State, plaintiffs seek to avoid trial in Alabama abortion clinic lawsuit

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A capitol police officer asks anti-abortion protesters to no interfere with a Planned Parenthood rally against abortion related bills on the steps of the Alabama State House in Montgomery on Tuesday, April 2, 2013.(Mickey Welsh/Montgomery Advertiser)

A capitol police officer asks anti-abortion protesters to no interfere with a Planned Parenthood rally against abortion related bills on the steps of the Alabama State House in Montgomery on Tuesday, April 2, 2013.(Mickey Welsh/Montgomery Advertiser)

The state of Alabama and three abortion clinics filed separate motions Monday seeking to bypass a trial over a new requirement that doctors at abortion clinics in the state have admitting privileges at local hospitals.

Both sides asked U.S. District Judge Myron Thompson Monday afternoon for summary judgment, saying the “undisputed facts” of the case meant a trial was unnecessary. What those facts are depends on the source: In the view of the Alabama Attorney General’s office, the clinics could not show that the admitting privileges requirement “imposes an undue burden on the right to an abortion,” because the doctors at the clinics could find ways to obtain those privileges.

“Plaintiffs cannot even meet their burden to establish that they will cease providing abortions because of the law, much less that their hypothetical closure would place a substantial obstacle in the way of a woman who wants an abortion,” according to a 64-page brief filed on Monday afternoon.

The clinics, however, say the requirement is medically unnecessary and would force clinics to close.

“It is undisputed that the State does not impose this requirement on physicians at any other facility that provides outpatient care—even those facilities that provide the types of care that Defendants’ experts readily concede pose serious, sometimes even fatal, risks to the patient,” the plaintiffs wrote in their 66-page brief.

State health regulations currently require at least one doctor employed by or under contract with an abortion clinic to have admitting privileges at a local hospital. The law, passed by the Legislature and signed by Gov. Robert Bentley in April, would require every physician at the clinic to have those privileges; makes it a felony for a clinic administrator to employ a doctor without them and makes it a felony for a nurse, physician’s assistant or nurse practitioner to perform an abortion.

Three of the state’s five abortion clinics filed suit last June to block the admitting privileges requirement, saying it was impossible to fulfill and aimed at forcing them to shut their doors. A few days before the requirement would have gone into effect, Thompson issued a temporary restraining order against the requirement.

Advocates of the privileges said it would protect women’s health in abortion clinics, but critics said it would be impossible for doctors at clinics to meet the requirement. To get admitting privileges, physicians typically must establish local residency and guarantee admission of a certain number of patients a year. Clinic operators said in court filings that doctors who performed abortions in Alabama typically live out of state, due to the hostile and dangerous environment in Alabama.

“If it is upheld, it will challenge our ability to provide abortions, and three of the five clinics in Alabama will have to stop providing abortions to women,” said Staci Fox, CEO of Planned Parenthood Southeast, which operates clinics in Birmingham and Mobile.

The state disputes that in its filing.

“Several of the doctors that currently provide abortions for plaintiffs have previously had privileges at hospitals in Alabama, even though they also provided abortions,” the brief says. “One doctor . . . who works for Planned Parenthood, had privileges at an Alabama hospital while performing abortions and just recently received new privileges at another Alabama hospital.”

The state also said that abortion clinics in the sate had a history of “serious safety violations.” An Advertiser study of 60 reports by the Alabama Department of Public Health on abortion clinics found the vast majority of those citations involved violations that did not constitute direct harm to the patient, such as fire extinguishers past their expiration dates or mislabeled bottles.

The plaintiffs in the case also noted that with the safety of abortion, few physicians would be able to send enough patients to hospitals to meet the requirements. A 2012 study published in “Obstetrics and Gynecology,” a journal published by the American College of Obstetricians and Gynecologists (ACOG), found 0.6 deaths per 100,000 abortions conducted between 1998 and 2005, compared with 8.8 deaths per 100,000 live births during that same time period. The state argues the physicians could make individual arrangements with local hospitals, which are not required to extend those privileges.

The law also requires clinics to be built up to the standards of ambulatory surgery clinics. Those requirements are not being challenged, and clinic operators say they are making appropriate changes. Fox said Planned Parenthood was working with architects and officials on the changes, although “the costs are significant.” In their brief, the plaintiffs said the state does not impose the staff privileges requirement on other outpatient clinics.

“Despite the risk of complications associated with office-based surgery and the serious adverse events that have occurred, the regulations governing office-based surgery do not require that physicians performing surgery in their offices—including procedures that have led to such serious complications and fatalities—have staff privileges,” the plaintiffs’ brief says.

The entire case could be headed to the U.S. Supreme Court, as different circuits have come to different conclusions about the requirement. While Thompson blocked the admitting privileges requirement, the high court allowed a Texas law with the same requirement to go into effect last month. The state in its brief said one of the Texas clinics had been able to comply with the requirement after being reopened; Fox said she did not expect the Texas decision to impact Thompson’s final ruling.

– posted by Brian Lyman

One thought on “State, plaintiffs seek to avoid trial in Alabama abortion clinic lawsuit

  1. I appreciate that you did a survey of the ADPH inspection reports and found few if any serious “serious safety violations”. In preparation for testimony before committee against HB57, I did a similar survey of the records for clinics that remain open in AL. There were numerous completely clean inspections, and a few minor admin issues, like you noted, with only two instances that were actually health related at all. NO serious action required beyond “fix and move on”.

    Consider that these clinics were required to have ANNUAL inspections, whereas Ambulatory Surgery Centers (which new rules require clinics to physically emulate) and rural hospitals in AL, would get inspected once or twice over 6-8 years, and have far more serious issues to correct.

    Regarding the physical remodeling requirements of HB57: If you look at the FIRE CODE that is referenced in the law that clinics must adhere to, it was specifically written so that FOUR patients on GURNEYS under moderate or deep sedation can be evacuated in case of a fire. That’s why they require 4 ft. wide doors and 6 ft. wide corridors. These are the most expensive of the modifications required by the law.

    First consider that clinics NEVER use heavy sedation and rarely use mild sedation. ALL patients are ambulatory (unless disabled in a wheelchair), because they WALK from the room after procedures and leave 30 mins afterward. Clinics don’t even USE or have gurneys, but the structural building rules require the wider doors and corridors for NO REASON. Not to mention that there are so few doctors, that not more than one or two patients are under sedation at a time, NOT FOUR!

    No, this law, prepared from model bills for our legislators by an outside group (Am. united for life), has the SOLE purpose of closing as many clinics as possible to meet the religious goals of the anti’s.

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