Investigations Abortion

Exclusive: Results of Congressional ‘Fishing Expedition’ Show Abortion Is Already Highly Regulated, Overwhelmingly Safe

Sharona Coutts

An analysis of documents requested by two congressional committees from state departments of health and attorneys general show that states overwhelmingly share a muscular approach to regulating abortion, and there is virtually no evidence that patients are being harmed.

See other pieces from Rewire‘s State of Abortion series here.

Review the database of state documents collected and analyzed by Rewire here.

UPDATE, August 21, 4:25 p.m.: This piece has been updated to reflect the fact that Rewire has now received documents from Massachusetts’ department of health.

In May, Republican members of two congressional committees—the House Judiciary Committee and House Energy and Commerce Committee—wrote letters to the departments of health and attorneys general in all 50 states, asking for thousands of pages of information about how each state monitors and regulates abortion.

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“By now you are surely aware of the trial of Kermit Gosnell, who is charged with the serial murder of infants, the murder of a female patient, and other felonies committed in the operation of his abortion clinic in Philadelphia,” wrote committee chairman Bob Goodlatte (R-VA) and Trent Franks (R-AZ), chairman of the Subcommittee on the Constitution and Civil Justice, in the letter sent to all state attorneys general. “We are seeking to find out if state and local governments are being stymied in their efforts to protect the civil rights of newborns and their mothers by legal or financial obstacles that are within the federal government’s power to address.”

The letters from the judiciary committee were sent to the 50 state attorneys general, and focused on criminal laws and prosecutions relating to abortion. The House Energy and Commerce Committee likewise sent its letters—signed by six committee members, including chairman Fred Upton (R-MI)—to health departments in all 50 states, and sought information on regulations relevant to abortion, inspections of abortion clinics, and complaints related to abortions.

Some states reported complaints and disciplinary action related to abortion. Among them:

In Arizona, there were two complaints against abortion facilities during the period in question (2008 to 2013) and one enforcement action, which resulted in an agreement by Camelback Family Planning to pay a $2,000 fine and submit to more frequent inspections. The principal of Camelback provided Rewire with a copy of the inspection report, which noted administrative deficiencies such as failure to have written policies and procedures for certain things, like the cleaning of equipment and surfaces. There was no suggestion that the cleaning had not occurred, but rather that the clinic lacked the required written policies and procedures regarding cleaning. “It’s all administrative and paperwork,” said the clinic director. “None of this affected patients in any way.” The clinic was found to be in full compliance with state regulations in December 2012.

Two clinics in Ohio were found to have violations of an array of regulations relating to staff training, management of powerful prescription drugs, and patient oversight. As Rewire reported in July, one of those facilities has been closed, while the other paid a fine and agreed to remedial measures.

Alabama reported that two clinics had voluntarily surrendered their licenses after inspectors identified a range of serious problems, including, in one case, an alleged failure to report the suspected sexual abuse of a minor.

Pennsylvania reported that it overhauled its regulation of abortion clinics after the discovery of Kermit Gosnell’s “house of horrors,” where the rogue provider was providing dangerous and illegal abortions and murdering newborn infants. The state also referred to discipline taken against another rogue provider, Steven Brigham. As part of that overhaul, the health department issued notices of deficiency to 15 freestanding abortion clinics, but did not provide specifics on what those deficiencies were. The department said it conducted further inspections to ensure that the plans to correct those deficiencies had been remedied.

Louisiana disciplined three abortion facilities and shuttered two, though one challenged the closure and reopened within two weeks. The violations included lax oversight of controlled drugs, failures relating to administering anesthesia to patients, and, in one case, the absence of a licensed nurse. The state did not have any records of actual harm occurring to a patient as a result of these violations, and could not find any instances of a prosecution arising in cases where a woman “died or suffered a serious complication as a result of abortion.”

Massachusetts reported that one patient died as a result of an abortion in 2007. The doctor allegedly failed to monitor the patient’s airway while she was under sedation. The patient never regained consciousness after being sedated. Within six months, the physician resigned his license to practice medicine, which is considered a disciplinary action in Massachusetts, according to the response from the state’s secretary of health and human services.

Rewire has obtained responses to these letters provided by 38 of the state attorneys general, and 32 of the health departments. Together, these documents make up an extensive repository of rules, legislation, and official reports about abortion in the United States. Rewire is making those documents available for download as part of our State of Abortion tool, and will continue to post additional documents as they are received.

The responses received to date include thousands of pages of legislation and regulations on a wide range of topics that could relate to abortion. They contain definitions of “ambulatory surgical clinics,” criminal statutes addressing feticide and the failure to provide medical care to newborns, and the minutiae of how state health officials must conduct inspections of clinics where abortions are performed. Some states also provided samples of the forms, such as the surveys that clinic inspectors have to fill in as they conduct their visits of abortion facilities, as well as samples of the application forms for facilities wishing to provide abortions. As an indication of how voluminous some of these responses are, Pennsylvania’s response ran to 1,250 pages.

An analysis of these documents shows that congressional Republicans will find no support for their arguments in favor of new restrictions on abortion care in the evidence presented by the states. In particular, to the extent that anti-choice advocates claim that women are being put at risk by abortion services, these documents—from the very state entities charged with overseeing and regulating abortion—show the contrary. They show that abortion in the United States is highly regulated and overwhelmingly safe.

The answers also underscore another reality of abortion services in this country: The rules governing access and oversight are highly complex, and they vary considerably between states.

The differences are apparent, for instance, in the fact that some states have created a category of specially designated “abortion clinics,” while in the majority of states, abortions may be performed in private doctors’ offices, ambulatory surgical facilities, or hospitals, and may be regulated no differently than other types of medical procedures performed in those categories of facility.

When parsing these documents, readers need to keep these definitional differences in mind before drawing conclusions from the responses.

For instance, a state such as California—where abortions may be performed in doctors’ offices, ambulatory surgical facilities, and hospitals—will report having no abortion clinics. Clearly, what the response means is that the state simply does not use the term “abortion clinic”—not that there are no places in California that offer safe abortion care.

That difference in terminology also means that many of the questions in the congressional committees’ letters were “not applicable” to states that do not have specially designated “abortion clinics.” Obviously, if your state doesn’t have any facilities that are called “abortion clinics,” a question that asks how many times your state has inspected abortion clinics would not apply to you.

Many states did, however, provide data about abortions that were performed in other facilities—hospitals and ambulatory surgical centers, for example. As a result, these documents still present the best and most comprehensive picture to date of the reality of abortion services throughout the United States.

Some states reported specific complaints about abortion facilities or providers, but most gave scant details about the nature of the alleged problems. Not all of these complaints resulted in investigations, and even fewer were serious enough to result in disciplinary action against doctors or facilities. (See sidebar, above, for more details.)

But despite all of the differences in regulation and oversight, some common themes do emerge.

Abortion facilities are regularly inspected:

Most states said that they conduct regular inspections of abortion clinics, or of hospitals, ambulatory surgical centers, or other types of facilities where abortions can be carried out. And most states said they were aware of very few—if any—incidents of patients being harmed as a result of an abortion.

For instance, Oklahoma inspects its three abortion clinics annually, and has not imposed disciplinary proceedings on a facility in any of the years under examination—2008 to 2013. California performs thousands of inspections of medical facilities every year, including places where abortions may be performed.

Criminal prosecutions of providers are rare, but some states prosecute mothers:

Very few states reported criminal prosecutions against abortion providers, while several said they have prosecuted mothers who have been charged with killing their newborns.

For instance, Michigan reported four instances when mothers had been prosecuted for killing their newborns. South Dakota also reported two cases of mothers who had been prosecuted for killing their newborns. And of course, in two recent high-profile cases, authorities in Indiana charged Bei Bei Shuai and Purvi Patel with crimes related to allegedly causing the death of their fetus and newborn, respectively.

State records belie the claims of fetuses “born alive”:

On the issue of infants being “born alive” after a botched abortion, Pennsylvania was the only state that reported such conduct. That was in the case of Kermit Gosnell, who has been convicted of murder.

The “born-alive” fetus is a favorite theme of the anti-choice movement, which has perpetuated the claim that a large number of viable fetuses are born alive after failed second- and illegal third-trimester abortions as a way of shifting public opinion on abortion. This claim has been heavily criticized by public health experts who say this is an exceedingly rare occurrence and is in any case already covered by existing law and regulation. Nearly 90 percent of all abortions occur within the first trimester of pregnancy, the majority of these before nine weeks. In short, the vast majority of abortions in the United States occur at the embryonic stage, prior to the fetal stage. Since only a small share of all abortions are late second-trimester (after 20 weeks), and since third-trimester abortions are illegal in all but the most exceptional circumstances, it is not surprising that state records show that the myth of “born-alive” fetuses is, indeed, a myth.

The responses provided by all other states support that view. No other state that has provided its answers to Rewire found any example of so-called born-alive infants, and many provided copies of their laws that make it a crime to deny medical care to a newborn. Many states said they would treat the killing of a fetus “born alive” as homicide.

Of course, while this information provides an extensive overview of how states regulate abortion, it doesn’t necessarily paint an exhaustive view of how abortion is performed by all facilities and providers.

For instance, New Jersey is one of the states that has not yet provided Rewire with copies of its responses to the committees. Rewire has already reported on significant problems with an abortion provider whose practice is based in New Jersey. Until responses are received from all the states, it will be impossible to know whether they have uncovered additional problems.

Similarly, if a state hasn’t been inspecting facilities regularly, or has failed to enforce its regulations, there could—as in the case of Pennsylvania prior to the Gosnell scandal—be problems that have not been reported or uncovered.

Abortion services are already actively and aggressively monitored:

That said, with more than half of states responding, these documents suggest that most states actively and aggressively monitor abortion services. Mounds of paperwork await those who want to provide abortions. Application processes are not only lengthy and cumbersome, but also costly. Providers are then subject to onerous regulations and regular inspections, and when problems are identified providers face penalties and other sanctions, including the loss of the facility’s license. (For instance, Texas has fined facilities for failing to post their unique license number on their website.)

Certainly, nothing in the states’ responses suggests that they are being “stymied” in regulating abortion, as the congressmen suggested in their letter.

Rep. Franks championed the federal 20-week ban that was passed by the House in June. During that debate, he frequently made reference to the Gosnell case. This fishing expedition appears to have been designed to reel in information that could be used to justify that ban. Some Republican senators are now reportedly considering introducing their own version of the ban.

Given that abortion is regulated by the states, one might wonder whether the congressmen who sent these letters were using the specter of political interference as a ploy to justify a fishing expedition.

If that was the goal, it has not worked. Instead, the documents show that far from being “stymied,” states overwhelmingly share a muscular approach to regulating abortion, and there is virtually no evidence that patients are being harmed.

News Law and Policy

Three Crisis Pregnancy Centers Served for Breaking California Law

Nicole Knight Shine

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.

The Los Angeles City Attorney is warning three area fake clinics, commonly known as crisis pregnancy centers (CPCs), that they’re breaking a new state reproductive disclosure law and could face fines of $500 if they don’t comply.

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, advocates and the state Attorney General’s office indicate.

The office of City Attorney Mike Feuer served the notices on July 15 and July 18 to two unlicensed and one licensed clinic, a representative from the office told Rewire. The Los Angeles area facilities are Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

The law requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care, and for unlicensed centers to disclose that they are not medical facilities.

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“Our investigation revealed,” one of the letters from the city attorney warns, “that your facility failed to post the required onsite notice anywhere at your facility and that your facility failed to distribute the required notice either through a printed document or digitally.”

The centers have 30 days from the date of the letter to comply or face a $500 fine for an initial offense and $1,000 for subsequent violations.

“I think this is the first instance of a city attorney or any other authority enforcing the FACT Act, and we really admire City Attorney Mike Feuer for taking the lead,” Amy Everitt, state director of NARAL Pro-Choice California, told Rewire on Wednesday.

Feuer in May unveiled a campaign to crack down on violators, announcing that his office was “not going to wait” amid reports that some jurisdictions had chosen not to enforce the law while five separate court challenges brought by multiple fake clinics are pending.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before U.S. Court of Appeals for the Ninth Circuit.

In April, Rebecca Plevin of the local NPR affiliate KPCC found that six of eight area fake clinics were defying the FACT Act.

Although firm numbers are hard to come by, around 25 fake clinics, or CPCs, operate in Los Angeles County, according to estimates from a representative of NARAL Pro-Choice California. There are upwards of 1,200 CPCs across the country, according to their own accounting.

Last week, Rewire paid visits to the three violators: Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

Christie Kwan, a nurse manager at Pregnancy Counseling Center, declined to discuss the clinic’s noncompliance, but described their opposition to the state law as a “First Amendment concern.”

All three centers referred questions to their legal counsel, Alliance Defending Freedom (ADF), an Arizona-based nonprofit and frequent defender of discriminatory “religious liberty” laws.

Matt Bowman, senior counsel with ADF, said in an email to Rewire that forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs” and threatens their free speech rights.

“The First Amendment protects all Americans, including pro-life people, from being targeted by a government conspiring with pro-abortion activists,” Bowman said.

Rewire found that some clinics are following the law. Claris Health, which was contacted as part of Feuer’s enforcement campaign in May, includes the public notice with patient intake forms, where it’s translated into more than a dozen languages, CEO Talitha Phillips said in an email to Rewire.

Open Arms Pregnancy Center in the San Fernando Valley has posted the public notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

Even so, reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, a person who Googled “abortion clinic” might be directed to a fake clinic, or CPC.

Oakland last week became the second U.S. city to ban false advertising by facilities that city leaders described as “fronts for anti-abortion activists.” San Francisco passed a similar ordinance in 2011.

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.”