Amicus politics

Three times during the March oral arguments for the U.S. Supreme Court’s biggest abortion case in a decade, lawyers invoked an organization that wasn’t even a party to the lawsuit: the American Medical Association.

The case, Whole Woman’s Health v. Hellerstedt, has pitted the abortion business (and the Obama administration) against Texas state regulators. At issue is a new state law requiring abortion facilities to meet ambulatory surgical center standards and to have admitting privileges at a local hospital. Last October the American Medical Association (AMA) filed a so-called amicus brief expressing its opposition to the Texas law. And on March 2 Stephanie Toti, arguing at the Supreme Court on behalf of Texas abortion centers, cited the brief to the justices—twice.

“The American Medical Association and every other mainstream, leading medical association to consider these requirements has concluded that they are not medically justified for a variety of reasons,” said Toti, a lawyer from the Center for Reproductive Rights. Later, she again mentioned the AMA brief while disparaging the Texas regulations as “not consistent with medical standards.”

So too U.S. Solicitor General Donald Verrilli Jr., also arguing in defense of the abortion facilities, cited the AMA brief in claiming the medical justification for the Texas law was “groundless.”

Couched in legal jargon, amicus briefs—position statements supporting or opposing a particular lawsuit—aren’t very exciting to most Americans. But in Supreme Court arguments and decisions, briefs play an important role in providing justification for the majority opinion. When the court legalized same-sex marriage last year, Justice Anthony Kennedy cited in his decision an amicus brief that claimed laws defining marriage as between one man and one woman harmed the children of same-sex couples.

The AMA has about 232,000 members and is considered the country’s pre-eminent medical association. And in almost every abortion case at the Supreme Court or in lower federal courts, the AMA files on the side of the abortion industry. The AMA’s organizational policy also supports aborted fetal tissue research and public funding for abortion.

“When we’re filing briefs on abortion, almost always on the other side is the AMA,” said Dr. David Stevens, the CEO of the Christian Medical & Dental Associations (CMDA), a professional association with about 17,000 members. “They are on that side fighting for it every time you turn around.”

The CMDA, alongside the American Association of Pro-Life Obstetricians and Gynecologists, filed a brief in the recent abortion case contradicting the AMA’s claims that the Texas regulations are medically unjustified. The two pro-life medical groups enumerated the risks of various abortion procedures and said the rules were “consistent with the standard of care for outpatient medical practice.”

Historically, the AMA has opposed regulation of all sorts, but it used to hold more conservative positions. It opposed Medicare in the 1950s. Its opposition to regulation of the abortion industry began in the 1980s, when the AMA filed a brief against state abortion regulations in the 1989 Supreme Court case Webster v. Reproductive Health Services.

Since then, the group has filed briefs opposing laws requiring parental notification for minors having abortions (Aid for Women v. Foulston and Ayotte v. Planned Parenthood of Northern New England, in 2006). In Ayotte, the AMA argued the notification law needed an exception for the health of a minor and that parental involvement was unnecessary from a medical standpoint. Ultimately, the Supreme Court ruled unanimously against Planned Parenthood, sending the case back to lower courts.

The AMA has also filed in favor of buffer zone laws, which forbid protesters or counselors from coming within a certain distance of an abortion center. It filed against laws regulating the administration of RU-486, the abortion pill regimen. It filed against an admitting privileges law in Wisconsin.

In response to my questions about its filings, the association said in a statement, “The AMA seeks to limit government interference in the practice of medicine and oppose[s] government regulation of medicine that is unsupported by scientific evidence.”

All national professional organizations tend to oppose regulations, according to Teresa Stanton Collett, a lawyer at the University of St. Thomas School of Law: “Whether it’s good or not is a separate issue. ... A lot of this industry protectionism is a problem.”

Collett, who has testified in favor of pro-life laws, penned a brief in Whole Woman’s Health on behalf of 21 physicians working in rural areas and emergency environments. They believe the Texas regulations are justified.

One exception to the AMA’s practice of siding with the abortion industry was Gonzales v. Carhart, the 2007 Supreme Court case challenging the federal ban on partial-birth abortion. The AMA didn’t file an amicus brief in that case—and pro-lifers considered that a victory. None of the lawyers I spoke to knew why the AMA chose not to file. But back in 1997 the organization received flak for endorsing the proposed partial-birth abortion ban. The AMA’s report on the practice said there was no situation where partial-birth abortion “is the only appropriate procedure” and recommended doctors not use it.

The AMA has some good positions: It supports the conscience rights of its members, saying no doctors or hospital personnel should have to do anything “violative of personally held moral principles.” It has not joined the abortion industry’s push for states to allow nurse practitioners and physician assistants to perform abortions, rather than physicians only. And the AMA continues to oppose physician-assisted suicide.

The organization is not as radically pro-abortion as the American College of Obstetricians and Gynecologists (ACOG), which opposed the federal ban on partial-birth abortion. ACOG has not robustly supported conscience protections for its doctors—a committee opinion said pro-life doctors have a “duty” to refer patients to abortionists. Even before the Roe v. Wade decision in 1973, ACOG was arguing minors should be able to have abortions without parental notification.

‘Abortion is the most unregulated healthcare industry in the country, and it’s because it’s a sacred cow.’

“ACOG has never seen an abortion practice they didn’t like,” said Collett.

One notorious incident came to light during liberal Justice Elena Kagan’s confirmation process in 2010. Back in 1996 an ACOG panel drafted a statement on partial-birth abortion and then ran the draft by advisers at the Clinton White House, where Kagan was a counsel at the time. ACOG’s draft said the group could find “no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman.” But the group concluded a doctor should still be free to perform the procedure, which it called intact dilation and extraction, or “intact D&X.”

Kagan sent ACOG potential changes to the draft, including an added sentence to follow up on the “no circumstances” line: “An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

In the end, ACOG incorporated Kagan’s sentence—verbatim—into its final statement, published in 1997.

“Judges should stop treating the statements of scientific organizations as apolitical,” responded Slate columnist Will Saletan at the time.

Amicus briefs from pro-life organizations like CMDA show judges there is more than one viewpoint on medical questions around abortion, even if courts don’t treat such groups as mainstream. Medical associations can grant status to groups representing special interests within their membership: The AMA, for example, recognizes the Gay and Lesbian Medical Association. The CMDA requested its own specialty status in the 1990s, CEO Stevens recalled, but the AMA turned the group down on the grounds that it discriminated based on religion.

Stevens said many physicians in his organization left AMA over its abortion stance (AMA also endorsed gay marriage in 2011). CMDA membership has grown 19 percent since 2008.

In the 1950s, 75 percent of American physicians were members of AMA, but as of 2012, AMA says about 20 percent of physicians are members. Stevens said the numbers show the group is no longer representative of physicians.

“[They say,] ‘We’re about women’s health,’ but then they turn around and say you shouldn’t have to meet the requirement of an outpatient ambulatory surgical center,” said Stevens. “Abortion is the most unregulated healthcare industry in the country, and it’s because it’s a sacred cow.”

The Supreme Court is expected to rule on Whole Woman’s Health by the end of June.