How Nebraska’s Anti-choice Legislators “Protect” Women’s Health

Carole Joffe

A bill passed this spring in Nebraska, the Orwellian-named “Women’s Health Protection Act,” does nothing to protect women's health, but instead flouts medical practice and standards of care to achieve an anti-choice end. 

“Informed consent is a legal and ethical obligation…Informed consent includes informing the patient about her medical condition, available treatment options, and the benefits and risks of these alternatives……

…the woman should initially be questioned alone about her decision and afforded an opportunity to disclose coercion.  If a patient expresses doubts or misgivings, her options and feelings warrant more extensive exploration.”

The above passage  is from the chapter on “Informed consent, patient education and counseling” which appears in a recent edition of the leading textbook on abortion care in the United States, Management of unintended and abnormal pregnancy.  As the first part of the quoted material makes clear, the expected standard in abortion provision, as with all other medical procedures, is to provide information about the medical aspects of the care to be received, including any risks.  The second portion of the passage is a reaffirmation of what has been the cardinal principal of abortion counseling for nearly 40 years, since the beginnings of legal abortion in the U.S. in the early seventies: The decision to have an abortion must be made by the pregnant woman herself. Finally, the above excerpt contains the straightforward statement that some women presenting for an abortion may need more in-depth discussion of their decision than others do.

Hardly surprisingly, none of this readily available information about the actual practices followed in facilities providing abortion care seems to matter to anti-choice politicians in their zeal to pass legislation the only purpose of which is to make access to and provision of abortion care as difficult as possible for provider and patient alike.  A particularly egregious recent example of this is a bill passed in Nebraska this spring, LB594, the Orwellian-named “Women’s Health Protection Act.”  This Act, which has just been challenged by Planned Parenthood of the Heartland (which covers both Nebraska and Iowa), stipulates that before a patient can receive an abortion, she must be evaluated to “identify any compulsion to consent to the abortion,” as well as be screened for a variety of “risk factors.”  The former is harmless enough, as abortion regulations go, since, as mentioned, abortion providers already ask patients about coercion. It is the latter requirement, the mandated screening for risk factors, where things get surreal—and for providers, impossible to fulfill.

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As LB 594 reads:

“Risk factor associated with abortion means any factor, including any physical, psychological, emotional, demographic, or situational factor for which there is a statistical association with one or more complication of abortion….” 

The Act goes on to say that such “information on risk factors shall have been published…in… peer reviewed journals.”  This requirement is simply absurd. To actually fulfill the vaguely stated demands of this law, abortion providers would have to review hundreds of articles, many with ambiguous, if not outdated or irrelevant findings, and figure out how to apply these studies to their patients.  For example, as pointed out in a recent Rewire post, would providers have to take into account a study in Nigeria that concluded Protestant women ran a higher risk of heavy bleeding after abortion?

The most serious problem with this deeply cynical law (which, not incidentally, calls for thousands of dollars in fines for providers who do not fully comply) is that so much of abortion research is highly contested. This is especially true in the area of the alleged mental health effects of abortion. The antiabortion movement has for years waged a campaign to prove that abortion leads to mental illness—the so-called “postabortion syndrome”—and researchers associated with the movement have managed to get articles making this claim into various peer-reviewed journals, in spite of the repeated refutations of this syndrome by mental health professions.  “Peer reviewed journals” it should be noted, refer to hundreds of publications, with vastly different reputations in the medical community.  Should this law go into effect, an antiabortion lawyer seeking damages for his or her client presumably would have little trouble locating a journal article somewhere that demonstrated a “risk” that the abortion provider ignored.          

Not only is Nebraska’s Women’s Health Protection Act impossible for providers to comply with, this legislation is not necessary.  With respect to physical health, the excellent safety record of abortion since Roe is well documented. With respect to mental health, the best predictor of a woman’s mental health status after an abortion, psychological experts have concluded, is her mental health before an abortion, and as suggested, there is no support for the existence of “post abortion syndrome.”  Moreover, as I found while researching my recent book, Dispatches from the Abortion Wars, abortion providers all over the country take seriously the message contained in the textbook chapter on abortion counseling quoted at the beginning of this post: Some portion of abortion patients merit further discussion of their abortion decision, and may not be suitable candidates for an abortion, at least not at the time of their initial clinic visit.

One of those whom I observed and subsequently wrote about is Lee Carhart, who, as it happens, is one of the few remaining abortion providers in the state of Nebraska. (Dr. Carhart is a well-known and controversial figure in that state and beyond. He was the lead plaintiff in two Supreme Court cases challenging the ban on so-called “partial birth abortions,” and formerly worked part-time with Dr. George Tiller in Kansas, before the latter’s assassination in 2009.  It is widely believed that yet another recent Nebraska law, which bans all abortions after 20 weeks gestation–on the basis of scientifically inaccurate claims of “fetal pain”– was intended specifically to limit Carhart’s practice).         

My observations of Dr. Carhart and his wife, Mary, who works with him in his clinic outside Omaha, took place at a workshop called “Promoting Post-Abortion Well-being” held during a national conference of reproductive health clinicians. At this workshop, both Carharts spoke of the importance of the abortion patient “owning her decision,” that is she must enter the abortion experience with both knowledge and acceptance of what she is doing. Similar to many other providers whom I have interviewed, the Carharts ask each of their patients to fill out a questionnaire, asking such questions as “Whose decision was it for you to have an abortion?”  Patients are also asked to circle words that best describe how they are feeling about their abortion and how they anticipate feeling afterwards. The small number of patients whose answers raise red flags to staff are given additional counseling, and are often sent home to further consider their options. As Dr. Carhart said, of a hypothetical patient who displays a worrisome levels of ambivalence, “She doesn’t have to decide today.”  Most of those who are sent home by the Carharts and urged to think more about their abortion decision return later to the clinic; some don’t.

Whether this ridiculous law is upheld or not, the Women’s Health Protection Act like similarly extreme laws passed recently in various states, serves useful functions for the antiabortion movement.  Such laws, we can reasonably assume, exert a chilling effect on some young physicians who contemplate offering abortion care. One of these laws, it’s proponents fervently hope, may reach the Supreme Court and possibly become a vehicle to reconsider Roe. But even if they are ultimately overturned, these kinds of laws reaffirm to the general public the controversy and stigma surrounding abortion.  Furthermore, laws such as the Nebraska one  help reinforce untruths about abortion, such as the validity of post-abortion syndrome. One thing is clear—its name notwithstanding, this law does nothing to protect women’s health.

News Sexual Health

State with Nation’s Highest Chlamydia Rate Enacts New Restrictions on Sex Ed

Nicole Knight Shine

By requiring sexual education instructors to be certified teachers, the Alaska legislature is targeting Planned Parenthood, which is the largest nonprofit provider of such educational services in the state.

Alaska is imposing a new hurdle on comprehensive sexual health education with a law restricting schools to only hiring certificated school teachers to teach or supervise sex ed classes.

The broad and controversial education bill, HB 156, became law Thursday night without the signature of Gov. Bill Walker, a former Republican who switched his party affiliation to Independent in 2014. HB 156 requires school boards to vet and approve sex ed materials and instructors, making sex ed the “most scrutinized subject in the state,” according to reproductive health advocates.

Republicans hold large majorities in both chambers of Alaska’s legislature.

Championing the restrictions was state Sen. Mike Dunleavy (R-Wasilla), who called sexuality a “new concept” during a Senate Education Committee meeting in April. Dunleavy added the restrictions to HB 156 after the failure of an earlier measure that barred abortion providers—meaning Planned Parenthood—from teaching sex ed.

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Dunleavy has long targeted Planned Parenthood, the state’s largest nonprofit provider of sexual health education, calling its instruction “indoctrination.”

Meanwhile, advocates argue that evidence-based health education is sorely needed in a state that reported 787.5 cases of chlamydia per 100,000 people in 2014—the nation’s highest rate, according to the Centers for Disease Control and Prevention’s Surveillance Survey for that year.

Alaska’s teen pregnancy rate is higher than the national average.

The governor in a statement described his decision as a “very close call.”

“Given that this bill will have a broad and wide-ranging effect on education statewide, I have decided to allow HB 156 to become law without my signature,” Walker said.

Teachers, parents, and advocates had urged Walker to veto HB 156. Alaska’s 2016 Teacher of the Year, Amy Jo Meiners, took to Twitter following Walker’s announcement, writing, as reported by Juneau Empire, “This will cause such a burden on teachers [and] our partners in health education, including parents [and] health [professionals].”

An Anchorage parent and grandparent described her opposition to the bill in an op-ed, writing, “There is no doubt that HB 156 is designed to make it harder to access real sexual health education …. Although our state faces its largest budget crisis in history, certain members of the Legislature spent a lot of time worrying that teenagers are receiving information about their own bodies.”

Jessica Cler, Alaska public affairs manager with Planned Parenthood Votes Northwest and Hawaii, called Walker’s decision a “crushing blow for comprehensive and medically accurate sexual health education” in a statement.

She added that Walker’s “lack of action today has put the education of thousands of teens in Alaska at risk. This is designed to do one thing: Block students from accessing the sex education they need on safe sex and healthy relationships.”

The law follows the 2016 Legislative Round-up released this week by advocacy group Sexuality Information and Education Council of the United States. The report found that 63 percent of bills this year sought to improve sex ed, but more than a quarter undermined student rights or the quality of instruction by various means, including “promoting misinformation and an anti-abortion agenda.”

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.