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Symposium: Congress to Supreme Court: Abortionists don’t represent women

Catherine Glenn Foster is president and CEO and Natalie M. Hejran is staff counsel at Americans United for Life, which filed an amicus brief on behalf of 207 members of Congress in support of the respondent in June Medical Services v. Gee.

For 44 years, considerable focus has been directed to a jurisprudential question the Supreme Court will finally take up again in June Medical Services v. Gee—whether “abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients absent a ‘close’ relationship with their patients and a ‘hindrance’ to their patients’ ability to sue on their own behalf.” The virtually ubiquitous presumption entertained by federal courts since Singleton v. Wulff, that abortion facilities and practitioners possess third-party standing to challenge abortion regulations on behalf of their patients, is at odds with the Supreme Court’s modern third-party standing doctrine.

Third-party standing requires a “close” relationship between the third party and the person who possesses a particular right. But there is an inherent conflict of interest between abortion businesses and their patients, in particular when dealing with state health-and-safety regulations, because abortion providers routinely challenge the regulations designed to protect their patients. It is impossible for abortion facilities and practitioners to share or represent the interests of these patients and assert third-party standing when they strive to eliminate the very regulations designed to protect their patients’ health and safety. And in the case of Louisiana in particular, abortion facilities and abortion practitioners have a long history of professional disciplinary actions and substandard medical care—a record of “generally unsafe conditions and protection of rapists” the U.S. Court of Appeals for the 5th Circuit found to be “horrifying.”

As the court of appeals noted, Louisiana Act 620 was designed to bring abortion facilities up to the set of standards other clinics follow. It noted that “hospitals perform more rigorous and intense background checks than do the clinics,” because the clinics do not “appear to undertake any review of a provider’s competency” beyond checking for a current medical license and “unlike hospitals, do not even appear to perform criminal background checks.”

In a bicameral, bipartisan brief that Americans United for Life authored on behalf of 207 members of Congress, we discussed why June Medical Services and other abortion facilities could not have a “close” relationship with their patients and should not be deemed to possess third-party standing.

First, the brief covered the myriad health-and-safety violations documented in Statements of Deficiencies issued by the Louisiana Department of Health against Louisiana’s abortion facilities. A few of the most egregious problems that illustrate the conflict of interest between abortion provider and patient included:

  • Failure to obtain notarized parental consent or judicial bypass before performing an abortion on minors as required by law;
  • Failure to follow mandatory reporting laws for carnal knowledge, incest and rape of minors;
  • Failure to properly disinfect and sanitize instruments, such as vaginal ultrasound transducers or surgical equipment, after use in patient procedures; and
  • Failure to ensure that the physician performed and documented a physical examination on each abortion patient.

In addition to these violations, some clinics have been cited for “Immediate Jeopardy” situations—the most serious deficiency, in which “entity noncompliance has placed the health and safety of recipients in its care at risk for serious injury, serious harm, serious impairment or death”—as well as other significant violations.

June Medical Services, doing business as Hope Medical Group for Women, currently operates in Shreveport. An “Immediate Jeopardy” situation was identified when June Medical Services was cited for failing to monitor the level of consciousness, respiratory status and cardiovascular status of patients who were administered intravenous medications and inhalation gas agents during abortion procedures. The clinic was also cited for its failure to ensure that a physician had verified a patient’s menstrual, obstetrical and medical history and had questioned the patient about past complications with anesthesia prior to administering the anesthesia and performing the abortion.

Delta Clinic of Baton Rouge, which had been a plaintiff in the litigation until it voluntarily dismissed its claims, was cited for an “Immediate Jeopardy” situation because it failed to follow standards of practice for administering conscience sedation when syringes were placed in a nonsterile bag; failed to document medication, time and dose; failed to monitor cardiac status; and failed to document the start and end times of abortion procedures. Delta Clinic was cited for another “Immediate Jeopardy” situation when it didn’t have emergency IV fluids available for a surgical abortion patient experiencing heavy bleeding, which led to the patient’s being transferred to the hospital where she underwent a hysterectomy and bilateral salpingectomy.

Women’s Health Care Center currently operates in New Orleans. The facility was cited for failing to document a patient’s complication when she experienced heavy vaginal bleeding eight days after her chemical abortion. The patient was picked up by a clinic staff member and brought to the clinic before she was later transported by clinic staff to a hospital. Women’s Health also failed to follow up with its patients regarding potential problems resulting from the use of an unsanitary instrument during abortion procedures.

Next, the brief covered the Louisiana State Board of Medical Examiners’ professional disciplinary actions issued against abortion doctors who have repeatedly engaged in unprofessional behavior and substandard medical care of patients.

Dr. Adrian J. Coleman, once a doctor at Delta Clinic, had his operative-vaginal-delivery privileges and clinical privileges suspended at two different medical facilities: first, because an infant died during a delivery he performed, then because he failed to “adequately evaluate and care for his patients in the labor and delivery unit” and to “document his patient care adequately and accurately.”

Dr. Ifeanyi Charles Anthony Okpalobi was involved in legal challenges against health and safety laws. He was cited for failing to report multiple malpractice complaints and settlements. He was also reprimanded for repeatedly failing to meet licensing standards and for continued conduct indicative of a practice that “fail[ed] to satisfy the prevailing and usually accepted standards of medical practice.”

Dr. A. James Whitmore III, another doctor at Delta Clinic, was involved in a civil lawsuit after he delivered a child through an inappropriate Caesarean section. While at Delta Clinic, he used rusty and unsterile instruments, single-use instruments on multiple patients and sterilization solution that was infrequently changed and often had pieces of tissue floating in it. Additionally, after he performed a second-trimester abortion, the patient continued to experience moderate bleeding. However, an ambulance was not called for nearly three hours. Once the woman arrived at the emergency room, it was discovered she had a perforated uterus, her uterine artery was lacerated and a complete hysterectomy was necessary.

Dr. Victor Brown’s surgical/invasive/endoscopic clinical privileges with a medical center were suspended after an investigation revealed he was not following generally recognized medical standards because he performed dilation and curettage on almost every patient, regardless of whether or not the procedure was medically indicated or necessary. His license was put on probation when it was discovered he did not report the loss of his clinical privileges on three different medical-license renewal applications.

Dr. Kevin Work’s medical license was placed on probation following allegations that he had made “unwelcome and inappropriate sexual comments.” He was then put on probation another two times: first, after he allowed staff members to use his name and electronic signature and engage in the practice of medicine, then again after he allowed staff members to perform ultrasounds and provide prenatal care in his clinic even though they were unlicensed to do so.

As these deficiencies and disciplinary actions illustrate, there is an inherent conflict of interest between abortion practitioners and their patients regarding state health-and-safety regulations. Because June Medical Services and clinics like it cannot be presumed to have a “close” relationship with their patients when it comes to the legal challenges they chose to bring against the very laws Louisiana passed to protect the health and safety of its citizens, the petitioners should not be deemed to have third-party standing. The Supreme Court should uphold the 5th Circuit’s decision and clarify that abortion providers may not challenge the very state laws designed to protect women from their unsafe and dangerous practices.

Recommended Citation: Catherine and Natalie , Symposium: Congress to Supreme Court: Abortionists don’t represent women, SCOTUSblog (Feb. 3, 2020, 11:12 AM),