APA Joins Amicus Brief to Supreme Court Criticizing Texas Abortion Law

A Texas law to prohibit abortions after six weeks’ gestation threatens the health of pregnant women, runs counter to settled constitutional law, and offends core principles of medical ethics. So said APA and 18 other medical organizations in an amicus brief submitted to the United States Supreme Court in October.

The brief, written by the American College of Obstetricians and Gynecologists, urges the court to vacate a decision by the United States Court of Appeals for the Fifth Circuit that allowed the Texas law to go forward following a temporary restraining order on the law imposed by a district court. (A nearly identical amicus was submitted by the same 19 medical groups to the Court of Appeals earlier in October.)

The Texas law (SB 8) prohibits abortions after a fetal heartbeat is detected, usually around six weeks’ gestation—before many women know they are pregnant. Moreover, the law allows private individuals to take steps to enforce the ban against anyone who provides abortion care or helps a patient access abortion care after fetal cardiac tones can be detected.

“The Act threatens the health and well-being of pregnant patients by barring their access to a safe and essential component of reproductive health care,” the medical groups wrote in the amicus brief. “In so doing, it disproportionately harms the most marginalized people in Texas—communities of color, people with low incomes, and those living in rural areas. SB 8 undermines longstanding principles of medical ethics. It forces clinicians into an untenable position of facing potentially unlimited personal and professional liability if they provide care consistent with their best medical judgment, scientific evidence, and moral and ethical duty. And it does so regardless of applicable clinical standards.”

On Monday, November 1, the Washington Post reported that in hearings before the Court a majority of justices—including Justice Brett Kavanaugh and Justice Amy Comey Barret, both appointed by former President Trump—appeared willing to allow a challenge by physicians to the law. According to the Post, both Kavanaugh and Comey-Barret repeatedly countered arguments by the state of Texas and “seemed more swayed by challenger’s arguments that the law improperly blocks judicial review necessary when constitutional rights are at stake.”

A unique—and to opponents of the law, a uniquely troubling—aspect of the Texas law is that it allows private individuals to sue abortion providers, thereby circumventing the judicial review that would be permissible when the State does so.

As the brief signed by APA states: “SB 8 impermissibly intrudes into the patient-clinician relationship by deputizing community members and citizens to file suit and seek a civil reward of ‘not less than $10,000’ based on allegations that a physician or other health care professional facilitated a banned abortion. The legislation creates an open-ended class of potential plaintiffs who might file harassing lawsuits, heavily favoring those plaintiffs in court, and extending liability to anyone in a woman’s support network who plays a role in facilitating a prohibited abortion.”

Reena Kapoor, M.D., chair of the APA Committee on Judicial Action, said APA has long advocated against government involvement in medical decision-making.

“SB 8 represents the worst kind of intrusion into the doctor-patient relationship,” she told Psychiatric News. “By filing an amicus brief in this case, APA wants the court to know that such an intrusion has serious consequences for women’s health, including their mental health. The idea that women suffer psychological harm from abortion has been disproven; they are no more likely to experience adverse mental health outcomes than women who carry an unwanted pregnancy to term. That fact, combined with the increased mortality associated with childbirth when compared to abortion, led APA and other leading medical organizations to condemn this law.”

The amicus draws special attention to the impact the law will have on minority communities. “Forcing women to continue pregnancy increases the risk of complications and death overall, but the risks are particularly acute for Black women, who in Texas account for 11% of live births but 31% of the maternal deaths, making carrying an unwanted pregnancy to term disproportionately dangerous for them. Black women’s pregnancy-related mortality rate nationally is 3.2 times higher than that of white women, a disparity that persists across socioeconomic and education levels.” ■