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Thoughts on the Recent Supreme Court Decision Regarding HB2

Like many across our great country, I was saddened to hear of the Supreme Court’s decision to strike down H. B. 2 on the grounds that it provided a substantial burden to women seeking to have an abortion in the state of Texas. But when a friend on Facebook asked for my “physician’s perspective” on Justice Ginsberg’s separate scathing condemnation of H. B. 2, I knew my response would be too long for a post, so I am choosing to blog about it here.

In her opinion, Justice Ginsburg says:

 “…abortion is at least as safe as other medical procedures routinely performed in outpatient settings. Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions.’”

Well, I have personally seen the carnage caused by an abortion performed at one of these “safe facilities” when the patient was “discharged” from the abortion clinic and told to “drop in” at the nearest hospital emergency room. The result of that “rare complication” (a traumatic uterine perforation), was an emergency hysterectomy (the surgical removal of the woman’s uterus). That meant the end of her reproductive freedom, not the continuation of it. I should also point out that blood products were necessary to sustain her life, due to the amount of blood lost during the time after which she “left the abortion facility” and the time she “dropped in” at the hospital.

To ask a physician to have admitting privileges at a local hospital is not a high bar or an unreasonable one (for a competent physician). Despite the fact that I rarely admit patients, I am on staff at five hospitals in the Houston area. I have also been a member of the credentials committee at hospitals and surgery centers. These committees are composed primarily of physicians, and applications for medical staff membership are peer–reviewed. In my experience, this is an apolitical process; I have never seen or heard of an application being denied on the basis that a physician performs elective abortions at an abortion clinic. The reasons why we deny a physician medical staff membership include: moral turpitude (i.e. drunkenness on the job, or inappropriate sexual contact with a patient), wanton or willful neglect of a patient, situations where a physician lacks the skill or training necessary to perform the requested privileges, and a history of medical malpractice claims that would indicate that the physician consistently performs below the accepted standard of care (including repeated complications resulting in the death or serious disability of the patient).

Folks, the bottom line is that if a physician cannot gain and maintain privileges at a nearby hospital, it is because they are judged by a group of their peers to not be a good physician.  That is why this requirement was the best part of H. B. 2. It is an unbiased validation that the physician has the minimum skills to be a competent doctor. Trust me, you don’t ever want to have a surgical procedure performed on you by a doctor who cannot “pass the inspection” of their peers.

Let me make one more observation about the need for admitting privileges at a nearby hospital. As doctors, we are human, and therefore we sometimes make mistakes, on patients.  But I think it is in our nature as healers sworn to the Hippocratic Oath to want to continue to provide care after something goes wrong, to correct our mistake, to fix the problem.  To instead, be comfortable “washing your hands of the mess you have made”, and let “someone else deal with it” is anathema to us. Call me a bit judgmental, but I have contempt for those who would abandon a patient after they knowingly caused an injury, especially one that is potentially life-threatening. I guess I am not alone, since “patient abandonment” is grounds for the State Medical Board to suspend your medical license.

Justice Ginsburg also says that the requirement of abortion facilities to follow the same procedures and protocols as a surgery center is unnecessary because “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical center or hospital admitting privileges requirements.”

This is ludicrous. The idea that, in theory, you could have a home birth, attended by a doctor or midwife who has no ability to transfer you to the hospital if something goes wrong with the delivery is so ridiculous it would be like jumping out of an airplane at 10,000 ft. without a parachute, expecting to walk away unharmed. I cannot imagine any ethical doctor or midwife ever agreeing to such an arrangement.  In medicine, the standard of care is to be prepared for the unexpected, for the “rare” complication, precisely because unpreparedness often turns an unfortunate set of circumstances into life and death.

The most infuriating part of Justice Ginsburg’s opinion shows the degree to which the Left in this country have a “blind spot” when it comes to quality of care administered to women in a very vulnerable position. “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at significant risk to their health and safety.”

I would submit to you that there are legal abortions performed every day across this country by medical practitioners who are operating well below the standard of care, and without regard for their patients. How is this “safe”, and how is this “better” than the “rogue practitioners” she envisions? At least under H. B. 2, such poor quality would be illegal.

This prevailing attitude also explains why Kermit Gosnell was still committing savage acts of malpractice long after he was on the radar screen of the State Medical Board in Pennsylvania, and should have lost his medical license. Without clear laws, regulatory bodies fail to act out of fear that they may be infringing upon rights.

In other words, the current system “shields” these abusers of women for the simple fact that people who are in the position to do something about it are afraid to act because of the “politically-charged” nature of the procedure. H. B. 2 eliminated that by providing clear guidance in statute.

Final Thoughts

Is the result of this law that some abortion clinics in Texas would be forced to close? Undoubtedly yes. But I would have thought that revelations about the barbarism, inhumanity, and substandard, third-world medical practices present at clinics like Gosnell’s in Philadelphia would make it totally obvious why this kind of regulation is necessary. I would also have thought that somebody in the pro-choice crowd might have stopped to ask the simple question “Why can some abortion clinics in Texas not meet the same safety requirements that are met or exceeded in other surgical settings in Texas?”

Well, I for one, as a physician, patient safety advocate, and soon to be a member of the Texas House, am undaunted. I expect that this issue will come up again in 2017, and I will be on the side of life.


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