Analysis Maternity and Birthing

Poorly Defined Fetal Alcohol Syndrome Used to Blame, Criminalize Mothers

Amelia Thomson-DeVeaux

The Alaska legislature recently approved a project that will place free pregnancy tests in bar bathrooms as part of a larger campaign to raise awareness about fetal alcohol syndrome. But what is fetal alcohol syndrome, and could this effort possibly help address it?

Beginning in December, female customers in bars across Alaska will have access to an unexpected resource: pregnancy tests. The Alaska legislature recently approved a project that will place free tests in the bathrooms of 20 bars in the state. The study is part of a larger campaign to raise awareness about fetal alcohol syndrome, a spectrum of physical, mental, and behavioral disabilities long assumed to be caused by drinking to excess during pregnancy.

Alaska state Sen. Pete Kelly (R-Fairbanks), who earlier this year declared that “birth control is for people who don’t want to act responsibly,” is the driving force behind this new crusade. Alaska has one of the highest rates of fetal alcohol syndrome in the country. A 2010 report estimated that as many as 126 infants born each year in the state show signs of prenatal exposure to alcohol. But Kelly’s argument isn’t just a classic “think of the children” line. He claims fetal alcohol syndrome is responsible for a range of social ills, including suicide and domestic violence.

The logic behind the pregnancy test intervention is simple. Half of pregnancies in the United States are unplanned, so it’s possible that some patrons do not know they are pregnant when they order a beer or a shot of vodka. The pregnancy test is a nudge in the right direction—a reminder to make sure they’re not endangering a developing embryo.

Many states mandate posters in the bathrooms of bars or restaurants that warn about the dangers of prenatal alcohol consumption—“a pregnant woman never drinks alone”—but these signs have done little to curb the incidence of fetal alcohol syndrome, according to Robert Sokol, a professor of obstetrics and gynecology at Michigan’s Wayne State University. The researchers at the University of Alaska who are implementing the new study want to find out if a pregnancy test dispenser does a better job of getting women’s attention. The dispensers, originally piloted in Minnesota, have yet to be studied, so their effectiveness is still unknown.

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Sokol says this approach is clever because instead of putting billboards on highways or doing a PSA blitz, the intervention is concentrated in bars, places where women could, according to Sokol, be engaging in risky behavior before they even know they are pregnant. “There hasn’t been much research on this issue that has focused in bars,” he says. “If a woman is pregnant and in a bar, then that’s someone we know is likely drinking, and it’s someone we should be talking to.”

Not everyone agrees. To others, this approach is a new riff on an old theme, one that has been frequently replayed since fetal alcohol syndrome was first given a name in 1973. In this refrain, concern about the mother’s well-being is submerged beneath fears about the harm she might inflict on her fetus. The initiative assumes that any pregnant woman in a bar is drinking alcohol, putting her in a place of public surveillance. “This kind of approach isn’t about empowering women to make healthy decisions—it’s about creating implicit responsibility for the outcomes of their pregnancies,” Farah Diaz-Tello, a staff attorney with National Advocates for Pregnant Women, told Rewire. “It says that we’re concerned about women’s health only so that they can keep their bodies hospitable to pregnancy. If they don’t, they’re irresponsible—they’re bad mothers.”

The pregnancy test initiative is the brainchild of Jody Allen Crowe, the executive director of a Minnesota nonprofit called Healthy Brains for Children. Crowe, a former school superintendent with a master’s degree in public school administration, founded the group in 2008, shortly after self-publishing a book that claims to reveal “the undeniable connection between school shooters and their mother’s [sic] alcoholic behaviors.” Crowe, who is coordinating delivery of the pregnancy dispensers to Alaska and has served as a resource for legislators throughout the process, envisions a world in which taking a pregnancy test before drinking is as normal as designating a sober driver for a party: “We need to get the message out there that every drink a pregnant woman holds in her hand has the potential to take potential away from her child.”

The History of Drinking During Pregnancy

There was a time in the not-so-distant past when a statement like Crowe’s would have seemed outlandish—even misinformed. Alcohol was, throughout the mid-20th century, as much a part of a woman’s pregnancy as prenatal vitamins are today. A glass of port helped with sleep; some sherry before a meal could rouse an unwilling appetite. A cocktail and a cigarette could help an anxious mother-to-be relax. The only reason not to indulge to excess was the empty calories.

Some obstetricians even believed that alcohol could halt preterm labor. When women showed up at the hospital before their due date, complaining about steadily advancing contractions, doctors would send their patients home with instructions to drink a glass of wine. Others received pure alcohol intravenously in the hospital. In her book Conceiving Risk, Bearing Responsibility: Fetal Alcohol Syndrome and the Diagnosis of Moral Disorder, Princeton sociology and public policy professor Elizabeth Mitchell Armstrong writes that in doctors’ recollections, women subjected to this regimen “got so [they] smelled like a fruitcake.”

Attitudes toward alcohol consumption slowly began to change after 1973, when a group of doctors published a series of case studies in the medical journal The Lancet on children with development disorders, small eyes, unusually thin upper lips, and other abnormalities. The authors traced the cause for what they called a “tragic disorder” to maternal alcoholism. The women in the study had been dependent on alcohol for more than nine years; more than half experienced serious withdrawal symptoms. They were not the same women who were having a glass of port to help them sleep, but rather women who already struggled with serious alcohol dependency.

Over the following decade, public characterizations of fetal alcohol syndrome shifted, thanks to the flurry of research that followed the publication of the 1973 Lancet article. Thousands of studies on fetal alcohol syndrome were published between the mid-1970s and the late-1980s, many of which argued that the condition wasn’t just confined to women with severe alcohol problems. There was no clear consensus on how much alcohol was safe to drink, so women were told to abstain entirely.

The studies were, in general, small and inconsistent. The size of a drink was rarely defined—raising questions about whether women who reported their drinking habits were talking about a double shot of vodka or a glass of wine—and many included a handful of alcohol-abusing mothers, which may have skewed the sample. Other studies were performed on rats, who were given doses of alcohol that would have amounted to binge drinking in a human. It was clear that heavy drinking during pregnancy did carry a strong risk for fetal complications, but the evidence about light and moderate drinking during pregnancy remained unreliable. Nevertheless, alcohol consumption during pregnancy was increasingly represented, both in research papers and in the media, as an individual moral choice born of a mother’s selfish and reckless actions. Women needed to learn, in the words of a professor of dentistry writing in 1989, that “life is not a beer commercial.”

Faced with what was increasingly framed as a national crisis, policymakers sprang into action. In 1981, the surgeon general of the United States issued a warning to pregnant women, advising them “not to drink alcoholic beverages and to be aware of the alcoholic content of food and drugs.” Throughout the 1980s, states and localities launched public awareness campaigns about the hazards of alcohol consumption for expectant women. In 1988, the United States became the first and only country to mandate a warning label on alcoholic beverages outlining the dangers of drinking during pregnancy.

The Science Behind Fetal Alcohol Syndrome

Some women got the message. The numbers of women who drank any amount of alcohol during pregnancy declined from 32 percent in 1985 to 20 percent in 1988. Today, the number hovers around 12 percent. The number of women who binge drink during pregnancy, however, continues to hover between 2 and 3 percent. What, exactly, fetal alcohol syndrome is also remains a subject of great concern. In the United States today, the Centers for Disease Control and Prevention (CDC) estimates that anywhere between 1,000 and 40,000 babies are born with symptoms of the disorder each year. This wide range is only conjecture, in part because some states don’t require tracking of fetal alcohol syndrome diagnoses, making data collection difficult. But the numbers are also vague because the diagnostic criteria for the condition are subjective—there is no clinical test for fetal alcohol syndrome. Doctors screening for fetal alcohol syndrome are told to look for distinctive facial characteristics: thin upper lips and flat features. These obvious physical signs, however, only appear in children who were exposed to heavy drinking in utero.

The other assumed symptoms are more nebulous; they include growth problems (which often resolve themselves in early childhood), poor coordination and muscle control, cognitive defects, and developmental delays. These problems are hard to definitively attribute to prenatal alcohol exposure, because they could also be the result of poverty and a dysfunctional home life. Behavioral issues are also among the symptoms of fetal alcohol syndrome outlined by the CDC, although there is little concrete evidence to suggest that these problems are biologically linked to drinking while pregnant.

In one frequently cited study, researchers surveyed a group of 400 patients who were diagnosed with fetal alcohol syndrome at birth. These patients had a wide range of behavioral problems—ranging from inappropriate sexual behavior to incarceration to “disruptive school experiences”—but the authors admitted that they did not account for “environmental” factors like child abuse and neglect, living with an alcoholic parent, or being put into foster care. Yet environmental stressors likely had a profound influence on the study’s sample. Eighty percent of the respondents were not raised by their biological mothers.

Part of the problem is the lack of a clear distinction between the syndrome itself—a discrete collection of symptoms that include severe developmental disabilities and is associated with chronic alcoholic mothers—and other outcomes that may be associated with drinking but are also more difficult to diagnose and identify. Conflating the two suggests that they have the same cause, and also suggests that moderate drinking is the cause of the most devastating cases of fetal alcohol syndrome.

Because fetal alcohol syndrome is difficult to treat (and the small treatment programs that exist are underfunded), public health programming has focused mostly on convincing pregnant women not to drink. But part of the tension inherent in any prevention plan—like Alaska’s pregnancy test initiative—is the debate over who’s at risk. One of the most immediate challenges is that obstetricians themselves are not in agreement about how much alcohol can be safely consumed during pregnancy. The American Congress of Obstetricians and Gynecologists warns that “no amount” of alcohol is safe during pregnancy, but in a 2010 survey of OB-GYNs, only 60 percent agreed.

There’s a general consensus that binge drinking during pregnancy—consuming five or more drinks in one sitting—is risky. But the research still hasn’t proved that small amounts of alcohol cause ill effects. When University of Chicago economist Emily Oster was researching her book Expecting Better, she combed through hundreds of studies and found “basically no credible evidence that low levels of drinking (a glass of wine or so a day) have any impact on your baby’s cognitive development.” The few studies that showed negative birth outcomes as a result of light drinking were “deeply flawed.” Just as the research on patients affected by fetal alcohol syndrome failed to take environmental factors into account, these studies paid no heed to the complementary effects of other drugs. In one, many of the study’s “light drinkers” were also using cocaine.

The studies that have attempted to incorporate the effects of alcohol alongside environmental factors like poverty, instability, and use of other drugs have concluded that the women who are at risk for exposing their fetus to alcohol in utero are often low-income, with poor nutrition and little access to prenatal care. Some studies also show that cigarettes can exacerbate the negative effects of fetal exposure to alcohol.

These factors work in tandem—especially among marginalized groups like American Indian and Alaska Natives, who have some of the highest rates of fetal alcohol syndrome in the country. Poverty, social isolation, a history of trauma, and poor health care all encourage substance abuse. Alaska Native communities are overwhelmingly rural, making health care difficult to access. Nearly 30 percent of American Indian and Alaska Native Americans live in poverty, and more than 15 percent lack health insurance. A series of reports published by the CDC earlier this year showed that between 1999 and 2009, the mortality rate was 46 percent higher among American Indian and Alaska Natives, compared to the general population, due largely to higher death rates from cancer and infectious diseases.

Living in remote, isolated towns also spurs depression and alcoholism. Alaska Natives are four times as likely as non-Native Alaskans to commit suicide; they are also twice as likely to need treatment for alcohol addiction. Mental health problems and alcohol abuse can also encourage a culture of violence against women. Alaska Native women are ten times as likely as non-Native women to be sexually assaulted.

In this context, the high incidence of fetal alcohol syndrome in Alaska—where Alaska Native women are five times as likely as non-Native women to give birth to a child with the condition—is less a result of women’s individual choices than a total breakdown of the social safety net. But instead of investing in the chronically underfunded Indian Health Service, the primary source of health care for most Alaska Natives, or devoting more funds to treatment programs that incorporate the loss of cultural integrity, which is also considered to be a major driver of alcoholism among American Indians, public awareness campaigns that target the entire Alaskan population are still the prevention tool of choice.

The emphasis on fetal alcohol syndrome as a problem that could afflict any child whose mother drank any amount of alcohol during pregnancy—rather than a symptom of severe substance abuse by relatively few women—makes it easier, says Janet Golden, a medical historian at Rutgers University, to justify solutions like signs or pregnancy tests in bathrooms—a cheap fix, compared to inpatient treatment for chronic alcoholics. These broadcast public health campaigns allow politicians to transfer responsibility for fetal alcohol syndrome onto the mothers themselves, rather than using state resources to help treat alcoholism and the other health problems caused by poverty and marginalization. “Women who drink during pregnancy are understood as willfully harming their fetuses,” Golden says. “There’s no acknowledgment that alcoholism is a severe health problem that’s killing women too. I don’t see any concern for those women’s ability to access care.”

Helping or Harming Women?

In the years after fetal alcohol syndrome was first diagnosed, attempts to discourage individual women from drinking during pregnancy have become increasingly punitive. In 1990, two years after the surgeon general’s warning began to appear on alcohol packaging, a pregnant woman in Wyoming seeking protection from her abusive husband was charged with felony child abuse after the police discovered she was drunk. Fears about “crack babies”—children born to low-income, minority mothers who were using cocaine—were also spiraling, and prosecutors were creative in using a wide range of statutes to charge women for actions that potentially harmed their fetus. Women found themselves facing accusations of abuse and neglect of children, “delivering” drugs to minors through the umbilical cord, and assault with a deadly weapon (cocaine). Most of these charges were struck down or reversed by judges who pointed out the logistical and constitutional questions they raised. How were women to know what counted as endangering their fetus? Could drinking coffee during pregnancy or missing a prenatal visit become a criminal act?

In response, policymakers turned to the civil code to reinforce penalties for drug and alcohol use during pregnancy. Eighteen states redefined civil child abuse to include prenatal substance use. Four states—Oklahoma, Minnesota, Wisconsin, and South Dakota—went further, passing laws that authorized involuntary civil detention of women who drank or used drugs while pregnant. The Wisconsin and South Dakota statutes allowed detention not just in the case of harm to the fetus—an ill-defined term under the best of circumstances—but when a woman’s alcohol use appeared to “lack self-control.” Alaska legislators have considered an involuntary commitment law for pregnant women who consume alcohol several times. Rep. Pete Kelly, the force behind the pregnancy test initiative, said earlier this year that such a measure isn’t out of the question in the future.

The brunt of these laws, which are vaguely written and selectively applied, falls on low-income women and women of color. A study published in 2010 by Lynn Paltrow, the executive director of National Advocates for Pregnant Women, and Jeanne Flavin, a sociology professor at Fordham University, found that Black and Native American women were disproportionately represented among the pregnant women arrested or subjected to a forced medical intervention because of substance use. Only about 10 percent of the claims against the 413 women in the National Advocates for Pregnant Women study were related to alcohol—most of the time, the substance in question was cocaine—but they established a strong precedent for health providers, social workers, and even neighbors to report women who were drinking during pregnancy.

This is especially true in Alaska. Rosalie Nadeau, the CEO of Akeela, the state’s largest residential treatment provider for pregnant women, says that most of the women in her programs were reported to child protective services, which usually triggers a custody dispute. “The ones who have children have usually either lost their kids already or are in danger of losing them,” Nadeau says.

The pattern of reporting women for substance use would be less troubling if there were more programs like Akeela, which offers a range of residential and outpatient services for women with children. Part of Akeela’s goal is to help women achieve sobriety so that they can regain lost custody rights. But policymakers have failed to pursue treatment with the same zeal that they have approached punishment. Only 18 states have created or funded programs specifically targeted at pregnant women with substance abuse problems, and the waiting list is always long. Nadeau’s program, despite being the biggest in Alaska, can only accommodate 15 women at a time. Any more, and Akeela risks losing the Medicaid dollars that keep its treatment centers open.

The dearth of funding for treatment programs like Akeela is alarming, considering that women with entrenched alcohol abuse problems are at highest risk for giving birth to a child affected by fetal alcohol syndrome. These women, chemically dependent on alcohol, are unlikely to stop drinking because of a pregnancy test in a bathroom.

But helping a targeted minority of women is not the goal of the new Alaska study. “This intervention is not specifically intended for women who have chronic alcohol problems,” David Driscoll, an associate professor of health and social welfare at the University of Alaska and the lead researcher on the project, told Rewire. “It’s intended for those women who are not aware yet that they’re pregnant and are not aware of the risks of [fetal alcohol spectrum disorder].”

Margo Singer, vice president of the National Association for State Fetal Alcohol Syndrome Disorder Coordinators, says that fetal alcohol syndrome prevention requires a variety of approaches. There are universal campaigns—like the pregnancy test dispensers—that attempt to raise awareness. Then there are more carefully tailored strategies, which educate family planning professionals, doctors, and social workers about how to talk to women about the dangers of alcohol abuse. Finally, there are counseling programs for women in alcohol treatment programs, which emphasize contraception alongside warnings about the harm associated with heavy drinking during pregnancy.

In a perfect world, Singer says, there would be funding for all of these initiatives. But since 2012, federal dollars for fetal alcohol syndrome prevention were slashed. The $400,000 allocated for the pregnancy test intervention is, in this climate, a tidy sum. The University of Alaska researchers’ plan to determine whether the dispensers work will be a new addition to the literature on fetal alcohol syndrome prevention. But they may find that the intervention, like the bathroom signs, simply doesn’t work. “If it helps one woman, that’s a good thing,” says Singer. “But we do have to ask the questions: Is this effective? Has it been tested? Is this really the initiative we want to promote?”

In a state with a budget deficit, David Driscoll notes that it’s “laudable” that Alaska legislators allocated money for fetal alcohol syndrome prevention. The pregnancy dispenser project will be accompanied by a statewide public awareness campaign and a program targeted at Alaska Natives in remote parts of the state. But Rosalie Nadeau questions why the state is investing in a program that has yet to be tested, when treatment for alcohol abuse is chronically underfunded.

There’s near-uniform agreement that access to free pregnancy tests will be good for women, regardless of the context. But the Alaska initiative doesn’t include money to provide contraception, which Singer says is a crucial part of any effort to reduce fetal alcohol syndrome. A study conducted by researchers in Washington state revealed that 81 percent of women at risk for fetal alcohol syndrome had no birth control, although 92 percent wanted some form of contraception. Driscoll says that condoms will be available alongside the pregnancy test dispensers, although he did not specify how they would be funded. The contraception will be added separately, because when Jody Allen Crowe first piloted the program, birth control was not part of his design. “It’s just not our goal,” he says. “We want to stop alcohol during pregnancy. We don’t want to stop the pregnancies themselves.”

This, according to Golden, does a fundamental disservice to women who might take steps to prevent pregnancy if they had the education or the resources. “Historically, there’s been an expectation that women are so primed to be mothers that if they see a pregnancy test or take it, they’ll stop drinking immediately,” she says. “The women who are chronic alcoholics can’t, so we label them bad mothers. A lot of these women would stop drinking during pregnancy if they could. We just don’t give them the resources and care they need to do it. It’s something we see again and again. We keep going for the inexpensive fix that doesn’t actually solve the problem.”

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

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But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

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The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

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In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.