Commentary Abortion

To Push Back Against Mounting Restrictions, We Must Be Honest About Abortion Care

Pratima Gupta

As a provider, I will celebrate the anniversary of Roe v. Wade by discussing abortion in order to highlight just how unnecessary—and potentially dangerous—the anti-choice restrictions sweeping the country truly are for women and their families.

Read more stories commemorating the 42nd anniversary of Roe v. Wade here.

Mindy Kaling, creator and star of the Mindy Project, recently generated controversy by saying that abortion was too serious of a topic to address on her sitcom, a comedy about a South Asian OB-GYN who is also named Mindy. I share with the fictional Dr. Mindy a nationality and a profession, but that’s where the similarities end: I will celebrate the anniversary of Roe v. Wade by discussing abortion, in order to highlight just how unnecessary—and potentially dangerous—the anti-choice restrictions sweeping the country truly are for women and their families.

I agree that abortion is a serious issue, in that the decision to become a parent is a serious one. But considering how critical it is for people to be able to make their own choices about what is best for them and their families, we must be honest about what abortion truly entails to push back against the limitations forcing reproductive health care out of reach.

I’ve watched as, one by one, our country elects legislators who vow to use their power to restrict abortion access. It used to be that lawmakers who were trying to interfere with reproductive rights would use morality as their basis, trying to apply their religious standards to the rest of us. Their tactics have shifted; now, they make all kinds of false assertions about protecting women and families. As an abortion provider, though, I know the procedure is extremely safe. In fact, an abortion has a lower complication rate than a colonoscopy, for which I refer all my patients older than 50. I work with those patients to determine the course of treatment that is best for them; the situation is the same for those seeking abortions.

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I am infuriated by the spiteful policies imposed on abortion providers that are designed to force us to close our doors, such as requiring ambulatory surgical center standards or hospital admitting privileges. These bills upset me not only because they decrease access, but also because they ignore the very real fact that abortion providers are already providing high-quality follow-up care. Legislators continue to assert they’re trying to keep patients safe, while falsely implying that the services I provide are inherently dangerous and limiting options for people in need.

Prior to performing an abortion, I review all pregnancy options, including continuation of the pregnancy and adoption, with each patient. In addition, I allow family or friends to be present for this process so that everyone’s questions can be answered in a medically accurate and comprehensive manner. While complications are rare, I elucidate the different possibilities and how we might respond to each situation to ensure the continued health of my patient. Yet around the nation, bills are also being pushed that include mandated scripts with medically inaccurate information. I am so upset that politicians think they should mess with the relationship and unique trust that a patient has placed in a doctor. Rather than empowering women to make a strong decision with the support of their medical provider, these abortion counseling mandates serve to discourage women from seeking abortion services by lying to them and scaring them.

These lawmakers seem to believe that our patients themselves need legislation to inform them about their different options. In reality, though, they are often media-savvy and ready to make their own decisions—and if they aren’t, I and my expert colleagues are the ones who should be advising them, not someone in a statehouse. A few days ago, a woman I’ll call “Kelly”—with a delicate nose piercing, wavy blond hair, and skinny jeans—came to me as a new patient. I provide Pap tests, prenatal care, and abortions all in the same setting, because all of those services are normal procedures that should require the same kinds of dignity and individual attention. Kelly, who had recently obtained insurance through her job, was excited and nervous about getting her first gynecological exam in many years. Her period had been late, but she’d thought nothing of it, because school and work had frequently caused irregular cycles. When she learned she was pregnant, she was shocked and resolute about her decision to terminate it.

When I counseled her about her pregnancy options, she was relieved that she would not have to navigate yet another system for services. As I performed an abdominal ultrasound on “Kelly” in preparation for her procedure, she asked, “Dr. Gupta, do I have to see the photos? I really don’t want to.” Kelly, like many of my patients, was an experienced consumer of health media, and she had seen reports of legislation requiring providers to force patients to view ultrasound images, or perform vaginal ultrasounds, or read aloud state-approved scripts—all non-medically necessary attempts to limit Kelly’s right and access to safe abortion.

Fortunately for both me and Kelly, that is not the case in California, where I practice. In fact, the state is one of the few places where there have actually been proactive advances in reproductive health. Certified nurse midwives, physicians assistants, and nurse practitioners (collectively known as advance practice clinicians) can now train in and offer first-term surgical abortions; minors can ensure confidentiality while seeking reproductive health services; and a provision requiring insurance coverage of all FDA-approved contraceptive methods with no cost-sharing was recently passed. California is truly a model of safe abortion care and increasing reproductive health-care access for the rest of the country. That being said, not all Californians can even access abortion care easily, for there is an undue burden placed on women living in rural and low-income areas. The anniversary of Roe v. Wade is a good reminder to all reproductive health advocates that we must continue to collaborate to ensure medically accurate, readily available care for women and their families.

In addition, the anniversary should also be a reminder to us that we are dangerously close to reversing the right to privacy enshrined in Roe. I am also an educator of OB-GYN residents and medical students, and most of them are in their twenties and never saw an OB-GYN hospital ward before Roe. In fact, during a recent lecture I gave, they had to look up “septic abortion” on their smartphones; not a single individual had ever encountered a patient with post-abortion sepsis. This is yet another example reinforcing how safe abortion is now. Women aren’t dying from abortion like they did in the bad, old days before Roe v. Wade.

While some people may roll their eyes at the supposed entitlement of this generation, I prefer to say many are enlightened and invigorated by the mothers, sisters, wives, and daughters who lost their lives through personal sacrifice. That history is also why I continue to help families and provide abortions—and that I will continue to do my job to the best of my ability despite mounting restrictions.

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.

071midyearstateeligibilitytable

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.

Analysis Politics

Paul Ryan Uses Falsehoods Behind Texas HB 2 to Push Yet Another Abortion Restriction

Ally Boguhn

In a CNN town hall Tuesday night, Paul Ryan agreed with an audience member's baseless sentiment that the Supreme Court had struck down “commonsense health and safety standards at abortion clinics" in its Whole Woman's Health v. Hellerstedt ruling.

During a CNN town hall on Tuesday night, House Speaker Paul Ryan (R-WI) pushed falsehoods about the anti-abortion provisions at the center of the recent U.S. Supreme Court decision in Whole Woman’s Health v. Hellerstedt being necessary for patient health and safety. Ryan nonsensically then used the decision as a launch point to promote House Republicans’ Conscience Protection Act, which passed in the House Wednesday evening and supposedly shields those who object to abortion from discrimination. The only things Texas’ provisions and the legislation have in common, however, is that they’re all about blocking access to abortion care.

Town hall audience member and executive director of New Jersey Right to Life Marie Tasy claimed during the event Tuesday that the Supreme Court had struck down “commonsense health and safety standards at abortion clinics,” in its landmark ruling against two provisions—the admitting privileges and surgical center requirements—of Texas’ HB 2.

“Absolutely,” Ryan said in response to Tasy’s remarks. “I agree with that.”

But 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.”

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Despite this, Ryan then used the falsehood at the center of HB 2 as a call to action for yet another anti-choice restriction: the Conscience Protection Act. After fielding the question from Tasy about how anti-choice issues could be advanced in Congress in the wake of the Court’s decision, Ryan pivoted to claim that the government is “forcing people to conduct [abortion] procedures”:

Actually, tomorrow we are bringing a bill that I’ve been working on called the Conscience Protection Act. I’m pro-life. I think you probably know that. And I would like to think we could at least get consensus in this country that taxpayers shouldn’t be funding abortions. That the government shouldn’t be forcing people to conduct procedures, especially health-care workers, against their own conscience.

Our First Amendment is the right of conscience, religious freedom. Yet our own government today, particularly in California, is violating that right and not allowing people to protect their conscience rights, whether they’re Catholic hospitals or doctors or nurses. Tomorrow we’re bringing the Conscience Protection Act to the floor and passing it. It’s Diane Black’s bill. And it is to give those citizens in America who want to protect their conscience rights their ability to defend those rights. That is one thing we’re doing tomorrow to protect the conscience, because I believe we need to cultivate a culture of life. And at the very least, stop the government from violating our conscience rights.

Ryan would go on to make similar remarks the next day while speaking on behalf of the bill on the House floor, though this time he added that the “bill does not ban or restrict abortion in any way …. All it does is protect a person’s conscience.” 

As Rewire‘s Christine Grimaldi previously reported, the Conscience Protection Act would codify and expand on the Weldon Amendment. According to the Department of Health and Human Services (HHS), the amendment prohibits states that receive federal family planning funding from discriminating against any health care entity-including physicians, health-care professionals, hospitals, and insurance plans, “on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”

The Weldon Amendment currently must be passed each year as part of annual appropriations bills.

Grimaldi noted that the act “would give health-care providers a private right of action to seek civil damages in court, should they face alleged coercion or discrimination stemming from their refusal to assist in abortion care.”

Ryan proposed similar conscience protections as part of his recently released health-care plan, though, as Grimaldi wrote, “the Conscience Protection Act goes a step further, allowing providers to sue not only for threats, but also for perceived threats.”

But those whom Ryan and his colleagues are claiming to defend already have protections that impede access to abortion care, according to critics of the measure.

Ryan, for example, suggested in both his CNN appearance and his House floor speech the next day that California’s requirement that insurance plans must cover elective abortions under “basic health services” violates “religious freedom.” But a June investigation by the HHS Office for Civil Rights into whether California’s requirement violated the Weldon Amendment rejected similar complaints by anti-choice group Alliance Defending Freedom.

“Let’s be very clear—right now, current law says that hospitals, insurers, and doctors may refuse to perform an abortion or provide coverage for abortion, which already greatly limits women’s access to legal procedures,” said Rep. Jan Schakowsky (D-IL) Wednesday, speaking after Ryan on the House floor during remarks before the Conscience Protection Act passed.

“More importantly, when a woman’s health is in danger, providers would not be required to act to protect the health of that mother. This bill would allow them to refuse to … facilitate or make arrangements for abortion if they have a moral objection to it,” continued Schakowsky. “They could also refuse to provide transportation to another hospital if a woman is in distress if that hospital provides abortions.”

Debra L. Ness, president of the National Partnership for Women & Families, explained in a statement following the passage of the legislation in the House that the measure is about blocking access to abortion. “The Conscience Protection Act is dangerous, discriminatory legislation designed to block women’s access to abortion care,” said Ness.

“For example, a hospital could rely on the Conscience Protection Act to turn away a woman in an emergency situation who needs an abortion or refuse to provide a woman information about her treatment options. This legislation is a license for providers to discriminate against women and undermine their access to essential, constitutionally protected health care,” Ness said.