Abortion: Restrictions at the State Level

On March 2, 2016 the United States Supreme Court started hearing oral arguments for Whole Woman’s Health v. Hellerstedt, which deals with a controversial Texas law enacted in 2013. This law, HB 2, requires all abortion clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment, and staffing. It also requires abortion clinics to obtain admitting privileges from hospitals within 30 miles of the facility. Similar laws exist in numerous states around the country. The Texas government argues that these requirements are to protect women’s health. Abortion rights groups say the restrictions are expensive, unnecessary and actually a ploy intended to put many of the clinics out of business and restrict access to abortion. The laws in Texas have prompted other states to do the same; just on March 9th the Florida legislature passed a bill to block state money from going to abortion clinics as well as set in place the same requirements to meet the standards for “ambulatory surgical centers”. On May 19th the Oklahoma Legislature passed a bill making performing an abortion a felony in addition to denying licenses to doctors who have performed abortions. Depending on how the Court rules in Whole Woman’s Health v. Hellerstedt we may see even more of these types of restrictions go into effect in even more states.

The lawmakers and pro-life activists who are pushing for these laws say that it is in the interest of women’s health. This sounds very logical on its face and is presented as such. Of course, if abortions are medical procedures then perhaps it makes sense to require them to maintain a certain standard that we do for other medical procedures. However, in an amicus curiae (Latin for “friend of the court”) brief in support of Whole Woman’s Health, the American Medical Association and the American College of Obstetricians and Gynecologists declared that,

H.B. 2’s requirement that abortion facilities meet the standards for ASCs is devoid of any medical or scientific purpose. Texas has argued that abortion procedures would be safer if performed in ASCs, but there is no scientific or medical evidence to support this view. To the contrary, mandating that abortion facilities meet ASC standards deprives women of access to reproductive health care and is inconsistent with appropriate and accepted medical practice. Abortion is an extremely safe medical procedure and no medical evidence suggests that abortion would be safer if performed in an ASC setting. Abortion is one of the safest medical procedures performed in the United States.

A study in the Journal of Obstetrics and Gynecology in 2012 found that nationwide the mortality rate for abortions is 0.6 deaths per 100,000 abortions, a percentage of 0.0006. That same study also found that in comparison, the mortality rate associated with childbirth (which is also extremely low) was 14 times higher than the mortality rate for abortions, at 8.8 deaths per 100,000. In fact, between 2009 through 2013, there were no reported deaths in 360,059 abortions performed in the state of Texas. These Texas laws were passed in 2013, the fact that there were no reported deaths in years prior indicates that this is not about women’s health and safety.

A very clear instance of an abortion bill under the guise of helping but will actually have the result of harming women just happened here in Utah. Utah’s Governor signed a bill into law that requiring anesthesia for any abortion after 20 weeks. The reasoning, as the law states, is because of the “substantial medical evidence from studies concludes that an unborn child who is at least 20 weeks gestational age may be capable of experiencing pain during an abortion procedure”. First, realize that according to the Center for Disease Control only 1.3% of abortions are performed after 20 weeks, so abortions after 20 weeks are not a common occurrence. Additionally, the people who obtain abortions this late tend to be the ones in the most vulnerable of situations. The people obtaining an abortion this late tend to do so because of health reasons, complications with pregnancy so that a woman will be unable to carry the baby to term, disagreements with the father (sometimes in the form of an abusive relationship), or — shockingly — because the women did not actually know they were pregnant. This goes to show the failures of sex ed in states like Utah, but that’s another topic. The main problem with this bill is this: it says there is “substantial evidence” that fetuses feel pain at 20 weeks, this is not true. Substantial evidence actually disagrees and says fetuses feel pain later, in the 3rd trimester, somewhere around 27–30 weeks. There is also no way to get regional anesthesia to target just a fetus, the only way to administer anesthesia is to give general anesthesia to the woman. There is a reason why anesthesiologists make really good money, it is their job to keep you alive. Every time you administer anesthesia you are increasing risk. To administer anesthesia for an abortion when it is not proven to provide any benefit but is proven to increase risk is an insane and dangerous thing to do. For this reason this Utah bill will certainly be struck down, but it goes to show how these bills (passed under the guise of health and safety) are actually damaging and harmful to women.

Laws of this nature in other states have similar effects, they actually harm women or put women at greater risk unnecessarily. Two studies found that these restrictions on abortions (as well as the overall attitude of sex-negativity that leads to cuts in Planned Parenthood, cuts to birth control funding, prevention of comprehensive sex-ed, etc.) have the result of actually creating more second-trimester abortions. A study found that 58% of women who had second-trimester abortions would have preferred to have it done earlier and 29% were actually in their first trimester when they contacted the abortion clinic but these TRAP laws delayed the procedure all the way until the second trimester. So why did so many woman prefer to get an abortion earlier but instead got one during the second trimester? According to the study, women who have later abortions tend to be young and of low-income status. Specifically, it found that women under 18 took longer to identify pregnancy symptoms and poor women had to delay their abortion because they had to make arrangements, such as raising money, getting childcare, or transportation to the clinic. Restrictions such as waiting periods increase this cost. This is because due to restrictions, more women are living far away from clinics. Take Texas, for example. The number of women living further than 100 miles away from a clinic has more than doubled in recent years. Not only is this an increase in travel expenses due to gas, but combine this with the legally required 24-hour waiting period in Texas. Most women who live this far are not going to drive 400 miles over 24-hours (back and forth twice) and will instead have to stay at a hotel or motel. This then increases the cost even more. And some states have longer than a 24-hour waiting period and some states have put limitations on abortions to the point of only having one abortion provider in the entire state (Mississippi, Missouri, North Dakota, South Dakota and Wyoming). Additionally, according to that same study, 60% of women who have an abortion have children already, so for 60% of people there is potentially an additional cost of finding a babysitter. All of these factors combine to add increases to the cost of an abortion. This chase to raise money is known as “chasing the fee”, basically as one tries to get the money to pay for an abortion they continue further along in their pregnancy which makes the abortion even more expensive which makes it harder to obtain the money and it continues like this, like a snowball rolling down a hill. The study found that poor women were twice as likely to be delayed by effects such as this. The most mind-blowing fact to come out of the Finer study was that 36% of women who had second-term abortions were delayed in getting it because these women had to “find out about the pregnancy” i.e. they didn’t realize they were pregnant. This seems to be due to lack of proper sex-ed. In Utah this past legislative session the legislature passed the aforementioned abortion bill but failed to pass a bill that would allow schools to opt-in to a comprehensive sex-ed program. These backwards priorities are actually, according to the evidence, actually causing more harm. It is extremely strange that some people against abortions also seem to be against sexual education and easier and cheaper access to birth control. Their opposition to sex-ed programs seems to be causing more later abortions. Shouldn’t this same group of people actually be against this?

Here is one of the most concerning statistics regarding the harm on women that is a result of these restrictions at the state level. Google searches for the words “self-induced abortion” are highest in many states that are also the states that are rated most hostile to abortions. Of the 26 states that are rated hostile or very hostile to abortions, 18 had a number of Google-searches for the phrase “self-induced abortion” that was higher than the national average. Then on the opposite side, of the 12 states that were rated as supportive of abortion rights, 10 had lower than average rate of Google searches for the phrase “self-induced abortion”, and many of those were lower than the national average by more than 10%. No one would argue against the fact that abortions performed by a doctor in a safe clinic are safer than self-induced abortion. These search terms certainly lead one to believe that the rates of self-induced abortions is higher in states with worse access to abortion, if people are searching it then it is probably for a reason.

According to the Guttmacher Institute, there were more laws passed at the State level to restrict Abortions between 2011–2013 than there were during the entire previous decade, 2001–2010. The Guttmacher Institute has a rating system to define how harshly states are restricting abortions. If a state has 4 or more major restrictions then it is defined as “Hostile to Abortion Rights”. In 2000 there were 13 states that were classified as “Hostile to Abortion Rights” and in 2014 that number had risen to 27 states. This is the effect of these Targeted Regulation of Abortion Provider laws (TRAP laws). Due to HB 2 and other restrictive laws in Texas, the number of abortion providers in Texas has dropped from 41 in 2012 to 18 in 2015 with 8 of those at risk of closing.

Pro-life politicians and advocates have gone from trying to restrict the individual person’s access to abortions to pushing unnecessary regulations on abortion providers. This is because Roe v. Wade prevents restrictions to the individual but the decision in the Supreme Court Case Planned Parenthood v. Casey in 1992 upheld the right to an abortion but also stated that States can regulate or restrict abortion as long as it doesn’t have the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability”. This court case took into consideration the following restrictions on abortion: informed consent (being told information about abortion risks, fetal development, etc.), spousal notification, parental consent if under 18, a 24-hour waiting period, and a requirement for the doctor to report the procedure to the state health department. The Supreme Court struck down the spousal notification rule but upheld the rest (slightly altering the requirement for doctor’s reports). In doing so it decided that states can create regulations and enforce restrictions on abortion but it also created a new test to determine if a regulation or restriction went too far. The “undue burden” test.

This is the court case that has been used by states to justify their implementation of laws that restrict the number of abortion providers and limit access to abortions. These laws have gone to far and do impose an undue burden on women seeking to obtain an abortion. Since HB 2 has been implemented the number of women of reproductive age in Texas living more than 100 miles from a clinic providing abortion in Texas increased from 417,000 in May 2013 to 1,020,000 by April 2014. This study also predicted that when the ASC requirement in HB 2 goes into effect this will increase to 1,335,000. Additionally, one of the specific requirements being questioned before the Court is the requirement for abortion clinics to obtain admitting privileges at local hospitals as well as meeting the requirements of Ambulatory Surgical Centers. One of these requirements that is hard to be met by abortion clinics is the following, from the legal requirements of a ASC: “the corridor[s] shall have a minimum width of 6 ft”. This makes sense in hospitals because it has to do with safety, efficiency, and the fire code. The reason being that there needs to be space for 2 hospital gurneys to be able to pass each other without crashing. This is not a problem in abortion clinics because it is extremely rare for any of these procedures to require transportation on a gurney. This is simply not a necessary requirement for abortion clinics. Neither is the requirement for admitting privileges at local hospitals. For comparison, the mortality rate associated with a colonoscopy is more than 40 times greater than that of an abortion, yet gastroenterologists, who perform such procedures in office-based settings, do not face admitting privilege requirements. Neither do most dermatologists and even some plastic surgeons. The result of these regulations has created major restrictions on abortion access, put those who attempt to obtain one at greater risk, and have been challenged by many medical organizations to say that they do not improve women’s health and safety. What is this other than an undue burden?

These challenges to abortion rights should deeply concern all of us. As Sandra Day O’Connor wrote in the opinion for Planned Parenthood v. Casey, “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” (I should also point out that Sandra Day O’Connor is not some unabashed liberal but actually was appointed by Reagan) Abortion rights are part of the package of women’s rights that allows them to participate fully in society. The state legislatures and governors passing these restrictions are chipping away at women’s autonomy in American life. As shown, the reasons being given for these restrictions do not stand up to the weight of evidence. They do not benefit women in terms of health. They do not benefit women in terms of safety. They do cause massive hurdles for women attempting to get an abortion. They do infantilize women and treat them as if they are not capable of making their own decisions. This is nothing more than a massive campaign of deception with the goal of chipping away at women’s rights and equality in the United States.

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