Unlike the Fifth Circuit Court of Appeals, which last week could barely bring itself to block a Mississippi law that specifically targeted the state’s only abortion clinic for closure, Judge Myron Thompson took 172 pages on Monday to prove the point that the anti-choice purported crusade, involving policy that requires abortion providers to gain hospital admitting privileges, for patient safety is nothing more than an effort to further stigmatize poor women.
HB 57, Alabama’s law that requires providers to have admitting privileges at a hospital near their clinics, never threatened to curtail access to abortion in the state entirely the way Mississippi’s admitting privileges law did. Instead, the Alabama law, if enacted, would have shut down clinics in three of the five largest cities in the state—Montgomery, Birmingham, and Mobile. That’s a dramatic reduction in access to be sure, and one Judge Thompson notes is part of a larger trend of decreasing availability of abortion care.
A severe scarcity of abortion doctors exists nationwide and particularly in the South. Sixty-nine percent of all counties nationwide have no abortion doctors at all. Between the years of 1982 and 2005, the number of abortion providers in the country decreased by 38%. Only 14% of OB/GYNs in the United States provide any abortion services, including abortions for fetal anomalies or to save the life of a mother, and only 8% percent of OB/GYNs in the South perform any abortions at all, compared to 26% in the Northeast. In Louisiana, Alabama, and Mississippi, no residency program offers abortion training to OB/GYN medical residents. Based on these numbers, it is perhaps unsurprising that no doctor in the entire State of Alabama performed an abortion in her private office from 2007 through 2012.
But it’s not just the shrinking of abortion access that concerns Judge Thompson. It’s about who is most affected by the loss of access to these services. “As a preliminary matter, it is essential to understand that the large majority of abortion patients, particularly in Alabama, survive on very low incomes,” Judge Thompson writes. “More than 70% of the patients at Planned Parenthood’s clinics in Mobile and Birmingham live at or below 150% of the poverty line. In particular, the administrator of the Mobile clinic testified that 90% of that clinic’s patients live in poverty. The demographics of the Montgomery clinic’s patients are similar; 60% of the patients qualify for financial assistance.”
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Judge Thompson continues:
Poor women are less likely to own their own cars and are instead dependent on public transportation, asking friends and relatives for rides, or borrowing cars; they are less likely to have internet access; many already have children, but are unlikely to have regular sources of child care; and they are more likely to work on an hourly basis with an inflexible schedule and without any paid time off or to receive public benefits which require regular attendance at meetings or classes. A woman who does not own her own car may need to buy two inter-city bus tickets (one for the woman procuring the abortion, and one for a companion) in order to travel to another city. Without regular internet access, it is more difficult to locate an abortion clinic in another city or find an affordable hotel room. The additional time to travel for the city requires her to find and pay for child care or to miss one or several days of work. Furthermore, at each juncture, a woman may have to tell relatives, romantic partners, or work supervisors why she is leaving town: to procure an abortion. And, in light of the pervasive anti-abortion sentiment among many in Alabama, such disclosures may present risks to women’s employment and safety. Finally, as Dr. Katz testified, many low-income women have never left the cities in which they live. The idea of going to a city where they know no one and have never visited, in order to undergo a procedure that can be frightening in itself, can present a significant psychological hurdle.
In a climate where anti-abortion politics increasingly masquerades as legal reasoning, to hear a federal judge speak so plainly and without judgement about the hurdles poor women must clear to access abortion care is astonishing. It’s even more astonishing when that judge then goes on to scold other judges for failing to do the same. ”Here, the court must note an error that some courts have made in their undue-burden analyses,” Thompson writes. “These courts have treated obstacles that arise from the interactions of regulation with women’s financial constraints, as well as other aspects of women’s circumstances, as ineligible to be ‘substantial obstacles’ under Casey.” But, according to Judge Thompson, “[t]here is a difference between declining to interfere with a person and refusing to assist her.”
It’s important that Judge Thompson grounds the reasoning blocking the Alabama law as a defense of the rights of the poor, because it helps underscore the deceitful campaign prompting admitting privileges. To believe admitting privileges requirements are about patient safety requires courts to ignore the fact that all major medical organizations oppose such mandates, that the impact of such mandates disproportionately affects populations whose access to reproductive health care is already at risk, that the evidence overwhelmingly shows that admitting privileges requirements are contrary to the standard of care, and to take the junk science anti-choice activists offer up as evidence of their need at face value. But the benefit of a ten-day trial is that junk science can rarely withstand such scrutiny.
Noting that abortion is an extremely safe procedure to begin with, Judge Thompson completely rejects the expert testimony offered by the state, calling it a “county-doctor” model of care that was “out of touch with contemporary medical practice.” More tellingly, Judge Thompson notes, even the state’s expert doesn’t comply with a practice he’d subject abortion providers to.
In fact, the behavior of the strongest proponent at trial of the country-doctor approach illustrates why that approach is out of touch with contemporary medical practice. Dr. Thorp testified that, at his own office, he removes tissue that remains after early-term miscarriages, presumably using the dilation and curettage method, which is identical to early-term surgical abortion. He also puts patients under conscious sedation, exposing them to significant risk from anesthesia, and performs other procedures which carry risks of serious complications. But Dr. Thorp does not maintain staff privileges at any hospitals. It is not clear whether Dr. Thorp, in practice, ascribes to Dr. Fine’s approach or to the Surgical Association’s covering-physician approach. But it is clear that Dr. Thorp has refused to adopt the State’s country-doctor approach in his own practice.
In Planned Parenthood v. Casey, the Supreme Court noted that when reviewing anti-abortion restrictions it must “give real substance to women’s liberty,” meaning that it was the Court’s obligation to ensure abortion rights do not remain legal in name only. Monday’s decision out of Alabama went a long way toward meeting that obligation.