The death of Justice Antonin Scalia makes it less likely the U.S. Supreme Court will rule outright in favor of Texas in its efforts to restrict abortion providers in Whole Woman's Health v. Hellerstedt, which will be heard this week.
However, a 4-4 split leaving the law intact is possible. Since the legislation has troubling economic implications for healthcare providers that go well beyond abortion, it's worth reviewing some of the issues raised by the case.
Texas law requires that abortion providers meet the same standards as the state's licensed ambulatory surgical centers. Texas, renowned for its entrepreneurial healthcare sector, has more than 350 ambulatory surgery centers, often physician-owned. They provide in-and-out colonoscopies, same-day eye, orthopedic and cardiac catheterization procedures, and other minor surgeries such as tonsillectomies.
But about 75% of the state's ASCs were granted licenses before stricter licensing requirements went into effect a few decades ago. The newer requirements, which affect startups, go well beyond the much-discussed issue of physicians having admitting privileges at a local hospital, and often have nothing to do with patient safety.
Every ASC—unlike an abortion clinic—wants to be eligible for Medicare reimbursement. There are more than 5,400 CMS-certified ASC providers nationwide. The CMS requirements set a baseline when it comes to patient safety. They are not that difficult to meet.
On the issue in the Texas abortion case, the government requires that a facility have either a transfer agreement with a local hospital in case a complication arises, or its surgeons and physicians must have admitting privileges at a local hospital. It doesn't need both.
The CMS also requires state licensure, and there's the rub. States can adopt tougher requirements. Texas, like a growing number of states, has. For instance, Texas requires facilities to have an active pharmacy license. Other states have prescribed operating room size, personnel requirements, ventilation requirements and parking lot size.
Consultants who advise would-be ASC operators say Texas is now one of the more difficult states in the nation to open a new facility. The application can run more than a thousand pages and take a year to process.
Texas isn't a certificate-of-need state, so what's going on? Could incumbent ASC operators be trying to keep out new competition?
Hospitals that have acquired physician practices, after years of hemorrhaging business to the ASCs, want to open their own lower-cost facilities. It's especially pressing now that insurers and Medicare are moving toward bundled payments and other forms of value-based reimbursement. Many small practices hope to get into the ASC business for the same reason.
The Texas law was adopted to achieve a political goal: restricting access to abortion. There was no safety reason for these new restrictions.
Major complications requiring hospitalization for women undergoing abortion is estimated at 3 per 1,000, not much different than the rates for people undergoing colonoscopies, and significantly below the rate for children having tonsillectomies in an outpatient setting. The abortion mortality rate is about the same as people undergoing dental surgery in a dentist's office.
The American Medical Association, American College of Obstetricians and Gynecologists, American Academy of Family Physicians and American Osteopathic Association sided with abortion clinics in the Texas case. They correctly see the entire medical profession threatened by unnecessary requirements on who performs minor procedures.
But hospitals have been leery of getting involved. The Emergency Medical Treatment and Labor Act already requires them to accept patients needing treatment in those rare situations when something goes wrong during an abortion procedure. Some don't want to sign agreements because of their religious beliefs.
Allowing states to use safety as a subterfuge to achieve other purposes sets a terrible precedent. The same reasoning could some day be used to retard the entire industry's efforts to establish more-convenient, lower-cost facilities.