Medical Groups Protest New HHS Regulations

Dr. Anne Davis

Major medical professional organizations join together to protest new HHS regulations that would damage the integrity of the relationship between patients and health care providers.

To denounce HHS’s proposed
"provider conscience" regulation
, Physicians for Reproductive
Choice and Health
submitted the public comment below. Joining us are the American Academy
of Pediatrics; American Nurses Association; American Psychiatric Association;
Association of Women’s Health, Obstetric, and Neonatal Nurses; and
the Society for Adolescent Medicine.  

Together we represent 288,400
medical professionals whose consciences demand protection for women
and their health. In the letter below, we outline our objections to
HHS’s attempt to limit patients’ access to the information and care
they need.  

Please
act now to tell HHS to drop the regulation.

You have until 5 p.m. EST on Thursday, September 26, to make your voice
heard

 

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September 23, 2008 

Brenda Destro

Office of Public Health and
Science

Department of Health and Human
Services

Hubert H. Humphrey Building

200 Independence Avenue, SW,
Room 728E

Washington, DC 20201 

Dear Ms. Destro: 

As physicians, nurses, and
other medical professionals, we, the undersigned, urge the Department
of Health and Human Services to rescind the "Proposed Rule Ensuring
that Department of Health and Human Services Funds Do Not Support Coercive
or Discriminatory Policies or Practices in Violation of Federal Law." 
(Fed. Reg. 73, No 166, August 26, 2008).  If implemented, the proposed
regulation would broaden the scope of existing federal refusal laws
by allowing healthcare providers to withhold medical information based
on their religious or moral beliefs.  It would also open the door
for hospitals and physicians to deny access to or information about
contraception.  The proposed regulation is unnecessary,
would damage the integrity of the relationship between healthcare providers
and patients, and would undermine the ability of women and families
to make informed reproductive healthcare choices. 

As healthcare practitioners,
we are not required to perform abortions or sterilizations, and those
whose personal beliefs conflict with these procedures
can step aside without censure.  However, irrespective of a provider’s
individual beliefs, each healthcare professional is ethically bound
to inform patients about all of their options; and, if one cannot or
will not provide a service, each healthcare professional is ethically
bound to refer patients in a timely manner to someone who can. This
approach is essential to the appropriate provision of healthcare services;
and efforts to deny women information about contraception, sterilization,
or abortion would seriously undermine quality healthcare. 

Despite the assertion that
the "regulation does not limit patient access to health care," if
implemented it would do just that by allowing and encouraging healthcare
providers to withhold information rather than share it.  The proposed
regulation says it is "promoting open communication within the healthcare
industry, and between providers and patients, fostering a more inclusive,
tolerant environment in the health care industry than may currently
exist" but it does not require disclosure by healthcare professionals
of their refusal to provide a service or information.  Unless healthcare
professionals make some indication of their refusal, how will a patient
know that she is not receiving information essential to a decision that
is vital to her health?  Implementation of this regulation would
effectively allow health care providers’ personal beliefs to override
patients’ right to full disclosure of accurate information and available
healthcare services. 

The proposed regulation would
not only damage the provider-patient relationship, inserting mistrust
where trust is essential, it would expand existing law by extending
the right to refuse health services to a broad range of healthcare workers
who are not directly involved in patient care.  Receptionists could
refuse to schedule appointments; health insurance agents could refuse
to process payments; and operating room staff could refuse to clean
equipment based on religious objections to certain medical procedures
or services.  The proposal estimates that the new regulations would
affect 580,000 hospitals, clinics, and other entities and cost $44.5
million to enforce.  The impact that this would have on the millions
of Americans who depend on federally funded healthcare services is enormous. 

Additionally, the proposed
regulation fails to make explicit that healthcare providers cannot deny
women contraceptives by claiming they are tantamount to abortion. 
By not providing a definition of abortion consistent with medical authority,
the regulations leave healthcare providers and institutions free to
equate certain forms of contraception with abortion.  Moreover,
the proposed regulation would protect the refusal to provide or discuss
"other medical procedures."  Someone who objects to birth control
could therefore take cover in the regulation.  

The proposed regulation relieves
healthcare professionals of a responsibility that must be upheld: the
obligation to talk with patients about all of their options and, for
services which cannot or will not be provided, refer them to someone
who can help them without delay. This practice is followed when treating
cancer and mending broken bones; and if this principle is not held as
a standard for reproductive medicine, it is a failure for patients and
the health of the country.   

We urge the Department of Health
and Human Services to withdraw this proposed regulation.   

Sincerely, 

American
Academy of Pediatrics

American
Nurses Association

American
Psychiatric Association

Association
of Women’s Health, Obstetric and Neonatal Nurses

Physicians
for Reproductive Choice and Health

The
Society for Adolescent Medicine
 

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (R-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

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.