On Monday, the Supreme Court struck down a set of Texas restrictions that shuttered half the state’s abortion providers, and Justice Ruth Bader Ginsburg used her concurring opinion to blast a key argument for the state's tighter regulations — that terminating a pregnancy in a clinic is dangerous.
Texas attorneys had pointed to Gosnell in their oral arguments before the court. But in her concurring opinion, Ginsburg wrote that it's when regulations reduce access to abortions that women are more likely to turn to underground clinics that might resemble Gosnell's practice.
“When a State severely limits access to safe and legal procedures,” she wrote in a concurring opinion, “women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.”
The Texas lawmakers who enacted the rules at the center of the case, called HB2, invoked Gosnell's name when they passed a 2013 law that required doctors who perform abortions at clinics to have admitting privileges at a local hospital and said the clinics must meet the medical standards of surgical centers. Stricter rules, they said, would protect the health of women.
Twenty-two of the state’s 41 clinics closed after the regulations took effect. The number of medical abortions, those used almost exclusively in early terminations, started falling more quickly than the number of surgical procedures, which are used in later procedures and carry a slightly higher risk, suggesting women were waiting longer to have abortions. Health officials feared more women would try to self-induce abortions, a practice that could result in injury or death.
Providers and medical associations said the Texas restrictions were unnecessary and too expensive to maintain. In order to comply with the rules, some providers would have to pour thousands of dollars into renovations. Some would have to bulldoze their buildings and start over. Meanwhile, some hospitals with leaders opposed to abortion won’t grant clinic doctors admitting privileges.
Amy Hagstrom Miller, founder of Whole Woman's Health, the national group of clinics that fought the law, argued the regulations were designed by lawmakers who wanted to end abortion in Texas.
Ginsburg also deemed the Texas law excessive. Clinics are already subject to inspection, and the state could choose to apply more layers of inspection that would not halt abortions. “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements,” she wrote.
A study in Obstetrics & Gynecology backs her up. Researchers estimated the risk of a woman dying after childbirth was 10 times greater than after an abortion. Between 1998 and 2006, they wrote, one woman died in childbirth for every 11,000 babies born. Less than one in 167,000 women died of abortion complications.
Justice Samuel Alito disagreed with her assessment, using Gosnell as an example in his dissenting opinion.
“Gosnell had not been actively supervised by state or local authorities or by his peers, and the Philadelphia grand jury that investigated the case recommended that the Commonwealth adopt a law requiring abortion clinics to comply with the same regulations as ASCs," or ambulatory surgical centers, he wrote. “If Pennsylvania had had such a requirement in force, the Gosnell facility may have been shut down before his crimes. And if there were any similarly unsafe facilities in Texas, H. B. 2 was clearly intended to put them out of business.”
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