News Abortion

In 2013, Expect “Super-Sized” Versions of Last Year’s Bills: The Forced 72-Hour Waiting Period

Robin Marty

The combination of focus on so-called "mother's health" laws and a desire to become more radical 40 years after abortion has been legalized in all 50 states will cause anti-choice politicians to go to extremes this legislative session.

Editor’s Note: This article was corrected at 12:00 central January 10th to correct an error. The author stated that Alabama has one clinic. The piece should have stated that Arkansas only has one surgical clinic, not Alabama.

From 2010 to 2012, there was a surge of legislation in states hostile to abortion rights, all of which originated with “model legislation” from anti-choice advocacy groups like Americans United for Life, the Susan B. Anthony List, and the National Right to Life Committee. Now that the dust has settled, we are about to enter a 2013 legislative session with a country divided into pockets of states run by anti-choice legislatures and states where abortion is more easily accessible. The number of proposed abortion restrictions has declined from its high point in 2010, but still represents a clear and aggressive campaign to block a woman from easily accessing safe abortion care, not to mention other reproductive health services.

With President Barack Obama beginning a second term in office and the 40th anniversary of Roe v. Wade around the corner, anti-choice activists will be seeking newer, more extreme ways to enforce their beliefs on women in the states that they can still control. Abortion opponents have already sought to frame their restrictions as “women’s safety measures,” serving the two-pronged attack of supporting their claim that they are trying to protect women just as much as they are hoping to end abortion, as well as adding an additional cushion to any challenge against the constitutionality of the law, since a key component of the Planned Parenthood v. Casey decision said that women’s health should be a factor when restricting the procedure.

The early indications from across many states is that in 2013, we will see a lot of the same old bills in new states. According to Elizabeth Nash, State Issues Manager for the Guttmacher Institute, the legislative proposals so far look mostly like repeats. “It still looks like we will see the same issues that were in play in 2012 such as 20 week bans, restrictions on medication abortion, clinic regulations and abortion coverage restrictions, along with counseling, waiting periods and ultrasound provisions,” Nash told Rewire via email.

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Nash admitted that bills in the past have become so extreme, she wouldn’t be surprised if something new came out of the woodwork. But perhaps the bills we should be prepared for aren’t going to be “new,” but instead super-sized versions of the ones that are already in place.

Passing more extreme versions of current legislation may be the easiest way for anti-choice politicians to continue restricting abortion without incurring wrath from an electorate that has grown tired of their anti-women bills. After all, if the state already has agreed to one version of a law as being necessary to protect women, why not a more dramatic version of the same bill?

Most likely to be turned into a super-sized restriction in 2013? The forced waiting period. According to Guttmacher, 26 states have forced waiting periods, all but two of them 24 hours long (Indiana is 18, Utah 72). It is Utah’s forced 72-hour waiting period that is the most worrisome, especially as Planned Parenthood Minnesota, South Dakota and North Dakota recently decided to not challenge that portion of the new restrictions passed in 2011 as part of the mandatory crisis pregnancy center counseling bill.

The decision to drop the challenge on the 72-hour forced waiting period was made in an attempt to focus greater efforts on opposing the crisis pregnancy center counseling rule, but it sets an uncomfortable precedent for other states. With South Dakota no longer fighting it as an “undue burden,” it opens the door for new states to propose the same lengthy period, either as a new forced waiting period or by extending one already in effect.

With 87 percent of counties lacking an abortion provider, the spread of 72-hour waits could be a devastating blow to access, especially for women in rural areas. Abortion will inevitably become more expensive, occur later in pregnancy where it can increase complications, and force some women to give birth against their wishes.

That waiting periods of some kind are about to be proposed somewhere is without a doubt. The National Right to Life Committee is suddenly and inexplicably citing a study that was published six years earlier stating that forced waiting periods decrease the suicide rate in states that have them in place—a claim completely unsupported by any evidence or data in the study, which doesn’t even use the number of women having abortions in a given state as a point of data for the analysis. NRLC writes:

In the study “Mandatory Waiting Periods for Abortions and Female Mental Health” by Jonathan Klick, it was determined that the suicide rate of women between 25 – 64 dropped by 10% in states where waiting period and counseling (informed consent) legislation was passed. When adjusted for other factors, the number increased to 30%.

The study came to the following conclusion:

“It would appear as though waiting periods (and the counseling that usually accompanies them) induce a more reasoned approach to the abortion decision, avoiding rash decisions on the part of the pregnant women. Better decision-making processes presumably lead to fewer regrets later on, lowering the incidence of depression and, ultimately, suicide. These results suggest mandatory waiting periods represent public policies that generate large welfare gains for women faced with unwanted pregnancies.”

Although it supplies soundbites claiming otherwise, the full study isn’t exactly definitive when it comes to supporting its own conclusions (and even provides a small section questioning whether denying Medicaid coverage for abortions might increase suicide as well), NRLC is promoting it no doubt as a way to argue that forced waiting periods are in fact a way of protecting women’s health.

That’s quite a stretch says Dr. Tracy Weitz, Associate Professor and Director of the Advancing New Standards in Reproductive Health (ANSIRH) at the University of California, San Francisco (UCSF), who called the study an “analytical disaster” in an interview with Rewire. “It’s looking at huge levels of data and saying that these two things happened in the same state, therefore they must be because of this. No, there is no evidence that waiting periods do what they say they think they do.”

According to Weitz, waiting periods overall have no big effect on anything, other than possibly causing a delay of up to a week. At least, not for the general population. Where they can have adverse effects are on specific populations—rural, poor—who already have difficultly accessing the procedure.

Weitz pointed to the results of ANSIRH’s Turnaway study, which shows that for lower-income women and women in rural areas with low clinic access, obtaining a termination becomes burdensome to the point where for some women it is downright unfeasible. In fact, some women who wish not to bear a child will not be able to access safe abortion care at all.

Weitz recounted some interviews with women who have had difficulty accessing abortion even without a forced waiting period because of travel issues, cost and other circumstances. They eventually obtained a termination, but only because they only had to make one trip to the clinic. “When we’ve asked them before a waiting period went into effect if the waiting period would have stopped them from getting an abortion, there are some women who say, ‘Yes, I would not have been able to get an abortion if I needed to come more than once,'” said Weitz.

In fact, when it comes to protecting women’s health, providing more and easier abortion access is key to both physical and emotional well-being. “When women face a number of barriers and then are not able to get their abortion, not getting an abortion that you wanted has physcial and socio-economic reprucussions.

“As long as we allow them to argue that health is a factor, we ignore women’s autonomy,” said Weitz. “Even if it were proven to be unhealthy, does that justify making a woman’s decision for her. We make all sorts of bad decisions throughout our lives. We all have a lot of regrets in our lives. We don’t expect the state to protect us from them for us.”

We may not expect states to save us from “bad decisions” under the guise of protection, but multiple states are poised to do just that. A 72-hour forced wait in North Dakota or Arkansas, where there is only one provider, could be extremely burdensome, but less obvious candidates are Texas, whose legislators have never met a restriction they didn’t love, or Alaska, which could make getting an abortion completely unobtainable for a woman who lives outside the major metro areas—that is, unless she has thousands of dollars for airfair and hotel expenses.

Many state legislatures being beginning to convene for their 2013 legislative sessions. There is no question that more restrictions are on the way. The only question is will the bills be regular, or super-sized?

News Health Systems

Complaint: Citing Catholic Rules, Doctor Turns Away Bleeding Woman With Dislodged IUD

Amy Littlefield

“It felt heartbreaking,” said Melanie Jones. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

Melanie Jones arrived for her doctor’s appointment bleeding and in pain. Jones, 28, who lives in the Chicago area, had slipped in her bathroom, and suspected the fall had dislodged her copper intrauterine device (IUD).

Her doctor confirmed the IUD was dislodged and had to be removed. But the doctor said she would be unable to remove the IUD, citing Catholic restrictions followed by Mercy Hospital and Medical Center and providers within its system.

“I think my first feeling was shock,” Jones told Rewire in an interview. “I thought that eventually they were going to recognize that my health was the top priority.”

The doctor left Jones to confer with colleagues, before returning to confirm that her “hands [were] tied,” according to two complaints filed by the ACLU of Illinois. Not only could she not help her, the doctor said, but no one in Jones’ health insurance network could remove the IUD, because all of them followed similar restrictions. Mercy, like many Catholic providers, follows directives issued by the U.S. Conference of Catholic Bishops that restrict access to an array of services, including abortion care, tubal ligations, and contraception.

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Some Catholic providers may get around the rules by purporting to prescribe hormonal contraception for acne or heavy periods, rather than for birth control, but in the case of copper IUDs, there is no such pretext available.

“She told Ms. Jones that that process [of switching networks] would take her a month, and that she should feel fortunate because sometimes switching networks takes up to six months or even a year,” the ACLU of Illinois wrote in a pair of complaints filed in late June.

Jones hadn’t even realized her health-care network was Catholic.

Mercy has about nine off-site locations in the Chicago area, including the Dearborn Station office Jones visited, said Eric Rhodes, senior vice president of administrative and professional services. It is part of Trinity Health, one of the largest Catholic health systems in the country.

The ACLU and ACLU of Michigan sued Trinity last year for its “repeated and systematic failure to provide women suffering pregnancy complications with appropriate emergency abortions as required by federal law.” The lawsuit was dismissed but the ACLU has asked for reconsideration.

In a written statement to Rewire, Mercy said, “Generally, our protocol in caring for a woman with a dislodged or troublesome IUD is to offer to remove it.”

Rhodes said Mercy was reviewing its education process on Catholic directives for physicians and residents.

“That act [of removing an IUD] in itself does not violate the directives,” Marty Folan, Mercy’s director of mission integration, told Rewire.

The number of acute care hospitals that are Catholic owned or affiliated has grown by 22 percent over the past 15 years, according to MergerWatch, with one in every six acute care hospital beds now in a Catholic owned or affiliated facility. Women in such hospitals have been turned away while miscarrying and denied tubal ligations.

“We think that people should be aware that they may face limitations on the kind of care they can receive when they go to the doctor based on religious restrictions,” said Lorie Chaiten, director of the women’s and reproductive rights project of the ACLU of Illinois, in a phone interview with Rewire. “It’s really important that the public understand that this is going on and it is going on in a widespread fashion so that people can take whatever steps they need to do to protect themselves.”

Jones left her doctor’s office, still in pain and bleeding. Her options were limited. She couldn’t afford a $1,000 trip to the emergency room, and an urgent care facility was out of the question since her Blue Cross Blue Shield of Illinois insurance policy would only cover treatment within her network—and she had just been told that her entire network followed Catholic restrictions.

Jones, on the advice of a friend, contacted the ACLU of Illinois. Attorneys there advised Jones to call her insurance company and demand they expedite her network change. After five hours of phone calls, Jones was able to see a doctor who removed her IUD, five days after her initial appointment and almost two weeks after she fell in the bathroom.

Before the IUD was removed, Jones suffered from cramps she compared to those she felt after the IUD was first placed, severe enough that she medicated herself to cope with the pain.

She experienced another feeling after being turned away: stigma.

“It felt heartbreaking,” Jones told Rewire. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

The ACLU of Illinois has filed two complaints in Jones’ case: one before the Illinois Department of Human Rights and another with the U.S. Department of Health and Human Services Office for Civil Rights under the anti-discrimination provision of the Affordable Care Act. Chaiten said it’s clear Jones was discriminated against because of her gender.

“We don’t know what Mercy’s policies are, but I would find it hard to believe that if there were a man who was suffering complications from a vasectomy and came to the emergency room, that they would turn him away,” Chaiten said. “This the equivalent of that, right, this is a woman who had an IUD, and because they couldn’t pretend the purpose of the IUD was something other than pregnancy prevention, they told her, ‘We can’t help you.’”

News Human Rights

What’s Driving Women’s Skyrocketing Incarceration Rates?

Michelle D. Anderson

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

Local court and law enforcement systems in small counties throughout the United States are increasingly using jails to warehouse underserved Black and Latina women.

The Vera Institute of Justice, a national policy and research organization, and the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge initiative, released a study last week showing that the number of women in jails based in communities with 250,000 residents or fewer in 2014 had grown 31-fold since 1970, when most county jails lacked a single woman resident.

By comparison, the number of women in jails nationwide had jumped 14-fold since 1970. Historically, jails were designed to hold people not yet convicted of a crime or people serving terms of one year or less, but they are increasingly housing poor women who can’t afford bail.

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

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Overlooked: Women and Jails in an Era of Reform,” calls attention to jail incarceration rates for women in small counties, where rates increased from 79 per 100,000 women to 140 per 100,000 women, compared to large counties, where rates dropped from 76 to 71 per 100,000 women.

The near 50-page report further highlights that families of color, who are already disproportionately affected by economic injustice, poor access to health care, and lack of access to affordable housing, were most negatively affected by the epidemic.

An overwhelming percentage of women in jail, the study showed, were more likely to be survivors of violence and trauma, and have alarming rates of mental illness and substance use problems.

“Overlooked” concluded that jails should be used a last resort to manage women deemed dangerous to others or considered a flight risk.

Elizabeth Swavola, a co-author of “Overlooked” and a senior program associate at the Vera Institute, told Rewire that smaller regions tend to lack resources to address underlying societal factors that often lead women into the jail system.

County officials often draft budgets mainly dedicated to running local jails and law enforcement and can’t or don’t allocate funds for behavioral, employment, and educational programs that could strengthen underserved women and their families.

“Smaller counties become dependent on the jail to deal with the issues,” Swavola said, adding that current trends among women deserves far more inquiry than it has received.

Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute, said in “Overlooked” that the study underscored the need for more data that could contribute to “evidence-based analysis and policymaking.”

“Overlooked” relies on several studies and reports, including a previous Vera Institute study on jail misuse, FBI statistics, and Rewire’s investigation on incarcerated women, which examined addiction, parental rights, and reproductive issues.

“Overlooked” authors highlight the “unique” challenges and disadvantages women face in jails.

Women-specific issues include strained access to menstrual hygiene products, abortion care, and contraceptive care, postpartum separation, and shackling, which can harm the pregnant person and fetus by applying “dangerous levels of pressure, and restriction of circulation and fetal movement.”

And while women are more likely to fare better in pre-trail proceedings and receive low bail amounts, the study authors said they are more likely to leave the jail system in worse condition because they are more economically disadvantaged.

The report noted that 60 percent of women housed in jails lacked full-time employment prior to their arrest compared to 40 percent of men. Nearly half of all single Black and Latina women have zero or negative net wealth, “Overlooked” authors said.

This means that costs associated with their arrest and release—such as nonrefundable fees charged by bail bond companies and electronic monitoring fees incurred by women released on pretrial supervision—coupled with cash bail, can devastate women and their families, trapping them in jail or even leading them back to correctional institutions following their release.

For example, the authors noted that 36 percent of women detained in a pretrial unit in Massachusetts in 2012 were there because they could not afford bail amounts of less than $500.

The “Overlooked” report highlighted that women in jails are more likely to be mothers, usually leading single-parent households and ultimately facing serious threats to their parental rights.

“That stress affects the entire family and community,” Swavola said.

Citing a Corrections Today study focused on Cook County, Illinois, the authors said incarcerated women with children in foster care were less likely to be reunited with their children than non-incarcerated women with children in foster care.

The sexual abuse and mental health issues faced by women in jails often contribute to further trauma, the authors noted, because women are subjected to body searches and supervision from male prison employees.

“Their experience hurts their prospects of recovering from that,” Swavola said.

And the way survivors might respond to perceived sexual threats—by fighting or attempting to escape—can lead to punishment, especially when jail leaders cannot detect or properly respond to trauma, Swavola and her peers said.

The authors recommend jurisdictions develop gender-responsive policies and other solutions that can help keep women out of jails.

In New York City, police take people arrested for certain non-felony offenses to a precinct, where they receive a desk appearance ticket, or DAT, along with instructions “to appear in court at a later date rather than remaining in custody.”

Andrea James, founder of Families for Justice As Healing and a leader within the National Council For Incarcerated and Formerly Incarcerated Women and Girls, said in an interview with Rewire that solutions must go beyond allowing women to escape police custody and return home to communities that are often fragmented, unhealthy, and dangerous.

Underserved women, James said, need access to healing, transformative environments. She cited as an example the Brookview House, which helps women overcome addiction, untreated trauma, and homelessness.

James, who has advocated against the criminalization of drug use and prostitution, as well as the injustices faced by those in poverty, said the problem of jail misuse could benefit from the insight of real experts on the issue: women and girls who have been incarcerated.

These women and youth, she said, could help researchers better understand the “experiences that brought them to the bunk.”


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