After a year of signing laws and regulations decried by medical professionals as unnecessary and costly intrusions into the doctor-patient relationship, Bob McDonnell has suddenly found religion on medical evidence. At least a little bit. He now says he will not sign mandatory trasn-vaginal ultrasounds into law. But he'll restrict women's rights other ways.
Today, after a week of media coverage of a bill mandating that women seeking abortion undergo medically unnecessary state-sanctioned trans-vaginal ultrasounds, Virginia Governor Bob McDonnell is now backing down. A little.
Now, however, angling for a role as Vice President in the 2012 election, watching the backlash against the far right’s efforts to politicize women’s health, and after a week of intense media scrutiny of a plan to mandate trans-vaginal ultrasounds (including by Rewire) medical evidence has suddenly become very, very important to the governor.
In a statement today, the governor said:
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“This session, the General Assembly is now considering amending [an] informed consent statute to include a requirement that any woman seeking an abortion receive an ultrasound in order to establish the gestational age for appropriate medical purposes, and to offer a woman the opportunity to voluntarily review that ultrasound prior to giving her legal informed consent to abortion.
Over the past days I have discussed the specific language of the proposed legislation with other governors, physicians, attorneys, legislators, advocacy groups, and citizens. It is apparent that several amendments to the proposed legislation are needed to address various medical and legal issues which have arisen. It is clear that in the majority of cases, a routine external, transabdominal ultrasound is sufficient to meet the bills stated purpose, that is, to determine gestational age. I have come to understand that the medical practice and standard of care currently guide physicians to use other procedures to find the gestational age of the child, when abdominal ultrasounds cannot do so. Determining gestational age is essential for legal reasons, to know the trimester of the pregnancy in order to comply with the law, and for medical reasons as well.”
This, he continues:
“…having looked at the current proposal, I believe there is no need to direct by statute that further invasive ultrasound procedures be done. Mandating an invasive procedure in order to give informed consent is not a proper role for the state. No person should be directed to undergo an invasive procedure by the state, without their consent, as a precondition to another medical procedure.”
Just read this sentence again:
I have come to understand that the medical practice and standard of care currently guide physicians to use other procedures to find the gestational age of the child, when abdominal ultrasounds cannot do so.
Translation? “I have ignored the evidence to such an extent and painted myself so far into a corner that I now need to rely on medical evidence I otherwise love to ignore to save my own ass.”
Yes, Governor… providers actually do adhere to “medical practices and standards of care in providing reproductive health services.”
What took you so long?
Still, while welcome news, the governor does not go nearly far enough.
He is still recommending to the General Assembly “a series of amendments to this bill.”
“I am requesting that the General Assembly amend this bill to explicitly state that no woman in Virginia will have to undergo a transvaginal ultrasound involuntarily. I am asking the General Assembly to state in this legislation that only a transabdominal, or external, ultrasound will be required to satisfy the requirements to determine gestational age. Should a doctor determine that another form of ultrasound may be necessary to provide the necessary images and information that will be an issue for the doctor and the patient. The government will have no role in that medical decision.”
The way I read it, he’s still mandating ultrasounds, if not trans-vaginal ones. He is still using law to address a medical and public health issue long settled by experts. He is still putting up obstacles to women making decisions about their lives and their bodies, and their families.
And he still has laws on the books that contravene his new-found belief in medical standards of care and prevailing medical practices.
In short, he’s still coercing women and providers. He’s just taken the ultrasound wand “out of the picture.”
Rep. Jason Dawkins (D-Philadelphia) said during the committee hearing that lawmakers had no place inserting themselves in a conversation between a pregnant person and a doctor. "If we put certain restrictions on a woman's choice, will they start looking for that other option?" Dawkins said.
Republicans in Pennsylvania are hurrying through the legislature a bill that would severely restrict abortion care, passing the bill through committee Monday without a public hearing—three days after its introduction.
HB 1948, sponsored by Rep. Kathy Rapp (R-Warren), would criminalize a common procedure used for second-trimester abortion care and ban abortion after 20 weeks’ gestation. Pennsylvania law today bans abortion care after 24 weeks’ gestation. Rapp, co-chair of the Pennsylvania House Pro-Life Caucus, was the primary sponsor of a failed 2012 bill that would have required those seeking an abortion to undergo a forced transvaginal ultrasound.
Jeff Sheridan, press secretary for Gov. Tom Wolf (D), said in a statement Monday that the governor would veto the anti-choice measure should it reach his desk.
The bill bans so-called dismemberment abortion, targeting the dilation and evacuation (D and E) procedure that is commonly used after miscarriages and 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.
There were 32,126 abortions performed in Pennsylvania in 2014, and 2,377 of those (7.4 percent) were performed after the first 14 weeks of pregnancy, according to the state health department’s annual report.
A physician who performs the procedure would be guilty of a third-degree felony, which carries a penalty of up to seven years in prison and up to $15,000 in fines.
Susan Frietsche, senior staff attorney at the Women’s Law Project, told Rewire that anti-choice lawmakers are not using medical language, but rather political language, in their attempt to regulate the practice of medicine.
“One of the real difficulties of imprecise or vague statutes is that people who are trying to conform their conduct to be lawful don’t know what they’re supposed to do,” Frietsche said. “When you’re messing in [a] very technical and complex field of medicine and you’re a layperson, and you’re a legislature who is not a doctor, this can be a real hazardous undertaking.”
The bill includes an exception when the D and E procedure is necessary to prevent “either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.” There is no exception for rape, incest, or fetal anomaly.
Frietsche said that the exceptions in the bill are “labyrinthian and very burdensome” for physicians who provide abortion care.
The bill also carries an exception for abortion procedures that take place in a hospital. There were abortions performed at 18 hospitals and 19 non-hospital facilities during 2014, according to the state’s report.
The anti-choice Republican bill also bans the termination of a pregnancy in which the gestational age of the fetus is “at 20 or more weeks.”
The bill is set against the backdrop of a primary election, as state lawmakers campaign ahead of the April 26 vote.
Rep. Jason Dawkins (D-Philadelphia) said during the committee hearing that lawmakers had no place inserting themselves in a conversation between a pregnant person and a doctor. “If we put certain restrictions on a woman’s choice, will they start looking for that other option?” Dawkins said, reported the Associated Press.
The House Health Committee passed the measure with a vote of 16 to 10. The legislation now moves to the full state house for further action.
Why are states continuing to pass abortion restrictions based partly on erroneous theories that abortion harms women? And why are state attorneys general calling as expert witnesses some of the very people who proffered these spurious notions to state legislatures in the first place?
In October 2012, Alaska Superior Court Judge John Suddock wrote a 65-page decision affirming a state mandate that at least one parent be notified before a woman under 18 can obtain an abortion. But from the get-go, and throughout the decision, Suddock deflated anti-abortion advocates’ loudest claim: that abortion is unsafe for women.
“Hospitalizations during pregnancy occur 15 percent of the time, but are vanishingly rare for abortions,” he wrote. Further down, he added, “Modern abortion is an extraordinarily safe procedure.”
On the question of whether abortion causes mental illness—critical to the abortion-harms-women narrative—Suddock dismissed that one, too.
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“Mental illness is a constellation of subjective and objective signs and symptoms ultimately causing individual distress,” he wrote. “The illness may have genetic origins or derive from life experiences. Since the 1980’s, the majority consensus of American psychiatry is that abortion does not cause mental illness.”
Despite the court’s agreement with plaintiffs that the law in question “advances no compelling state interest in the health of minor women,” the court upheld the bulk of the law, arguing that it promotes “family involvement in a young woman’s pregnancy decision” by “the least restrictive means available.” (Plaintiffs appealed the decision, and the case is pending before the Alaska Supreme Court.)
But the court’s upfront dismissal of common but unfounded claims that abortion is a generally unsafe procedure prompts the question: Why are states continuing to pass abortion restrictions based partly on erroneous theories that abortion harms women?
And why are state attorneys general calling as expert witnesses some of the very people who proffered these spurious notions to state legislatures in the first place?
In the last few years, state legislatures have been passing abortion restrictions largely based on unfounded theories that abortion is a dangerous procedure that significantly increases women’s risk of developing breast cancer and mental health disorders, among other claims. Rewirerecently profiled several of the medical professionals and researchers who routinely peddle these largely unsupported theories, first before state legislators and then later before state and federal judges, on the taxpayers’ dime. Those profiled in our False Witnesses series have collectively received at least $657,000 from state attorneys general to help them defend abortion restrictions that, in some cases, they helped enact.
In some cases, these False Witnesses have had a clear impact on the formation of state laws.
In North Dakota, for example, the state Senate Judiciary Committee’s hearing minutes included opinions from Dr. James C. Anderson and Dr. John M. Thorp, Jr. in defense of a law that requires physicians who perform abortions in North Dakota to be licensed in that state and to obtain admitting privileges at a local hospital. (The lawsuit involving this statute was settled earlier this year.) Anderson and Thorp are routinely called by state attorneys general to deliver expert witness reports supporting these types of laws—laws that are deemed medically unnecessary by major medical organizations such as the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association. Last year both groups submitted a friend-of-the-court brief opposing a Texas anti-abortion law, wherein they asserted there is “simply no medical basis to impose a local admitting privileges requirement on abortion providers.”
Yet, as Rewire’s reporting shows, these experts’ reliability has been seriously undermined. Anderson is a family medicine emergency room physician in Richmond, Virginia, and Thorp is an obstetrician-gynecologist and a professor of obstetrics and gynecology at the University of North Carolina-Chapel Hill School of Medicine. Both are outspoken in their anti-choice views and have testified in recent years in support of various laws limiting access to abortion care. Both also have been criticized by federal judges for relying on assumptions that reflect unsupported biases against abortion. Also cited in the minutes from North Dakota’s Senate Judiciary Committee, for example, is questionable research claiming abortion causes mental illness authored by Bowling Green State University family studies professor Priscilla K. Coleman and Vincent M. Rue, an anti-abortion activist and independent legal consultant who helps state attorneys general coordinate expert witnesses to testify in favor of laws that restrict abortion.
North Dakota’s attorney general later paid Anderson, Thorp, Coleman, and Rue (through his firm, Rue & Stanford-Rue PA), as well as longtime anti-choice advocate and OB-GYN Dr. Donna J. Harrison, to help defend various laws in state and federal court, including the aforementioned admitting privileges law, between 2011 and 2014.
Georgia State University law professor Eric J. Segall told Rewire that the recent proliferation of dubious evidence being used in court to defend abortion restrictions is “problematic.”
Segall, who teaches constitutional law and the federal courts, said he believes this trend in getting anti-choice doctors and researchers to testify to abortion’s supposedly widespread health risks stems from the Supreme Court’s 1990 decision in Planned Parenthood v. Casey.
“Once the Casey decision changed the law from basically no restrictions were allowed before viability to only restrictions that cause an undue burden would be unconstitutional prior to viability, there’s been an attempt for there to be a cottage industry of experts to testify [in favor of anti-abortion legislation],” Segall said. “I think the anti-choice side will do virtually anything they can to stop abortions.”
South Dakota is another state that has relied on the testimony of some of the False Witnesses identified in our series to help pass abortion restrictions. In 2005, former state Rep. Roger Hunt (R-Brandon)—who outspokenly opposes abortion—sponsored a bill that created a legislative task force to study abortion. The task force included lawmakers, anti-abortion activists, abortion-rights supporters, and supposedly neutral members. But the majority of those on the task force openly opposed abortion rights, and the resulting report presented by the task force to the governor reflected the majority’s unsupported anti-abortion stance.
Citing oral and written presentations from False Witnesses such as Joel L. Brind, Dr. Byron C. Calhoun, Coleman, David C. Reardon, and Rue, the task force asserted that abortion was harmful to women’s physical and mental health. The final report referenced Coleman’s testimony in its unfounded claim that when a woman has an abortion her ability to reason and understand is diminished. “When a decision involves a violation of one’s conscience, regression in cognitive functioning enables women to cope with the decision,” the report reads. Based on statements collected by an anti-abortion organization and directors of so-called crisis pregnancy centers, the task force also concluded that abortion is “inherently coercive.”
Ultimately, the task force concluded, “to fully protect the rights, interests, and health of the mother and the life of her unborn child, a ban on abortions is required.”
Lawmakers, including Hunt, relied on this report to pass two abortion bans (both overturned) and a law that created a 72-hour waiting period for women seeking abortions (not including holidays and weekends) and that required women seeking abortion to first receive counseling related to coercion at crisis pregnancy centers that advocate against abortion (this counseling requirement is stilled wrapped in litigation; the rest of the law has been enacted).
Other abortion restrictions, seemingly copied by state after state (some with the help of groups such as Americans United for Life and the National Right to Life Committee, which produce model legislation seeking abortion restrictions and bans), are inevitably challenged by abortion providers and medical professionals in the state and then defended in court by some of the same so-called experts whose false testimony first supported their passage. Anderson and Thorp, for example, have testified in multiple states, including Alabama, Mississippi, North Dakota, Texas, and Wisconsin, arguing that abortion providers should have to obtain admitting privileges at a local hospital because it ensures women’s safety for what they say is an inherently dangerous procedure. These laws passed despite opposition from mainstream medical associations like ACOG and the American Medical Association.
To be sure, for many other state abortion restrictions, the specific testimonies or research papers that swayed lawmakers to sponsor or vote for specific laws are difficult to pinpoint. In our False Witnesses series, we documented several instances where these medical experts’ testimonies or research papers likely helped influence the passage of anti-choice laws. For example, Coleman’s work was cited in a sweeping Arizona law that included a host of restrictions; University of St. Thomas law professor Teresa S. Collett testified before legislatures in Idaho and Nebraska in support of 20-week abortion bans; and a statement from Calhoun was presented to West Virginia lawmakers debating a 20-week abortion ban that was later vetoed by the governor.
Easier to identify is where experts have helped defend these laws once they are challenged.
After Texas enacted last year’s omnibus HB 2—which bans abortion at 20 weeks, requires that abortion clinics be transformed into ambulatory surgical centers, requires abortion providers to obtain admitting privileges at local hospitals, and places new restrictions on medication abortions—the attorney general hired some of the aforementioned expert witnesses to help defend the law in an ongoing lawsuit. According to records from the Texas Comptroller of Public Accounts, the state has so far paid Rue’s firm more than $59,000 to consult with expert witness selection and reports and has paid Anderson and Thorp at least $24,000 and $26,000, respectively, for their work as expert witnesses. (In August, U.S. District Judge Lee Yeakel condemned the state’s apparent efforts to obscure Rue’s level of involvement in the case. Yeakel also argued that Rue’s involvement in shaping testimonies undermined the reliability of the state’s experts’ opinions.)
Judges Grow Impatient With Use of Shoddy Evidence
Yeakel and Alaska’s Suddock are not the only judges to dismiss questionable evidence presented in recent abortion-related lawsuits.
In a December 2013 opinion, Appeals Court Judge Richard Posner challenged the arguments presented by the state’s witnesses in defense of a Wisconsin law requiring abortion providers to obtain admitting privileges at local hospitals. He noted, for example, that “there is no evidence that women who have complications from an abortion recover more quickly or more completely or with less pain or discomfort if their physician has admitting privileges at the hospital to which the patient is taken for treatment of the complications,” despite the state’s assertion to the contrary. He also pointed out that “[n]o documentation of medical need” for the admitting privileges requirement was presented to the Wisconsin legislature when the law was introduced.
Another federal judge, District Court Judge Myron H. Thompson, in an October 2014 supplemental opinion concerning a constitutional challenge to an Alabama admitting privileges law, explained why he discounted certain testimony from Anderson and Thorp. In Anderson’s case, Thompson wrote that the court “was struck by the flimsiness of Anderson’s basis for reliance on [Vincent] Rue and by his failure to obtain basic information about the affiliations, credentials, or employment of the consultant whose report he submitted as his own.” Regarding Thorp, Thompson wrote that the North Carolina-based OB-GYN “displayed a disturbing apathy toward the accuracy of his testimony” and that “choices that he made in developing his estimates [of abortion complications] seemed to be driven more by a bias against abortion and a desire to inflate complication rates than by a true desire to reach an accurate estimate of the dangerousness of abortion procedures.”
The judge additionally called out Thorp for hypocrisy in his assertion that doctors who perform abortions should provide “continuity of care” to their patients.
“[E]ven though the procedures he performs at his own office may, like abortion, in extremely rare cases cause complications that require post-procedure hysterectomy or laparatomy, he himself does not maintain staff privileges at a local hospital that would allow him to perform gynecological surgery for his patients,” Thompson wrote of Thorp.
Eric Segall told Rewire that he has never seen as much resistance as he has of late from lower court judges toward the use of shoddy evidence in defense of what he believes are politically motivated but medically unnecessary abortion restrictions.
“With the recent spate of decisions by lower court judges in Alabama, by Judge Posner in Wisconsin, by the lower court judge in Texas, I think we’re seeing judicial hostility towards the lack of real evidence supporting both the admitting privileges laws and the abortion-clinics-have-to-be-mini-hospital laws that I’ve not experienced in my career following the Supreme Court,” Segall said.
Segall, who supports abortion rights, said it is noteworthy that various lower court judges—including Posner, who was appointed by President Ronald Reagan to the U.S. Court of Appeals for the Seventh Circuit—are growing tired of what they’re seeing as unsupported, biased notions masquerading as scientific fact.
“This whole thing is a charade,” Segall said. “Admitting privileges laws don’t help women’s health, yet lawyers are saying that it does, legislators are saying that it does, and judges are very impatient with that dishonesty. There’s no evidence. So, I think that’s the hostility; I don’t think it’s an abortion-specific thing, certainly not for Judge Posner. I think it’s, ‘Why are states and lawyers for the states trying to put one over on us?’”
Visit Rewire Data to learn about connections between the False Witnesses we profiled and recently passed abortion restrictions.