News Abortion

Anti-Choice “Medical Experts” Play Increasing Role in Abortion Legislation Testimony

Robin Marty

They aren't always doctors, but they play them in your legislature.

As anti-choice state legislators introduce more and more abortion restrictions, the testimony for and against such bills is becoming increasingly important in influencing final votes. In some cases, such as the recent Indiana medication abortion law hearing, the divide between real science and anti-choice “science” is clear when anti-choicers are unable to find even one practicing medical professional to show up to defend the bill, while opponents are able to recruit numerous doctors to discuss its problems.

To combat the fact that anti-choice “science” isn’t accepted by the general medical profession, anti-choicers now are working feverishly to stack their testimonies with “experts” who engage in one-sided debates to give the appearance that they represent true mainstream medical thought. As part of his ongoing attempt to restrict abortion access to low-income women, Alaska Sen. John Coghill recently video conferenced national medical professionals to testify in a recent committee hearing; they all claimed abortion is never medically necessary and is harmful to a woman’s physical and mental health. His “experts” included Priscilla Coleman, who, along with David Reardon, is responsible for most of the studies claiming abortion is harmful for women, many of which have either been debunked or are based on self-selected biased samples; Dr. John Thorp, who works with Matercare International, a “nonprofit international organization of Catholic health professionals” and who testified against so-called partial birth abortion in 2006; and Susan Rutherford, who is most active as a “Christian physician” and spokesperson against assisted suicide in Washington state.

In a clear reminder that these people don’t actually represent mainstream medicine, Rutherford was questioned about why her belief that abortion causes cancer contradicts that of the rest of the medical profession. The Anchorage Daily News reported:

[Sen. Bill Wielechowski] asked Susan Rutherford, a maternal-fetal medicine doctor at EvergreenHealth Medical Center in Washington, whether she had written a paper linking abortion to breast cancer.

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No, she said.

Do you believe there’s a link? he asked.

“You know there’s some compelling evidence that it could be,” Rutherford said. She mentioned a pro-choice breast cancer expert who found an increased risk, particularly for women who had abortions as teens.

That contradicts the National Cancer Institute, Wielechowski said.

There are flaws in medical literature, Rutherford responded.

As the only Democrat on the committee, Wielechowski was left with the formidable challenge of rebuking all of the experts during the hearing. Medical experts testifying against new rules about what constitutes a “medically necessary abortion” will not be heard until Monday, a ploy that will allow the legislative record to appear to give equal weight to both sides of the issue, despite the fact that one argument is waged by a handful of religious medical professionals and the other supported by facts and the medical establishment.

The anti-choice movement has become highly adept at managing the public record through a variety of means, regardless of how far in the minority their medical experts are. In New York state, where anti-choice advocates are fighting a rare case of legislators trying to reaffirm reproductive rights access, an unnamed faith-based doctor’s group has been positioning itself as speaking for all doctors in opposition of Gov. Andrew Cuomo’s Reproductive Health Act. According to NBC News, members of the group who spoke out against the proposal at a press conference were “doctors of different faiths who deliver babies and work with women after abortions, [and who] said its opposition to the governor’s bill is based on medical experience, not their religious beliefs.” Yet the speakers’ backgrounds contradict the claim that there is no religious agenda at play—from Dr. Miriam Grossman’s fixation on abstinence until marriage and traditional gender roles to Dr. Anne Nolte’s work at the National Gianna Center for Women’s Health and Fertility, a family planning and alternative infertility clinic that follows the “ethical and religious directives for Catholic health-care services.”

How “medically sound” are these doctors’ beliefs? Nolte told the National Review Online that when it comes to a later abortion, it is probably safer for a woman to undergo an unnecessary cesarean section to potentially save the fetus than to have the abortion. “The risk of physical complications from a surgical abortion increases, the later in pregnancy that these procedures are performed. If the ‘termination’ of a pregnancy after 24 weeks is required to protect a woman’s health, this can be accomplished by inducing labor or performing a c-section—options that are safer than late-term abortion when a woman’s life or health is truly at risk and that preserve the life of the infant,” she told NRO’s Kathryn Jean Lopez.

Missing from Nolte’s analysis isn’t just the risks that come from any surgery, especially when it may not be necessary, but the additional risks that could come from future pregnancies and surgeries due to having a prior c-section.

These are the voices of medical “experts” disagreeing publicly with the standards of care that the vast majority of health professionals follow. Whether women or families wish to follow their medical advice or directives is a choice that should be left up to them. But to allow them to not only have equal weight when it comes to discussing issues surrounding a woman’s health, but create and support legislative bills that will enforce their beliefs on all medical practitioners and their patients isn’t “allowing both sides to be heard.” It is enforcing religious beliefs contrary to medical best practices.

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

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Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.

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.