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Undue Burdens

May 22, 2014

Lawmakers who oppose abortion have a lot of ways of making end-runs around Roe v Wade.  The provision in the landmark Supreme Court decision that involves “undue burden” provides a Mississippi-sized grey zone for lawyers to wage war in.  One tactic is the “Admitting Privileges” ploy.  The latest state to try this is Louisiana, but Texas already has put this strategy through the court system and found that it works.

Admitting privilege is the right of a doctor, by virtue of membership as a hospital’s medical staff, to admit patients to a particular hospital or medical center for providing specific diagnostic or therapeutic services to such patient in that hospital.  It’s a contract, subject to contract law.  A doctor with admitting privileges, who is on the medical staff, is granted this privilege after a long application process in which the doctors credentials and record are scrutinized.  Hospitals can also consider who to grant staff privileges to based on the economics of the hospital system.  For example, it doesn’t make sense to grant admitting privileges to a doctor who has the same privileges at a competing hospital, unless he is the only doctor in the state who can do what he does.  Admitting privileges can be revoked, but usually only for incompetence, and after a review and appeal process, as outlined in the Medical Staff Bylaws.

So that’s the legalese.  If my doctor does not have admitting privileges at hospital X, does that mean I can’t go to hospital X?  No, of course not.  All hospitals are obliged to take emergency cases, regardless of who the doctor is.  For some doctors, like radiologists, a staff position allows them to use the hospital equipment, and so without staff privileges they’re out of a job.  Not so with community primary care doctors or, say gynecologists who do abortions.  They can function just fine, and send their patients to the ER if there’s a problem.  These days, almost everyone gets admitted through the ER.  It’s unusual to be directly admitted from home or office, at least at academic medical centers.  So the question of admitting privileges, if all you need is a place to send your emergencies, is more one of paperwork than anything.

The Louisiana law would make it mandatory for abortion clinics doctors to have admitting privileges.  Abortion rights activists say this would place an undue burden on women because most of the clinics would have to close.  Now, presumably these clinics could re-open when the credentialing paperwork got done. But remember the economic considerations for granting privileges?  Hospitals could decide that it’s not in their financial interest to grant admitting privileges to these “abortion doctors” because people would object to going to an hospital that grants these doctors those rights.  So the law, in effect, requires a credential that can’t be obtained.  That’s the end-run.

Now, I’m not sure who these abortion doctors are.  In my experience abortions are performed by regular OB/Gyn doctors, who can decide to add abortion to the list of services they provide if they wish.  So what the Louisiana law might do, in addition to limiting access to abortion, is limit access to specialized women’s health care in general.  Which ever side of the debate you are on, that’s a bad idea.

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