Reproductive Rights Prof Blog

What's the Harm? Dr. David Grimes on the Medical Harms of Abortion Restrictions

We invited participants in the What’s the Harm? symposium to write a short piece about their presentations.  Today we feature Dr. David Grimes, whose presentation can be found here.  

Medical Harms of Abortion Restrictions, by David A. Grimes, M.D.

Enacted under the pretense of greater safety for women, oppressive abortion regulations are having a paradoxical effect: endangering American women. Few abortion opponents have the candor to admit the real goal of this epidemic of state legislation. They hope to make safe, legal abortion inaccessible and thus drive women into the back alley once again. This meets the definition of misogyny.

Abortion has been well regulated for decades

A myriad of regulations cover abortion services. However, after Planned Parenthood v. Casey opened the door to more state restrictions, the problem has become epidemic. Having provided abortions in clinics and hospitals for more than four decades, I can report that corridor width (regulated by 10 states) has no relation to safe abortion care.

No public health need exists for more regulations four decades after Roe v. Wade

Abortion remains one of the safest procedures in contemporary medical practice, and that has been true for four decades. Indeed, just two years after Roe v. Wade, the Institute of Medicine documented the public health benefits of safe, legal abortion. According to the federal government, the risk of death from abortion in recent years has been less than 1 death per 100,000 procedures. To put that in some perspective, the risk of death from an injection of penicillin is twice that high. A recent survey of complications after abortion in the state of California confirmed that emergency room visits and hospitalization after abortions are rare.

Compared to what?

The U.S. is an anomaly among developed countries in having a risk of maternal death that is rising, not falling. In the most recent federal report, the risk of death from maternal causes was 16 deaths per 100,000 live births. A comparison of abortion and childbearing risks, published in 2012, found a 14-fold higher risk with childbirth. Because of the increasing risk of childbirth, the disparity is larger today.

Despite medical advances in recent decades, pregnancy, childbirth, and the post-delivery period remain dangerous. According to data from the Centers for Disease Control and Prevention (CDC), a woman’s risk of having one or more pregnancy-related complications is 60%. Given about 4 million births per year in the U.S., that translates into more than 2 million women suffering complications, some being long-lasting.

Delay is dangerous

As documented decades ago, one of the most powerful predictors of abortion safety is the duration of the pregnancy: the earlier the procedure, the safer. Delays of any origin, such as mandatory waiting periods, postpone care to later, more dangerous stages of pregnancy. Studies of the impact of these laws in Texas have confirmed this harm, with delays up to three weeks. When clinics are forced to close because of draconian abortion restrictions, women are also forced into interstate travel to get care. Still others resort to dangerous attempts at self-induced abortion.

Unethical legislation

Three ethical principles provide the foundation for all health care: beneficence, autonomy, and justice. Beneficence requires that what we do to patients is in their best interests. Autonomy means free choice among available treatment options based on the best available scientific evidence. Justice means equitable access to care. Imposing gratuitous abortion restrictions violates all three criteria by increasing risks to women, limiting treatment choices, and making adequate care dependent upon one’s zip code. Regardless of one’s views of abortion, new regulations must be rejected as unethical.

Bad old days redux?

In the year that I was born, more than 700 women died in the U.S. from dangerous, clandestine abortions. The population of the nation was less than half of that today. Despite the well-documented health benefits of safe, legal abortion for women and their families, some want to return women to the back alley again. Our response as a nation must be “never again.”

Supreme Court Likely to Hear Abortion Case This Term

Scotus Blog (Oct. 9, 2015): Relist Watch OT2015Edition, by John Elwood:

Currier v. Jackson Women's Health Clinic was one of several cases relisted by the court last week, but a conference has yet to be scheduled.

A challenge to a similar Texas law arrived at the Court in June.  The Court issued a stay in that case, Whole Women’s Health v. Cole, 15-274, by a five-to-four vote. The Court likely rescheduled Currier to allow Whole Women’s Health, which is still being briefed, to “catch up.”  Since a stay requires a showing of a “reasonable probability” of a cert. grant and a “fair prospect” that a majority of the Court will conclude that the decision below was erroneous, there is a good chance we’ll see a grant of at least one of these cases once all the briefing is in.

Texas Evaluation Projects Releases Report on Impact of HB2

Texas Evaluation Project (Oct. 5, 2015): Wait Time to Obtain an Abortion is Increasing in Texas as Clinics Close:

The amount of time women have to wait before they can get an appointment at an abortion clinic in Texas has increased, according to research performed by the Texas Policy Evaluation Project (TxPEP). Wait times have gotten particularly long in Dallas and Ft. Worth after a large-volume clinic closed in June 2015, with women having to wait up to 20 days on average in these cities.

TxPEP is a five year effort to document and analyze the impact of reproductive health measures passed by the 82nd and 83rd Texas Legislature.  In addition to reporting current wait times, researchers cautioned that if Texas HB2 goes into effect wait times would become much longer. If wait times exceed 20 days, many women would be pushed from first to second tri-mester abortions, and second term abortions could rise from 6,600 to 12,400. 

Is the War on Women Lost?

Mother Jones (September/October 2015): The War on Women is Over - And Women Lost by Molly Redden: 

This is what 2015 looks like: Abortion providers struggle against overwhelming odds to stay open, while women "turn themselves into pretzels" to get to them, as one researcher put it. Activists have been calling it the "war on women." But the onslaught of new abortion restrictions has been so successful, so strategically designed, and so well coordinated that the war in many places has essentially been lost.

Restrictions on the provision of abortion have closed clinics across the nation and create an ongoing struggle for clinics to remain open.  This article discusses how state laws have transformed all facets of how women get abortions and have created severe obstacles to getting one.

 

 

K.C. Becker on the Battle for Women's Reproductive Rights

Daily Camera: Battle for Women's Reproductive Rights Goes on Every Day, by K.C. Becker:

State legislatures across the country have become popular battlegrounds for limiting reproductive freedom for women. Anti-choice activists have been launching well-coordinated assaults in state after state by churning out bills designed to indirectly limit or eliminate a woman's legal right to get an abortion. These new laws shut down clinics by putting new requirements and restrictions on the clinics, doctors, or patients.

Becker predicts that some of these restrictions will eventually be declared unconstitutional.  "But rest assured" she warns, "that they will be coming back, across the country, with new variations on an old theme."  Becker reminds us that the battle did not end with Roe v. Wade.

 

Lawsuit Against TRAP Law Filed in Oklahoma

RH Reality Check (9/22): Lawsuit Asks Oklahoma Supreme Court to Block Anti-Choice Omnibus Bill, by Jessica Mason Pieklo:

Continuing its pro-choice advocacy in Oklahoma, the Center for Reproductive Rights has petitioned the Oklahoma Supreme Court to block a TRAP law that is scheduled to come into force on November 1st.  Pieklo writes:  

SB 642 includes language that advocates claim could be interpreted to bring felony charges for any violation of the more than 140 statutes targeted at physicians and medical facilities providing abortion.

The lawsuit was filed on behalf of one of only two abortion providers in the state.

 

Student Scholarship: A Different Approach to Regulating Abortion Clinics

Jessica Ettinger (Notre Dame) has posted Seeking Common Ground in the Abortion Regulation Debate on SSRN. Here is the abstract: 

This Note argues that requiring abortion clinics to adhere to the same standards as ambulatory surgical centers is unconstitutional, at least in the context of those clinics that provide only medication abortion, because it unduly burdens a woman’s right to choose whether to obtain an abortion. Although there may be a rational basis to require abortion clinics offering surgical abortion procedures to meet surgical facility standards, no such basis attends the imposition of those requirements on clinics that provide nonsurgical services. Given the number of clinics that continue to close in the face of this new regulatory legislation — which significantly reduces access to abortion services, increases their cost, and makes them logistically more difficult to procure due to increased geographic travel — it is arguable that even requiring surgical abortion clinics to meet ambulatory surgical center standards will result in an undue burden.

At the same time, however, state legislators have a valid interest in ensuring that abortion procedures are conducted in a safe manner. Although abortion clinics currently are subject to regulatory oversight outside the realm of state-specific statutes, the requirements currently in place govern the privacy of patients’ health records, laboratory testing practices, and workplace health and safety, but do not address directly the regulation of surgical procedures.

In light of the constitutional problems embedded in current state efforts to regulate abortion clinic facilities and the shortcomings of federal regulatory efforts, it may be time to entertain a different approach to abortion clinic regulation. Part I presents the legal framework and standards currently governing abortion legislation. Part II utilizes this foundation to evaluate current problems in state regulatory practices, spotlighting two pieces of recent state legislation that seek to impose ambulatory surgical center standards on all abortion clinic facilities within their borders. Lastly, Part III introduces and outlines an alternate means of regulation — accreditation — that offers common ground in the abortion debate by serving everyone’s interest in providing safe, accessible medical services to women.

Federal Judge Permanently Enjoins Wisconsin Admitting Privileges Law

The Journal Sentinel: Judge rules Wisconsin abortion law unconstitutional, by Daniel Bice & Cary Spivak:

A federal judge on Friday struck down a Wisconsin law requiring doctors performing abortions to get hospital-admitting privileges, concluding that the measure was enacted primarily to provide an obstacle for women seeking abortions.

U.S. District Judge William Conley, who earlier had put the law on hold, ruled that the 2013 law is unconstitutional. He issued a permanent injunction blocking its enforcement. . . .

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The opinion is available here.

Multiple Abortion Restrictions in Ohio Reduce Access

NPR - blog: Abortion Restrictions Complicate Access For Ohio Women, by Jennifer Ludden:

Ohio may not have gotten the national attention of say, Texas, but a steady stream of abortion restrictions over the past four years has helped close nearly half the state's clinics that perform the procedure.

"We are more fully booked, and I think we have a harder time squeezing patients in if they're earlier in the pregnancy," says Chrisse France, executive director of Preterm. It's one of just two clinics still operating in Cleveland, and its caseload is up 10 percent. . . .

Mississippi Files Cert Petition in TRAP Law Challenge

ThinkProgress: The Nation’s Most Restrictive Anti-Abortion Law Just Reached The Supreme Court, by Ian Millheiser:

A Mississippi law that would eliminate access to abortion within that state — a law so restrictive that it was halted by one of the most conservative federal appeals courts in the nation — arrived in the Supreme Court on Wednesday after the state filed a petition asking the justices to hear the case. Should the Court agree to do so, Mississippi could win the right to close down its only abortion clinic. . . .

2015 Offers No Reprieve From Efforts to Restrict Abortion

ThinkProgress: The Massive Push To Restrict Abortion In 2015, by Tara Culp-Ressler:

On the heels of a record-breaking number of new abortion restrictions that have been enacted over the past four years, state lawmakers are continuing to push forward with a stringent anti-abortion agenda in 2015.

By last week, states had already introduced more than 100 bills intended to regulate access to abortion, according to researchers at the Henry J. Kaiser Family Foundation. Lawmakers are working to restrict the procedure in more than half the states in the country . . . .

Fourth and Fifth Circuits Confront Abortion Exceptionalism

JURIST (commentary): Fourth and Fifth Circuits Confront Abortion Exceptionalism, by Caitlin Borgmann:

Federal Courts of Appeals have recently addressed two important abortion cases, either of which could end up before US Supreme Court. Last week, the US Court of Appeals for the Fifth Circuit heardoral arguments on the merits of a Texas law that requires abortion facilities to meet hospital-like building and construction standards. The US Court of Appeals for the Fourth Circuit issued a decision[PDF] in late December striking down a North Carolina pre-abortion ultrasound law that requires abortion providers to perform a sonogram before an abortion and to display and describe it to the woman. Each case is important for abortion rights in different ways, but a common theme the cases raise is the question of abortion exceptionalism: whether courts should treat abortion as an exceptional case when states purport to regulate it for health and safety reasons (in the Texas case) or when state restrictions encroach on the right against compelled speech (in the North Carolina case) . . . .

NYT Editorial on Attacks on Abortion Rights

The New York Times editorial: A Perilous Year for Abortion Rights:

The start of 2015 finds no letup in the attacks on a woman’s constitutionally protected right to make her own childbearing decisions. Republican lawmakers and organizations devoted to dismantling reproductive freedom have succeeded in shrinking the already inadequate number of abortion providers, making it exceedingly difficult, if not impossible, for women — especially young and poor women — to obtain safe and legal abortion services in large swaths Texas and other parts of the country. . . .

Federal Judge Permanently Enjoins Indiana Abortion Law

JURIST: Federal judge enters final ruling on Indiana abortion clinic law, by Steven Wildberger:

Judge Jane Magnus-Stinson of the US District Court for the Southern District of Indiana[official website] entered a permanent injunction Wednesday barring Indiana law IC 16-18-2 [text], which would redefine what qualifies as an abortion clinic and shut down Planned Parenthood's Lafayette facility. The law was barred for imposing rules on facilities that provided only medical abortions that would not have been imposed on physicians' offices providing the same service, violating the Equal Protection Clause of the Fourteenth Amendment [text]. . . .

Fifth Circuit Hears Arguments on Texas Ambulatory Surgical Center Requirement

The New York Times: Texas Abortion Clinic Rules Tested in Appeals Court, by Erik Eckholm:

Lawyers for abortion clinics squared off with Texas state attorneys in a federal appeals court here on Wednesday, arguing over the constitutionality of stringent abortion clinic rules that would force more than half the remaining abortion providers in Texas to close.

But more is at stake than whether large portions of South and West Texas will be left with no abortion clinics, forcing some women to drive hundreds of miles for an abortion, for safety reasons that doctors and clinic owners call a pretense.

The case argued here — along with others arising from the hundreds ofabortion restrictions adopted by more than half of the states in recent years — poses issues that are likely to end up before the Supreme Court in the next year or two, many legal experts say . . . .

Al Jazeera America: Texas abortion clinics: How far is too far to drive?, by Michael Keller & Marisa Taylor:

Is 150 miles too far to drive in order to get an abortion? In some parts of Texas, that distance could get a lot longer, and it’s up to a federal appeals court to decide whether that places too much of a burden on women seeking to end their pregnancies. . . .

“It’s always been a little bit unclear exactly what constitutes an ‘undue burden,’” said Caitlin Borgmann, a professor at CUNY School of Law with expertise on reproductive rights law. . . .

“If women can’t access abortions, then the right is meaningless,” Borgmann said. “This very much goes to the core of what it means to be a constitutional right to abortion.”

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The Al Jazeera America story includes interactive maps that show what parts of Texas would be left without any available abortion clinics if the ambulatory surgical center requirement is upheld.

Supreme Court Declines to Review Decision Blocking Arizona Medication Abortion Restriction

The New York Times: Justices Let Abortion Decision Stand, by Adam Liptak:

The Supreme Court on Monday let stand a decision temporarily blocking an Arizona law that limits the availability of medicinal, nonsurgical abortions. As is its custom when it denies review, the court gave no reasons for its action.

The law, enacted in 2012, requires abortion providers to comply with a 2000 protocol from the Food and Drug Administration for mifepristone, anabortion-inducing drug that is sometimes called RU-486. . . .

The 2000 protocol calls for the drug to be given in higher doses than is customary today, and only in the first seven weeks of pregnancy. . . .

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This denial is interesting in part because the Supreme Court had previously agreed to review a similar law from Oklahoma, which had been struck down by the Oklahoma Supreme Court.  The U.S. Supreme Court had then certified questions to the Oklahoma Supreme Court regarding the law's interpretation.  The Oklahoma Supreme Court read the law broadly, in a way that would have prohibited all medication abortions, including to treat ectopic pregnancies.  After receiving the Oklahoma Supreme Court's interpretation, the U.S. Supreme Court in November 2013 dismissed the writ of certiorari as improvidently granted.  It seemed possible that the U.S. Supreme Court would still be interested in reviewing a medication abortion restriction that was interpreted more narrowly as requiring adherence to the FDA-approved protocol.  The Ninth Circuit decision on the preliminary injunction assumed for purposes of the opinion that the Arizona law only reached this far, but still found it to constitute an undue burden.

-CEB

ThinkProgress Investigates Influence of Americans United for Life on State Legislatures

ThinkProgress: Inside The Highly Sophisticated Group That’s Quietly Making It Much Harder To Get An Abortion, by Erica Hellerstein:

. . . Not unlike the American Legislative Exchange Council (ALEC), AUL functions as de facto legislation mill for like-minded politicians and on-the-ground anti-abortion activist groups — offering model legislation that, according to itswebsite, “enables legislators to easily introduce bills without needing to research and write the bills themselves.” The organization operates in relative obscurity despite its exceptionally far reach. According to an email obtained by ThinkProgress that was sent to AUL supporters, the group is responsible for one third (74) of the 200-plus anti-abortion laws that have passed since 2010. . . .

LA Times Op-Ed on TRAP Laws

The Los Angeles Times op-ed: 'TRAP laws' are a threat in disguise to abortion rights, by Caitlin Borgmann:

Last month, ballot measures that would have given embryos the legal rights of persons were decisively rejected in Colorado and North Dakota. The defeats were hailed as a victory for defenders of the right to legal abortion. But such measures serve as a distraction from a far bigger threat to abortion rights from onerous rules known as Targeted Regulation of Abortion Providers, or "TRAP laws." . . .

Republican Gains in November Elections Portend More Abortion Restrictions

Politico: The coming wave of anti-abortion laws, by Paige Winfield Cunningham:

New GOP state legislatures will make access to abortion harder than ever.

The big Republican gains in the November elections strengthened and enlarged the anti-abortion forces in the House and the Senate. But it’s the GOP victories in the statehouses and governor’s mansions that are priming the ground for another round of legal restrictions on abortion. . . .

Fifth Circuit Denies En Banc Review of Decision Blocking Mississippi's Admitting Privileges Law

The Jackson Clarion-Ledger: 5th Circuit refuses to reconsider Mississippi's abortion law, by Jimmie E. Gates:

The full 5th Circuit U.S. Court of Appeals has refused to reconsider a ruling blocking Mississippi from enforcing a law requiring doctors who perform abortions in the state to have admitting privileges at local hospitals.

In late July, a panel of the 5th U.S. Circuit Court of Appeals ruled 2-1 that the law is unconstitutional because it would close Mississippi's only abortion clinic. . . .

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The panel decision was notable for ruling that a state may not rely on the availability of abortion in neighboring states in arguing that its own restrictions do not impose an undue burden.  In this case, the admitting privileges law threatened to shut down Mississippi's last remaining abortion clinic. Professor Jonathan Will and I exchanged views on the panel decision in August.

-CEB