Supreme Court Clear Cuts State Health and Safety Protections for Women

You were in the workshop, using your router on wood that you intended to incorporate in a lovely accent table in your formal living room. As so many of us have done, you failed to wear safety glasses or goggles. You bent low to follow the line that your router bit cut into the wood. Then, suddenly, you are clawing at the painful wooden bits that spewed onto your face. Unfortunately, some of the wood chaff got in your eyes.

Rinsing with water did not resolve your problem. You and your spouse hope into the car and head to the local freestanding urgent care center. After registering and waiting, you wait for about 30 minutes. When a staffer at the clinic calls you back, you confront an ugly scene in your treatment room.

Filth: Gosnell's way of practice

Ceiling tiles and insulation have fallen.

A leaking ceiling drips into a plastic bin.

In the corner near that counter a bucket of water sits, with an electric water heater suspended in the bucket. You look inside the bucket and notice a small collection of medical surgical instruments.

The tiny, tawdry, filthy treatment room seems spacious by comparison with the hallway leading from the waiting room to it. In that hallway, you could

Water heating in a bucket to "sterilize"
Gosnell's Surgical Instruments

not walk side by side with your spouse.

When the doctor finally enters the treatment room, he looks a great deal like a cross between Mel, the short order cook from the old TV series “Alice,” and a Bugs Bunny caricature of a witch doctor. You find it odd that he is smoking while he examines you. Because he has not donned gloves, you observe the dark crust under his fingernails. He coughs spasmodically, and you remember hoping that the cough evidences a longtime habit of smoking, rather than some communicable illness.

Who in their right mind would allow the doctor to take a pair of tweezers from the counter, after digging them out from under the ceiling tiles and insulation, and begin removing wood flecks from their eye?

Cramped Procedure Room at Gosnell House of Horrors

Maybe cautious living, up until the woodworking accident, contributed to your longevity? Perhaps you are the sort to research a doctor on the internet, and to look for evidences of medical licensing, and health and safety inspections, before even considering allowing something important, like your self, to undergo such an intimate kind of touch by a complete stranger?

Got Germs? Gosnell apparently set a low bar
for environmental concern in the office

The fact is that, in Texas, if you sought a surgical procedure of the kind that can be done on an outpatient basis at a freestanding clinic, you would not have confronted the conditions I described above. Instead, because of a regime of health and safety laws and regulations, the center described above would be closed. 

Texas requires a clean environment for the provision of such care. Here's the basic regulatory framework for ambulatory surgical centers in Texas:

(a) The ambulatory surgical center (ASC) shall have the necessary personnel, equipment, and procedures to handle medical emergencies that may arise in connection with services sought or provided. At a minimum, the ASC shall provide:

  (1) periodic instruction of all personnel in the proper use of safety, emergency, and fire-extinguishing equipment;

  (2) procedures, including adequate surveillance techniques, that minimize sources and transmission of infections;

  (3) a comprehensive emergency plan to address internal and external emergencies, including:

    (A) a provision for the safe evacuation of patients during an internal emergency, especially patients who have difficulty walking;

    (B) a provision for the most efficient use of available facilities and services during an external emergency; and

    (C) a requirement for at least four drills a year of the internal emergency plan.

(b) Hazards that might lead to slipping, falling, electrical shock, burns, poisoning, or other trauma shall be eliminated.

(c) Facilities shall be clean and properly maintained.

(d) An emergency call system shall be provided and readily accessible to staff and patients in all areas of the facility.

(e) All equipment, including emergency equipment, shall be properly maintained and periodically tested.

(f) There shall be a system for the proper identification, management, handling, transport, treatment, and disposition of hazardous materials and wastes whether solid, liquid, or gas.

  (1) This system shall include, but is not limited to, infectious, radioactive, chemical, and physical hazards.

  (2) The system shall provide for the protection of patients, staff, and the environment.

(g) An ambulatory surgical center shall meet the requirements set forth by the department in §§1.131 et seq. of this title (relating to Definition, Treatment, and Disposition of Special Waste from Health Care-Related Facilities).

(h) Sufficient space, equipment, and supplies shall be provided to perform the volume of work with optimal accuracy, precision, efficiency, and safety in the laboratory and x-ray. The ASC shall furnish equipment for basic diagnostic purposes, depending on the extent of services provided. Dressing area(s) shall be required, depending on services provided, with convenient access to toilets, and may be shared with patient changing/preoperative rooms

Yes, it is stunning, isn't it? 

All these outpatient clinic categories are subject to
health and safety regulations ... but not abortion businesses

As you read these requirements, knowing that a plastic surgeon enhancing your nose must meet these requirements but an abortionist terminating a pregnancy need not do so, you realize just how far afield the justices of the Supreme Court have wandered.

Just as with basic health and safety, Texas requires basic, frankly commonsense, minimum standards for construction. For example, the architectural review conducted by the State’s Health and Human Services Commission would insure that internal hallways leading to treatment rooms would be wide enough to accommodate a stretcher so that, if an emergency arose, a patient could be retrieved by emergency personnel and quickly transported to a hospital for possibly life-saving care.

In case you were not aware of the facts, most of the nightmare of filth and danger described in the opening paragraphs above are not the fruit of a vivid imagination.

Instead, those “hypotheticals” are drawn from the very real conditions of a Pennsylvania abortion business run by Doctor Kermit Gosnell. Dr. Gosnell, you may recall, is spending the last of his days in prison. His role in murdering children born alive and causing women to die and/or suffer permanent scarring is the story of the filth, disorder, and dangers in the paragraphs above. In fact, the pictures accompanying the paragraphs above were taken from the evidence in his trial.

Today, five black-robed magicians testified in unison that the States have no legitimate interest – not in the lives, safety, and health of women that may seek or obtain abortions – in preventing other Kermit Gosnells from maintaining medical houses of horrors across Texas. Ass. Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined Ass. Justice Breyer in a decision striking down two provisions of Texas law enacted by the Texas Legislature in 2013. The case was Whole Women's Health vs. Hellerstadt.

In 2013, Texas passed new statutory requirements for abortion services in Texas. Two requirements became the subject of a lawsuit that led to today’s Supreme Court decision. Texas amended its health laws to require that physicians performing surgical abortions have “admitting privileges” at hospital within the vicinity of their practice. Texas also extended public health and safety regulations that already applied to all other outpatient surgical businesses.

No! The temerity of Texas!

Ambulatory surgical centers that participate in Medicare, for example, are required by federal law and regulations to meet a similar admissions standard. “To further protect patient safety, ASCs are also required to have an effective means of transferring patients to a hospital for additional care in the event an emergency occurs.Written guidelines outlining arrangements for ambulance services and transfer of medical information are mandatory. An ASC must have a written transfer agreement with a local hospital, or all physicians performing surgery in the ASC must have admitting privileges at the designated hospital.”

The answer is obvious:

None. 

Each of the justices is the product of remarkably similar LEGAL training. None of the current justices holds joint degrees in law and medicine. None of them possesses any relevant training or specialized experience that suggests that their collective judgment about patient health and safety and standards of medical care is trustworthy at all, let alone more trustworthy than a legislative body to which the determination of such questions is reserved by the federalism embodied in our Constitution.

In the same way that requiring admitting privileges is eminently reasonable and well within the public health and safety regulatory power of States, requiring abortion businesses that provide abortion services in the office to meet basic requirements of sanitation, environment, safety, and health is also eminently reasonable. In fact, virtually every State (outside the context of abortion businesses) requires ambulatory surgical centers to meet such basic requirements.

So what about the idea of requiring that doctors that perform so-called “ambulatory surgery” to have admitting privileges at a nearby hospital? Was that some outsized and burdensome hurdle invented by rabidly “anti-choice” representatives in the Texas Legislature?

In fact, the American College of Surgeons adopted a set of ten “core principles” for office based surgery. The fourth of the core principles states: “Core Principle #4 – Physicians performing office-based surgery must have admitting privileges at a nearby hospital, a transfer agreement with another physician who has admitting privileges at a nearby hospital, or maintain an emergency transfer agreement with a nearby hospital.” You can find that Core Principle on the American College of Surgeons in its “Statement on Patient Safety Principles for Office-Based Surgery Utilizing Moderate Sedation/Analgesia, Deep Sedation/Analgesia, or General Anesthesia.”

California was one of the first State’s to liberalize abortion restrictions before the decision in Roe v. Wade. The State government and bureaucracy are hardly bastions of pro-life sentiment. California thinks that surgeons that perform outpatient surgery should have hospital admitting privileges. In fact, accreditation depends on ambulatory surgical centers “a written transfer agreement with a local accredited or licensed acute care hospital” and on only permitting “surgery only by a licensee who has admitting privileges at a local accredited or licensed acute care hospital, with the exception that licensees who may be precluded from having admitting privileges by their professional classification”

Even Consumer Reports considers hospital admitting privileges an important consideration in selecting a doctor. In their online report, “How to Find a Good Doctor,” Consumer Reports offers a collection of nine factors to consider in selecting a doctor. The second criteria (only after insurance coverage), Consumer Reports advises, “Your choice of doctor can determine which hospital you go to, if needed, so find out where the doctor has admitting privileges.”

Now, with respect to admitting privileges, the question must be asked: With what specialized training and experience in medical care, and in patient health and safety, are the justices of the Supreme Court invested? How is that judicial body better situated than a State’s legislature to make the necessary kinds of judgments that are, necessarily, legislative in character, as with crafting statutes setting standards for medical care?

Yet the same dusky solons that know better than the medical community on the topic of hospital admitting privileges concluded that it knows better than Texas about the need for health and safety regulations of abortion businesses.

We live in a time when laws being made at the Supreme Court is so commonplace that few outside the pro-life community are likely to be perturbed at today’s decision. 

Still, when you go to get the wood scraps scraped from your eye, you will expect a reasonable standard of care, a modicum of cleanliness above men’s gas station restrooms, and available specialized care if your treatment results in an emerging medical crisis. And because all you are doing is having wood scraps removed, you’ll find your legitimate expectation is usually satisfied. If, on the other hand, you were going to have your offspring scraped from within you and disposed of as medical waste, you will be at the hazard of the next Kermit Gosnell, and for that, be sure to thank the Ass. Justices of the Supreme Court.