An overdue response to the frenzy of state restrictions on abortion

In the last few years, state legislators around the country have been busy with an onslaught of antiabortion legislation aimed at making it impossible for women to exercise what is still (despite the opposition’s best efforts) a right guaranteed by the U.S. Constitution.

And while it’s unclear exactly why there has been such a frenzy of activity — conservative victories in 2010? Reignition of the culture wars sparked by the Affordable Care Act’s contraceptive mandate? — we do know that more than four times as many bills aimed at limiting abortion access (93) were passed between 2011 and 2013 than had been passed in the previous decade (22).

The new abortion-hostile laws generally fall into four categories — the targeted regulation of abortion providers (so called TRAP laws), limits on who may provide pills that induce abortion very early in pregnancy (medication abortion), bans on the ability of private insurers to include abortion services in coverage and bans on abortion after 20 weeks.

“These regulations, especially their cumulative effects in a given state, may prove to accomplish more in terms of impeding access to care than the previous decades of restrictions, noisy clinic blockades and even outright violence ever have,” Heather D. Boonstra and Elizabeth Nash wrote in a 2014 report on the spate of laws for the Guttmacher Institute, an organization that conducts research and analysis on issues related to reproductive health.

The new laws fall especially hard on low-income women and women in medically underserved rural areas.

Take Mississippi. The state’s only abortion clinic remains open simply because a judge has permitted it to stay in business while the clinic challenges a law requiring its doctor to have admitting privileges at a local hospital. Which he doesn’t need because hospital emergency rooms are perfectly capable of treating patients who develop post-abortion complications. Which, by the way, almost never occur.

I’ve always described the various state efforts to limit abortion as a steady chipping away of 1973’s landmark Roe vs. Wade Supreme Court decision, which gave women the legal right to control their own reproductive fates. But I have been guilty of understatement.

“This incredible wave of regulations is not just ‘chipping away,’ it’s taking a sledgehammer to Roe vs. Wade,” said Nancy Northup, president of the Center for Reproductive Rights. Northup and I spoke today after she testified at a Senate Judiciary Committee hearing on legislation that Democrats have (finally) devised to counteract medically unnecessary new anti-abortion laws.

The Women’s Health Protection Act, sponsored by Connecticut Democratic Sen. Richard Blumenthal and co-sponsored by 35 other Senate Democrats, says abortion providers may not be singled out for special rules and regulations that are not imposed on other, similar medical providers.

Under the WHPA, a state would not be able to force women to undergo medically unnecessary visits or needless medical procedures like ultrasound. They would not be able to limit a nurse’s ability to dispense pregnancy ending drugs, or to counsel a patient via telemedicine. They would not be able to impose rules about the clinic, its equipment or staff (like hospital admitting privileges). They would not be able to impose restrictions on medical training for abortion procedures. Unless, of course, the state imposes those rules on all clinics where “medically comparable procedures” take place.

What is “medically comparable” to abortion? The act does not spell this out, but would apparently leave it to judges to decide. (I would offer: vasectomies, colonoscopies, dental extractions, eyelid lifts, liposuction, arthroscopic surgery.)

In her Senate testimony Tuesday against the bill, one of the country’s leading abortion foes, National Right to Life President Carol Tobias, said that abortion should be regulated because it is different from other medical procedures.

“In our view,” she said, “there are no procedures that are ‘medically comparable’ to abortion because there are not other procedures in which medical professionals deliberately kill a member of the human family….”

But that, if we can move beyond her incendiary rhetoric, is not a medical argument. It is a philosophical argument.

And to use it as justification for imposing medically unnecessary restrictions on women who seek abortions, and the doctors who perform them, is disingenuous. Which is why abortion rights advocates call these laws “pretextual.” Because that’s all they are — pretexts for the ultimate goal: the eradication of abortion.

The American Congress of Obstetricians and Gynecologists, which represents 57,000 doctors and health care providers, spends a good deal of its time developing standards for its members. ACOG’s CEO and executive vice president, Hal C. Lawrence III, strongly supported the proposed federal law. In written testimony submitted to the Senate, he said the profusion of pretextual state laws targeting abortion undermine the doctor-patient relationship and are a “wholly inappropriate expansion of government’s reach into the personal lives and healthcare of Americans.”

Willie Parker, who happens to be the physician at Mississippi’s only abortion clinic, attended the Senate hearing today to speak in favor of the bill. He testified about the burdens that Mississippi’s TRAP laws have imposed on his patients.

“One patient I think of often,” he told senators, “was a pregnant woman with five children, the youngest who had died just the year before from cancer.”

When this patient unexpectedly became pregnant again, he said, she decided to have an abortion, because she could not care emotionally or financially for another child.

“She had traveled some distance for her first state-mandated counseling visit,” he said. “Even though she was resolute, and knew what was best for her family, her procedure was required to be delayed for political reasons that had nothing to do with her medical care.”

Could the Women’s Health Protection Act change that? Maybe. Even if it gets through the Democratic Senate, though, it would go nowhere in the Republican House.

But as Northup told me, “I am focused on making sure we have national attention for the crisis that is happening across the country. Today was the first step.”

Welcome, if overdue.

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