, or criminal charge suggest that these doctors may be a subset of practicing physicians for whom abortion practice may be a final professional expedient.” With that in view, it becomes more apparent why it can be difficult for abortionists to secure admitting privileges. “Most abortionists,” the authors conclude, “practice very little medical care that is related to other illnesses and injuries.” As such, they have little need for hospitals, and hospitals have little if any need for them. We must remember that these are not physicians in the truest sense of the word. By and large, all they do is abortion. They “meet” the aborting mother for the first time in the operating room and will likely never see her again unless she has a repeat abortion.
Chief Justice Roberts, in his defense of the Court’s ruling in June Medical Services, notes that even “competent” abortionists may be unable to secure hospital admitting privileges. Some hospitals simply don’t want to open their doors to circuit-riding abortionists who ride—or fly—into town, perform abortions all day, then leave. And even if we leave the unsavoriness of abortion off the table, hospitals want physicians who will actually use their facilities for ongoing and mutually-beneficial patient care.
It’s frequently asserted that abortion clinics are being unfairly targeted—by laws like those passed in Texas and Louisiana, but you could just as easily say that abortion clinics are being unfairly privileged and exempted. Why is it the state’s fault that high-character, high-caliber doctors don’t go into the practice of abortion? Why is it the state’s fault that some abortion clinics can’t afford to maintain a facility that meets minimum safety standards for surgical outpatient centers? Is it really so outrageous to hold the abortion industry to the same regulatory standards as everyone else—particularly in light of the fact that somewhere around one-third of Texas abortion clinics had already managed to meet them? It was argued in Whole Women’s Health that the implementation of H. B. 2 forced the closure of more than half the abortion clinics in the state, but there’s no statistical indication that those closures led to fewer Texas abortions, and no mention was made of the other factors contributing to their demise including: new state restrictions regarding medical abortions, the withdrawal of state family planning funds to abortion clinics, the overall reduction in abortions, and the retirement of aging abortionists.
The Supreme Court began by declaring abortion to be a constitutional right, but it has since taken its activism one step further. Abortion is no longer just a right; it is now a constitutional need—and apparently it falls upon the state to not just allow abortion but to ensure that no regulatory requirements drive any practitioners out of the industry. That would be an undue burden, so says the Court, leaving Justice Thomas to observe the following: “The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution.” Perhaps that’s why bedrock rights like free speech are in very real jeopardy, while the “right” to abortion remains as entrenched as ever.
Michael Spielman is the founder and director of Abort73.com. His book, Love the Least (A Lot), is available as a free download. Abort73 is part of Loxafamosity Ministries, a 501c3, Christian education corporation. If you have been helped by the information available at Abort73.com, please consider making a donation.