Investigations Abortion

West Virginia AG Continues Quest for Abortion Restrictions, Despite Lack of Evidence

Sharona Coutts

Given the anticipated push for anti-choice laws in the state’s 2014 legislative session, it’s worth carefully examining Attorney General Patrick Morrisey’s claims about the regulation of abortion providers alongside what the evidence says—and doesn’t say—about the safety of abortion services in the Mountain State.

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

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

Of the big political issues this year, the battle over reproductive rights has been one of the most bitter. A long list of conservative state legislatures have introduced or passed laws that are expected to lead to the closure of dozens of abortion clinics. These laws have been passed despite a lack of evidence to support them.

So when West Virginia’s proudly anti-choice attorney general, Patrick Morrisey, announced in June that he was investigating abortion regulation in his state, reproductive rights advocates were alarmed.

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“We’re seeing very right-wing fundamentalists attempt to chip away at a woman’s ability to access abortion care,” said Margaret Chapman Pomponio, executive director of WV Free, a nonprofit organization that promotes reproductive rights and justice, and which has helped organize rallies against the investigation. “We know that their end goal is to outlaw all abortion.”

In June, Morrisey wrote to West Virginia’s two abortion clinics and asked for detailed information about the nature and volume of their services. That request stirred memories of what happened in Kansas between 2003 and 2007, when then Attorney General Phill Kline obtained patient records from abortion clinics as part of an anti-choice inquisition. Those confidential records wound up being made public.

Given the anticipated push for anti-choice laws in the state’s 2014 legislative session, it’s worth carefully examining Morrisey’s claims alongside what the evidence says—and doesn’t say—about the safety of abortion services in the Mountain State.

Like anti-choice activists around the country, Morrisey linked his investigation to the trial of rogue abortion provider Dr. Kermit B. Gosnell, who was convicted in May of murdering three babies and killing a patient at his West Philadelphia clinic.

Gosnell’s trial brought to light evidence that Pennsylvania health authorities had failed to oversee abortion clinics in that state. Despite complaints from patients and other abortion providers, no one from the health department inspected Gosnell’s clinic for 17 years. However, evidence from state attorneys general and health departments shows overwhelmingly that Gosnell was a rogue; there is no national pattern of similar crimes.

Nevertheless, referring to the failures of Pennsylvania’s authorities, Morrisey claimed that his investigation is necessary to “ensure that patients are safe” in his state.

“Abortion clinics in West Virginia are neither licensed nor regulated by the State,” he said in a statement announcing the inquiry. “Regardless of one’s position on abortion, the State needs to evaluate this basic fact.”

Technically, it is true that West Virginia does not regulate “abortion clinics,” but this does not mean the people who provide abortions in West Virginia are free from professional monitoring.

In fact, like all medical doctors in West Virginia, physicians who provide abortions are subject to the regulation and oversight of the West Virginia Board of Medicine, which sets standards for how medical procedures must be performed.

“Anyone who believes that a physician has engaged in conduct that would warrant possible disciplinary action with respect to the physician’s license to practice medicine may file a complaint with the Board,” wrote Robert C. Knittle, the medical board’s executive director, in a statement to Rewire.

“The Board investigates complaints of physician misconduct, and initiates disciplinary proceedings when probable cause exists to believe that disqualification or other restrictions upon a licensee are appropriate,” he wrote.

In other words, if a doctor falls short of acceptable standards when performing an abortion, she or he could face disciplinary action from the medical board.

According to the board’s website, as of August this year, it had taken 229 disciplinary proceedings since 2008. Not one of those related to abortion, according to Knittle.

While the doctors who perform abortions in West Virginia are indeed regulated, the state health department does not regulate the facilities where abortions are performed.

West Virginia belongs to a group of states that do not have a special administrative category of health facility called “abortion clinic,” according to a May letter from the West Virginia Department of Health and Human Resources to members of the House Committee on Energy and Commerce of the U.S. Congress. (Read the West Virginia response as part of Rewire’s State of Abortion series.)

Of course, there are clinics that offer abortions in these states—and they are known colloquially as “abortion clinics”—but there is no official government category of “abortion clinic.”

It’s a question of terminology that results in regulatory differences. For instance, the health department explained in its letter that West Virginia doesn’t require clinics to obtain specific licenses in order to provide abortions, and that there is “no state agency that specifically inspects clinics or facilities that perform abortion.”

As a result, the state health department doesn’t have information on how the two clinics that offer abortions are functioning, or about any other private doctors’ offices offering medical services.

This is what has led Morrisey and others to assert that abortion is unregulated in that state, and to imply that women are at risk of harm due to the lack of regulation.

Indeed, there have been some recent claims that women are frequently injured while receiving abortions at West Virginia’s clinics.

As first reported by the Charleston Gazette, Dr. Byron Calhoun, vice chair of the West Virginia University’s Department of Obstetrics and Gynecology, claims that he frequently treats women who have been left with injuries after receiving an abortion.

“We commonly (I personally probably at least weekly) see patients at Women’s and Children’s Hospital with complications from abortions at these centers in Charleston: so much for ‘safe and legal,’” Calhoun wrote in a letter to Attorney General Morrisey. “These patients are told to come to our hospital because the abortion clinic providers do not have hospital privileges to care for their patients, so we must treat them as emergency ‘drop-ins.’”

Calhoun did not reply to Rewire’s email requesting comment for this story, nor did he respond to our request for any evidence to substantiate his claims about treating injured women.

But a spokesperson for West Virginia University Healthcare distanced the institution and the interim dean of the university’s School of Medicine, from Calhoun’s assertions.

“The views expressed by Dr. Calhoun are solely those of the author in his private capacity and do not in any way represent the views of the West Virginia University Charleston Division, the WVU Physicians of Charleston, or CAMC Women and Children’s Hospital,” the spokesperson wrote in an email to Rewire. “These entities, which are academically or clinically associated with Dr. Calhoun, have neither approved nor endorsed his views.”

This is not the only time that Calhoun’s official claims have proven to be unfounded. The West Virginia Board of Examiners for Registered Professional Nurses recently threw out another complaint lodged by Calhoun, this time against a midwife who he claimed should have been referred for criminal prosecution in relation to the way she performed her services. In a statement, the midwife’s lawyer said Calhoun had made claims about his client that Calhoun knew, or should have known, were false.

These questions over the reliability of Calhoun’s statements are especially important, given the key role he has played in a high-profile medical malpractice case that was lodged in West Virginia this June.

The suit alleges that Dr. Rodney Lee Stephens, a doctor at one of West Virginia’s two abortion clinics, forced a patient to continue with her procedure after she had asked him to stop. The suit also alleges that Stephens failed to properly anesthetize the patient, Itai Gravely, and that he left parts of the fetus in her uterus. Calhoun provided a key piece of medical evidence, which enabled the case to proceed.

In announcing his inquiry, Attorney General Morrisey cited Gravely’s case as a catalyst for investigating the state’s abortion facilities.

“The merits of that lawsuit must still be resolved in court,” Morrisey said in a press release, “but it does raises [sic] serious questions about how such clinics in West Virginia are inspected and reviewed to ensure patients are safe.”

As has been reported elsewhere, Calhoun has strong and long-standing connections with anti-choice groups.

He is the national medical advisor for the National Institute of Family and Life Advocates, a Fredericksburg, Virginia, group whose goal is to “achieve an abortion-free America.” The group did not reply to messages seeking comment for this story.

Calhoun—whose specialty is caring for women with high-risk pregnancies, including cases of fetal anomalies—has also testified in support of anti-choice legislation at congressional hearings. In May 2012, he spoke in favor of the District of Columbia “Pain-Capable Unborn Child Protection Act,” a bill that would ban abortions for women who are more than 22 weeks pregnant, except in some cases when the woman’s life is at risk or where the pregnancy resulted from rape or incest and the crime was reported to police.

In that testimony, Calhoun said that the risk of mortality from giving birth versus undergoing an abortion is “essentially the same,” despite a 2012 study that shows a woman is 14 times more likely to die during childbirth than as a result of a legal induced abortion.

The doubts raised over Calhoun’s claims to the attorney general, as well as his links to anti-choice groups, have led “pro-life” advocates to question whether the evidence Calhoun provided in the lawsuit can be viewed as objective, and whether his evidence should be relied on when considering new laws that could limit access to reproductive health care.

Many pro-choice advocates agree that regular inspections are a valuable tool in upholding the standards of care to which women and girls are entitled when seeking reproductive health services.

However, when seen in the broader context of this year’s assault by anti-choice legislators on reproductive rights, women’s rights groups say the West Virginia inquiry is a smoke screen for a political and ideological agenda.

“There’s zero evidence to suggest that an over-regulation of women’s health providers is necessary,” said Chapman Pomponio of WV Free.

“If this were about women’s health, we’d be behind it. The fact is this is about rolling back women’s health and rights, and we’ve seen what’s happened in Texas, North Carolina, and Ohio,” she said. “We’re saying the buck stops here.”

News Politics

Tim Kaine Changes Position on Federal Funding for Abortion Care

Ally Boguhn

The Obama administration, however, has not signaled support for rolling back the Hyde Amendment's ban on federal funding for abortion care.

Sen. Tim Kaine (D-VA), the Democratic Party’s vice presidential candidate, has promised to stand with nominee Hillary Clinton in opposing the Hyde Amendment, a ban on federal funding for abortion care.

Clinton’s campaign manager, Robby Mook, told CNN’s State of the Union Sunday that Kaine “has said that he will stand with Secretary Clinton to defend a woman’s right to choose, to repeal the Hyde amendment,” according to the network’s transcript.

“Voters can be 100 percent confident that Tim Kaine is going to fight to protect a woman’s right to choose,” Mook said.

The commitment to opposing Hyde was “made privately,” Clinton spokesperson Jesse Ferguson later clarified to CNN’s Edward Mejia Davis.

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Kaine’s stated support for ending the federal ban on abortion funding is a reversal on the issue for the Virginia senator. Kaine this month told the Weekly Standard  that he had not “been informed” that this year’s Democratic Party platform included a call for repealing the Hyde Amendment. He said he has “traditionally been a supporter of the Hyde amendment.”

Repealing the Hyde Amendment has been an issue for Democrats on the campaign trail this election cycle. Speaking at a campaign rally in New Hampshire in January, Clinton denounced Hyde, noting that it made it “harder for low-income women to exercise their full rights.”

Clinton called the federal ban on abortion funding “hard to justify” when asked about it later that month at the Brown and Black Presidential Forum, adding that “the full range of reproductive health rights that women should have includes access to safe and legal abortion.”

Clinton’s campaign told Rewire during her 2008 run for president that she “does not support the Hyde amendment.”

The Democratic Party on Monday codified its commitment to opposing Hyde, as well as the Helms Amendment’s ban on foreign assistance funds being used for abortion care. 

The Obama administration, however, has not signaled support for rolling back Hyde’s ban on federal funding for abortion care.

When asked about whether the president supported the repeal of Hyde during the White House press briefing Tuesday, Deputy Press Secretary Eric Schultz said he did not “believe we have changed our position on the Hyde Amendment.”

When pushed by a reporter to address if the administration is “not necessarily on board” with the Democratic platform’s call to repeal Hyde, Schultz said that the administration has “a longstanding view on this and I don’t have any changes in our position to announce today.”

Analysis Human Rights

El Salvador Bill Would Put Those Found Guilty of Abortion Behind Bars for 30 to 50 Years

Kathy Bougher

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would heighten the likelihood that those charged with abortion will spend decades behind bars.

Abortion has been illegal under all circumstances in El Salvador since 1997, with a penalty of two to eight years in prison. Now, the right-wing ARENA Party has introduced a bill that would increase that penalty to a prison sentence of 30 to 50 years—the same as aggravated homicide.

The bill also lengthens the prison time for physicians who perform abortions to 30 to 50 years and establishes jail terms—of one to three years and six months to two years, respectively—for persons who sell or publicize abortion-causing substances.

The bill’s major sponsor, Rep. Ricardo Andrés Velásquez Parker, explained in a television interview on July 11 that this was simply an administrative matter and “shouldn’t need any further discussion.”

Since the Salvadoran Constitution recognizes “the human being from the moment of conception,” he said, it “is necessary to align the Criminal Code with this principle, and substitute the current penalty for abortion, which is two to eight years in prison, with that of aggravated homicide.”

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The bill has yet to be discussed in the Salvadoran legislature; if it were to pass, it would still have to go to the president for his signature. It could also be referred to committee, and potentially left to die.

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would worsen the criminalization of women, continue to take away options, and heighten the likelihood that those charged with abortion will spend decades behind bars.

In recent years, local feminist groups have drawn attention to “Las 17 and More,” a group of Salvadoran women who have been incarcerated with prison terms of up to 40 years after obstetrical emergencies. In 2014, the Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) submitted requests for pardons for 17 of the women. Each case wound its way through the legislature and other branches of government; in the end, only one woman received a pardon. Earlier this year, however, a May 2016 court decision overturned the conviction of another one of the women, Maria Teresa Rivera, vacating her 40-year sentence.

Velásquez Parker noted in his July 11 interview that he had not reviewed any of those cases. To do so was not “within his purview” and those cases have been “subjective and philosophical,” he claimed. “I am dealing with Salvadoran constitutional law.”

During a protest outside of the legislature last Thursday, Morena Herrera, president of the Agrupación, addressed Velásquez Parker directly, saying that his bill demonstrated an ignorance of the realities faced by women and girls in El Salvador and demanding its revocation.

“How is it possible that you do not know that last week the United Nations presented a report that shows that in our country a girl or an adolescent gives birth every 20 minutes? You should be obligated to know this. You get paid to know about this,” Herrera told him. Herrera was referring to the United Nations Population Fund and the Salvadoran Ministry of Health’s report, “Map of Pregnancies Among Girls and Adolescents in El Salvador 2015,” which also revealed that 30 percent of all births in the country were by girls ages 10 to 19.

“You say that you know nothing about women unjustly incarcerated, yet we presented to this legislature a group of requests for pardons. With what you earn, you as legislators were obligated to read and know about those,” Herrera continued, speaking about Las 17. “We are not going to discuss this proposal that you have. It is undiscussable. We demand that the ARENA party withdraw this proposed legislation.”

As part of its campaign of resistance to the proposed law, the Agrupación produced and distributed numerous videos with messages such as “They Don’t Represent Me,” which shows the names and faces of the 21 legislators who signed on to the ARENA proposal. Another video, subtitled in English, asks, “30 to 50 Years in Prison?

International groups have also joined in resisting the bill. In a pronouncement shared with legislators, the Agrupación, and the public, the Latin American and Caribbean Committee for the Defense of the Rights of Women (CLADEM) reminded the Salvadoran government of it international commitments and obligations:

[The] United Nations has recognized on repeated occasions that the total criminalization of abortion is a form of torture, that abortion is a human right when carried out with certain assumptions, and it also recommends completely decriminalizing abortion in our region.

The United Nations Committee on Economic, Social, and Cultural Rights reiterated to the Salvadoran government its concern about the persistence of the total prohibition on abortion … [and] expressly requested that it revise its legislation.

The Committee established in March 2016 that the criminalization of abortion and any obstacles to access to abortion are discriminatory and constitute violations of women’s right to health. Given that El Salvador has ratified [the International Covenant on Economic, Social and Cultural Rights], the country has an obligation to comply with its provisions.

Amnesty International, meanwhile, described the proposal as “scandalous.” Erika Guevara-Rosas, Amnesty International’s Americas director, emphasized in a statement on the organization’s website, “Parliamentarians in El Salvador are playing a very dangerous game with the lives of millions of women. Banning life-saving abortions in all circumstances is atrocious but seeking to raise jail terms for women who seek an abortion or those who provide support is simply despicable.”

“Instead of continuing to criminalize women, authorities in El Salvador must repeal the outdated anti-abortion law once and for all,” Guevara-Rosas continued.

In the United States, Rep. Norma J. Torres (D-CA) and Rep. Debbie Wasserman Schultz (D-FL) issued a press release on July 19 condemning the proposal in El Salvador. Rep. Torres wrote, “It is terrifying to consider that, if this law passed, a Salvadoran woman who has a miscarriage could go to prison for decades or a woman who is raped and decides to undergo an abortion could be jailed for longer than the man who raped her.”

ARENA’s bill follows a campaign from May orchestrated by the right-wing Fundación Sí a la Vida (Right to Life Foundation) of El Salvador, “El Derecho a la Vida No Se Debate,” or “The Right to Life Is Not Up for Debate,” featuring misleading photos of fetuses and promoting adoption as an alternative to abortion.

The Agrupacion countered with a series of ads and vignettes that have also been applied to the fight against the bill, “The Health and Life of Women Are Well Worth a Debate.”

bien vale un debate-la salud de las mujeres

Mariana Moisa, media coordinator for the Agrupación, told Rewire that the widespread reaction to Velásquez Parker’s proposal indicates some shift in public perception around reproductive rights in the country.

“The public image around abortion is changing. These kinds of ideas and proposals don’t go through the system as easily as they once did. It used to be that a person in power made a couple of phone calls and poof—it was taken care of. Now, people see that Velásquez Parker’s insistence that his proposal doesn’t need any debate is undemocratic. People know that women are in prison because of these laws, and the public is asking more questions,” Moisa said.

At this point, it’s not certain whether ARENA, in coalition with other parties, has the votes to pass the bill, but it is clearly within the realm of possibility. As Sara Garcia, coordinator of the Agrupación, told Rewire, “We know this misogynist proposal has generated serious anger and indignation, and we are working with other groups to pressure the legislature. More and more groups are participating with declarations, images, and videos and a clear call to withdraw the proposal. Stopping this proposed law is what is most important at this point. Then we also have to expose what happens in El Salvador with the criminalization of women.”

Even though there has been extensive exposure of what activists see as the grave problems with such a law, Garcia said, “The risk is still very real that it could pass.”