By Alexa Kolbi-Molinas, Staff Attorney, ACLU Reproductive Freedom Project & Robert Doody, Executive Director, ACLU of South Dakota
“They treat us just like guinea pigs when it comes to Indian Health Services.” That’s how one woman on the Cheyenne River Sioux reservation described the birth of her second child. She is not alone. Today, the ACLU and the ACLU of South Dakota filed a Freedom of Information of Act (FOIA) lawsuit against Indian Health Services (IHS), seeking information about the provision of reproductive health care services to the women of the Cheyenne River Sioux.
For nearly a decade, the women of the Cheyenne River Sioux — most of whom depend on IHS for their health care — have had to travel at least 90 miles to Pierre, South Dakota, over poorly maintained roads, to be able to give birth at the nearest hospital with an IHS contract (the next closest hospital is 180 miles away). But even worse is the treatment they describe once they get there.
Many women report that they are being told to forgo natural labor and delivery, and instead accept medication to induce labor, either on or before their due dates, at a time selected exclusively by their doctor. They are given little or no counseling — indeed, many women say that the first time their doctor spoke to them about induction of labor was on the day they were induced. One young woman told us that shortly after learning she was to be induced, she asked her doctor to wait just one day so that her mother could be with her during the birth of her first child. Her doctor refused.
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The threat of forced inductions would at least be reduced if there was a birthing center on the reservation. However, plans to build a new hospital with a birthing center have languished for years. Last year, over $100 million dollars in federal stimulus money was dedicated to finish the project. Yet after years of waiting, the hospital is still not up and running, and these delays just prolong the wait for basic health care.
So until that birthing unit is built, the women of the Cheyenne River Sioux tribe live at least two hours away from the nearest hospital with an IHS contract. And given the choice, some of the women on the Cheyenne River Sioux reservation might choose to induce labor because the distance to the hospital is too great to risk waiting for spontaneous labor to happen at home. But a woman shouldn’t be forced into labor because of the distance between their homes and nearest hospital. Any woman in labor who lives in a major American city can get stuck in traffic, but they aren’t being routinely coerced into inducing labor just because of a the potential for a traffic jam.
The problem is that the women of the Cheyenne River Sioux tribe are not being allowed to make a choice at all; they are not being treated like adult women capable of making the decisions about their pregnancy that they feel are best for their circumstances. Instead, with essentially no alternative source of health care, they are being bullied into doing what a doctor has decided is best for them (it’s no coincidence that it happens to be very convenient for the doctor, too). No woman should be treated this way, but in light of our country’s long and unfortunate record when it comes to Indian women’s reproductive rights and autonomy, these reports are particularly alarming.
The federal government cannot continue to fail American Indian women. The ACLU sent two FOIA requests to IHS in November 2009 to obtain more information about policies around inductions and plans to build the new hospital. To date, we have not received a single document from IHS or any indication from IHS as to when we might expect to see the information. We filed this lawsuit because the status quo cannot continue. As one of the most oppressed and marginalized groups in our history the voices of American Indian women need to be heard and their rights need to be vindicated. We are proud to be with them on this journey and we demand that all women be treated with the respect and dignity that they deserve.
The next year promises to be an eventful one on the legal front—though we feel like we say that every December. After all, 2015 brought challenges to the Pregnancy Discrimination Act; a case on whether not hiring an employee because she wears a hijab is employment discrimination; the historic and successful challenge to same-sex marriage bans; the failed challenge to federal subsidies in the Affordable Care Act; and a failed attempt to gut the Fair Housing Act. Meanwhile, 2014 was the year the Roberts Court gave the green light to governments embracing prayer at civic functions; it also struck most abortion clinic buffer zones as unconstitutional in McCullen v. Coakley. And who could forget Hobby Lobby v. Burwell,the case in which the Roberts Court created a constitutional corporate right to object to contraception coverage?
Even so, 2016 is stillshaping up to be an important year for reproductive rights and justice. Some cases on the list to watch—like yet another challenge to the birth control benefit in the Affordable Care Act—we anticipated. Other cases, like the trial in Colorado of Robert Lewis Dear Jr., who is accused of launching a siege at a Planned Parenthood health-care center in Colorado Springs that killed three, injured nine, and terrorized many others, we wish were not here at all. But given the violent rhetoric targeting abortion doctors, providers, and patients that increased over the course of 2015, we can’t say we were surprised to put it there.
The Roberts Court
Whole Woman’s Health v. Cole
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Whole Woman’s Health v. Cole is the Roberts Court’s first substantive dive back into abortion-rights law since Gonzales v. Carhart, which banned so-called partial-birth abortions in 2006. But unlike Gonzales, which focused on the constitutionality of a procedure-specific abortion ban, Whole Woman’s Health v. Cole takes on the porous “undue burden” standard of 1992’s Planned Parenthood v. Casey decision by tackling just how rigorously courts should apply that standard when reviewing abortion restrictions that purport to advance patient health and safety. That makes Whole Woman’s Health v. Cole the Court case with the most potential to affect abortion rights in nearly 25 years.
Little Sisters and the Rest of the Nonprofit Contraception Cases
Another Roberts Court term brings another challenge to some portion of the Affordable Care Act. This time, the Court returns to the ACA’s birth control benefit and the question of whether the government’s process for allowing religiously affiliated nonprofits to opt out from providing health insurance plans that offer contraception is too burdensome under the federal Religious Freedom Restoration Act (RFRA). The Court consolidated seven cases filed by hospitals, nursing homes, and other kinds of businesses that are religiously run and affiliated; all object to filling out the opt-out form. The cases represent not just a test to the administration’s opt-out provision for the birth control benefit, but the strength of the majority decision in Hobby Lobby v. Burwell, which relied on the accommodation process now before the Court to rule that for-profit businesses should have a similar opt-out option available. A ruling that would allow these nonprofits to be exempted from the coverage would have enormous implications, as 10 percent of larger nonprofits have asked the Obama administration for an accommodation to the rule already.
Friedrichs v. California Teachers Association
The Roberts Court has not been kind to workers’ rights generally, making it harder for employees harassed by supervisors to sue and drastically reducing employees’ abilities to raise class-action lawsuits. This term is no exception with Friedrichs v. California Teachers Association, a case that takes on the way public employee unions are funded. Currently, if a union represents a group of workers, that company’s entire workforce, or at least a defined portion of it, pays a fee designed to compensate the union for its bargaining activities. The argument supporting these fees is that the union’s actions benefit the entire workforce—not just union members—and the fee is nominal in the face of the influence of management and corporate owners. But anti-union interests argue those fees violate the First Amendment. Should the Roberts Court agree, the result would severely limit unions’ abilities to raise money for their operations and to effectively bargain on behalf of their members. Women and people of color, who make up the majority of public employee union membership, would feel the most severe effects in this scenario.
Evenwel v. Abbott
Evenwel is the latest in a series of “representation” cases dreamed up by Edward Blum, director of the Project on Fair Representation—which was behind Shelby County v. Holder, the 2013 case that gutted the Voting Rights Act. Blum is also responsible for Fisher v. University of Texas, the case challenging the admissions policy at the University of Texas on the grounds that it discriminates against white students. Evenwel challenges “one person, one vote”; though it concerns the drawing of state senate districts in Texas, the case has potential national implications. Under the 14th Amendment, states are allocated seats in the House of Representatives by “counting the whole number of persons in each state.” States follow this process when determining their own statewide districts, carving up districts based on U.S. Census Bureau population data and irrespective of the total number of registered voters in each. The plaintiffs in Evenwel argue that by counting children, documented and undocumented immigrants, many prisoners, and other non-voters, Texas denies “eligible voters their fundamental right to an equal vote.” If they win, legislative districts would become older, whiter, more rural, and more conservative. Political power would shift from urban areas to rural areas. Our elected officials would be even older and whiter than they already are. In other words, the gains made by the civil rights era in diversifying our elected bodies would be rolled back, the same way Shelby County v. Holder rolled back the voting participation gains made by the the Voting Rights Act.
Fisher v. University of Texas
Race-based affirmative actions are again before the Roberts Court in Fisher v. University of Texas. Abigail Fisher applied to UT for admission into the undergraduate class of 2012. When UT rejected her application, she sued the university, alleging that it discriminated against her because she is white, even though of the 47 equally or “less” qualified students who were admitted over Fisher, 42 were white—only five were Black or Latino. Her case has made it up to the Roberts Court once before. The justices punted on the ultimate question of whether or not the University of Texas’ plan violated the Constitution, instead sending the case back to the conservative Fifth Circuit. After the Fifth Circuit ruled in favor of the University’s admission plan, again, conservatives ran the case back up to the Roberts Court.
During oral arguments, it became apparent that the conservative wing of the court is prepared to decimate affirmative action. Justice Scalia wondered whether admitting Black students into schools that might be too hard for them was doing them a disservice. Justice Roberts appeared frustrated that affirmative action still exists at all, and wondered what unique perspective a student of color brings to a physics class and whether diversity serves any purpose in that context. Given the Roberts Court’s palpable hostility toward any acknowledgement that race continues to be a decisive factor in the oppression of people of color in the United States, proponents of affirmative action are right to be concerned about the fate of race-conscious admissions policies at colleges and universities.
Courts of Appeals
Purvi Patel Conviction for Feticide
Purvi Patel is an Indian-American woman who in July 2013 entered an emergency room in South Bend, Indiana, while suffering heavy vaginal bleeding. She initially denied to doctors that she had been pregnant, but eventually acknowledged she had miscarried. Patel told hospital staff the fetus was stillborn and that she had placed it in a bag in a dumpster. Doctors then alerted the police, who questioned her and searched her cell phone—all while she was in the hospital and under the influence of pain medication. During the search of her cell phone, police saw a series of text messages, which prosecutors later claimed made the case Patel had attempted an illegal abortion by ordering abortion-inducting medications and taking them. Police charged Patel with felony feticide and neglect of a dependent. The feticide charge presumed the fetus was stillborn, while the neglect of a dependent charge presumed a live birth. Despite this apparent conflict, a jury convicted Patel on both counts. Patel, who has no criminal record, was ordered to serve 20 years in prison. Attorneys have appealed her case, arguing there was no evidence she took any abortion-inducing medication. Attorneys for the State of Indiana have doubled down on Patel’s prosecution and defended their case, arguing as if it is good public health policy to radically restrict contraception and abortion access in the state and then criminally prosecute women whose pregnancies end in anything other than a successful live birth.
Second-Trimester Abortions in Kansas
In 2015, Kansas became the first state to pass a ban on the most commonly used method of ending pregnancy in the second trimester, setting the stage for the next big legal showdown over specific abortion procedures. SB 95 bans dilation and evacuation (D and E) abortions—what anti-choicers like to call “dismemberment abortions”—and is based on legislation drafted by the radically anti-choice National Right to Life Committee. Oklahoma passed a similar version just one day after Kansas did, and copycat legislation has been introduced in both Missouri and South Carolina. Shortly before it was set to take effect in Kansas, reproductive rights advocates sued to block it. But instead of challenging the measure in federal court like most abortion-related challenges, advocates sued in state court, arguing the law violates Sections 1 and 2 of the Kansas Bill of Rights, which they say provide due process guaranteeing the government cannot infringe on personal liberties.
Because due process rights have been used at the federal level to protect the right to an abortion, pro-choice advocates argue the same should be the case under the Kansas Constitution. In December, the entire panel of judges on the Kansas Court of Appeals heard arguments as to whether a temporary order currently blocking the ban should be affirmed as the legal challenge proceeds. Regardless of how the court ultimately rules on the temporary order, the Kansas case is an important one to watch because it is in state court. Almost all of our abortion rights law comes from federal court challenges, but those have become increasingly hostile thanks to decades of conservative judicial appointments. State courts could, therefore, prove to be those rights’ final protectors.
Catholic Hospitals’ Refusal of Services
In 2010, a then-18 weeks pregnant Tamesha Means showed up at Mercy Health Partners in Muskegon, Michigan, in the middle of having a miscarriage. Mercy Health, a Catholic-sponsored facility, sent Means home twice, saying there was nothing it could do for her. It wasn’t until Means, a mother of three, returned to Mercy Health a third time—this time suffering from a significant infection as her miscarriage persisted untreated—that the hospital decided to treat her by offering her some aspirin for her fever. As Mercy Hospital was preparing to discharge Means once more, she started to deliver. The hospital decided at that point to admit Means and to treat her condition. Means eventually delivered a baby, who died within hours of birth.
Means sued Mercy Health, arguing that its adherence to the “Ethical and Religious Directives“—which, among other regulations, prohibit a pre-viability pregnancy termination—resulted in medical malpractice in her case. The lower court dismissed Means’ claims, ruling it did not have the power to interpret Catholic doctrine directly. Means appealed, and her case is currently before the Sixth Circuit Court of Appeals. Meanwhile, hospitals in California and Michigan face allegations similarto those in the Means case: that adherence to the directives has resulted in malpractice when treating reproductive health-care conditions. So far, courts have not taken this question of whether or not Catholic doctrine can override the medical community’s standard of care. But it is a fight they won’t be able to stay out of long, since one in nine hospital beds in this country are at a Catholic or Catholic-sponsored facility, and they appear to be turning away women in need at a pretty rapid pace.
The Legal Battle Over the Planned Parenthood Tapes
Perhaps the biggest controversy to emerge from 2015 is the video smear campaign waged against Planned Parenthood by David Daleiden and his anti-choice front group, the Center for Medical Progress (CMP). Daleiden’s months-long sting operation, which saw him infiltrate under false pretenses private meetings held by the National Abortion Federation (NAF), resulted in the release of video footage purporting to show that Planned Parenthood is in the grisly business of harvesting fetal “body parts” and profiting from their sale. This, despite the fact that there’s nothing illegal about fetal tissue donation programs and Planned Parenthood has been repeatedly cleared of wrongdoing by several state and federal investigations. Within weeks of the release of the first video, the NAF sued Daleiden and CMP in federal court. The court granted NAF’s request for an order blocking the further release of any video footage recorded at NAF’s private events. It also ordered CMP and Daleiden to turn over to NAF the names of Daleiden’s associates, accomplices, and funders. The information they gave is under protective order, but should the court decide to make that list public, we’ll find out which Republican operatives and politicians, if any, Daleiden worked with to perpetrate this deception.
Anti-Abortion Terrorism in Colorado Springs
Robert Lewis Dear Jr. is accused of opening fire at a Planned Parenthood reproductive health-care facility in late November, killing three people and injuring nine, in Colorado Springs, Colorado. He has been charged in state court with 179 felony counts, including first-degree murder. If convicted, Dear could face the death penalty. Federal prosecutors are also investigating Dear for possible violations of federal law, including the Federal Access to Clinic Entrances (FACE) Act, the federal statute that makes it a felony to target for harassment abortion clinics, doctors, patients, and staff. Dear’s charges came after a summer of escalating violent anti-choice rhetoric following the CMP’s release of its deceptively edited footage. Conservatives insist their claims about “Planned Parenthood selling baby parts” had nothing to do with the Colorado Springs shooting, despite Dear reportedly telling officers “no more baby parts” when he was arrested and calling himself a “warrior for the babies” in court. Just how much influence did conservative anti-choice rhetoric and politicking influence Dear? We’ll find out during his trial in 2016.
Anna Yocca’s Trial for Attempted Self-Induced Abortion
Police arrested Anna Yocca, a 31-year-old woman from Murfreesboro, Tennessee, in December after she allegedly tried to end her pregnancy using a coat hanger at home in her bathtub. During the attempt, Yocca began bleeding heavily and her boyfriend rushed her to the hospital, where doctors delivered a 1.5-pound baby boy. Yocca, who was approximately 24 weeks pregnant when she attempted to terminate her pregnancy, allegedly made “disturbing” statements to hospital staff, including admitting that she tried to self-abort. Her statements led a Rutherford County grand jury to indict her for attempted murder and imprison her in the Rutherford County Adult Detention Center. Should she be convicted, she faces life in prison.
The return of coat-hanger abortions is an alarming indicator of the repressive reproductive rights environment in Tennessee and around the country. Although prominent abortion opponents have claimed they are not interested in prosecuting women who try to self-induce an abortion, the increasing number of women—who include Jennie Lynn McCormack, Jennifer Ann Whalen, and the aforementioned Purvi Patel—who have been thrown in jail for allegedly doing so tells a different story. Prosecutors charged Yocca under the state’s general homicide statute, which opens the constitutional question of whether or not general homicide laws in Tennessee can be used to prosecute women who self-induce an abortion or who otherwise have a failed pregnancy outcome.
In other words, Anna Yocca is a test case for anti-choice prosecutors who want to find a legal hook to charge women who abort with murder.
There’s always something else on the horizon when it comes to reproductive autonomy. We didn’t even include the many other legal challenges to the wave of anti-choice laws passed in 2015, or the explosion of “religious liberties” claims in response to marriage equality and the expanding protection of rights for transgender people. But don’t worry, folks. It may be shaping up to be one helluva year for reproductive rights and justice in the courts, but we’ve got you covered.
"I’m not sure what the impact will be or how we would comply because the bill is written with non-medical language, and it’s not written by doctors. It’s written by politicians," Mary Kogut, president and CEO of Planned Parenthood of the St. Louis Region and Southwest Missouri, told Rewire.
Oklahoma Gov. Mary Fallin (R) signed a bill into law Monday that criminalizes a medical procedure used during second-trimester abortions and for miscarriage management.
That came weeks after Kansas Gov. Sam Brownback (R) signed similar legislation, and now reproductive rights advocates are raising serious concerns about the lasting implications of these new, radically anti-choice laws.
“With this law, Oklahoma has joined Kansas in an alarming trend toward substituting politicians’ agendas for the judgment and expertise of doctors, and then threatening those doctors with criminal charges if they disagree,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.
Targeting Specific Abortion Procedures
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The laws ban the dilation and evacuation (D and E) procedure, which is commonly used in second trimester abortion care. The procedure is a method of abortion during which a physician will dilate a woman’s cervix and remove the fetus using forceps, clamps, or other instruments. During the procedure, the fetus is usually removed in parts.
Depending upon the specific language of the law, D and E abortion bans may effectively ban all surgical abortion past 14 weeks’ gestation.
The bills, legislation drafted by the National Right to Life Committee (NRLC), redefine the D and E procedure as “dismemberment” abortion. The new laws’ graphic and medically inaccurate language describing the D and E procedure is key to NRLC’s strategy to pass similar laws in other states.
Fallin, in a statement about the abortion restriction, called the procedure “gruesome,” while a spokesperson for Brownback called the procedure “horrific.”
And Carol Tobias, president of the NRLC, told the New York Times that the Kansas law is the first of what NRLC officials hope will be many state laws banning the procedure. “This law has the power to transform the landscape of abortion policy in the United States,” Tobias said.
The legislative language and the rhetoric used by anti-choice lawmakers and activists is part of a decades-old strategy by the anti-choice movement to target specific procedures used during abortion.
Using Dishonest Language to Push Anti-Choice Proposals
More than a decade ago, anti-choice activists, using similar rhetoric, lobbied congressional leaders to ban the intact dilation and extraction abortion procedure. The so-called partial-birth abortion ban, a term also coined by the NRLC, was passed by Congress and signed into law by President George W. Bush in 2003.
Caitlin Borgmann, former state strategies coordinator for the American Civil Liberties Union’s Reproductive Freedom Project, told the Kansas City Star that the legislative language is designed to make it difficult for lawmakers to oppose the proposals.
“It’s meant to try to create an inflammatory description that people are going to read and then support the bill because their instinct is that this sounds terrible,” Borgmann said.
“This procedure is very hard to defend,” Mary Spaulding Balch, director of state legislation for the NRLC, told the Kansas City Star. “I want to talk about what happens to the unborn child during an abortion and more particularly during this type of abortion.”
While the NRLC has been increasingly referring to D and E abortion as “dismemberment abortion,” often while supporting legislation on the state and federal level to ban abortion after 20 weeks, the term has long been used by anti-choice activists.
After the 2007 U.S. Supreme Court ruling in Gonzales v. Carhart upheld the so-called partial-birth abortion ban, Cathy Ruse, a senior fellow for legal studies at the right-wing Family Research Council, used the term when discussing the possibility of banning D and E abortion.
“This Could Be a New Trend at the State Level”
Elizabeth Nash, senior state issues associate for the Guttmacher Institute, told Rewire that reproductive rights advocates have been waiting for “another shoe to drop.” The attempt to ban D and E abortion care appears to be the first new type of abortion restriction introduced by anti-choice activist since the influx of anti-choice legislation began in 2011.
“This could be a new trend at the state level,” Nash said. “It does fall right in line with some of the trends we’ve been seeing over time. From states restricting access to post-viability abortion to the trend of 20-week abortion bans.”
Some anti-choice activists say this latest abortion ban was likely after the U.S. Supreme Court upheld the so-called partial-birth abortion. “Abortion attorneys on both sides knew that this bill was the next step,” Kathy Ostrowski, legislative director of Kansans for Life, told the Kansas City Star. “It was inevitable this was coming. It was a matter of timing.”
Bills to ban the D and E procedure have also been introduced in Missouri and South Carolina, and anti-choice activists in Arkansas have said that similar legislation is likely to be introduced during the state’s next legislative session in 2017.
Reproductive rights advocates are concerned about the possibility of a ban being passed in Missouri, where state lawmakers have, in recent years, aggressively sought to restrict reproductive rights.
“I’m not sure what the impact will be or how we would comply because the bill is written with non-medical language, and it’s not written by doctors. It’s written by politicians,” Mary Kogut, president and CEO of Planned Parenthood of the St. Louis Region and Southwest Missouri, told Rewire. “Our concern is that this seems to be part of a broader strategy that is trying to ban safe and legal abortion in Missouri.”
Planned Parenthood provides reproductive health-care services at several clinics across Missouri, and operates the state’s lone clinic that provides abortion services. The clinic has been under siege by state lawmakers over the past few years, as dozens of bills have been introduced targeting the clinic in an attempt to force its closure.
“Substituting Political Decisions for Medical Decisions”
The bans on D and E abortion will almost certainly face legal challenges from reproductive rights advocacy groups. Supporters of the legislation are confident in their constitutionality, and the NRLC believes the Roberts Court would uphold the new laws.
“We believe we have five votes that would allow us to ban this particular procedure,” said the NRLC’s Mary Spaulding Balch.
Ryan Kiesel, executive director of the ACLU of Oklahoma, told Rewire that there are deep concerns about the constitutionality of the new Oklahoma law, and similar laws like it in other states.
“Any time you have politicians putting their political judgements ahead of the medical judgements and medical recommendations made by a woman’s doctor, it is deeply concerning,” Kiesel said. “The Constitution has routinely held that substituting political decisions for medical decisions is not the way that we should be practicing medicine in the United States.”
Kiesel said that the use of non-medical and often inflammatory language found in bans on D and E abortion, and many other types of anti-choice legislation, are an attempt to impose a political agenda in the practice of medicine.
“The inflammatory non-medical language isn’t an accident; it’s on purpose and very deliberate,” Kiesel said. “It underscores that these bills are not about medicine, they’re not about health care, they’re not about protecting women, they’re not about protecting children. These bills are about politics.”
The impact the D and E bans will have on reproductive health care remains to be seen, but abortion providers and women in need of abortion care in Kansas and Oklahoma will soon feel the impact. The Kansas law goes into effect July 1, and the Oklahoma law goes into effect November 1.
Physicians and health-care professionals have made their concerns known about the consequences of these bans.
A letter signed by 20 doctors opposing the ban was submitted to the chairman of the Kansas House Federal and State Affairs Committee, Steve Brunk, when lawmakers were considering the ban in the GOP-dominated Kansas legislature.
“We are alarmed at the unprecedented attempt of Kansas legislators to dictate how physicians should perform a safe, common, and evidence-based surgical procedure,” the letter said. “This bill would restrict the safest and most expeditious way to terminate a second-trimester pregnancy. … This legislation could also force physicians to provide substandard care to second-trimester abortion patients.”
Dr. Jennifer Wider, a physician who specializes in women’s health, told Yahoo Health that the D and E procedure is typically performed for miscarriage management or in abortions due to fetal deformities or a danger to the mother’s health.
“Some women opt for second trimester abortions electively, but studies show that these women tend to be younger and of lower socioeconomic groups with less access to healthcare,” Wider said.
In 2013, there were 7,479 abortions performed in the Kansas, with 89 percent performed before 12 weeks’ gestation, according to a Kansas Department of Health report. Among the 807 abortions that took place after 12 weeks, 584 were performed using D and E.
Women in those states seeking second-trimester abortions may need to undergo an alternative, nonsurgical method, during which a physician would medically-induce labor to expel the fetus and placenta. This type of abortion care is more painful and can be more dangerous for women.
Kathleen Morrell, an OB-GYN and a fellow of Physicians for Reproductive Health, told the New York Times that this type of abortion care can involve significant periods of waiting and may require access to hospital facilities.
“When it is safe to offer a choice of induction or D and E,” she said, “my patients overwhelmingly choose D and E. They are able to be asleep and comfortable for the procedure and then can go home to their own beds at night.”
“I Don’t Recall Calling My Congressman to Have Him Weigh In”
The public discussion about D and E bans has primarily consisted of political debates between lawmakers and activists. The voices of the physicians who provide abortion care and the women and families who have sought a second-trimester abortion have mostly been absent.
The public is generally supportive of allowing abortion early in pregnancy, according to Gallup. However, the majority of Americans do not support allowing abortion past the second trimester of pregnancy, despite the fact that the majority of abortions taking place later in pregnancy are due to reasons such as severe fetal anomalies.
When public opinion surveys ask about whether or not people support allowing abortion to remain legal in specific circumstances, such as when a woman’s life is in danger or when the fetus may have mental or physician disorders, there is overwhelming support for reproductive rights.
“There’s a lot of education we need to do around the need for abortion, around women’s decision making, around access,” Nash said.
“There’s lots of reasons why women end up having abortions later than 8 or 10 weeks of pregnancy,” she continued. “We have to make sure that we have services available to them, and that the public is aware of these needs and understands that we need to maintain access.”
Women who have had pregnancies terminated through the D and E procedure shared their experiences with Rewire. Some of them spoke on the condition of anonymity. All of them shared grave concerns about the consequences of these bans.
“This choice, if taken away, leads to a slippery slope for other decisions not only for women but for all Americans,” said one woman. “If we are forced to carry dying children to term, who is going to pay for the extensive medical interventions required to care for them or keep them alive? Who decides what interventions are appropriate for such children, or how far doctors should go to keep them alive?”
April Salazar, who has shared her experience having a D and E abortion with the New York Times and Mother Jones, told Rewire that she wants women to be able to choose the care that is best for them.
“I think it’s outrageous that politicians, with no medical expertise in women’s health, can outlaw medical procedures that have been proven to be safe, thereby forcing women into potentially life-threatening procedures,” Salazar said.
Julie Bindeman, a psychologist who specializes in pregnancy loss, told Rewire about her experience terminating a pregnancy through a D and E abortion. During her pregnancy the fetus showed indications of brain anomalies, and further testing confirmed that the brain was not forming normally.
Bindeman, at 18 weeks of pregnancy, had a D and E abortion performed.
“It was in a hospital with a wonderfully generous physician,” she said. “I felt cared for and safe, despite these heartbreaking circumstances.”
Bindeman echoed the statements of other reproductive rights advocates for the need for the public to understand that these abortions typically occur because of dire circumstances. “These choices are not made on a whim or lightly,” Bindeman said.
Supporters of these bills, Bindeman said, have never been in her shoes, and don’t understand that for her, abortion was a life-saving procedure that gave her the opportunity to have a family. The laws do provide a sole exception in which a D and E abortion can be performed to prevent “death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function” of the pregnant person.
“The decision was a heart-wrenching one and anything but simple,” she said. “We had the counsel of our physicians, family, and clergy. … I don’t recall calling my congressman to have him weigh in.”