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A Pro-Life Law Flying Under the Banner of ‘Women’s Health’

The latest assault on abortion rights is taking place in Tennessee, where a new law that goes into effect on July 1 will require abortion providers to register at local hospitals. Though it seems mundane and bureaucratic, the law is actually part of an increasingly successful strategy for quietly destroying access to abortion.

The Tennessee bill, called the Life Defense Act of 2012, would require every Tennessee practitioner who performs abortions to be a member of a local hospital. Proponents of the bill claim that obtaining “admitting privileges”—that is, obtaining member status—better positions doctors to deal with possible medical complications. The aim, they assert, is to ensure the safety of women. But it’s easy to perceive ulterior motives.

First, the admitting privileges standard isn’t applied to any other outpatient procedure. “[C]osmetic surgeons, dentists and oral surgeons, urologists, orthopedic surgeons—basically any other medical professionals,” are exempt from this standard, according to Jeff Teague, the President and CEO of Planned Parenthood of Middle and East Tennessee. Second, hospitals are allowed wide discretion in their membership. In Tennessee, this means that many hospitals will close their doors to doctors who provide abortions. “We don’t do that here,” said a representative at Baptist Hospital in Nashville when I asked if a doctor who performs abortions could obtain membership. A spokesperson at Vanderbilt University Medical Center in Nashville echoed this sentiment. Doctors in rural and more conservative areas will have an even harder time finding a local hospital that will admit them. As Teague put it: “We are very concerned with it having a chilling effect.”

The likelihood of this has been echoed by non-partisan research: An October 2011 report in the New England Journal of Medicine concluded that bureaucratic measures that do little to ignite culture-war flare-ups have greater effect than dramatic, controversial measures. There’s evidence of this “chilling effect” in the eight other states that have recently passed admitting privileges provisions, often alongside similar bureaucratic restrictions. In Mississippi, one of the states that has passed this type of law, one clinic may be forced to close its doors, as only one of its three doctors has admitting privileges. (The clinic’s owner, Diane Derzis, told Politico that she plans to sue the state if closure becomes likely.)

Abortion in Tennessee has thus far been protected in large part by a 2000 state Supreme Court decision, Planned Parenthood of Central Tennessee, et al. v. Sundquist, which asserted the right to an abortion as an extension of the right to privacy. This decision has made it harder for the state legislature to pursue barriers like enforced waiting periods. It has not, however, prevented administrative hurdles. According to Carrie Russell, who teaches constitutional law at Vanderbilt, it’s unclear if the admitting-privileges hurdle would be deemed unconstitutional. “The Supreme Court hasn’t given us a bright line on what that constitutes.” Moreover, a state-level constitutional amendment explicitly exempting abortion from the protection established by the Sundquist decision is expected to make it onto the 2014 ballot.

Regardless of what may await this law in the courts, its impact will be felt when it goes into effect next month. While the bill might not achieve the crippling impact of its Mississippi cousin, it will be a palpable blow to safe and legal abortion in Tennessee. The war over abortion in this country has fallen back to the states, and it’s a fight in which the pro-choice lobby is losing ground.

Thomas Stackpole is a reporter-researcher at The New Republic.