Laws to stop out-of-state doctors from performing abortions fail again

A federal judge in Texas today blocked that state from enforcing a law that was to take effect this week requiring doctors who perform abortions to have admitting privileges in the hospital in which they were to be performed. You may recall the law was the target of a marathon filibuster by a Fort Worth lawmaker who has since announced she’s running for governor.

The law is an anti-abortion effort that has been tried in several states, usually with the same result: They’re ruled unconstitutional.

The North Dakota version of the law was aimed at the only clinic in North Dakota where legal abortions are performed — the Red River Women’s Clinic in Fargo. Doctors fly in from out of state to do the abortions. The law was adopted in April by North Dakota politicians but the clinic sued in May. Over the summer, a state judge blocked the law from going into effect while a legal challenge proceeds.

A similar law met a similar fate in Wisconsin where the law, passed in June, was to take effect next month. In August, a federal judge blocked the law, which required the admitting privileges at a hospital within 30 miles of a clinic, the same distance as in North Dakota and Texas.

State officials say it’s a health care matter, not an anti-abortion measure. But federal judge William Conley said the “roundabout” nature that politicians took suggested otherwise:

If the Act’s real purpose was to improve the quality of physicians providing abortion services, it could have been addressed directly through board certification, training, and licensing requirements, not indirectly through an admitting privileges

Defendants cite to the Eighth Circuit’s decision in Women’s Health Ctr. of W. County, Inc. v. Webster, 871 F.2d 1377 (8th Cir. 1989), in support for their argument that the admitting privileges requirement advances maternal health.

In that case, however, the admitting privileges requirement had no geographical restriction, making the link between the requirement and credentialing was more tenable.

Second, defendants argue that admitting privileges will further continuity of care between the physician and hospital, which is critical in managing complications.

However, defendants have so far failed to establish any credible link between admitting privileges at a nearby hospital and furthering continuity of care because of obvious, practical limitations on the likely impact of this requirement, undisputed trends in hospital care away from participation by outside physicians in hospitals, and the utter lack of a similar requirement for any other (including substantially more dangerous) outpatient medical procedures advocated by a hospital, medical group or medical society, much less adopted by the Wisconsin Legislature.

Despite the recent court failures, however, anti-abortion measures are growing more numerous, and successful. In July, a federal appeals court upheld a 2005 law requiring doctors in South Dakota to warn that abortions increase risks for suicide even though there’s questionable scientific validity.