With its 5–3 decision in Whole Woman’s Health v. Hellerstedt, the Supreme Court concluded its 2015 term with a momentous ruling in support of abortion rights. What follows is Dahlia Lithwick’s conversation with Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health, the company that runs seven clinics nationwide and that became the lead plaintiff in the case.
The conversation was originally broadcast on Episode 48 of Amicus, Slate’s legal affairs podcast. Amicus transcripts are available exclusively to Slate Plus members. To read part 2 of the Episode 48 transcript, click here.
This transcript has been edited for length and clarity.
Dahlia Lithwick: Amy, help us understand the two provisions of Texas House Bill 2 that were at issue.
Miller: HB 2 actually had four onerous requirements in it. There were great restrictions on abortion-inducing medication and a ban on abortions at 20 weeks.
The two provisions that we challenged with this lawsuit were, one, the requirement that all abortions be performed in an ambulatory surgical center, oftentimes referred to as an ASC, which is really like a minihospital. And two, that all physicians who provide abortion services need to have active admitting privileges at a hospital within 30 miles of the clinic.
Lithwick: And how it is that Whole Woman’s Health, with the Center for Reproductive Rights, becomes the plaintiff in this case?
I fought the law from the beginning. I was there testifying when it was SB 5 in the Senate. When the law passed, it became obvious that we were the people to champion the challenge. I talked about our quest to comply with new regulations over the last 10 to 15 years. We write a whole new set of protocols each time. This sort of compliance endeavor—it’s absurd. It changed the relationship with the patient.
Lithwick: The two provisions that were challenged, ambulatory surgical centers and the admitting privileges, I think for a lot of listeners they sound pretty innocuous and benign. You know, “Hey, maybe it should look like a surgical center. Maybe doctors should be able to rush a person to the hospital.”
Can you help us understand why we don’t need these provisions?
Small, independent providers do 70 to 80 percent of the abortions in this country, community-based clinics not unlike Whole Woman’s Health. The majority of those clinics were started in the ’70s, right after Roe. A lot of them are women-owned businesses. Some of them are doctor-owned practices. And most of us independent providers also do family planning. Some of us do obstetrics. Some of us do community health care as well. So, we’re in line with that sort of community clinic philosophy—family medicine doctors, physicians that you find locally in your communities.
Our practice, an abortion practice specifically, isn’t a hospital-based endeavor. Abortions take about five or 10 minutes. They’re very safely done in a doctor’s office setting. There’s no anesthesia. Women walk into the procedure room, walk out of the exam room. At Whole Woman’s Health, we invite peoples’ families and loved ones to come into the procedure room with her. It’s done in the same exam room you might have an annual checkup in or a Pap smear or whatever.
The abortions we perform at an ASC and that we perform in the clinic are done the same. The procedure doesn’t change at all. We just have to do it in this building that requires about a 40 percent more overhead in order to operate it. It doesn’t add one bit of safety.
The ambulatory surgical center requirements, or the admitting privileges requirements, it’s what they call a supply-side restriction. They’re trying to come up with a restriction that’s going to close clinics down by requiring onerous regulatory or physical plant requirements.
What they were brilliant at, honestly, is pitching those requirements under the guise of women’s health and safety.
Miller: They messaged the privileges requirement as though it was some way to ensure that a doctor was adequate or had the proper credentials. The talking points sound reasonable.
But in community-based medicine, the vast majority of physicians don’t have hospital privileges. Because the majority of their medical practice isn’t hospital-based.
If they’re not doing surgeries or delivering babies as an OB, they don’t necessarily maintain those privileges. You need a certain amount of surgeries to get privileges; you need to have a certain amount of admissions to the hospital annually to maintain them. The Catch-22 is that abortion is one of the safest procedures known to medicine, period. Knock on wood, but we hardly ever have hospital admissions.
When my clinic in Austin was open over a 10-year-period, we had one hospital admission. So, because of the safety of abortion, we’re not going to ever admit 10 to 12 patients a year. And if I had doctors who had that many admissions, they wouldn’t be working for Whole Woman’s Health, you know?
Lithwick: OK, we don’t often have guests who’ve been on the case from the beginning.
What is it that we missed, those of us who just tuned in, before Hellerstedt comes to the U.S. Supreme Court? Tell us a little bit of the process of going through this from the trial level?
Miller: My approach to abortion is open and honest. I have nothing to hide. I stand in the light. So I felt very called to be the plaintiff in that way, because the state took a very “gotcha” approach.
They have this stigma that abortion providers are profiteers or whatever. They wanted to show that we had all this money and we could afford to build an ASC.
As the plaintiff, everything I have was subpoenaed. That discovery process was intense—boxes and boxes and boxes of information. The state had well over 10,000 of my personal emails. They have seven years of Whole Woman’s Health financials for all five of our Texas clinics. They have every doctor contract, every lease, every mortgage. Every single budget for any time I did a physical plant improvement, because we’re trying to argue that we can’t afford the physical plant requirements of an ASC.
I was actually sort of excited to share my financials with them, because we haven’t made more than a 1 percent profit since 2010. You’re not going to go into abortion because you’re interested in profit. You’re interested in making the world a better place. I saw this role as a way that I could illustrate the humanity of the abortion provider but also provide facts and data.
And we showed how we worked with 25 hospitals, in five different cities, on behalf of 14 physicians who were trying to get admitting privileges. We were only able to secure privileges for four of them.
All of that data was turned over to the state.
Then I was a witness in the first trial. And I had to do a deposition for the second trial.
I was sort of the lightning rod, right? They wanted to depose me both as Amy Hagstrom Miller, the individual, and Amy Hagstrom Miller, the representative of the corporation. There was a lot of back and forth; they tried to make it seem like I wasn’t making myself available. All of these nasty things were going back and forth.
And finally we set an agreement, and they deposed me on a Sunday, which I found interesting for the state. My deposition was 9½ hours.
The attorney who deposed me used a suave, nice approach, trying to illicit information. The tone really changed about halfway through, when they realized, “OK, this approach isn’t getting me what I want.”
It was really intense. People always ask, “Did they give you lunch?” No, they didn’t give me lunch. I got a couple of breaks. It was professional, but it was not a friendly endeavor. And unlike my cross-examination at the trial, it wasn’t witnessed by the public.
Then I was in the witness stand for 5½ hours in the trial—longer than anybody else. They made me do lots of things, like read our complication logs out loud. They photocopied them and tried to make it look like there was a whole bunch of them. In fact, they had photocopied the same page a whole bunch of times. They tried to do this sort of gotcha.
I am very aware of the stigma of abortion providers, so I’m on my game intellectually for the endeavor. I want people to see, “Oh, look at her. She seems nice.” Because everybody has some abortion stigma. I’m not going to be snarky.
During one cross-examination, nobody else in the courtroom could see the state’s attorney’s face. I could tell that it was a stressful endeavor for him. But no one else in the courtroom, other than the judge, could see that emotion on his face. He was trying to set up this premise that I might have some conflict about the income that we have in our clinics. He was like, “I know how many abortions you do, because I have the statistics here, and I’ve been to your website, and I know how much you charge for them.” And then he just said, “I know you’re not in this business to make a killing, right?”
It was this moment of, “Wow, I can’t believe you just said that.” And I just looked at him very professionally and smiled, and the entire courtroom just gasped.
He was trying to get me, this gotcha kind of thing. But there’s nothing I’m hiding.
Lithwick: It’s so interesting. I’m imagining some listeners thinking, “But, no, those clinics are bad. Kermit Gosnell was bad.” The idea that abortions are performed in these filthy, nefarious places, by providers who take thoughtless joy in carnage—somehow that idea has so infected this conversation.
And then layered around that, the idea that women have no agency. They can’t make good choices. That they are preyed upon in a way that men wouldn’t be.
And meanwhile you’ve got this clinic with fuzzy blankets, and you’re encouraging loved ones to come in. It seems as though the disconnect is not only vast, Amy, but unbridgeable.
Miller: So, Kermit Gosnell was a criminal. Right?
These stigmas are manufactured, and they’re tools for our opposition. I’m incredibly aware of this. I think it’s important for us to examine who is benefiting from the perpetuation of these stigmas.
At the root of this, I think, is this desire to control women’s agency and women’s power. I’ve oftentimes heard, “Abortion is the hole in the doughnut.” Like, there’s no there there. It’s not about abortion. It’s about women’s identity, women’s autonomy, women’s power. Their ability to control their future, their fertility, etc. That’s what drives people crazy about abortion—that women have the ability to choose the path for their life, to act with agency, and to decide what happens to them.
And that’s what drew me to abortion. The medicine, the law, how to run a small business—I had to learn all that stuff as a byproduct of this moment in time when a woman chooses a path for her life. When unplanned pregnancy shines a bright light on a woman’s life and requires her to examine her hopes, her dreams, and her values. And abortion is one of the choices you can make at that moment in time.
There are stigmas around all of it. There are stigmas about people who have babies who shouldn’t have babies. People who give their baby up for adoption. People who have an abortion. If we connect across whatever choice you make with that unplanned pregnancy, we realize there’s stigmas for all of these choices. They’re all designed to keep us in our place, that’s really what’s happening here.
When you have Justice [Samuel] Alito make some comment about the holes in the floor of a clinic that rats might come out of—I could explain that the clinic’s in East Texas, in a hurricane district that’s required to have drains in the floor because it’s a city code. I can respond like that with facts and it’s true.
But what I need to do, as somebody who is interested in shifting the stigma, is acknowledge the feelings and beliefs that people have about sexuality, about autonomy, about identity in my answer. Because if I don’t acknowledge that people have very strong feelings about abortion or feelings about fertility, if I only give people facts, I’m not going to actually move people and shift them to think differently about what we’re doing as abortion providers.
Lithwick: In the few days since Whole Woman’s Health v. Hellerstedt came down, we’ve seen the court bat away cases from Wisconsin, from Mississippi. We’ve seen a federal judge in Indiana block their abortion restriction.
Are you surprised by the speed and ferocity of the pushback?
Miller: This is what I truly, truly hoped for. I hoped that we would be able to illustrate, tangibly and emotionally, what undue burden is. Watching Mississippi fall, and Alabama, and hopefully Louisiana—it’s just been incredible, the laws that have fallen already.
We have a clinic in Illinois, and there’s an admitting privileges requirement and a physical plant requirement. It’s not as bad as Texas, but just this morning I was saying to my team, “Hey, I wonder if we can get around this admitting privileges requirement in Illinois? What would we need to do, to get relief from that, because of what happened in Texas?”
We will see some restoration not only in Texas but across the country. Ultimately, that was the big dream.