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States put a new twist on the old “botched abortion” scare tactic

Ongoing legal cases in Ohio and Kentucky make it clear that the war is far from over.

by Carter Sherman
Sep 13 2017, 4:02pm

Abortion opponents are trying a new way to close down the already dwindling number of clinics in the U.S.: by requiring paperwork that ensures a nearby hospital will take patients in the rare case of an emergency.

Seven states currently have laws that require these written pacts, known as patient-transfer agreements. They typically outline how patients facing a medical complication at a standalone medical clinic, such as an abortion clinic, will be transferred to a local hospital. That may sound crucial, but critics of transfer agreements argue that they’re unnecessary and even unconstitutional under a recent Supreme Court ruling.

Ongoing legal cases in Ohio and Kentucky make it clear, however, that the war over transfer agreements is far from finished.

The last abortion clinic in Toledo, Ohio, headed to the state’s Supreme Court on Tuesday to argue that it should be allowed to remain open despite losing its transfer agreement. Just last week, a case that could cause Kentucky to shut down its only abortion clinic also went to trial over a similar issue: The state had accused the clinic of having “deficient” transfer agreements with local hospitals and ambulance services.

But standalone medical clinics in other states are rarely required to have such agreements, according to Nicole Huberfeld, a professor at Boston University’s School of Public Health. There’s no need: Federal law already mandates that hospitals can’t turn away patients who are dealing with a medical emergency. If an abortion clinic worker dials 911, the dispatcher can’t refuse to send an ambulance just because the emergency is abortion-related.

“It doesn’t work that way,” Huberfeld said. “It shouldn’t.”

Read: Seven states have only one remaining abortion clinic. We talked to the people keeping them open.

Abortions also rarely result in medical emergencies. In a 2014 study of nearly 55,000 abortion procedures, the University of California San Francisco found that only 126 led to “major complications,” which were defined as any condition involving blood transfusion, surgery, or admission to a hospital. A year later, the American Public Health Association, a professional organization with more than 25,000 healthcare workers, denounced transfer agreement laws as “not evidence-based or informed by best practices for patient care.”

Dr. Ernest Marshall, owner of the EMW Women's Surgical Center, poses for a photo at the door of the clinic in Louisville, Ky. (AP Photo/Dylan Lovan, File)

Still, the abortion clinics whose fates are currently at stake in Ohio and Kentucky have tried to abide by the law. Both had patient-transfer agreements at one point but lost them or were told that they were insufficient. Hospitals may want to avoid the agreements due to their religious affiliations, Huberfeld said, or just because they find being linked to abortion clinics “unsavory.” The transfer agreement law has long troubled Ohio abortion clinics — yet another case on the issue, in Cincinnati, is currently on hold until the Toledo case finishes.

Critics of patient-transfer agreements say they’re just another form of so-called “TRAP laws,” or laws that specifically single out and hold abortion providers to medically unnecessary standards in an effort to close clinics down. (TRAP” stands for “targeted regulations against abortion providers.”) Last year’s Supreme Court case, Whole Woman’s Health v. Hellerstedt, was hailed by abortion rights proponents as a victory against TRAP laws, although many such cases are still underway.

That case specifically struck down a Texas law mandating that doctors at abortion clinics must be on staff at a nearby hospital, so their patients can be guaranteed admission in case of an emergency. Because the law led clinics that couldn’t secure those privileges to close and left women seeking abortions without options, the Supreme Court justices found it limited women’s access to abortion too much.

“[The situation with transfer agreements] looks very much like the admitting privilege requirement,” said Maya Manian, a professor at the University of San Francisco School of Law who studies reproductive healthcare. “If this is just a sham way to close down abortion clinics, then under Whole Woman’s Health, the law should be struck down.”

Still, supporters of transfer agreements argue that they’re essential to ensure women always get the best medical care. A guide written by the anti-abortion group Americans United Life for states also champions the importance of patient-transfer agreements. Americans United for Life didn’t respond to VICE News’ request for comment on transfer agreements.

Abortion opponents hold signs during a rally in downtown Louisville, Kentucky, on July 19, 2017. (AP Photo/Dylan Lovan)

With transfer agreements, “if a patient has a problem, there is already a preordained method by which the patient is transferred,” former Ohio Department of Health Director Theodore Wymyslo testified in the Toledo case in state appeals court. “We want to make sure that their information accompanies the patient wherever they go to deal with the problem.”

Watch: State governments are trying to put abortion providers out of business by using “TRAP” laws

Plus, because the Ohio law applies to all outpatient surgery centers — not just abortion clinics — it’s looking out for everybody’s health, a spokesperson for the Ohio Attorney General’s Office told VICE News.

“This is not an abortion statute. This is a health and safety law,” spokesperson Dan Tierney said. He also noted that having transfer agreements is a decades-old requirement in Ohio, and that certain plastic surgery practices, kidney dialysis centers, and ears, nose, and throat doctors must have them. A 2013 Ohio law, however, specifically restricts public hospitals from entering into transfer agreements with abortion clinics.

Brigitte Amiri, a senior staff attorney for the American Civil Liberties Union’s Reproductive Freedom Project who’s involved with the Kentucky case, compared combatting these anti-abortion regulations to playing whack-a-mole.

“They will find anything that they can use,” Amiri said of politicians driven by anti-abortion ideology. In other states, and even once Ohio and Kentucky’s battles over transfer agreements end, “there will be something else, because that is the history of the anti-abortion movement.”

Read: Sweeping restrictions on Texas abortions focus on regulating the fetus