Updated on October 4, 2019:
On October 4, 2019, the Supreme Court announced that it will hear June Medical Services v. Gee, making this the first abortion rights case to be heard by the Court since the confirmations of Justices Neil Gorsuch and Brett Kavanaugh. The Court also agreed to consider whether the providers and clinics in this Louisiana case have standing to bring the lawsuit, despite decades of settled law allowing abortion providers to sue on behalf of their patients.
First published October 2, 2019:
As the U.S. Supreme Court begins a new term, one case looms large with potentially major implications for abortion rights in the United States. The question is whether the Court will take up June Medical Services v. Gee, a challenge to a Louisiana law requiring abortion providers to have admitting privileges at a local hospital.
This should be an easy one for the justices. Admitting privileges for abortion providers do not provide health or safety benefits for people seeking abortion care and are a blatant attempt to shut down providers and reduce access. The Court recognized as much in 2016, when it struck down an identical Texas restriction in Whole Woman’s Health v. Hellerstedt. Following that precedent, a federal district court struck down the Louisiana law in 2017.
Yet in a move clearly intended to put the question of how far states can go in restricting abortion back before the Supreme Court, the U.S. Court of Appeals for the Fifth Circuit reversed the lower court and upheld the Louisiana law in 2018. That decision has been appealed to the Supreme Court, and what the Court does next will have a significant impact on abortion rights and state efforts to restrict them.
Admitting Privileges as Abortion Restrictions
Admitting privileges allow medical providers to admit patients to a particular hospital and to personally provide specific medical services at that hospital. In the context of abortion care, admitting privileges requirements do little to add to long-standing patient safeguards, while effectively handing hospitals veto power over whether an abortion provider can continue offering care in the area.
Admitting privileges requirements were first adopted in Missouri in the 1980s, but it was not until 2011 that several other states started enacting this requirement. Currently, admitting privileges are required in three states (Missouri, North Dakota and Utah), whereas enforcement of similar requirements has been blocked in eight other states, including Louisiana.
Solution in Search of a Problem
The need for emergency care following an abortion is highly unlikely: Serious complications are rare and very few patients require treatment at hospitals. Nonetheless, should a patient require emergency medical care, the federal Emergency Medical Treatment and Labor Act of 1986 (EMTALA) already requires hospitals to provide such care, including an appropriate examination and either stabilizing treatment or a medically appropriate transfer. In other words, admitting privileges are not necessary to ensure appropriate follow-up care, in the rare instances when it is needed.
In addition, the hospital where a patient might go for follow-up care is not determined by where their abortion provider might have admitting privileges. Someone experiencing a complication in the days following an abortion would most likely seek follow-up care with a medical provider or facility close to their home, not necessarily the specific hospital where their abortion provider would have privileges. This point is reinforced by the fact that 35% of patients traveled 25 or more miles to get abortion care in 2014.
Admitting Privileges Are Punitive and Harmful
In 2018, a committee of the National Academies of Sciences, Engineering and Medicine determined that medically unnecessary restrictions on abortion care, including admitting privileges requirements, cause delays and threaten access to quality abortion care. Like other targeted regulation of abortion providers (TRAP) laws, admitting privileges requirements ultimately harm people seeking abortion care by shutting down clinics and exacerbating already significant gaps in access around the country.
Because hospitals can deny admitting privileges on grounds that have nothing to do with a provider’s skills or ability to provide quality medical care, they can be very difficult or impossible for abortion providers to obtain. For example, hospitals sometimes require providers to admit a certain number of patients each year, a quota that abortion providers are often unable to meet because they rarely need to admit patients; this was the case for some of the abortion providers in Louisiana. In addition, the decision whether or not to grant admitting privileges is sometimes overtly political: Two abortion providers in Louisiana were unable to obtain privileges precisely because of their work providing abortion care.
Instead, states that require abortion providers to have admitting privileges effectively give hospitals the power to decide whether or not abortion care can continue. In Texas, the admitting privileges requirement—which was later struck down in Whole Woman’s Health—resulted in the closure of over half of the state’s abortion clinics. As a result, abortion provision was limited to urban areas, almost entirely in the eastern part of the state, leaving people in a vast area of west Texas without access to abortion.
In the case of Louisiana, the district court found that only one clinic would remain open if the admitting privileges law is allowed to go into effect—and that one clinic would be served by a single abortion provider. That’s one clinic and one provider for the entire state of Louisiana.
Recognizing that admitting privileges serve no legitimate purpose, the American Medical Association, American Public Health Association and American College of Obstetricians and Gynecologists oppose these restrictions.
The district court considering the Louisiana law agreed: “The record in this case demonstrates that Act 620 does not advance Louisiana’s legitimate interest in protecting the health of women seeking abortions. Instead, Act 620 would increase the risk of harm to women’s health by dramatically reducing the availability of safe abortion in Louisiana.”
Yet, the Fifth Circuit essentially dismissed the findings of the lower court and the precedent established in Whole Woman’s Health, twisting both to come up with its own conclusions. If its decision is allowed to stand, people seeking abortion care in Louisiana will not be alone in suffering the consequences; state legislatures and lower courts hostile to abortion will interpret it as a green light to play fast and loose with the facts in support of restrictions that further impede access to abortion.