Roundup: Final Draft of HHS Regs Dangerously Broad and Ambiguous

Brady Swenson

Final draft of HHS proposal is ambiguous and broad enough to allow doctors to refuse birth control; McCain unlikely to choose pro-choice running mate; Pastor who opposes abortion to deliver closing prayer at DNC; Telling back story behind the new Democratic abortion plank.

Final Draft of HHS Proposal Ambiguous and Broad Enough to Allow Doctors to Refuse Birth Control … The Bush Administration and Secretary Michael Leavitt of the Health and Human Services Department yesterday released the final draft of a proposed rule change, as reported here by Emily Douglas.  A look at the first wave of media coverage shows two frames emerging.  The Bush administration and Leavitt are arguing that the rule is strictly about expanding existing protections for the consciences of medical practitioners and they claim that "Nothing in the new regulation in any way changes a patient’s right to any legal procedure." The final version of the rule does not include the controversial section that redefined contraception as abortion.  But concern has quickly arisen that the "rule remains ambiguous enough to prompt more debate over whether
providers can refuse to provide some forms of birth control." 

Indeed Leavitt has admitted that medical practitioners would be free to make a legal challenge to establish the definition of abortion as contraception under the guise of the expanded "conscience" rules:

A draft of the rule, which surfaced last month, had a broad, explicit definition of abortion that seemed to include certain forms of contraception. That definition has been stripped from the proposed rule released yesterday.

But Mike Leavitt, secretary of the Department of Health and Human
Services, said some medical providers may want to “press the
definition” and make the case that some forms of contraception are
tantamount to abortion, the WSJ reports.

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Karen Brauer, president of Pharmacists for Life, said
she expects members of her group will do exactly that . "It would be
pretty excellent," she said, if states lost federal funding over laws
requiring pharmacists to fill birth-control prescriptions.

Both sides are admitting that the rule would allow legal challenges to state laws aimed at ensuring patient’s access to medical treatment. For instance state laws that require pharmacists to dispense, or refer patients to a pharmacy that will dispense, birth control could be struck down by courts under the new rule. Thirteen states currently have such a law on the books:

Activists on both sides of the debate said that
hospitals, insurers and HMOs may be able to use the regulations to
challenge other state laws, such as requirements that insurers include
contraception as part of prescription-drug benefits. Or the federal
government could force states to change those laws as a requirement for
federal funding. "We fear that’s possible," said Roger Evans, director
of litigation for Planned Parenthood.

Jessica Arons of Think Progress argues, in a piece republished here on Rewire, that the new rule drastically broadens the existing provisions for practitioner conscience contained in the Church and Weldon amendments:

While most of the regulation limits the scope of allowable moral
objections to training, performing, counseling, or referring for
abortion and sterilization, some sections are not so restricted.

Entities to whom this subsection 88.4(d) applies shall
not require any individual to perform or assist in the performance of
any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions.

That seems to be an exception you could drive a truck through.

Also note the objections can be based not only on religious beliefs
but on any personal moral convictions. This is much broader than the
traditional conscience clauses, including those that allowed for
conscientious objectors during the Vietnam War.

Arons also importantly notes a broadening of those whose consciences are protected by the new rule:

Finally, the proposed regulation would extend protection from
doctors and nurses to just about anyone who might come into contact
with a patient, and even some who might not.

[A]n employee whose task it is to clean the instruments
used in a particular procedure would be considered to assist in the
performance of the particular procedure.

By that logic, an ambulance driver, a receptionist, and even the
person who processes health insurance forms might be able to refuse to
perform their jobs if related to a health care service they find
morally objectionable. Volunteers are explicitly protected too.

While Leavitt and the Bush administration claim that this rule’s sole end is to protect medical practitioners and their "assistants," they fail to acknowledge how patient’s care may be affected.  Consensus seems to be emerging that the rule’s broad definitions, and lack of definitions, allow room for individuals or institutions to eventually redefine contraception as abortion anyway and greatly broadens the umbrella of the conscience protections to include just about anybody in the employ of an HHS funded entity:

“Workforce” includes employees, volunteers, trainees, and other persons whose conduct, in the performance of work for a Department-funded entity, is under the control or authority of such entity, whether or not they are paid by the Department-funded entity.

These broadly ranging definitions have prompted concern from those seeking to defend access to comprehensive health care:

"Women’s ability to manage their own health care is at risk of
being compromised by politics and ideology," Cecile Richards, president
of the Planned Parenthood Federation of America, said in a statement.

The group, which had complained that earlier drafts of the regulation
contained vague language that might block access to birth control, said
it still has concerns about the latest version.

"Planned
Parenthood continues to be concerned that the Bush administration’s
proposed regulation poses a serious threat to women’s health care by
limiting the rights of patients to receive complete and accurate health
information and services," Richards added.

The rule may be seen as such a threat to health care access because it also allows practitioners who object to medical procedures to refuse to refer patients to a doctor who can give them the information and care they need or are seeking:

… it goes far beyond defending a medical worker’s right to
refuse to perform an abortion — it also secures his or her right to
refuse to "refer for, or make other arrangements for, abortions." In
other words, a worker at a women’s clinic, perhaps the only one for
several hundred miles, can refuse to perform an abortion and refuse to refer the patient to someone who will. 

I also expect that a debate about conscience clauses and the right of refusal versus the rights of patients to access comprehensive health care will emerge.   Rev. Dr. Carlton Veazey wrote about this conflict of interest on Rewire recently:

We live in a religiously pluralistic society, and as a
nation we believe in protecting religious expression and freedom. With regard
to abortion and contraception, I believe this means we must accommodate both
the physician who objects to providing abortion services and the patient who
wants and need this service. A physician’s objection to abortion must never result
in a woman being denied a service she wants, needs and is legally and morally
entitled to.  

In this
clash of a healthcare provider’s conscience with a woman’s conscience, women will
lose. An ACOG ethics opinion states the
conflict well:

Although respect for conscience is important, conscientious
refusals should be limited if they constitute an imposition of religious or
moral beliefs on patients, negatively affect a patient’s health, are based on
scientific misinformation, or create or reinforce racial or socioeconomic inequalities.

The
Religious Coalition for Reproductive Choice supports this position as an
appropriate reflection of American religious and social values. Health
care professionals must provide information and care consistent with the
highest standards of scientific evidence and responsive to the needs and wishes
of individual patients — without ideological or theological restrictions.

What is clear in this early stage of the 30 day commenting period is that the final draft of the proposal has raised different and perhaps larger concerns than the leaked draft of the proposal that explicitly redefined contraception as abortion. The public may submit comments on the regulation during the next 30 days here or via email to consciencecomment@hhs.gov.

McCain Unlikely to Choose Pro-Choice Running Mate … Although pro-choice politicians Tom Ridge and Joe Lieberman are reportedly on John McCain’s VP short list, The New York Times is reporting that McCain advisers are saying he is "unlikely to select anyone who supports abortion rights."

Pastor Who Opposes Abortion to Deliver DNC’s Closing Prayer … The Washington Post’s The Trail blog is reporting that Joel C. Hunter, a megachurch pastor from Florida, will deliver the closing prayer of this year’s Democratic National Convention.  The Trail characterizes the move as a continuation of the Obama campaign’s "aggressive outreach to evangelical voters."

"I’ll kind of be the elephant in the room, but it really says
something about how far Senator Obama is reaching out," Hunter said in
a phone interview today. "We are expanding the agenda of what’s
pro-life. When you consider poverty, environmentalism and war … those
are the issues that are being addressed by the Democratic Party."

Hunter
was initially brought into the Democratic conversation through
discussions about the abortion language in the party platform organized
by Third Way, a progressive group that is trying to find compromises on
cultural issues. The group was in the background of tense negotiations
between Hunter, evangelicals and pro-choice groups during the
re-wording of the party platform that resulted in a strong affirmation
of Roe vs. Wade and an addition of language that encourages a reduction
in the number of abortions.

Rachel Laser of Third Way said Hunter’s inclusion proves "the Democratic Party is open to faith in a new way."

Back Story Behind the New Democratic Reproductive Health Platform Plank … In case you missed Steven Waldman’s look at how the Democrats’ new plank on reproductive health and abortion was developed, you should click over and give it a read now.   

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

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Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”