Tom Goldstein unpacks stay in Louisiana abortion case

On March 10, 2019 By admin

• Breaking News

In this week’s episode of SCOTUStalk, Tom Goldstein joins Amy Howe of Howe on the Court to unpack the Supreme Court’s recent order in June Medical Services v. Gee, in which a divided court blocked a Louisiana law that would require abortion providers to have admitting privileges at nearby hospitals from going into effect pending appeal.

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As the World Burns: Hurtling Towards an Unlivable Planet

On March 10, 2019 By admin

• Breaking News

The media and political establishments are diddling while the planet burns.

Are we really supposed to take their games seriously as humanity veers ever more dangerously off the environmental cliff?

In 2008, James Hansen, then head of NASA’s Goddard Institute for Space Studies, and seven other leading climate scientists reported that we would see “practically irreversible ice sheet and species loss” if the planet’s average temperature rose above 1°Celsius (C) thanks to carbon dioxide’s (CO2) presence in the atmosphere reaching 450 parts per million (ppm).

CO2 was at 385 ppm when this report came out.  It was “already in the dangerous zone,” Hansen and his team reported. They warned that deadly, self-reinforcing “feedbacks” could be triggered at this level.  The dire prospects presaged included “ice sheet disintegration, vegetation migration, and GHG [greenhouse gas] release from soils, tundra, or ocean sediments.”

The only way to be assured of a livable climate, Hansen and his colleagues warned, would be to cut CO2 to at least 350 ppm.

Here we are eleven years later, well past Hansen’s 1°C red line. We’ve gotten there at 410 ppm, the highest level of CO2 saturation in 800,000 years. The United Nations Intergovernmental Panel on Climate Change (IPCC)’s latest climate report reflects the consensus opinion of the world’s leading climate scientists.  It tells us that we are headed to 1.5°C in a dozen years.  Failure to dramatically slash Greenhouse Gassing between now and 2030 is certain to set off catastrophic developments for hundreds of millions of people, the IPCC warns.

The IPCC finds that we are headed at our current pace for 3-4°C by the end of century. That will mean a planet that is mostly unlivable.

And here’s the kicker: numerous serious climate scientists find that the IPCC’s findings are insufficiently alarmist and excessively conservative. That’s because the IPCC deletes and downplays research demonstrating the likelihood that irreversible climatological “tipping points” will arrive soon.  Among many reports pointing in this direction is a recent NASA-funded study warning that the unexpectedly rapid thawing of permafrost could release massive volumes of CO2 and methane within “a few decades.”

Conservative though it may be, the UN report is no whitewash. It calls for “unprecedented changes in all aspects of society” to drop global CO2 emissions 45 percent below 2010 levels and 60 percent below 2015 levels by 2030.  We need to hit zero by the mid-century point, the IPCC says. We cannot do that without radically and rapidly reducing our energy consumption.

In a remotely decent and intelligent society, public and political “elites” and “leaders” and the dominant media and politics culture would be fervently focused first and foremost on this problem.  The climate catastrophe (“climate change” is far too mild a term to capture the real crisis of capitalogenic global warming) is the biggest issue of our any time. As the environmental blogger Robert Scribbler wrote  four years ago, “There is no greater threat presented by another nation or set of circumstances that supersedes what we are now brazenly doing to our environment and the Earth System as a whole. And the rate at which we are causing the end level of damage to increase is practically unthinkable. Each further year of inaction pushes us deeper into that dangerous future.”

If the global warming cataclysm – already significantly underway in vast swaths of the planet – isn’t averted and soon, then nothing else we care about is going to matter all that much.  We’ll just be arguing about how to fairly slice up a badly overheated pie – how to turn an overcooked world upside down (or right-side up) and how to properly manage a living Hell.

You’d hardly know this from the reigning U.S. media and politics culture, where the climate crisis and other critical environmental issues are pushed to the margins of public discussion. It is chilling (no ironic pun intended) to behold. With every passing fossil-fueled day, the specter of “man-made” ecological calamity looms ever closer and larger.

But so what? The chattering and electoral classes and political gossip-peddlers divert us 24-7 with breathless “breaking news” reports on an endless stream of supposedly bigger stories: the absurd Orwellian charge that Ilhan Omar is an anti-Semite; Michael Cohen’s alleged past pursuit of a presidential pardon; Paul Manafort’s latest sentencing hearing; Ivanka Trump’s ridiculous national security clearance; Donald Trump’s insane nativist border wall; Roger Stone’s latest Tweets; the racist medical school yearbook photos of a pathetic white governor; television celebrity Jussie Smollett’s criminal shenanigans; the latest horrible mass-shooting; the latest sex scandal; the latest real or rumored findings in the seemingly interminable investigation of Trump’s racist, sexist, and gangster-capitalist past and presidency.

Nearly two years ago, CNN co-producer John Bonfield was caught on tape telling a right-wing undercover journalist that CNN president Jeff Zucker said this to his executive producers after Trump pulled of the Paris Climate Accords: “Good job everybody covering the climate accords, but we’re done with that. Let’s get back to Russia.”  

Climate catastrophe? Television advertisers and hence news broadcasters are not real excited about that story. It’s not a big seller of cars, petroleum products, petroleum, mutual funds, investment advice, drugs, cruise packages, and insurance policies at NBC, CBS, ABC, FOX, and CNN. Even it did sell well, the climate story doesn’t line up well  with corporate advertisers’ carbon-caked balance sheets.

By contrast, the ongoing Trump-Russia-Cohen-Manafort-WikiLeaks-Stone-Stormy et al. soap opera has been a ratings boon. And now we have the 2020 presidential candidate extravaganza – the quadrennial electoral spectacle – coming on to commercial line. It’s the world’s greatest reality show, with the imperial presidency as the ultimate Big Brother prize.

I’m not saying that all of what the “mainstream” media and politicians talk about is silly or insignificant. It matters to defend Rep. Omar, to fight Trump’s wall, to silence and lock up fascists like Stone, to publicize and rollback gun violence, to determine once and for all the nature of Trump’s really strange (sorry “left” Putin fans) relationship with the Russian oligarchy, to expose racism and sexism (and fascism) in the White House and the nation more broadly. Trump’s caging of children at the southern border is an atrocity that should be broadcast and denounced.  The same goes for the related clear and present danger Trump presents more broadly to democratic and even just republican and constitutional principles on numerous levels. The 2020 elections and their aftermath (including the distinct possibility that Trump will refuse the Electoral tally) will not be irrelevant to the fate of the nation and the Earth.

But nothing matters more now than the existential environmental crises we face, with the climate disaster in the lead.  There’s no chance for social justice, democracy, equality, creativity, art, love and community – or anything else (including profits) – on a dead planet.

Yes, the “Green New Deal” advocated by a cadre of progressive Democrats has made its way into media coverage and commentary in recent months. It appears that the GND – which includes welcome calls for net zero U.S. carbon emissions by 2030 – will be part of at least the primary election story thanks to Bernie Sanders, Alexandria Cortez-Ocasio, Jay Inslee, and other progressive or progressive-sounding Democrats.  But don’t expect it to receive all that much attention (much less positive attention) in the dominant corporate media-politics complex. Serious discussion of the climate issue and environmental questions more broadly doesn’t serve broadcasters’ and advertisers’ bottom line interests. There is little chance that the climate crisis will remotely approach the Trump investigations and the already emergent 2020 presidential horse-race when it comes to garnering real media attention.

The reigning political and media “elite” is happy to keep capitalogenic global warming on the public margins until long past the last ecological tipping points are passed. They can be counted on them to fiddle and diddle through the species’ final, fossil-fueled flame-out. It is an existential necessity to create a new culture, media, and politics with the elementary natural and social intelligence required to properly prioritize the most pressing problems of our time.

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Symposium: The “intensely factual” question of physicians’ admitting privileges

On March 10, 2019 By admin

• Breaking News

Robin Fretwell Wilson is the Roger & Stephany Joslin Professor of Law and Director of the Epstein Health Law & Policy Program at the University of Illinois College of Law.

Last month I lost someone close to me after an infection that began as double pneumonia ravaged her body. In the space of a day, a mother of nine in the prime of her life slipped away. It was so improbable. So permanent. And if that loss was not tragedy enough, the husband she left behind contracted MRSA, an antibiotic-resistant bug that can be deadly. MRSA lurks in the very facilities that care for us. According to the Centers for Disease Control and Prevention, over 90,000 people die from healthcare-associated infections every year, more than double the number of people who die in auto accidents.

That my friend could die from an infection so suddenly is hard to process. But complications often arise during the course of medical treatment, including at large hospitals and small clinics.

This forum considers the Supreme Court’s decision in June Medical Services v. Gee to stay Louisiana’s latest regulation of abortion providers — one that the sponsoring legislator explained as providing “a safe environment … that offers women the optimal protection and care of their bodies.” Louisiana would require physicians performing abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic.

Two simple questions have occupied me: Are women experiencing medical complications when having abortions? Would Louisiana’s new requirement actually help them if the cataclysmic occurs?

What I’ve learned

In the most recent year for which CDC provides data, 2013, the number and rate of reported abortions across the nation reached “historic lows,” due, in part, to increased access to contraception. In that year, four women died as a result of complications from legal abortions — a year in which medical professionals performed 664,435 abortions.

Between 1973 and 2014, 437 women died from complications after a legal abortion — women whose deaths are as devastating as my friend’s death from septic shock brought on by pneumonia. These women also leave behind families, friends and futures cut tragically short.

Abortions carry risks including blood clots, heavy bleeding, cuts, tears, perforations, and infection.

Simply being in a healthcare facility carries risk: Roughly 4.5 infections occur for every 100 hospital admissions, a risk that extends to office-based surgical suites and free-standing surgical centers. Still, given the tens of millions of abortions performed since Roe v. Wade, the procedure is remarkably safe.

Didn’t we decide this already?

It feels like we just had this conversation about admitting privileges, in Whole Woman’s Health v. Hellerstedt. There, the Supreme Court struck down Texas’ dual regulation of abortion — an admitting-privileges requirement and a requirement that abortion clinics meet the physical-plant rules for ambulatory surgical centers. The court held that both requirements imposed an undue burden on a women’s right to seek a pre-viability abortion.

Like Louisiana, Texas required physicians to “have active admitting privileges at a hospital that … is located not further than 30 miles from the location at which the abortion is performed or induced.” Previously Texas required that a physician have privileges or a relationship with a physician who does. Texas justified the stricter requirement as “help[ing] ensure that women have easy access to a hospital should complications arise during an abortion procedure.”

The rub: Statistics and testimony showed it is “extremely unlikely that a patient will experience a serious complication at the clinic that requires emergent hospitalization.” Instead, most complications “occur in the days after the abortion, not on the spot.”

Abortion-rights advocates skewered Texas for requiring abortion providers to have privileges while ignoring dentists, cosmetic surgeons and other providers whose patients also experience complications.

And at oral argument Texas’ attorneys could not cite a “single instance in which the new requirement would have helped even one woman obtain better treatment.”

The requirement erected a “substantial obstacle in the path of a woman’s choice.” Why? Because some Texas hospitals will not extend privileges unless the physician admits so many patients per year. Indeed a physician who had “delivered over 15,000 babies” across 38 years “was unable to get admitting privileges at any of the seven hospitals within 30 miles of his clinic.” The Supreme Court ultimately concluded that “the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics.”

All eyes on Kavanaugh

Already, observers are reading the tea leaves about whether the Supreme Court’s new composition will affect the outcome in June Medical.

In a striking dissent from the grant of the stay, Justice Brett Kavanaugh emphasized the “intensely factual” question of physician admitting privileges.

Because the law had not taken effect, he observed, “the parties have offered, in essence, competing predictions about whether those three doctors can obtain admitting privileges”:

Louisiana has three clinics that currently provide abortions. As relevant here, four doctors perform abortions at those three clinics. One of those four doctors has admitting privileges at a nearby hospital, as required by the new law. The question is whether the other three doctors—Doe 2, Doe 5, and Doe 6—can obtain the necessary admitting privileges. If they can, then the three clinics could continue providing abortions. And if so, then the new law would not impose an undue burden for purposes of Whole Woman’s Health. By contrast, if the three doctors cannot obtain admitting privileges, then one or two of the three clinics would not be able to continue providing abortions. If so, then even the State acknowledges that the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health.

The district court concluded that the three doctors likely could not obtain admitting privileges and enjoined the law. The U.S. Court of Appeals for the 5th Circuit concluded they could and lifted the injunction.

Facts will matter, as will the justification for the law

Already, two courts have made wildly different predictions about Louisiana’s law — based on facts surmised in a facial challenge.

The 5th Circuit chalked up the possibility that a physician might struggle to get privileges to the physician’s own “intervening … failure to apply for privileges in a reasonable manner.” The “almost-universal requirement” by Texas hospitals that their medical staff “maintain minimum annual admissions” operated as “a per se bar.” But here:

There is an insufficient basis in the record to conclude that the law has prevented most of the doctors from gaining admitting privileges. Similarly, any clinic closures that result from the doctors’ inaction cannot be attributed to Act 620.

What drives admitting privileges?

Importantly, Louisiana’s legislature offered a different spin on requiring admitting privileges. It heard testimony that Louisiana women experiencing complications “had been treated harshly by the provider.” A patient who “began to hemorrhage, [was told] ‘to get up and get out.’”

For Louisiana lawmakers, admitting privileges were crucial not only for responding to complications, but also for ensuring “continuity of care, qualifications, communication, and preventing abandonment of patients.” This meant all patients. Louisiana’s requirement brought abortion providers “into the same set of standards that apply to physicians providing similar types of services in [ambulatory surgical centers].”

Admitting privileges have long operated to bind patients to their physician: When a person seen in the emergency room is admitted to the hospital, their primary-care physician takes over their care, assuming that physician has privileges. This both ensures continuity of care and avoids patient abandonment. It makes good on the duty of physicians to follow through in caring for patients during the spell of illness. It also prevents hospitals from poaching every emergency-room patient who is regularly seen by a member of the hospital’s medical staff.

The weakness of this traditional model is obvious: Not everyone has a primary-care physician and not everyone gets sick near their physician’s hospital. Over time, hospitalists developed to admit patients to the hospital when their own primary-care doctors could not. But that development has largely passed Louisiana by. Although the number of hospitalists in the U.S. has grown from 10,000 in 2003 to over 50,000 in 2016, in 2013, Louisiana had the lowest number of hospitalists in the country. This places an even greater premium on one’s physician having privileges somewhere.

Some reflexively assume that Louisiana hospitals, many of which are religiously affiliated, will deny privileges to doctors who perform abortions. After all, Louisiana, like Texas, is a stronghold for opposition to abortion. Louisiana is a heavily Catholic state.

Although requirements for admitting privileges differ from institution to institution, the one thing facilities that receive certain federal funds cannot do is “discriminate” against physicians based upon their religious or moral beliefs about abortion. These conscience protections have insulated physicians who want to do abortions in their private offices or clinics from losing their livelihoods, just as they protect abortion objectors.

What does all this mean?

Perplexingly, few people seem to be asking these fact-dependent questions. Instead, ideology about abortion seems to drive how many view Louisiana’s law.

If Louisiana’s law could prevent the kind of loss I recently experienced, I think many people would approach it with an open mind. But without a thicker factual record– without more from lawmakers about the value and feasibility of the physician-privileges requirement or, at this juncture, without waiting to see whether the doctors can in fact obtain admitting privileges and what effect this has on access–it is hard to tell whether Louisiana’s law will actually do that.

And that is part of the problem. In what remains the most divisive conflict in America, lawmakers would do well to develop the facts instead of asking for our blind trust.

***

Past cases linked to in this post:

Roe v. Wade, 410 U.S. 113 (1973)
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016)

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