June 23, 2016; Seattle Times

A state court has ruled that Washington’s government-run hospitals must provide “substantially equivalent” abortion services if they also provide maternity services. The decision came in an ACLU lawsuit alleging some county and hospital district-run facilities were not following the state’s 1991 Reproductive Privacy Act by routinely referring patients to Planned Parenthood for abortion services. The judge ruled that “the state, acting here through the Hospital District, cannot exercise such an opt-out clause. The Hospital District must comply with its responsibility under the (Reproductive Privacy Act), and the Court sees no tenable reason why it cannot.”

For their part, the hospitals had expressed no objections to providing abortion services to patients. The difficulty for the hospitals has been that Washington’s Reproductive Privacy Act allows for individual medical practitioners to opt out of providing abortions. Doctors and so-called mid-level providers such as nurse practitioners and physician assistants may either be employed by hospitals or be independent of hospitals and simply have admitting privileges or contractual agreements with a hospital or multiple hospitals.

To comply with the judge’s ruling, Washington’s public hospitals will need to seek to employ, contract with, or attract to their communities providers without conscientious objections to providing abortions. This may increase a hospital’s recruiting costs and provider costs by causing it to seek and employ a provider willing to provide abortions when other providers are either in place or available to serve the hospital’s patients.

The alternative for the hospital is to cease offering maternity services—services which are both popular with patients and families and profitable for hospitals battling shrinking revenue margins. Ending maternity services would likely also be unpopular with local political and business leaders in smaller communities who see their hospital as a local economic driver and civic selling point. 

It is possible that providers not performing abortions as a matter of conscience under the law may have cause to sue public hospitals reluctant to employ or contract with them for that reason. This would set up a test of two key provisions, assurance of comprehensive public health and assuring individual freedom of conscience for providers, within the same law (the Reproductive Privacy Act). 

Nationally, almost a fifth of hospitals are owned and/or operated by state, local, and district governments, while half are nonprofits and the balance are for-profits. As hospital mergers and acquisitions, especially in more rural areas, continues, healthcare options for patients and employment options for providers within communities will continue to decrease and mandates like Washington’s Reproductive Privacy Act will become even more important.—Michael Wyland