Commentary Abortion

OB-GYN: Virginia TRAP Regulations Will Compromise Patient Confidentiality and Safety

Dr. Howard Jones

The Norfolk, Virginia based reproducive health and justice pioneer believes that proposed TRAP regulations will "compromise the confidentiality of patients as well as drastically limit access to abortion care."

The following is testimony provided to Virginia Department of Health Commissioner Karen Remley by Dr. Howard Jones on Virgina’s proposed TRAP regulations.

You can find our coverage on TRAP (Targeted Regulation of Abortion Providers) regulations in various states here.

I write to you as a Virginian, a physician, and a founding member of Physicians for Reproductive Choice and Health (PRCH). PRCH is a doctor-led national advocacy organization that relies upon evidence-based medicine to promote sound reproductive health policies. I am an obstetrician-gynecologist and a co­founder of the Howard and Georgeanna Jones Institute for Reproductive Medicine at the Eastern Virginia Medical School. I have devoted my career to helping women have families. For the past 33 years, my home has been in the Norfolk area.

I am not an abortion provider, but I know that access to safe and legal abortion care is critical to the health of women. Abortion has been provided safely in Virginia for many years. Abortion is a safe medical procedure with an outstanding safety record. Serious complications arising from surgical abortions provided before 13 weeks are rare.1 Of women having abortions before 13 weeks, 97 percent report no complications; 2.5 percent have minor complications that can be handled at the medical office or clinic; and less than 0.5 percent have more serious complications that require surgical intervention and/or hospitalization.2 In the U.S., more than 90 percent of all abortions are provided in outpatient health centers.

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Nevertheless, this year the state legislature passed a law classifying health centers that provide five or more abortions per month as a type of hospital. I am very concerned that the proposed regulations would compromise the confidentiality of patients as well as drastically limit access to abortion care. I urge the State Board of Health to reconsider its approach.

The regulations proposed to implement that law do not appear to be related to improving patient outcomes. Regulations governing abortion practice should be rooted in evidence-based medicine, serve legitimate health interests, and not impede access to abortion care. The draft regulations single out abortion providers for regulation not required of other outpatient facilities providing similarly complex medical services. The draft regulations also contain several requirements that have no medical justification. My objections are explained below.

12 VAC 5-412-100 – Right of Entry – this rule would allow Department of Health (DOH) employees to enter a facility at any time, without notice. This rule should contain a requirement that all DOH employees properly identify themselves when seeking entry to an abortion facility, due to the sensitive nature of the provision of abortion care, and the targeting of abortion providers and patients for violence and harassment by anti-abortion extremists.

12 VAC 5-412-110. On-site inspection – This provision requires that any Office of Licensure and Certification (OLC) employee be given access to a health center providing abortion at any time. The rule also requires that OLC representatives be provided access to patient medical records and a list of current patients. The rules contain no safeguards for patient confidentiality.

Confidentiality is of utmost importance to the medical community and providers of abortion take confidentiality very seriously. Sadly, patients are often the targets of protesters outside of clinics and there is a history of antiabortion activists seeking patient information in order to deter those women from having abortions. I urge that an explicit requirement of confidentiality for DOH/OLC employees and contractors be instituted. Such a requirement should mandate that any identifying patient information that a DOH/OLC representative encounters or possesses be kept in the strictest of confidence. The regulation should also make clear that state employees cannot interview patients unless a patient gives their permission. Lastly, the regulation does not limit the inspection to normal business hours. This should be added since there is a penalty if a staff member is not available to provide access to patient records within an hour of an inspector’s arrival.

12 VAC 5-412-140. Governing body; and 12 VAC 5-412-150. Policy and procedures manual – these rules would give the DOH the right to ownership information and many types of facility policies and procedures, including facility security and disaster preparedness plans. A similar confidentiality requirement needs to be included here. Abortion providers have been the targets of violence and harassment, including providers in Virginia and in my hometown of Norfolk.

VAC 5-412-380. Local and state codes and standards – Abortion is a safe, commonly provided medical procedure. It is not necessary to incorporate extensive, burdensome requirements that have no bearing on patient safety in abortion care and that that will reduce or eliminate access to care. In fact, this provision is even stricter than the one that applies to hospitals in Virginia. The standards incorporated for abortion providers do not contain any exemptions for existing structures. But the regulations for Virginia hospitals designate that a similar provision only applies to new construction.4 The Board should reconsider these unjustified regulations. Alternatively, at least facilities currently providing abortion should be exempted, preventing health centers from having to close to undergo costly construction.

12 VAC 5-412-90. Allowable Variances – this provision allows for the granting of variances from specific regulations by the Department. The language seems to only allow a temporary variance and requires a showing of an “impractical hardship” unique to that health center. This language is different from that applied to hospitals. Hospitals may be granted a temporary or permanent variance where a requirement is “clearly impractical…provided safety and patient care and services are not adversely affected.5

I am deeply troubled that the draft regulations create unreasonable obstacles for health care providers trying to provide abortion care. When abortion becomes less accessible, it becomes less safe. Women may delay their care as they locate a provider, travel greater distances, or even seek the services of an unlicensed provider. In 2008, 85% of Virginia counties had no abortion provider and 54% of Virginia women lived in those counties.6 While Virginia women have the right to safe, legal abortion, in reality there are fewer facilities in Virginia that provide this essential care.7 The Department’s proposed regulations will only exacerbate this situation. Please do not undermine women’s health in the Commonwealth by instituting medically unjustified rules that will only serve to hinder access to safe, legal abortion services.

I remember the days before abortion was legal. I saw many patients who had self-induced abortions because at that time there was no legal way to end a pregnancy. I saw women who had become infected and had to be admitted to Johns Hopkins Hospital, where I worked. These patients were often extremely ill and some of them died. I fervently hope that this situation will not be repeated as it could be if legal abortion were not readily available. I particularly remember one patient, Viola who was desperately ill at the Hopkins Hospital from a self-induced abortion with a massive pelvic infection which caused her to linger for days. This will happen again if legal abortion is not readily available to those who seek it.

1. National Abortion Federation Safety of Abortion citing Elam-Evans LD, Strauss LT, Herndon J, Parker WY, Whitehead S, Berg CJ. Abortion Surveillance-United States, 1999. Morbidity and Mortality Weekly Report 2002; 51 (SS09): 1-28.

2. Id. citing Tietze C, Henshaw SK. Induced abortion: A worldwide review, 1986. Third edition. New York: Guttmacher Institute, 1996.

3. For example, John Salvi was arrested in Norfolk after opening fire at a clinic that provided abortions. John Kifner, “Anti-Abortion Killings: The Arrest: Suspect in Clinic Killings Eludes Hunt But Is Caught in 3d Attack, in Virginia”, New York Times, January 1, 1995. The day before Salvi had killed workers at a health facility in Brookline, MA. Fox Butterfield, “Man Guilty Of 2 Murders In Storming Abortion Sites,” New York Times, March 19, 1996.

4. 12 VAC 5-410-650. Guttmacher Institute, State Facts About Abortion. The number of abortion providers in Virginia declined by 13% between 2005 and 2008. Id.

5. Guttmacher Institute, State Facts About Abortion. The number of abortion providers in Virginia declined by 13% between 2005 and 2008. Id.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

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

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

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

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

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

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

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

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

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

News Abortion

Pennsylvania’s TRAP Law Could Be the Next to Go Down

Teddy Wilson

The Democrats' bill would repeal language from a measure that targets abortion clinics, forcing them to meet the standards of ambulatory surgical facilities.

A Pennsylvania lawmaker on Wednesday introduced a bill that would repeal a state law requiring abortion clinics to meet the standards of ambulatory surgical facilities (ASF). The bill comes in response to the U.S. Supreme Court’s ruling striking down a similar provision in Texas’ anti-choice omnibus law known as HB 2.

A similar so-called targeted regulation of abortion providers (TRAP) law was passed in Pennsylvania in 2011 with bipartisan majorities in both the house and state senate, and was signed into law by former Gov. Tom Corbett (R).

SB 1350, sponsored by Sen. Daylin Leach (D-Montgomery) would repeal language from Act 122 that requires abortion clinics to meet ASF regulations. The text of the bill has not yet been posted on the state’s legislative website.

The bill is co-sponsored by state Sens. Art Haywood (D-Philadelphia), Larry Farnese (D-Philadelphia), and Judy Schwank (D-Berks).

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Leach said in a statement that there has been a “nationwide attack on patients and their doctors,” but that the Supreme Court’s ruling upholds the constitutionally protected right to terminate a pregnancy.

“Abortion is a legal, Constitutionally-protected right that should be available to all women,” Leach said. “Every member of the Pennsylvania General Assembly swore an oath to support, obey and defend the Constitution of the United States, so we must act swiftly to repeal this unconstitutional requirement.”

TRAP laws, which single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to medical clinics, have been passed in several states in recent years.

However, the Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt that struck down two of the provisions in HB 2 has already had ramifications on similar laws passed in other states with GOP-held legislatures.

The Supreme Court blocked similar anti-choice laws in Wisconsin and Mississippi, and Alabama’s attorney general announced he would drop an appeal to a legal challenge of a similar law.