JURIST Guest Columnist Michael J. DeBoer of the Faulkner University Thomas Goode Jones School of Law discusses the recently passed Women’s Health and Safety Act and the challenges facing this legislation…

On April 9, 2013, Alabama Governor Robert Bentley signed into law the Women’s Health and Safety Act [PDF]. Two months later, two abortion providers filed a lawsuit challenging a provision of this legislation. A trial in this case is set to begin on May 19, 2014, before Senior U.S. District Judge Myron Thompson of the Middle District of Alabama.

The Legislation in a Larger Context

To understand why the Alabama legislature acted when and as it did in passing this Act, it is important to place it in a larger context. The Act originated in the Alabama House of Representatives. Mary Sue McClurkin, a seasoned legislator and businesswoman, sponsored the bill. It was introduced on February 5, 2013, and was passed by the House on February 19 and the Senate on April 2. Governor Bentley, who signed the bill a week later, is a medical doctor and board-certified dermatologist with more than four decades of experience in medical practice. The effective date was July 1, 2013.

The bill was introduced on the eve of the criminal trial of Kermit B. Gosnell, M.D., who owned and operated an abortion clinic in Philadelphia for decades. His trial began on March 18, 2013, but his case had been in the national news for over two years. In addition to other counts, Gosnell was charged with 8 counts of murder for killing 1 woman under his care and 7 babies. His adult patient had died when Gosnell’s staff administered a lethal dose of anesthesia and painkillers, and the babies, who had been born alive, were killed when their spinal cords were cut with scissors. On May 13, 2013, the jury found him guilty of 3 counts of murder, 1 count of involuntary manslaughter, 2 dozen counts of performing illegal abortions, and more than 200 counts of violating Pennsylvania’s 24-hour informed consent law. He was separately convicted of federal drug offenses for trafficking in prescription drugs.

The state charges against Gosnell stemmed from a grand jury’s 281-page report [PDF], which was issued on January 14, 2011. (Gosnell was arrested on January 19, 2011.) The grand jury report chronicled the acts and practices of Gosnell and his employees over many years. It detailed the unsafe conditions such as padlocked exit doors, broken equipment and unsanitary rooms and instruments. Sedating drugs had been administered without any licensed medical professional on the premises, and the necks and spinal cords of babies were “snipped” by one of his “fake doctors” and even administrative staff. When investigators searched the clinic, they discovered babies’ body parts in various places in the clinic. The grand jury concluded that Gosnell committed hundreds of acts of infanticide, but that he got away with them because they occurred in his abortion clinic where he could hide behind a cloak of privacy. Furthermore, Gosnell destroyed patients’ files, and he avoided seeking emergency care for patients when they experienced complications.

The report noted that illegal abortion procedures performed at his clinic were “a huge moneymaker.” By day, his clinic was “a prescription mill,” and by night, it was “an abortion mill.” He and his wife killed the bigger babies on Sundays when clinic employees were not present. The grand jury estimated that he was making nearly $1.8 million per year, with late term abortions being among his more profitable procedures. Almost all of this money came from cash payments, but he also defrauded insurance companies.

In its report, the grand jury proposed various institutional and legal reforms. Statutes of limitations should be removed, or extended, to permit prosecutions for infanticide and illegal abortions that go undiscovered for years. Abortion clinics should be regulated, licensed and monitored as ambulatory surgical centers to provide comprehensive rules to ensure quality of care, and the regulations governing abortion providers should be updated to require regular inspections of facilities, files, certifications and licenses to protect women and premature babies. All abortions past 18 weeks should be performed or supervised by a board-certified obstetrician/gynecologist, and the name of the supervising obstetrician/gynecologist should be on the paperwork for every abortion the doctor supervises or performs.

The grand jury was also critical of lax governmental enforcement. Although authorities had received some reports about what was occurring at Gosnell’s clinic, those who were responsible for overseeing him and his clinic failed to protect the women and children harmed there. (Apparently, no regulatory authorities inspected Gosnell’s facility from 1993 to 2010, due at least in part to political concerns—abortion facilities would be unable to meet regulatory standards, resulting in a small number of abortion providers and limited access.)

The Legislation Itself

The Alabama legislature determined that a gap existed in Alabama law that needed to be filled with comprehensive standards of medical care for abortion and reproductive health centers. In the Act, the legislature made specific findings. Abortion and reproductive health centers in Alabama are the subjects of adverse licensure actions at a higher rate than facilities in other categories, and their regulatory non-compliance puts patients at unreasonable risk. Abortion providers profit from the procedures they perform, but these facilities treat their patients in a manner inconsistent with the treatment provided through the standard physician-patient relationship. At these facilities, surgical procedures are performed, but these facilities do not operate in the same manner as ambulatory surgical treatment centers and physician offices. Consequently, many of the safeguards found and the personal contact provided in traditional physician-patient relationships and other medical settings are not afforded at abortion-providing facilities, especially stand-alone clinics. Additionally, abortion procedures have attendant risks, cause unique stresses and concerns for patients, and take human lives, but abortion-providing facilities have often failed to meet acceptable standards of medical care.

Based upon these findings, the legislature acted to establish reasonable, medically appropriate health and safety standards. The Act requires that all patient care in abortion-providing facilities be rendered in accordance with all applicable laws, Alabama Board of Health and Alabama Board of Medical Examiners rules, and current standards of care, including all professional standards of practice. The Act places abortion and reproductive health centers in the ambulatory health care occupancy classification and requires that facilities comply with particular safety standards.

In establishing health and safety standards, the law mandates the personal presence and participation of physicians in abortion procedures—only physicians may perform abortions, and physicians must remain on the premises during and after performing abortion procedures until all patients are discharged. The Act imposes specific requirements related to nursing care, and personal examination requirements related to the prescribing of abortion-inducing drugs. Prior to discharge, patients must be provided the names and the telephone numbers of the physicians who will provide care in the event of complications. Additionally, each physician must comply with the regulations that govern office-based surgery, meet the standards prescribed in the administrative rules for “office-based procedures—moderate sedation/analgesic,” and adhere to all other requirements in those rules, including guidelines related to follow-up care and standards regarding recovery area and assessment for discharge.

Additionally, the Act requires that each physician performing abortions have staff privileges at an acute care hospital within the same metropolitan statistical area as the abortion-providing facility to perform dilation and curettage, laparotomy procedures, hysterectomy and other procedures reasonably necessary to treat abortion-related complications. Through credentialing processes, hospital medical staffs determine which physicians may admit or treat patients in particular hospitals based upon professional licensure, experience, competence, ability and judgment. Staff privileges are often crucial to a physician’s successful practice, giving the physician and patients ready access to a local hospital in the event that such care is needed and allowing continuity of care.

Because the legislature was concerned about abortion providers who were unable or unwilling to conform to the standards of care, it provided for enforcement mechanisms. These range from criminal penalties to civil actions and adverse licensure actions.

The Legal Challenge

In the pending federal lawsuit, the plaintiffs are Planned Parenthood Southeast, Inc. (PPS), a Georgia nonprofit corporation; Reproductive Health Services, Inc. (RHS), an Alabama corporation; and individuals who own or administer the clinics. (PPS is an affiliate of the Planned Parenthood Federation of America, Inc.) The plaintiffs operate abortion-providing facilities in Birmingham, Mobile and Montgomery. They have claimed that the Act’s staff privilege requirement violates various constitutional rights: due process; equal protection; and liberty and privacy. They contend that the legislation unconstitutionally restricts the availability of abortion services in Alabama, and delegates licensing authority to private parties. According to court documents, PPS and RHS employ physicians who do not reside in the communities where the facilities are located, which impedes the ability of their physicians to obtain staff privileges. The defendants are state and local government officials charged with enforcing Alabama’s laws.

This constitutional litigation is a part of the larger advocacy efforts of the Planned Parenthood Federation and its affiliates. For decades, they have battled against state legislative efforts to ensure that decisions to have abortions are informed and voluntary and to involve parents in the decisions of minor children. They also fought against the federal prohibition of partial birth abortion, a method of late-term abortion.

Judge Thompson has enjoined enforcement of the requirement while this case proceeds, and the parties have moved for summary judgment, submitting extensive briefing and evidentiary materials in support. On March 31, 2013, Thompson dismissed without prejudice the claim that the Act delegates licensing authority to private parties and determined that a trial is necessary on the substantive due process claim.

In reaching his ultimate decision on the merits, Thompson will have the benefit of a recent US Court of Appeals for the Fifth Circuit ruling on a similar staff privilege requirement in Texas law. In a unanimous decision, Judge Edith H. Jones, joined by Judges Jennifer Walker Elrod and Catharina Haynes, determined [PDF] that the Texas law did not facially violate substantive due process rights by imposing a substantial burden on a woman’s right to abortion. Regardless how Thompson ultimately rules, the US Court of Appeals for the Eleventh Circuit will undoubtedly review his rulings soon.

Michael J. DeBoer is an Associate Professor of Law at the Faulkner University Thomas Goode Jones School of Law. He received his J.D. from Valparaiso University School of Law and received his LL.M. from the Indiana University Robert H. McKinney School of Law. His teaching and research interests include administrative law, contracts, criminal law/procedure, employment law, federal courts, health care law, jurisprudence, law and religion, state constitutional law and torts.

Suggested citation: Michael J. DeBoer, Alabama’s Law Setting Standards of Medical Care for Abortion Providers Challenged, JURIST – Forum, May 9, 2014, http://jurist.org/forum/2014/05/michael-deboers-alabama-abortion.php