Analysis Abortion

Laws Banning Abortion Procedure ‘Substituting Political Decisions for Medical Decisions’

Teddy Wilson

"I’m not sure what the impact will be or how we would comply because the bill is written with non-medical language, and it’s not written by doctors. It’s written by politicians," Mary Kogut, president and CEO of Planned Parenthood of the St. Louis Region and Southwest Missouri, told Rewire.

Oklahoma Gov. Mary Fallin (R) signed a bill into law Monday that criminalizes a medical procedure used during second-trimester abortions and for miscarriage management.

That came weeks after Kansas Gov. Sam Brownback (R) signed similar legislation, and now reproductive rights advocates are raising serious concerns about the lasting implications of these new, radically anti-choice laws.

“With this law, Oklahoma has joined Kansas in an alarming trend toward substituting politicians’ agendas for the judgment and expertise of doctors, and then threatening those doctors with criminal charges if they disagree,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement.

Targeting Specific Abortion Procedures

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The laws ban the dilation and evacuation (D and E) procedure, which is commonly used in second trimester abortion care. The procedure is a method of abortion during which a physician will dilate a woman’s cervix and remove the fetus using forceps, clamps, or other instruments. During the procedure, the fetus is usually removed in parts.

Prior to 14 weeks’ gestation, abortions are usually performed using suction aspiration, but after 14 weeks the D and E procedure must be used, according to the American Congress of Obstetricians and Gynecologists.

Depending upon the specific language of the law, D and E abortion bans may effectively ban all surgical abortion past 14 weeks’ gestation.

The bills, legislation drafted by the National Right to Life Committee (NRLC), redefine the D and E procedure as “dismemberment” abortion. The new laws’ graphic and medically inaccurate language describing the D and E procedure is key to NRLC’s strategy to pass similar laws in other states.

Fallin, in a statement about the abortion restriction, called the procedure “gruesome,” while a spokesperson for Brownback called the procedure “horrific.”

And Carol Tobias, president of the NRLC, told the New York Times that the Kansas law is the first of what NRLC officials hope will be many state laws banning the procedure. “This law has the power to transform the landscape of abortion policy in the United States,” Tobias said.

The two states are the first in the country to legislate such bans on “dismemberment” abortions. Identical bans are pending in two other states legislatures and more bills to ban the procedure are likely to be introduced in other states.

The legislative language and the rhetoric used by anti-choice lawmakers and activists is part of a decades-old strategy by the anti-choice movement to target specific procedures used during abortion.

Using Dishonest Language to Push Anti-Choice Proposals

More than a decade ago, anti-choice activists, using similar rhetoric, lobbied congressional leaders to ban the intact dilation and extraction abortion procedure. The so-called partial-birth abortion ban, a term also coined by the NRLC, was passed by Congress and signed into law by President George W. Bush in 2003.

Caitlin Borgmann, former state strategies coordinator for the American Civil Liberties Union’s Reproductive Freedom Project, told the Kansas City Star that the legislative language is designed to make it difficult for lawmakers to oppose the proposals.

“It’s meant to try to create an inflammatory description that people are going to read and then support the bill because their instinct is that this sounds terrible,” Borgmann said.

“This procedure is very hard to defend,” Mary Spaulding Balch, director of state legislation for the NRLC, told the Kansas City Star. “I want to talk about what happens to the unborn child during an abortion and more particularly during this type of abortion.”

While the NRLC has been increasingly referring to D and E abortion as “dismemberment abortion,” often while supporting legislation on the state and federal level to ban abortion after 20 weeks, the term has long been used by anti-choice activists.

After the 2007 U.S. Supreme Court ruling in Gonzales v. Carhart upheld the so-called partial-birth abortion ban, Cathy Ruse, a senior fellow for legal studies at the right-wing Family Research Council, used the term when discussing the possibility of banning D and E abortion.

“This Could Be a New Trend at the State Level”

Elizabeth Nash, senior state issues associate for the Guttmacher Institute, told Rewire that reproductive rights advocates have been waiting for “another shoe to drop.” The attempt to ban D and E abortion care appears to be the first new type of abortion restriction introduced by anti-choice activist since the influx of anti-choice legislation began in 2011.

“This could be a new trend at the state level,” Nash said. “It does fall right in line with some of the trends we’ve been seeing over time. From states restricting access to post-viability abortion to the trend of 20-week abortion bans.”

Some anti-choice activists say this latest abortion ban was likely after the U.S. Supreme Court upheld the so-called partial-birth abortion. “Abortion attorneys on both sides knew that this bill was the next step,” Kathy Ostrowski, legislative director of Kansans for Life, told the Kansas City Star. “It was inevitable this was coming. It was a matter of timing.”

Bills to ban the D and E procedure have also been introduced in Missouri and South Carolina, and anti-choice activists in Arkansas have said that similar legislation is likely to be introduced during the state’s next legislative session in 2017.

Reproductive rights advocates are concerned about the possibility of a ban being passed in Missouri, where state lawmakers have, in recent years, aggressively sought to restrict reproductive rights.

“I’m not sure what the impact will be or how we would comply because the bill is written with non-medical language, and it’s not written by doctors. It’s written by politicians,” Mary Kogut, president and CEO of Planned Parenthood of the St. Louis Region and Southwest Missouri, told Rewire. “Our concern is that this seems to be part of a broader strategy that is trying to ban safe and legal abortion in Missouri.”

Planned Parenthood provides reproductive health-care services at several clinics across Missouri, and operates the state’s lone clinic that provides abortion services. The clinic has been under siege by state lawmakers over the past few years, as dozens of bills have been introduced targeting the clinic in an attempt to force its closure.

“Substituting Political Decisions for Medical Decisions”

The bans on D and E abortion will almost certainly face legal challenges from reproductive rights advocacy groups. Supporters of the legislation are confident in their constitutionality, and the NRLC believes the Roberts Court would uphold the new laws.

“We believe we have five votes that would allow us to ban this particular procedure,” said the NRLC’s Mary Spaulding Balch.

Ryan Kiesel, executive director of the ACLU of Oklahoma, told Rewire that there are deep concerns about the constitutionality of the new Oklahoma law, and similar laws like it in other states.

“Any time you have politicians putting their political judgements ahead of the medical judgements and medical recommendations made by a woman’s doctor, it is deeply concerning,” Kiesel said. “The Constitution has routinely held that substituting political decisions for medical decisions is not the way that we should be practicing medicine in the United States.”

Kiesel said that the use of non-medical and often inflammatory language found in bans on D and E abortion, and many other types of anti-choice legislation, are an attempt to impose a political agenda in the practice of medicine.

“The inflammatory non-medical language isn’t an accident; it’s on purpose and very deliberate,” Kiesel said. “It underscores that these bills are not about medicine, they’re not about health care, they’re not about protecting women, they’re not about protecting children. These bills are about politics.”

The impact the D and E bans will have on reproductive health care remains to be seen, but abortion providers and women in need of abortion care in Kansas and Oklahoma will soon feel the impact. The Kansas law goes into effect July 1, and the Oklahoma law goes into effect November 1.

Physicians and health-care professionals have made their concerns known about the consequences of these bans.

A letter signed by 20 doctors opposing the ban was submitted to the chairman of the Kansas House Federal and State Affairs Committee, Steve Brunk, when lawmakers were considering the ban in the GOP-dominated Kansas legislature.

“We are alarmed at the unprecedented attempt of Kansas legislators to dictate how physicians should perform a safe, common, and evidence-based surgical procedure,” the letter said. “This bill would restrict the safest and most expeditious way to terminate a second-trimester pregnancy. … This legislation could also force physicians to provide substandard care to second-trimester abortion patients.”

Dr. Jennifer Wider, a physician who specializes in women’s health, told Yahoo Health that the D and E procedure is typically performed for miscarriage management or in abortions due to fetal deformities or a danger to the mother’s health.

“Some women opt for second trimester abortions electively, but studies show that these women tend to be younger and of lower socioeconomic groups with less access to healthcare,” Wider said.

The D and E abortion procedure accounts for about 8 percent of abortions from 2002 through 2011, according to the Center for Disease Control.

In 2013, there were 7,479 abortions performed in the Kansas, with 89 percent performed before 12 weeks’ gestation, according to a Kansas Department of Health report. Among the 807 abortions that took place after 12 weeks, 584 were performed using D and E.

Women in those states seeking second-trimester abortions may need to undergo an alternative, nonsurgical method, during which a physician would medically-induce labor to expel the fetus and placenta. This type of abortion care is more painful and can be more dangerous for women.

Kathleen Morrell, an OB-GYN and a fellow of Physicians for Reproductive Health, told the New York Times that this type of abortion care can involve significant periods of waiting and may require access to hospital facilities.

“When it is safe to offer a choice of induction or D and E,” she said, “my patients overwhelmingly choose D and E. They are able to be asleep and comfortable for the procedure and then can go home to their own beds at night.”

“I Don’t Recall Calling My Congressman to Have Him Weigh In”

The public discussion about D and E bans has primarily consisted of political debates between lawmakers and activists. The voices of the physicians who provide abortion care and the women and families who have sought a second-trimester abortion have mostly been absent.

The public is generally supportive of allowing abortion early in pregnancy, according to Gallup. However, the majority of Americans do not support allowing abortion past the second trimester of pregnancy, despite the fact that the majority of abortions taking place later in pregnancy are due to reasons such as severe fetal anomalies.

When public opinion surveys ask about whether or not people support allowing abortion to remain legal in specific circumstances, such as when a woman’s life is in danger or when the fetus may have mental or physician disorders, there is overwhelming support for reproductive rights.

“There’s a lot of education we need to do around the need for abortion, around women’s decision making, around access,” Nash said.

“There’s lots of reasons why women end up having abortions later than 8 or 10 weeks of pregnancy,” she continued. “We have to make sure that we have services available to them, and that the public is aware of these needs and understands that we need to maintain access.”

Women who have had pregnancies terminated through the D and E procedure shared their experiences with Rewire. Some of them spoke on the condition of anonymity. All of them shared grave concerns about the consequences of these bans.

“This choice, if taken away, leads to a slippery slope for other decisions not only for women but for all Americans,” said one woman. “If we are forced to carry dying children to term, who is going to pay for the extensive medical interventions required to care for them or keep them alive? Who decides what interventions are appropriate for such children, or how far doctors should go to keep them alive?”

April Salazar, who has shared her experience having a D and E abortion with the New York Times and Mother Jones, told Rewire that she wants women to be able to choose the care that is best for them.

“I think it’s outrageous that politicians, with no medical expertise in women’s health, can outlaw medical procedures that have been proven to be safe, thereby forcing women into potentially life-threatening procedures,” Salazar said.

Julie Bindeman, a psychologist who specializes in pregnancy loss, told Rewire about her experience terminating a pregnancy through a D and E abortion. During her pregnancy the fetus showed indications of brain anomalies, and further testing confirmed that the brain was not forming normally.

Bindeman, at 18 weeks of pregnancy, had a D and E abortion performed.

“It was in a hospital with a wonderfully generous physician,” she said. “I felt cared for and safe, despite these heartbreaking circumstances.”

Bindeman echoed the statements of other reproductive rights advocates for the need for the public to understand that these abortions typically occur because of dire circumstances. “These choices are not made on a whim or lightly,” Bindeman said.

Supporters of these bills, Bindeman said, have never been in her shoes, and don’t understand that for her, abortion was a life-saving procedure that gave her the opportunity to have a family. The laws do provide a sole exception in which a D and E abortion can be performed to prevent “death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function” of the pregnant person.

“The decision was a heart-wrenching one and anything but simple,” she said. “We had the counsel of our physicians, family, and clergy. … I don’t recall calling my congressman to have him weigh in.”

News Politics

Clinton Campaign Announces Tim Kaine as Pick for Vice President

Ally Boguhn

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

The Clinton campaign announced Friday that Sen. Tim Kaine (D-VA) has been selected to join Hillary Clinton’s ticket as her vice presidential candidate.

“I’m thrilled to announce my running mate, @TimKaine, a man who’s devoted his life to fighting for others,” said Clinton in a tweet.

“.@TimKaine is a relentless optimist who believes no problem is unsolvable if you put in the work to solve it,” she added.

The prospect of Kaine’s selection has been criticized by some progressives due to his stances on issues including abortion as well as bank and trade regulation.

Kaine signed two letters this week calling for the regulations on banks to be eased, according to a Wednesday report published by the Huffington Post, thereby ”setting himself up as a figure willing to do battle with the progressive wing of the party.”

Charles Chamberlain, executive director of the progressive political action committee Democracy for America, told the New York Times that Kaine’s selection “could be disastrous for our efforts to defeat Donald Trump in the fall” given the senator’s apparent support of the Trans-Pacific Partnership (TPP). Just before Clinton’s campaign made the official announcement that Kaine had been selected, the senator praised the TPP during an interview with the Intercept, though he signaled he had ultimately not decided how he would vote on the matter.

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Kaine’s record on reproductive rights has also generated controversy as news began to circulate that he was being considered to join Clinton’s ticket. Though Kaine recently argued in favor of providing Planned Parenthood with access to funding to fight the Zika virus and signed on as a co-sponsor of the Women’s Health Protection Act—which would prohibit states and the federal government from enacting restrictions on abortion that aren’t applied to comparable medical services—he has also been vocal about his personal opposition to abortion.

In a June interview on NBC’s Meet the Press, Kaine told host Chuck Todd he was “personally” opposed to abortion. He went on, however, to affirm that he still believed “not just as a matter of politics, but even as a matter of morality, that matters about reproduction and intimacy and relationships and contraception are in the personal realm. They’re moral decisions for individuals to make for themselves. And the last thing we need is government intruding into those personal decisions.”

As Rewire has previously reported, though Kaine may have a 100 percent rating for his time in the Senate from Planned Parenthood Action Fund, the campaign website for his 2005 run for governor of Virginia promised he would “work in good faith to reduce abortions” by enforcing Virginia’s “restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother.”

As governor, Kaine did support some existing restrictions on abortion, including Virginia’s parental consent law and a so-called informed consent law. He also signed a 2009 measure that created “Choose Life” license plates in the state, and gave a percentage of the proceeds to a crisis pregnancy network.

Regardless of Clinton’s vice president pick, the “center of gravity in the Democratic Party has shifted in a bold, populist, progressive direction,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, in an emailed statement. “It’s now more important than ever that Hillary Clinton run an aggressive campaign on core economic ideas like expanding Social Security, debt-free college, Wall Street reform, and yes, stopping the TPP. It’s the best way to unite the Democratic Party, and stop Republicans from winning over swing voters on bread-and-butter issues.”

CORRECTION: A previous version of this article included a typo that misidentified Sen. Tim Kaine as a Republican. We regret this error.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

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Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”