News Abortion

UPDATED: Kansas Lawmakers Seeking to Protect the Health of Women? A Crock of You Know What If Ever There Was One

Jodi Jacobson

In imposing new and medically unnecessary regulations on providers of abortion care, Kansas lawmakers claim they are just interested in "protecting the health of women."  Instead, what they are doing is ensuring more women face greater health risks.

UPDATE:  On Friday, July 1, 2011 a federal judge granted an injunction preventing the Kansas TRAP law from going into effect.  More about that here.

Among the many Orwellian tactics used by the extreme right now dominating the legislatures of so many states is to claim that, in persistently restricting access to reproductive health care, they are “protecting women,” when in reality they are progressively endangering the health and lives of their female constituents.

Such is the case with regulations passed by the Kansas legislature and signed into law by virulent anti-choice Kansas Governor Sam Brownback.  As of this morning, because of efforts to “protect women,” only one of three providers of abortion care in Kansas remains open (a Planned Parenthood affiliate), while two others have gone to court to challenge new, burdensome and unnecessary regulations meant in reality not to improve access to or the saftey of care, but to close them down.

First, the facts, which seemingly are so irrelevant to lawmakers today. 

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More than 90 percent of abortions occur in the first trimester of pregnancy.  Legal, early surgical termination of pregnancy performed by a trained provider is among the safest possible surgical procedures of any kind, anywhere.  Early medical abortion (using medications to end a pregnancy) has a similar safety profile. Less than 3 percent of women who undergo early termination of pregnancy report any complications whatsoever; the vast majority of those “complications” are issues so minor they can be handled in a medical office or clinic.  Fewer than 0.5 percent of women have serious complications from early termination that require hospitalization or surgery.

By comparison, rates of complications from tooth extraction can be as high as six percent.  Complications from having a first-trimester aspiration abortion are considerably less frequent and less serious than those associated with giving birth.  Indeed, complications of safe abortion are considerably less than pregnancy itself, though I don’t see anyone pushing to ban that.

Still, in May, the Kansas Legislature passed a law requiring abortion facilities to be licensed under a new licensing scheme and to meet a number of unnecessary, burdensome requirements which do nothing to protect the health and safety of patients. Then, “[o]n June 17th,” notes Peter Brownlie of Comprehensive Health of Planned Parenthood Kansas and Mid-Missouri (CHKMM), “the Kansas Department of Health and Environment issued draft temporary regulations, which include[d] requirements which are not only unnecessary, but also go well beyond the standard of care.”

It is blatantly obvious that the real agenda is to limit women’s access to abortion, which by extension immediately makes it less safe.  In the case where a woman has decided she can not–for whatever her own reasons–carry a pregnancy to term, the safest thing to do is to seek termination as early as possible.  Superfluous regulations put in place to delay or deter women from obtaining abortions–along with stigma, discrimination, and clinic harassment–only push them later.  The later a termination is performed, the more risks are involved.  While second trimester abortions are both relatively rare and relatively safe, especially early on in that phase, they involve higher risks than do first trimester abortions. 

But causing delays and obstacles are what Kansas legislators are all about.

About 8,000 women a year seek abortions in Kansas and, according to TIME magazine, the Planned Parenthood clinic performed about 5,000 abortions last year, while two other providers handled 3,000. “That likely includes a large number of patients from across the state line,” writes Karen Ball, “where Missouri already has tough restrictions in place and there are no clinics in the urban core.”  The fact that women in Missouri have to travel to another state is proof-positive of the delays incurred by restrictive laws and policies.

Kansas legislators are so concerned with the safety of these women that they are requiring clinics to comply with what medical experts have noted are “hastily drafted, constantly changing, unnecessary and burdensome requirements,” or face criminal penalties for performing abortions.  In reality, they are seeking to close down all clinics and medical offices providing abortion care by dictating, for example, the square footage of janitors’ closets, the size of staff dressing rooms and the size of patient lockers.  They are requiring that clinics be prepared to deal with a “live birth,” a completely superfluous and misleading regulation because no abortions performed in these clinics are done near viability. So if your medical office has safe equipment, trained personnel, and doctors on hand experienced in providing abortion care it does not matter, because if the janitor’s closet is a foot “too small” under these laws (too small for what?  I don’t know…), you are no longer qualified to perform abortions.

Let’s be very clear: None, absolutely none, of these regulations has any bearing on the safety of abortion care provided in these clinics.

Dr. Herbert Hodes, who appeared last night on The Rachel Maddow show and is one of the two providers now filing suit, told Time that abortion is just one of the services he and his daughter, Dr. Traci Nauser, provide in their private Ob-Gyn practice. He delivers babies at nearby hospitals and does other procedures such as tubal ligations in his office. He said there’s no reason to mandate patient lockers — noting hospitals usually just put a patient’s belongings in a bag under the gurney when they go from pre-op to surgery to recovery.  I personally have been there and done that with my personal belongings when obtaining an abortion earlier in my life and did exactly the same thing when I had outpatient knee surgery two years ago. I don’t remember them having to measure the janitor’s closet before they operated on my knee.

“It’s a joke and a sham,” Hodes told TIME. “The only purpose is to shut down access to abortions.” He noted he complies with rules from the Kansas Board of Healing Arts and the American College of Obstetrics and Gynecologists, since “they’re realistic regulations drawn up by doctors for doctors. We all know how much legislators know about health care for women — nothing,” Hodes said.

Still, Mary Kay Culp, executive director of Kansans for Life, carried on the charade, telling Time that it was not the law’s intent to shut down abortion clinics.  Abortion providers are “putting on a show,” she said. “They’re the ones who said if you make abortion legal, we’ll keep women safe,” she said.

I repeat: Delays make abortion less, not more safe.

Still further evidence of how deeply concerned Kansas lawmakers are with women’s health and safety also came in May, when the legislature passed a budget amendment to ban Planned Parenthood from receiving Title X family planning funding solely used to provide life-saving cancer screenings, breast exams, birth control and basic family planning to low-income and uninsured Kansas women, men and teens. In other words, they are so concerned with the safety and health of women, they’d rather let them die of preventable causes than take the risk of living, or face more unintended pregnancies rather than having the means to prevent them in the first place.

That kind of concern.

“It’s disappointing that we have to spend time and money on these misguided laws,” said Brownlie in a statement.

“However, we will not stand by and allow politicians to intimidate women and create more barriers to their ability to get health care. If the Governor and his allies were serious about reducing abortion, they would focus on supporting Planned Parenthood and other family agencies in their efforts to reduce unintended pregnancy, the root cause of abortion,” said Brownlie. “Instead, Governor Brownback chose the path of expensive and unnecessary litigation for Kansas for the next year or two, wasting taxpayer money—something that could have been avoided if he and the Legislature had done what they were elected to do: focus on jobs, the economy and state spending.”

“This is radical, extreme government intrusion into private health care,” Brownlie said.

Both Drs. Hode and Nauser and Jeff Pederson of Aid to Women continue to fight in court, though as of today, Aid to Women can no longer provide abortion care.  A hearing before U.S. District Judge Carlos Murguia has been set for 3 p.m. today, in which providers argue that the these “burdensome and costly requirements that are not medically necessary or appropriate.” 

While the Planned Parenthood clinic remains open, already-limited access to abortion has now been drastically reduced in Kansas, thereby increasing the costs and delays incurred by women seeking to terminate a pregnancy.  The likely outcome is that there will be an increase in abortion migration to other states, which almost certainly will make many of these abortions later than they otherwise would have been; an increase in women seeking other and less safe means to terminate pregnancies they are desperate not to take to term; and an increase in women simply forced to bear a child they did not want, which is tantamount to reproductive slavery.  The majority of Pederson’s clients, for example, are low income or minority women who are in precarious economic conditions to begin with.  Pederson said he fears folks will go back to pre-Roe v. Wade days and seek home remedies or other means to avoid an unwanted pregnancy. “I can remember what it was like before.”

What it was like before is that women died.  That is how much the Kansas legislature and anti-choice extremists wants to ensure the safety of women.

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 (D-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.”

CORRECTION: A previous version of this article included a typo that misidentified Sen. Tim Kaine as a Republican. We regret this error.

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.