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Doctors Work to Regroup after Texas Abortion Law Struck Down

Image: Amy Hagstrom Miller

Amy Hagstrom Miller, founder of Whole Woman's Health, a Texas women's health clinic that provides abortions, rejoices as she leaves the Supreme Court in Washington, Monday, June 27, 2016, as the justices struck down the strict Texas anti-abortion restriction law known as HB2. The justices voted 5-3 in favor of Texas clinics that had argued the regulations were a thinly veiled attempt to make it harder for women to get an abortion in the nation's second-most populous state. The case is Whole Woman's Health v. Hellerstedt. J. Scott Applewhite / AP

Daniel Grossman understands all too well the impact of the Supreme Court striking down Texas' tough restrictions on abortions.

He has watched in dismay as the number of doctors licensed to provide abortions in Texas dropped by 42 percent since the law went into effect in 2013. In a state with over 12 million women, only 28 doctors with hospital admitting privileges are providing abortions.

In a 5-3 decision, the Supreme Court on Monday found that the Texas law imposed an “undue burden” on women by imposing building code requirements on clinics that provide abortion services as well as demanding all physicians obtain admitting privileges at a local hospital — a demand that pushed many Texas doctors into a tight corner.

Image: Demonstrators celebrate outside the U.S. Supreme Court in Washington
Demonstrators celebrate at the U.S. Supreme Court after the court struck down a Texas law imposing strict regulations on abortion doctors and facilities that its critics contended were specifically designed to shut down clinics in Washington, U.S. on June 27. Kevin Lamarque / Reuters

While he sees the decision as a "victory of evidence over ideology" it will still take a long time to recoup the loss of so many doctors since the Texas law was enacted. And the reduction in the number of facilities providing abortions made it even tougher for medical residents and students to receive training.

"Some of those physicians who did not have admitting privileges that are still in the state and have a medical license could likely start providing very soon," he said. "But it will take time before clinics can reopen or new clinics can open. Once a clinic closes and the license expires, the building lease may be gone, equipment is sold, there may not be a doctor."

“Getting back to where we were in 2013 won't happen overnight,” he said.

Related: Supreme Court Strikes Down Strict Texas Abortion Law

The soft-spoken obstetrician-gynecologist and professor's work as part of a research consortium known as the Texas Policy Evaluation Project was critical to the women's health clinic at the heart of Whole Woman's Health v. Hellerstedt. The case was the first time in almost 25 years that the Supreme Court took on abortion.

Dr. Daniel Grossman, researcher at the Texas Policy Evaluation at The University of Texas at Austin. Susan Potter Photography, via Texas Policy Evaluation Project

Under the Texas law, any doctor performing abortions had to have “active admitting privileges at a hospital that provides obstetrical or gynecological health care services located not further than 30 miles from the location at which the abortion is performed.” Noncompliance resulted in the the physician being charged with a “class A misdemeanor offense” punishable by fine of up to $4,000.

Three doctors were allowed to practicing in El Paso and McAllen without hospital admitting privileges due to a narrow stay by the Supreme Court of a lower court's decision.

Related: Texas Targets Researchers in Supreme Court Case Over Abortion Law

“Since the law went into effect, many doctors who mainly performed abortion procedures, pretty much stopped providing any kind of medical service,” said Grossman, one of the medical researchers on the study. He is also licensed to provide abortions in California.

Unable to find a hospital that would grant them privileges, many doctors were forced to throw in the towel, he said.

Image: Anti-abortion activists outside the Supreme Court in Washington, D.C., on March 2
Anti-abortion activists rally outside of the Supreme Court in Washington, D.C., on March 2. SAUL LOEB / AFP - Getty Images

The law's requirement also left many doctors who were providing abortions in a precarious situation in terms of their careers. It imposed high professional hurdles not put on doctors performing comparable procedures on other parts of the body, he said.

For a physician, applying for privileges can be an incredibly “difficult process that is not transparent”, Grossman said. A hospital can deny for any reason with little explanation, he said. Denial could come simply because a hospital does not want to act as a lightening rod on the abortion debate, making the law compliance impossible for many doctors, he said.

In order to gain privileges, many hospitals require that all doctors must admit a certain number of patients a year. If you don’t bring them any patients, they have no incentive to give you privileges, said Colleen McNichols with the American College of Obstetrics and Gynecology.

Related: Shuttered the End of Abortion Access in Red America

The catch-22, however, is that because abortion procedures are so safe, there is almost never a need to admit a patient, she said. According to medical research, the rate of complications in an abortion procedure is 2.1 percent and the mortality rate is .006 percent. “There is more risk in a colonoscopy, dermatologic procedure, or liposuction,” all of which of have no requirement imposed by law, she said.

Many times there is no procedure and patients are purely taking medication to terminate their pregnancy so hospitals will simply not get its patient quota from abortion providers giving them ample reason not to grant privileges.

Although it is illegal to discriminate against a physician's work under Texas law, hospitals are often hesitant to afford privileges to abortion doctors due to the nature of what they do. Either they have a moral standing against abortion or they simply want to stay out of the politics.

In 2014, two Dallas doctors sued University General Hospital for revoking their privileges after the hospital bore backlash from anti-abortion protesters.

The physicians received a letter from the hospital stating the revocation was because they perform “voluntary interruption of pregnancies’ as a regular part of [their] medical practice.”

Wendy Davis on SCOTUS decision 4:11

Attorney Shannon Rose Selden represented the doctors in the lawsuit and said it was the first time the Texas law was actually challenged, which speaks volumes.

“This hospital made no attempt to cloak its discriminatory action under any other guise,” she said.

Although the suit ultimately settled and the doctors were reinstated, she has “deep concerns” about putting the “onus on hospitals” to extend privileges when the sense is that they are usually reluctant to do so.

Getting denied by a hospital isn’t just a matter of disappointment for a doctor, it can actually act as a negative mark on their professional record, McNichols said. Many hospitals and medical boards ask doctors about previous denials, which they may consider in making future credentialing decisions, she said. Another factor that deterred doctors from moving forward under the Texas law's requirements, she said.

And, if for any reason the push and pull between a doctor and a hospital goes especially south over the decision, that “adverse clinical privilege” must be reported to the government’s National Physician’s Database, which is public. Another deterrent for doctors to be able to move forward under the Texas law, she said.

Though abortion providers, including the clinic at the center of the case, applauded the Monday's Supreme Court ruling, they recognize that there is tough work ahead.

“A win doesn’t mean the struggle is over, clinics don’t reopen overnight,” said Amy Hagstrom Miller, president of Whole Woman's Health after the ruling. "We have a daunting task ahead of us...renewing leases, hiring staff, and working with the communities that we previously served to help us reopen for care. Today we make history and tomorrow we get back to work.”