Louisiana State Rep. Mike Johnson isn’t waiting for the day where Roe v. Wade is overturned, though he hopes for it.
“I think that case is wrongfully decided and I think one day Roe may be overturned,” Johnson, a Republican, said in his law office one day in Shreveport. “But until that point, what we have to do, what's incumbent upon the state to do is to protect women's health to the greatest extent as possible.” That’s why, he says, he supports requiring abortion providers to have admitting privileges at local hospitals.
A young stalwart in the legal arm of the anti-abortion movement, Johnson made his name bringing malpractice suits against abortion clinics and trying to get the state to shut them down on health violations. He joined the Legislature last February, after a special election. As an attorney, he’s still working on the case defending Louisiana’s admitting privileges law.
At the trial in June, abortion providers testified behind curtains over what they said were personal safety concerns. Johnson thinks that was overwrought. “No one's out to get abortion doctors as they claim,” he said. “We're out to make sure that women's health is protected.”
That, Johnson said, is where the admitting privileges requirement comes in.
“The Legislature wanted to ensure continuity of care,” he said. “Everyone admits it's beyond dispute that having an admitting privilege to a hospital within 30 miles of the clinic is a good way to ensure that.”
In fact, many leading health organizations do dispute Johnson’s claim and see such efforts as a ruse to force clinics to close.
A friend-of-the-court brief filed by the American College of Obstetricians and Gynecologists and the American Medical Association in the Texas case put it simply: “There is no medical basis to impose a local admitting privileges requirement on abortion providers.”
Asked about those groups’ positions, Johnson said, “All these cases are a battle of the experts, and we had some very credible experts.” The defense’s witnesses included an anti-abortion ob-gyn, Dr. Damon Cudihy, and the former executive director of the Louisiana State Board of Medical Examiners.
While Johnson says he does find ACOG and the AMA to be credible, “I'm not sure if they've taken a position that says that it is not in a patient's best interest to be able to get to a hospital quickly and efficiently,” Johnson said. “If they've taken a position against that, I would say that might be a political position.”
“I think that case is wrongfully decided and I think one day Roe may be overturned...But until that point, what we have to do, what's incumbent upon the state to do is to protect women's health to the greatest extent as possible."
The question of medical evidence has been a fraught one in these cases. When Alabama’s admitting privileges were challenged in court, a federal district court judge chided the state for using a witness that either “has extremely impaired judgment; he lied to the court…or he is so biased against abortion that he would endorse any opinion that supports increased regulation on abortion providers.” Another federal district court judge in Wisconsin considering yet another admitting privileges requirement for abortion providers called three medical experts — one from each side of the case, and one he chose himself. That judge’s conclusion: “The admitting privileges requirement remains a solution in search of a problem.”
The medical associations argued that by delaying a woman’s ability to get an abortion, or by making it likelier that she would take matters into her own hands, such laws actually endanger women’s health. A recent study conducted in Texas after the closure of many clinics found that in some parts of the state, wait times for an abortion appointment had increased to up to 20 days.
And for a woman traveling long distances to reach a shrinking number of abortion clinics, what good would it do in case of a complication that the doctor 200 miles away had local admitting privileges?
“Well, it wouldn't do that woman any good, but the legislation is geared for the situation like I had with my client,” Johnson said. His client, he said, “had a hemorrhaging event on the table during a procedure and rather than sending her to a nearby hospital, the doctor that was doing her procedure did not have admitting privileges. So she didn't have the ability to do that.”
But would his client have been turned away at an emergency room?
“No. They can't under federal law,” Johnson conceded. “But having admitting privileges as a requirement is one way to prevent bad doctors because they have to certify. They go through a review of their credentials.”
Nationwide, ACOG and the AMA have noted, “there is less than 0.3% risk of major complications following an abortion that might need hospital care.” At the Louisiana trial, the administrator of Hope Medical Center testified that the clinic performs 3,000 abortions a year, and that she could only remember four times in 20 years that a patient had had to go to the hospital.
“I think that's beyond dispute that in relative numbers, the number of complications probably is rare, but that's not what's in dispute in the litigation,” Johnson said. “The dispute is, is the regulation reasonable under the law?”
How to even frame the dispute is itself, well, a matter of dispute. For decades, on the belief that a woman has a fundamental right to an abortion, a majority of the Supreme Court has considered abortion restrictions with a stricter standard than whether they sound reasonable at first blush.
Under Planned Parenthood v. Casey, the 1992 case that governs — loosely, in practice — how far states can regulate abortion, the government can’t put an “undue burden” on a woman’s right to the procedure. In other words, there has to be a good reason for a law that restricts abortions — it can’t be just a fig leaf to curtail access.
For years now, the definition of “undue burden” has depended on the judge calling it. When Wisconsin passed a law requiring admitting privileges for abortion providers, Judge Richard Posner of the 7th Circuit wrote, “The feebler the medical grounds, the likelier the burden, even if slight, to be undue.” But the 5th Circuit Court of Appeals, in approving the Texas admitting privileges law, boldly declared, “In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.” They were daring the Supreme Court to tell them they were wrong.
As it stands, for Whole Woman’s Health and its patients, the Supreme Court is their last hope.