SHM Amicus Brief for Supreme Court Case

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INTRODUCTION

House Bill 2 (“H.B. 2”), enacted in 2013, mandates that all abortion providers obtain admitting privileges at hospitals within thirty (30) miles of the location where the abortion is performed. H.B. 2 also requires that most abortion providers satisfy the same requirements as ambulatory surgical centers. The Texas legislature purported to justify these requirements as a means of protecting patient health and safety. This brief focuses solely on the admitting privileges component of H.B. 2, which is the matter on which the Society has particularized information that may be helpful to the Court. This brief will demonstrate that the admitting privileges requirement of H.B. 2 has no reasonable medical basis.

In today’s modern practice of medicine, in Texas and across the country, hospitalists—physicians that specialize in hospital medicine—play the role of admitting and attending physicians, thereby ensuring the quality and continuity of medical care for inpatient hospital treatment. They provide the primary treatment in the hospital setting, treating patients and working successfully in partnership with outpatient physicians that lack admitting privileges.

Admitting privileges are appropriate for physicians who regularly admit patients. But requiring physicians who specialize in outpatient procedures with low incidence of post-procedure complications, whether that specialty is podiatry or gynecology, to maintain privileges serves no medical purpose, is inconsistent with modern medicine, and is unnecessary to ensure continuity of care. Having a hospitalist serve as the admitting or attending physician does not deprive patients of quality inpatient or outpatient services.

First, the willingness of a hospital to admit, and the ability of a hospital to care for, a patient in need of hospitalization in the unlikely event that an abortion gives rise to the need for hospitalization is not impacted by whether the abortion provider has admitting privileges.

Second, though hospitals may, in varying degrees, consider medical competence in deciding whether to grant admitting privileges or allow them to be maintained, hospitals may also consider a range of other factors, many economic, in deciding whether to grant admitting privileges. A particular hospital’s decision to grant or not grant an outpatient provider admitting privileges cannot be regarded as a medical decision concerning provider competence or one that bears upon the quality of care expected from that provider. It is inappropriate to conclude that a given provider is capable or not based on a hospital credentialing committee’s decision to grant the provider privileges.

Third, the admitting privileges requirement will not enhance the quality of care for women who seek, or have obtained, an abortion. Hospitals and hospitalists today are geared to providing comprehensive treatment to admitted patients. They do so thanks to the dedicated role of the hospitalist in coordinating care, collaborating with outpatient physicians, and shepherding the patient through the intricacies of hospitalization.

Requiring an outpatient provider to have “admitting privileges” is unlikely to impact the ability of the hospital to provide high quality treatment. Indeed, particularly for an outpatient procedure with low incidence of post-procedure complications, such as abortion, here the abortion provider (like many other surgeons providing outpatient surgery) is unlikely to have had any extended historic connection to the patient, the idea of requiring the provider to have admitting privileges, is particularly anomalous. There is no reason to expect that the possession of admitting privileges would in any way contribute to more successful outcomes for the patient.

The Texas legislature purported to justify its admitting privileges requirements as a means of protecting patient health and safety. But the admitting privileges requirement of H.B. 2 has no reasonable medical basis. Moreover, H.B. 2’s admitting privileges requirement will subject the ability of women seeking an abortion to the non-medical decisions of hospitals which may or may not choose to grant a particular provider admitting privileges for reasons having little or no relationship to the health of patients. As such, H.B. 2’s admitting privileges requirement lacks a rational relationship to the goal of protecting a woman’s health.

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