In June 2016, the Supreme Court will release its decision in Whole Woman’s Health v. Hellerstedt, a controversial case that will determine the constitutionality of a Texas anti-choice law (HB 2) that severely limits access to abortion and medical care. Right-wing media have alleged that HB 2 is necessary to protect women’s health and prevent another “Kermit Gosnell scandal” -- talking points that made their way into Texas Solicitor General Scott Keller’s defense of HB 2 during oral arguments before the Supreme Court.
Supreme Court Will Release Decision In Whole Woman’s Health v. Hellerstedt In June
Supreme Court Heard Challenge To Texas Abortion Restriction Law That “Could Shape Abortion Rules For Years To Come.” The Supreme Court heard oral arguments for Whole Woman's Health v. Hellerstedt on March 2. The case involves a Texas abortion law (HB 2) that “requires abortion doctors to be affiliated with nearby hospitals and also limits abortion to ambulatory surgical centers,” according to The New York Times. Pro-choice advocates and “major medical groups say [the law] will not enhance patient safety and will only reduce women's access to abortion.” The Times wrote that the challenge is seen as a “landmark case” that “could shape abortion rules for years to come.” [The New York Times, 2/24/16]
Four Likely Outcomes In Whole Woman’s Health v. Hellerstedt Would Have Wide Implications For Clinic Access. There are four likely positions the Supreme Court could take in deciding Whole Woman’s Health v. Hellerstedt, all of which have wide-reaching implications for clinic access across the country. In a June 3 article, The Guardian’s Molly Redden and Nadja Popovich explained the likelihood and consequences of each possible outcome. For example, Redden wrote that if the justices split 4-4, “it would result almost immediately in the closure of eight of Texas's 18 abortion clinics.” In contrast, a 5-3 vote in favor of Whole Woman’s Health “could be a victory of historic proportions for abortion rights advocates,” with 18 clinics in Texas staying open and “similar laws threatening 13 clinics in six southern states and Wisconsin” possibly being “permanently struck down.” Redden also noted that in two other possible scenarios -- such as finding one of the requirements constitutional but not the other or a decision to send the case back to the lower courts -- the legal status of abortion restrictions would remain unclear and likely be subject to future challenges. [The Guardian, 6/3/16]
During Oral Arguments, Three Right-Wing Media Myths Were Prominent In The State’s Defense Of HB 2
1. MYTH: Hospital Admitting Privileges And Ambulatory Surgical Center (ASC) Requirements Are Medically Necessary
HB 2 requires that doctors providing abortions have hospital admitting privileges and that abortion clinics meet standards of ambulatory surgical centers (ASCs) in order to remain operational. In defending these restrictions, Texas has argued that admitting privileges and ASC requirements “would increase patient health and safety.” This argument has long been a favorite of right-wing media figures, who have consistently claimed HB 2’s requirements exist because “Texas lawmakers” are “simply looking out for the well-being of women.”
In reality, admitting privileges and ASC standards are medically unnecessary and endanger patient health and safety. The consensus of medical experts and organizations agree -- and submitted amicus briefs to the Supreme Court in kind -- that such restrictions “jeopardize the health and safety of women” by “den[ying] them access” to safe and legal abortion.
MYTH: State Of Texas Argued That HB 2’s Restrictions Were Medically Necessary
Solicitor General Keller: “Some Doctors” Agree “There Are Benefits For The ASC And Admitting-Privileges Requirements.” In oral arguments for Whole Woman’s Health v. Hellerstedt, Supreme Court Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg expressed skepticism about the supposed medical benefits of these requirements. In response, Texas Solicitor General Scott Keller argued that even the petitioners agreed that “some doctors do believe there are benefits for the ASC and admitting-privileges requirement.” He continued that ASC facilities were necessary for medical and surgical abortions because of the potential for “complications” from either type of procedure. Keller also noted that admitting privileges and ASC standards are medically necessary because “it is beneficial to have continuity of care, to check for clinical competence, to prevent miscommunication and patient abandonment.” From the transcript of oral arguments in Whole Woman’s Health v. Hellerstedt (emphasis added):
JUSTICE [SONIA] SOTOMAYOR: I'm not talking about the doctrine. I'm talking about the question I asked, which is, according to you, the slightest health improvement is enough to impose on hundreds of thousands of women even assuming I accept your argument, which I don't, necessarily, because it's being challenged but the slightest benefit is enough to burden the lives of a million women. That's your point?
MR. [SCOTT] KELLER: And what and what [Planned Parenthood v.] Casey said is the substantial obstacle test examines access to abortion. Now, if a law had no health benefits, presumably it would be irrational. But even their expert -- and this is at JA 256 and 258 -- acknowledged that some doctors do believe that there are benefits for the ASC and admitting-privileges requirement --
JUSTICE [RUTH BADER] GINSBURG: What -- what is the benefit of the medical, the two pills that you take, what is the benefit of having an ambulatory surgical center to take two pills when there’s no -- no surgical procedure at all involved?
MR. KELLER: Two responses, Justice Ginsburg. First, the complication rates are greater. When there’s a complication rate from a drug-induced abortion, then a surgical abortion is needed as a follow-up.
And the first lawsuit --
JUSTICE GINSBURG: On that complication, that complication is likely to arise near the women’s home, much more likely to arise near her home, which the 30 miles has nothing to do with.
MR. KELLER: Well, first of all, the two travel distances, that was about the drug protocol. That’s a different part of the bill. That was in the Petitioners’ first lawsuit, and they have not raised any challenge to that in this lawsuit.
In any event, in --
JUSTICE GINSBURG: I’m not -- I’m not talking about the prior lawsuit; I’m talking about this lawsuit. You need to have access to a hospital within 30 miles. 30 miles of what? 30 miles of the surgical center when the woman lives at a much greater distance? And if she’s going to go to any hospital, it will be in her local community, not near the surgical center.
MR. KELLER: Of course, most abortions are surgical abortions in the State.
JUSTICE GINSBURG: Well, I’m asking just about the medical.
MR. KELLER: That’s right. And also --
JUSTICE GINSBURG: And -- and just it's I can't imagine. What is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved?
MR. KELLER: Well, there would be surgery in a complication. And all abortion clinics in Texas perform surgical abortions, and that's why Petitioners probably didn't defend that aspect of the judgment.
JUSTICE GINSBURG: If it is a complication, it is not going to occur on the spot. I mean, you have to concede that in in the case of the medical abortion, the complication generally arises after the woman is back at home. And then the nearest hospital has nothing to do with the surgical center.
MR. KELLER: Although when the significant majority of women are living within 50 miles of the clinic, in most situations they are going to be in the facility. And it is beneficial to have continuity of care, to check for clinical competence, to prevent miscommunication and patient abandonment to have the admitting privileges requirement. [Supreme Court of the United States, transcript of oral arguments, Whole Woman's Health v. Hellerstedt, 3/2/16]
MEDIA: Right-Wing Media Have A History Of Claiming Admitting Privileges And ASC Standards “Protect” Patients
Fox Correspondent Trace Gallagher: HB 2 Requirements Exist Because “Texas Lawmakers” Are “Simply Looking Out For The Well-Being Of Women.” Fox News correspondent Trace Gallagher highlighted Texas lawmakers' argument that the requirements of HB 2 were intended to protect women from supposedly unsafe abortion procedures. On the November 12, 2015, edition of Fox News' Shepard Smith Reporting, Gallagher reported that “Texas lawmakers argue they're simply looking out for the well-being of women, saying better equipment and more staffing helps alleviate the dangers that are associated with abortion.” He failed to note that a majority of major medical organizations have found the restrictions unnecessary. [Fox News, Shepard Smith Reporting, via Media Matters, 11/13/15]
Fox's Kirsten Powers: Restrictions On Abortion Clinics Are Meant To Keep Women Safe. Fox contributor Kirsten Powers appeared on the July 15, 2014, edition of Fox News' The O'Reilly Factor to discuss the Women's Health Protection Act, which would prohibit states from targeting abortion with unnecessary restrictions like waiting periods and specialized medical standards for clinics. Powers claimed that state laws restricting access to abortion “were put in place to make abortion clinics safe” :
BILL O'REILLY (HOST): So, there was a hearing today in Congress on this [the Women's Health Protection Act], and how do you see it, Kirsten?
KIRSTEN POWERS: Well, first of all, it's obviously an election year stunt. This probably won't even pass the Senate, let alone the House, and this is something to get the women ginned up in the Democratic Party base, who, as you know, have been ginned up before in the so-called “War on Women,” and I think this is part of that strategy. I also think that this is destructive because most of the laws that I think that they would like to roll back are laws that were put in place to make abortion clinics safe. For example, like the Gosnell clinic in Pennsylvania. These types of laws were created to respond to what happened to women. There was a woman who died. There were multiple women who died there. [Fox News, The O'Reilly Factor via Media Matters 7/15/14]
Fox's Senior Judicial Analyst Argued That HB 2 Was About Patient Safety. During the October 15, 2014, edition of Fox News' America's Newsroom, Fox News senior judicial analyst Andrew Napolitano insisted that Texas passed HB 2 for patient safety and emphasized that the bill focused on “the credentials of the physicians who performed the abortions.” [Fox News, America's Newsroom, 10/15/14]
FACT: Experts Agree HB 2’s Restrictions Are Medically Unnecessary And Dangerous
Medical Professionals: “The Physical Plant Requirements Mandated By H.B. 2 … Are Medically Unnecessary For Abortion Procedures.” In an amicus brief filed with the court in support of Whole Woman's Health, five of the leading organizations for medical professionals described as “medically unnecessary” HB 2's requirement that abortion clinics be held to the same standards as ambulatory surgical centers (ASC). According to these medical professionals, because “an increasingly large percentage of early abortions are medication abortions rather than surgical abortions,” there is no need for a “designated procedure space.” Additionally, they noted that even in rarer instances of surgical abortion, an operating room is not required to perform the procedure safely:
The physical plant requirements mandated by H.B. 2--such as the presence of an operating room-- are medically unnecessary for abortion procedures. As an initial matter, an increasingly large percentage of early abortions are medication abortions rather than surgical abortions. ... No designated procedure space is required for medication abortions because the procedure involves administering prescription pills that induce pregnancy termination, which then typically occurs at home.
Even surgical abortions, however, do not require an operating room. To conduct a first-trimester surgical abortion, the clinician has the patient recline on an examination table, taking the same position as for many gynecological exams. Few personnel are involved; little is required by way of equipment. The procedure is not commonly performed using general anesthesia, so designated space for related equipment storage is not generally required. ... Surgical abortions simply do not require the size, layout, or equipment of a full operating theater. In this respect, they are no different than many procedures used for the management of miscarriages, which are also commonly addressed in office settings. [Amicus brief of American College of Obstetricians and Gynecologists (ACOG), American Medical Association (AMA), American Academy of Family Physicians (AAFP), American Osteopathic Association (AOA), and American Academy of Pediatrics (AAP), 1/5/16]
ACOG: Abortion “Facility And Staffing” Mandates Impose “Medically Unnecessary” Requirements. In a November 2014 committee opinion, the American College of Obstetricians and Gynecologists (ACOG) outlined its opposition to the sort of restrictions on abortion facilities and staff included in HB 2, noting that such measures are “medically unnecessary” and “do not improve patient safety or quality of care” :
Facility and staffing requirements enacted in some states, under the guise of promoting patient safety, single out abortion from other outpatient procedures and impose medically unnecessary requirements designed to reduce access to abortion. Also known as TRAP laws, these measures have included needless requirements such as mandating that facilities meet the physical plant standards of hospitals; that staffing, drug, equipment, and medical records be maintained at unnecessary levels; that physicians performing abortions in the clinic setting obtain hospital admitting privileges, with no mechanism to ensure that hospitals will grant such privileges; that the same physician perform in-person counseling, ultrasonography, and the abortion procedure, resulting in difficulties for physicians who travel long distances to provide abortion care in rural states and for multi-day procedures; and that clinic physicians be board certified obstetrician-gynecologists despite the fact that clinicians in many medical specialties can provide safe abortion services. The College opposes such requirements because they improperly regulate medical care and do not improve patient safety or quality of care.
These laws make abortion more difficult and expensive to obtain, imposing new costs on the women who can least afford them. Compliance with some of the most onerous regulatory requirements has proved to be so difficult that some practices have closed. In states with few abortion providers, TRAP laws can make abortion essentially inaccessible. [American College of Obstetricians and Gynecologists, November 2014]
Texas Hospital Association Opposed Requirements For Admitting Privileges Because They're Unnecessary For Patients. The Texas Hospital Association (THA), representing 450 hospitals, issued a statement before HB 2 was passed opposing its hospital admitting privilege requirement for doctors who provide abortions. THA explained that such a requirement is unnecessary, since a patient suffering complications from an abortion typically is transferred to an emergency room in a hospital to receive treatment (emphasis added):
THA agrees that women should receive high-quality care and that physicians should be held accountable for acts that violate their license. However, a requirement that physicians who perform one particular outpatient procedure, abortion, be privileged at a hospital is not the appropriate way to accomplish these goals. A hospital's granting privileges to a physician serves to assure the hospital that the physician has the appropriate qualifications to provide services to patients in the hospital. Thousands of physicians operate clinics and provide services in those clinics but do not have hospital admitting privileges. Requiring a hospital to grant admitting privileges to physicians who do not provide services inside the hospital is time-consuming and expensive for the hospital and does not serve the purpose for which privileges were intended; rather, the Texas Medical Board is the appropriate agency to address whether physicians are delivering appropriate care to patients, as the TMB regulates all physicians. Hospitals should not be required to assume responsibility for the qualifications of physicians who do not practice in the hospital.
Should a woman develop complications from an abortion or any other procedure performed outside the hospital and need emergency care, she should present to a hospital emergency department. Requiring that a doctor have privileges at a particular hospital does not guarantee that this physician will be at the hospital when the woman arrives. She will appropriately be treated by the physician staffing the emergency room when she presents there. If the emergency room physician needs to consult with the physician who performed the abortion, the treating physician can contact the doctor telephonically, which is often done in other emergency situations. [Texas Hospital Association, via Media Matters, 11/16/15]
ACOG And AMA: Hospital Admitting Privileges And Surgical Center Standards “Jeopardize The Health Of Women” And “Den[y] Them Access” To Safe Abortion. In a December 20, 2013, joint amicus brief for the United States Court of Appeals for the Fifth Circuit in Planned Parenthood v. Abbott, ACOG and the American Medical Association (AMA) condemned regulations requiring abortion providers to have admitting privileges at hospitals, writing that these rules “jeopardize the health of women” and deny them access to safe abortions:
The American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA) filed a joint amicus brief in the United States Court of Appeals for the Fifth Circuit in support of Planned Parenthood's challenge to Texas House Bill (HB) 2. ACOG and the AMA oppose HB 2 because it imposes government regulation on abortion care that jeopardizes the health of women in Texas and denies them access to the safest and most effective evidence-based protocols for medical abortions.
Abortion is a very safe procedure, and complications requiring hospital admission are extremely rare. There is no medical basis to require abortion providers to have local hospital admitting privileges. Emergency room physicians, hospital-based physicians, and on-call specialists already provide prompt and effective treatment to all patients with urgent medical needs, including women with abortion-related complications. Moreover, there is no medically sound reason for Texas to impose more stringent requirements on abortion facilities than it does on other medical facilities that perform procedures with similar, or even greater, risks. [American College of Obstetricians and Gynecologists, 12/20/13]
2. MYTH: HB 2 Won’t Negatively Impact Clinic Capacity Or Patients’ Access To Care
Texas has insisted that HB 2 would not “limit the capacity” of clinics or “lend to a ‘shortage’ of abortion providers to meet demand.” Instead, they argue that if the Supreme Court upheld HB 2, the “six most populous areas of Texas” would all continue to have access to abortion care. According to Texas’ brief to the court, supporters of HB 2 believe that “85% of reproductive age women” will still be “living within 150 miles of an abortion clinic.” Right-wing media have supported this claim, arguing that the idea of women losing access to care because of HB 2 is “ridiculous” or pure “hyperbole.”
In spite of these claims, many areas of Texas are already experiencing the material reality of what happens when anti-choice restrictions force abortion clinics to shut their doors. Where HB 2 has already caused clinic closures, “the destruction inflicted by HB 2 is painfully palpable” for Texas women. These clinic closures have sent wait times skyrocketing and increased financial and logistical barriers to care, and if HB 2 is upheld, the result is likely to be an increase in more dangerous, self-induced abortions in the state.
MYTH: Texas Argued That Under HB 2, Remaining Clinics Will Be Able to Handle Capacity And Patients Won’t Be Denied Access To Care
Solicitor General Keller: HB 2 Won’t Reduce Access To Abortion Services Because “The Six Most Populous Areas Of Texas” Will Have Clinics Capable Of Performing “Over 9,000 Abortions Annually.” During oral arguments, Texas Solicitor General Keller argued that HB 2 would not damage clinics’ capacity or substantially impede access to abortion. Keller claimed that if the court affirmed HB 2, “All the Texas metropolitan areas that have abortion clinics today will have open clinics” including the “six most populous areas of Texas.” Keller later claimed that existing ASC facilities are more than capable of addressing capacity concerns. He argued that previous legal filings about a Planned Parenthood facility demonstrated that a functioning ASC would be capable of performing 9,000 abortions annually. Citing this figure, Keller inferred that since “there are going to be at least eight other ASCs in Texas … it does not stretch credulity to believe that those remaining facilities would suffice to meet the demand for abortions.” From oral arguments (emphasis added):
MR. [SCOTT] KELLER: An extra thank you, Mr. Chief Justice, and may it please the Court:
Res judicata bars the facial challenges. In any event, Texas acted to improve abortion safety, and Planned Parenthood provides this increased standard of care and has opened new ASCs. Abortion is legal and accessible in Texas. All the Texas metropolitan areas that have abortion clinics today will have open clinics if the Court affirms, and that includes the six most populous areas of Texas.
CHIEF JUSTICE [JOHN] ROBERTS: What -- what evidence would you have put in on the capacity issue if you had been afforded the opportunity?
MR. KELLER: Well --
CHIEF JUSTICE ROBERTS: Evidence that would rebut the statistically significant showing on the other side about capacity, and also the circumstantial evidence about the timing of the -- of the closures.
MR. KELLER: Well, this is not in the record, but in the Petitioners’ first lawsuit -- this is Exhibit K -- to their application to vacate the stay in this Court in the first lawsuit, the Abbott litigation, they went clinic by clinic in a chart -- excuse me -- and they tried to estimate the number of abortions that could be performed in those facilities. The district court didn’t even make a fact-finding there.
But the Houston Planned Parenthood ASC they estimated could perform 9,000 abortions annually. 9,000. That’s 175 a week is what their chart says.
JUSTICE [ANTHONY] KENNEDY: Before -- before the Act?
MR. KELLER: Well, yes, yes, because the Houston Planned -- Planned Parenthood operates five of the nine ASCs. Planned Parenthood is -- is not in this lawsuit. They were in the first lawsuit. They have complied with the law, They have doctors with admitting privileges, and they have facilities in each of the five most populous Texas cities.
And so if one ASC can perform 9,000 abortions annually, and there are going to be at least eight other ASCs in Texas, plus the tenth facility, the McCallen facility, that obtained as-applied relief, it does not stretch credulity to believe that those remaining facilities would suffice to meet the demand for abortions. [Supreme Court of the United States, Oral Arguments, Whole Woman's Health v. Hellerstedt, 3/2/16]
MEDIA: Right-Wing Media Have Argued Clinic Closure Risks Are Minimal
Fox Contributor Claims Clinic Closure Risk Is “Hyperbole” And Mocks Idea Women Will “Flee to Tijuana” To Receive Abortions. During the June 26, 2013, edition of Fox News' America Live, Megyn Kelly asked Fox contributor Monica Crowley whether the concerns over clinic closures in Texas were valid. In response, Crowley criticized pro-choice advocates, arguing that their concerns were unfounded because “they always try to go right to hyperbole.” As an example, Crowley suggested the idea that “women are going to have to flee to Tijuana” to receive abortions was “ridiculous.” From America Live:
MEGYN KELLY (HOST): They claim, Monica, that something like 42 abortion clinics in the state of Texas right now, and that they all have to be licensed as ambulatory surgery centers, it will reduce the number of abortion clinics to five and people are gonna have to go to Mexico now if they want to get abortions.
MONICA CROWLEY: This is a standard argument that they always use -- the pro-abortion lobby -- they always try to go right to hyperbole, that “women are going to have to flee to Tijuana” because they're not going to be able to have access in Texas to abortion. It's all ridiculous. [Fox News, America Live, via Media Matters, 6/26/13]
FACT: HB 2 Has Already Forced Clinic Closures And Drastically Impacted Access To Care
The Austin Chronicle: “The Destruction Inflicted By HB 2 Is Painfully Palpable” For Texas Women. In a January 29 article for The Austin Chronicle, news editor Mary Tuma detailed the severe consequences for women if the Supreme Court upholds HB 2. According to Tuma, clinic closures were a “direct result of the difficulty in obtaining admitting privileges” or an inability to “subsidize costly building changes” to meet ASC standards. She argued that “the destruction inflicted by HB 2 is painfully palpable” for Texas women as wait times have compelled many women to attempt self-inducing abortions. From The Austin Chronicle:
Nearly three years later, the destruction inflicted by HB 2 is painfully palpable.
While 41 abortion clinics existed in Texas prior to HB 2, only 19 remain today. The closures, a direct result of the difficulty in obtaining hospital admitting privileges for physicians and an inability to subsidize costly building changes, came in waves. Eight facilities shuttered or stopped offering abortion care after the bill passed. Another 11 clinics did so when it was enforced in November 2013. Over the next two years some clinics closed then reopened as oscillating court rulings pulled providers in different directions, while others shuttered for good. If the final ASC provision of the law goes into effect, as few as 10 clinics, concentrated in five major metro cities, are expected to serve all 5.4 million reproductive-age women in Texas. In Austin, only two abortion clinics - Planned Parenthood's South Austin Health Center, an ASC, and Austin Women's Medical Center - remain today out of the four in operation prior to the rollout of HB 2. Planned Parenthood will be the only center in Austin offering abortions if the ASC requirement is upheld.
“Clearly, we are trying to be prepared and take whatever steps we need to expand services to meet the demand for women,” says Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas. “But these restrictions are too onerous. There should be more than one provider to service our community in Austin; there should be the full network of health providers that existed before the law passed.” In a troubling preview of what may come, Planned Parenthood experienced a staggering 660% increase in callers seeking to schedule an abortion appointment when the ASC rule temporarily went into effect in October 2014.
More women would also be pushed from the first trimester of pregnancy to the second, raising the annual number of those later-term abortions from about 6,600 to nearly 12,400, a potentially dangerous prospect. “The increase in second-trimester abortion is concerning from a public health perspective. While they are very safe, they're associated with a higher risk of complications compared to early abortions and are more expensive,” says Dr. Daniel Grossman, a [Texas Policy Evaluation Project] co-investigator. [The Austin Chronicle, 1/29/16]
Texas Policy Evaluation Project (TxPEP): HB 2 Clinic Closures “Delayed And In Some Cases Prevented Altogether” Abortion Access For Many Women. In a study released in January, the Texas Policy Evaluation Project (TxPEP) interviewed a number of women whose access to abortion care was severely impeded as a result of HB 2. Through these interviews TxPEP found that women's health care was “delayed, and in some cases [women were] prevented altogether" from obtaining an abortion. Investigators also noted that the subjects not only “reported a lack of information and confusion” in the wake of clinic closures, but also that once they had located an affordable provider, many “faced substantial added travel and hotel costs when seeking abortion services.” [Texas Policy Evaluation Project study in Contraception, 1/19/16]
The New York Times: Texas Abortion Restrictions “Have Already Caused About Half Of The State's 41 Abortion Clinics To Close” And Will Relegate Services To Just Four Urban Areas. In a September 3 article, The New York Times explained that parts of Texas' restrictive HB 2 law “have already caused about half of the state's 41 abortion clinics to close.” The piece noted that Texas abortion providers fighting portions of the law say that if “the contested provisions take effect ... the number of clinics will again be halved,” and those remaining would be “clustered in four metropolitan areas” :
Other parts of the law have already caused about half of the state's 41 abortion clinics to close. If the contested provisions take effect, Wednesday's filing [from state abortion providers] said, the number of clinics will again be halved.
The remaining clinics, the brief said, would be clustered in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio.
“There would be no licensed abortion facilities west of San Antonio,” the brief said. The only clinic south of San Antonio, in McAllen, it added, would have “extremely limited capacity.” [The New York Times, 9/3/15]
3. MYTH: HB 2 Protects Women From Being Terrorized By “Future Dr. Gosnells”
Right-wing media have long relied on the case of Kermit Gosnell -- a former doctor who performed illegal procedures at his Philadelphia clinic -- to attack safe and legal abortion procedures. According to Texas Solicitor General Scott Keller, the Gosnell “scandal” was the basis upon which Texas lawmakers enacted HB 2, claiming the restrictions would “improve the standard of care for abortion patients.”
In reality, Gosnell’s clinic operated in violation of the law -- something HB 2 would not have corrected -- and his practices had “nothing to do with the way in which the standard of care and later abortion procedures are performed in the United States.” As the Philadelphia grand jury report in the Gosnell case explained, breaking the law was Gosnell’s “competitive edge.”
MYTH: Texas Argued That HB 2 Restrictions Are Necessary To Protect Women From “Future Dr. Gosnells”
Solicitor General Keller: HB 2 Restrictions “Passed In The Wake Of The Kermit Gosnell Scandal That Prompted Texas ... To Reexamine Their Abortion Regulations.” In oral arguments for Whole Woman's Health v. Hellerstedt, Texas Solicitor General Scott Keller was asked why the state of Texas needed to change its regulation of abortion clinics, to which he replied that HB 2 was “passed in the wake of the Kermit Gosnell scandal” in order to improve patient safety. As Justices Elena Kagan and Ruth Bader Ginsburg explained, however, the case of Kermit Gosnell -- which concerns the illegal operations of a Philadelphia abortion provider -- is actually an example of Pennsylvania's failure to regularly inspect medical facilities and not evidence of a widespread lack of safety in abortion care. From the transcript of the oral arguments (emphasis added):
JUSTICE [ELENA] KAGAN: General, could -- could I ask -- could I go back to a question that -- something that you said earlier? And tell me if I'm misquoting you. You said that as the law is now, under your interpretation of it, Texas is allowed to set much, much higher medical standards, whether it has to do with the personnel or procedures or the facilities themselves, higher medical standards, including much higher medical standards for abortion facilities than for facilities that do any other kind of medical work, even much more risky medical work. And you said that that was your understanding of the law; am I right?
MR. [SCOTT] KELLER: Correct, in this Court's -- in Simopoulos.
JUSTICE KAGAN: And I guess I just want to know why would Texas do that?
MR. KELLER: When there are complications from abortion that's in the record, Texas can enact laws to promote safety.
JUSTICE KAGAN: No, I know, but -- but the assumption of the question, and I think you haven't challenged this assumption, is that there are many procedures that are much higher risk: Colonoscopies, liposuctions, we could go on and on. And -- and you're saying, that's okay, we get to set much higher standards for abortion. And I just want to know why that is.
MR. KELLER: Justice Kagan, this bill was passed in the wake of the Kermit Gosnell scandal that prompted Texas and many other States to reexamine their abortion regulations.
JUSTICE KAGAN: But, of course, the -- I mean, Texas' own regulations actually have made abortion facilities such that that can never happen, because you have continual inspections, I mean, to your credit. So that was really not a problem in Texas, having a kind of rogue outfit there. Texas has taken actions to prevent that.
So, again, I just sort of -- I'm left wondering, given this baseline of regulation that prevents rogue outfits of -- like that, why it is that Texas would make this choice. And you say you're allowed to make this choice, and we can argue about that. I just want to know why Texas would make it.
JUSTICE [RUTH BADER] GINSBURG: Random -- Texas, under the prior law, has the right to make random inspections. Was -- the problem in Pennsylvania was this filthy clinic hadn't been looked at by anyone from the State in 16 years. But Texas can go into any one of these clinics and immediate -- immediately spots a violation? It says you can't operate till you come up to speed.
So Texas has had, as Justice Kagan pointed out, its own mechanism for preventing that kind of thing from happening.
MR. KELLER: Texas did have existing regulations, but increasing the standard of care is valid, particularly not only in light of --
JUSTICE [SONIA] SOTOMAYOR: It's valid only if it's taking care of a real problem.
MR. KELLER: And there were - the -- abortion complications and underreported questions --
JUSTICE SOTOMAYOR: Well, no, no, no. A real problem, meaning, Gosnell, the governor of Pennsylvania, said was a regulatory failure. And only in that, not -- this clinic had not been inspected for 15 years. He -- the doctor was fabricating his reports. That could happen almost in any setting. Anyone who intends to break the law is going to break the law, whatever the regulatory rules are.
You're going to have doctors, as happened pre our laws, who were performing abortions without permission in their offices or without licenses. And I don't want to suggest that we should presume that's going to happen, but it will happen.
MR. KELLER: The constitutional standard for whether a State can make abortion safer can't be that it can only prevent the Gosnell situation, and there are complications.
JUSTICE SOTOMAYOR: Well, but -- yeah, but -- but you have to see, as Justice Breyer asked you earlier, why are the problems? Isn't this a self-created problem? What happened in Texas independent of Gosnell that raised the Gosnell-like situation concerned in Texas that made --
JUSTICE [SAMUEL] ALITO: Gosnell.
JUSTICE SOTOMAYOR: -- the legislature so after so many years about taking care of this greater risk in abortions, as opposed to all the other procedures that are performed in non-ASC facilities?
MR. KELLER: Because there are complications in abortion, and this was a top --
JUSTICE SOTOMAYOR: But there's complications in colonoscopies, and colonoscopies are, what, 15 times --
JUSTICE [STEPHEN] BREYER: 28.
JUSTICE SOTOMAYOR: 28. Justice Breyer just corrected me.
JUSTICE SOTOMAYOR: 28 percent higher. [Supreme Court of the United States, Oral Arguments, Whole Woman's Health v. Hellerstedt, 3/2/16]
MEDIA: Right-Wing Media Have Consistently Invoked Gosnell’s Illegal Actions To Attack Safe And Legal Abortion
Fox Contributors Argue HB 2's Restrictions Are “Completely Reasonable” ; “Probably One Of The Women Who Died Wouldn't Have” If Gosnell “Had Met Some Of These Requirements.” On the June 26, 2013, edition of Fox News' America Live, Megyn Kelly hosted Fox contributors Kirsten Powers and Monica Crowley to discuss the failure of the Texas legislature to pass the earlier version of HB 2. During the segment, Powers argued that “what Texas is trying to do is exactly the same as what they did in Pennsylvania after the Gosnell tragedy.” Crowley further disputed the dangers associated with greater clinic restrictions, stating that HB 2 was “completely reasonable,” and Powers said that “one of the women who died wouldn't have” if Gosnell had “met some of these [HB 2's] requirements” :
MEGYN KELLY (HOST): [Texas Republicans] wanted to restrict abortions to just 20 -- I don't mean to say just, because a lot of people think, 20 weeks, that's halfway there -- but to 20 weeks. Whereas right now most of the states say 24 weeks or after, so it's a four-week -- you know moving the date back four weeks, and to tighten restrictions on clinics. Why was the Planned Parenthood, NARAL Pro-Choice America crowd so upset?
KIRSTEN POWERS: Well, they opposed this in every state. Basically, what Texas is trying to do is exactly what happened in Pennsylvania after the Gosnell tragedy in terms of, not so much in the moving the date, but all of the stuff of making them into ambulatory service centers, saying that you have to have admitting privileges, because in the Gosnell case they actually found that -- independent investigation found -- that probably one of the women who died wouldn't have died had they had met some of these requirements.
KELLY: Better facilities?
POWERS: Yeah, so Planned Parenthood, they opposed this across the country. This is an ongoing battle that goes on all over the country.
CROWLEY: Everything in this bill is completely reasonable from the 20-week mark to upgrading these facilities to demanding that doctors have hospital privileges within a 30-mile radius in case anything goes wrong. This is a direct response to the horrors that we saw in the Gosnell case. [Fox News, America Live, via Media Matters, 6/26/13]
Michelle Malkin: “Kermit Gosnell Is No Exception,” And HB 2 Protects Women From Another “Awful Kermit Gosnell House Of Horrors Situation.” Conservative columnist Michelle Malkin also invoked Gosnell to justify the passage of highly restrictive anti-choice laws. Appearing in a segment during the July 8, 2013, edition of Fox News’ America Live, Malkin asserted that HB 2 was designed to protect “women and unborn children” from another “awful Kermit Gosnell house of horrors situation.” When questioned by host Alisyn Camerota on the questionable rationale of basing new restrictions on the actions of “one homicidal maniac,” Malkin argued that it wasn't “just a case of picking the Gosnell case and then demonizing every abortion clinic” because “Kermit Gosnell is no exception” :
ALISYN CAMEROTA (HOST): Obviously an incredibly heated topic and you can see that played out in front of the state house today where abortion opponents and supporters are sort of having a showdown in front of the state house. What are we expecting?
MICHELLE MALKIN: Well, I think what we can expect is more of the same: rude, uncivil and unhinged behavior on the part of many of these pro-abortion supporters, and a lot of them -- as many Texas natives have been pointing out -- are coming from outside of the state. Supported by the national pro-abortion organizations NARAL and Planned Parenthood, along with a lot of these Hollywood celebrities who've taken to Twitter -- and my Twitter aggregation and curation site, Twitchy.com, has been monitoring them for the last week or so -- where they've ratcheted up vulgar rhetoric against peaceful, pro-life supporters and pro-life legislators and of course a staunchly pro-life governor, Rick Perry, who are really putting a test to these forces on the other side.
Do they really believe in ensuring that abortions are conducted in a safe manner? And I think that's what we have to remember, Alisyn, as these debates become more heated, not just in Texas but around the country where other state legislatures are trying to, in the wake of that awful Kermit Gosnell house of horrors situation, make sure that women and unborn children are protected.
CAMEROTA: But in terms of the Gosnell issue, Michelle, couldn't you argue that it's never a good idea to base policy on one homicidal maniac?
MALKIN: Well, I think the problem is that over the course of the last several decades is the pro-life forces who have tried to expose and report time and time again that Kermit Gosnell is no exception. That in fact, there are many barbaric practices that have gone whitewashed not just in Pennsylvania but in many states and of course including Texas itself. Very recently there were pro-life reporters and investigators, [inaudible] people who have worked in these abortion clinics who've been blowing the whistle on practices that have endangered women and obviously unborn children. So it's not just a case of picking the Gosnell case and then demonizing every abortion clinic, but as I said, will they abide by standards that will ensure safety? [Fox News, America Live, via Media Matters, 7/8/13]
Fox's Manny Alvarez: “Given The Severity” Of Gosnell's Case, Texas Should “Construct More Regulated” Abortion Facilities Under HB 2. In a June 29 article following the Supreme Court's decision to hear arguments about the constitutionality of HB 2, Fox News senior managing editor for health news Manny Alvarez claimed that Gosnell's crimes were “a reason for the state to address its needs and construct more regulated, safe facilities” through the Texas law:
Let me be clear, the regulations that were being placed on these clinics were mainly focused on enforcing safety and guidelines for a very delicate procedure. What the state of Texas is asking for is that these independent clinics performing these procedures be held to the same clinical standards as any other surgical center in the country.
Have we already forgotten what happened in Philadelphia with Dr. Kermit Gosnell who was arrested on Jan. 19 and charged with eight counts of murder? One count stemmed from the death of a woman who received an overdose of anesthetic at his clinic, while seven involved infants that officials say were delivered live and then killed. He was later convicted of killing three of the infants at his Women's Medical Society practice, and of involuntary manslaughter in the death of a patient. He is currently serving life in prison without parole.
Given the severity of that case and many others, I don't understand this Supreme Court ruling, I really do not. I believe that if you are going to perform any kind of medical procedure on any type of patient you must have medical standards that ensure quality medicine and focus on patient safety. Just because some clinics do not want to adhere to these rules does not mean our country's patients must suffer. The opposition argued that the new regulations would have forced a major wave of clinic closures, leaving some areas across the state without any centers. That should not have been a reason to block this rule, but rather a reason for the state to address its needs and construct more regulated, safe facilities. [FoxNews.com, 6/29/15]
FACT: Gosnell’s Crimes Bear No Resemblance To Legal Abortion Procedures
MSNBC's Irin Carmon: Gosnell's Clinic Operated In Violation Of The Law; Women Went Only Because “They Felt They Had No Alternative.” While working as a staff writer for Salon, Irin Carmon -- now of MSNBC -- rebuked right-wing media attempts to politicize Gosnell's actions as evidence of widespread malfeasance by other abortion providers. Carmon wrote that Gosnell was not representative of other providers because it was his “willingness to break the law” that made him many women's last resort. She argued that it was “existing policies and public indifference to low-income communities” that forced women to seek out Gosnell despite multiple warnings from other, reputable abortion providers. According to Carmon, Gosnell's illegal practice was sustained only because women “felt they have no alternative.” [Salon, 4/12/13]
Tracy Weitz: Gosnell's Actions Have Nothing To Do With “The Way In Which Later Abortion Procedures Are Performed In The United States.” University of California reproductive health professor Tracy Weitz pointed out that the procedures Gosnell performed have “nothing to do with the way in which the standard of care and later abortion procedures are performed in the United States,” and that his actions are “nowhere in the medical literature.” [The Washington Examiner via Media Matters, 4/17/13]
Philadelphia Grand Jury: Breaking The Law Was Gosnell's “Competitive Edge.” According to the grand jury report in the Gosnell case, the grand jury found that “Gosnell's approach was simple: keep volume high, expenses low - and break the law. That was his competitive edge.” The grand jury report elaborated:
Pennsylvania, like other states, permits legal abortion within a regulatory framework. Physicians must, for example, provide counseling about the nature of the procedure. Minors must have parental or judicial consent. All women must wait 24 hours after first visiting the facility, in order to fully consider their decision. But Gosnell's compliance with such requirements was casual at best. At the Women's Medical Society, the only question that really mattered was whether you had the cash. Too young? No problem. Didn't want to wait? Gosnell provided same-day service. [Gosnell Grand Jury Report, 1/14/11]