Circumventing Roe v. Wade
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|In the back alley|
“”On this record, the admitting privileges requirement remains a solution in search of a problem.
|—U.S. District Judge William Conley, on a contested Wisconsin abortion law|
In 1973, Roe v. Wade made it illegal for states to deny access to abortions during the first 5 months of a person's pregnancy. The Religious Right, unhappy with this decision, spent years finding ways to get around the ruling. "If you can't make it illegal, make it impossible to get" appeared to be the motto. Laws were pushed on state and federal levels to make abortion increasingly inaccessible, though this was met with constant legal challenges.
Like many issues that do not have popular support (teaching of Creationism in science classrooms, curing cancer with magnets, or anti-vaccination hysteria), the anti-abortion movement often relies on pseudoscience to try to make their claims seem legitimate. Many of these legislative attempts are unnecessary, unfounded legislation that propose "solutions in search of a problem".
As Roe v. Wade was overturned in 2022, attempts to circumvent it have mostly been rendered a null issue.[note 1] Though, it still serves as a clear example for how extreme legal-trolling can be successfully disruptive. Such tactics may also continue to be deployed in states where an outright abortion ban would be politically untenable.
Requirement for ultrasound
In 2009, a new weapon for "discouraging" abortion was tossed into the ring. Various states began to require ultrasounds of the fetus, irrespective of any medical need. The laws range in what they cover but by and large cover several of the following:
- A requirement for ultrasound to be performed, and by legislation, the patient be invited to look.
- A requirement that the doctor describe the fetus to the patient.
- A requirement that the patient must look at the image (though in some cases, the patient may sign an exemption). How this is enforced is rather unclear.
- A requirement that the ultrasound be best placed to ensure the fetus can be best imaged and the heartbeat clear. Because a fetus under 3 months cannot be easily imaged by traditional ultrasound, this provision necessitates that the pregnant person undergo the costly, invasive, medically unnecessary trans-vaginal ultrasound.
As of 2012, 20 states have laws requiring the use of an ultrasound prior to an abortion. The choice the pregnant person makes to look or not look at the ultrasound is not only noted, it is kept with their permanent medical records. Why? Probably to enforce some sort of guilt.
The Religious Right anti-abortion crowd has not attempted to hide their reasons for requiring sonograms. It is not for the health of the mother, nor is it an assistance to the doctor. Quote after quote says that it is to encourage a pregnant person not to have the abortion. And yet, as Tracy Weitz[note 2] put it, “[People] do not have abortions because they believe the fetus is not a human or because they don’t know the truth.” As Professor Weitz notes, 60% of abortion patients have already delivered a child, with most people having abortions because of the “material conditions of their lives.”
In one study on this issue of the effect of an ultrasound on pregnancy (done in British Columbia), of the 254 people who saw their fetus, not one changed their mind, but 76% reported it made the abortion far more emotional, and of those 76% "most" regretted having seen the fetus, not because they regretted their decision, but regretted the extra stress and pain. Two studies coming out of the University of CA appear to come to the same conclusion. Indeed, this may be an end in itself for the anti-abortion crowd; if they can't prevent the abortion, at least they can make the pregnant person who gets it terribly inconvenient and intrusive.
The medical establishment immediately challenged these laws on the grounds that they would interfere in the best practices between a patient and their doctor, specifically the laws that demand a doctor describe what they see to the pregnant person and what will happen to the fetus during the procedure, and force them to listen to the heartbeat. There is no similar case in legislative history, where laws have been written to tell a doctor how to do their job, much less how to counsel patients.
Currently all states with such laws have had those laws challenged. The only law to have been adjudicated as of February 22, 2012 is the Texas law which was found constitutional by the Texas Court of Appeals, even though it blatantly infringes on the right of doctor-patient confidentiality, as well as their right to make decisions in how best to treat a patient.
In 2012, four states addressed new ultrasound laws that state in effect that the doctor must use whatever method best allows him to view the baby. In the first 3 months of pregnancy (the period of pregnancy with roughly 90% of all abortions, including some 40% that are medical and not surgical abortions) the child cannot be seen by a traditional external ultrasound (the media is using 'jelly on the belly' to describe this procedure). Instead, a vaginal ultrasound is required. Understanding that this is an unnecessary medical procedure, and that it is invading the patient's body with a (rather large) probe, and that generally the patient does not want to have unnecessary invasions of their body, this type of ultrasound follows the FBI's definition of rape.[note 3]
States with ultrasound provisions
- Texas mandates the use of trans-vaginal ultrasound in the first three months. Even if the abortion will be medical. The doctor or technician is required to describe the baby, even if the patients do not wish to look or hear about it. (One supposes they cannot prevent someone from sticking their fingers in their ears and singing lalalalala to herself, but in Texas? Who knows.) Despite blatant violation of the privileged, private conversations between a patient and her doctor, as well as the freedom of speech of a medical professional, the Texas Court of Appeals demanded the law be enforced starting Feb 7, 2012.
- Virginia - Early 2012, Virgina proposed a bill with common language that suggest "transvaginal ultrasound must be performed on any [person] for whom traditional ultrasound is insufficient to image the baby". Due to the size of the fetus, this is pretty much any pregnancy before 14 weeks. A huge outcry from pro-choice organizations as well as women around the country spurred by social networks showed just how obscene this bill was. The language was changed so a trans-vaginal ultrasound would be an option to the conventional ultrasound that is by law. A bill to repeal the ultrasound requirement failed in the 2015 legislative session.
- Iowa - Learning nothing from the smack down in Virginia, on February 21, 2012, the Iowa House began pushing a bill that would require much the same as the original VA law. As of January 21, 2015, it has been officially introduced into the Iowa House Committee on Human Resources for consideration. The bill mandates the performance of an ultrasound, presumably including trans-vaginal ultrasounds, but does not mandate that the patient see the fetus, listen to its heartbeat or listen to the description from the doctor, merely requiring the doctor to note that the patient was given the option.
- Alabama - And following the lead of these three other states, on February 22, 2012, Alabama brought legislation to the floor with pretty much the same wording as VA.
- Idaho - On March 19, 2012, Idaho passed an ultrasound bill that requires ultrasounds on any abortion, "drug or medical procedure". The Idaho code now also requires that: doctors inform patients of their options, including what can only be described as a "lecture" about what the baby looks like and how far along it has developed, as well as the benefits to making other choices, such as adoption or single parenthood. The doctor shall also be required to provide information with groups that assist in adoptions, in well baby care, and in medical assistance for pregnant people.
Fetal personhood laws are legal attempts to change the manner in which Roe v. Wade can be applied, by defining the fetus as a person, usually from the moment of conception. These laws are the most direct attacks upon Roe v. Wade.
Parental consent and notification
Parental consent laws are laws that require a minor to tell their parents of their abortion. Canada does not require that minors notify parents, and in fact keeps the minor's medical decisions confidential. The UK requires that the minor be competent and "medically mature enough" to make the decision. Generally, that wording is read in the teen's favor. Europe and the US have a large variety of laws, set by the individual nations or states.
They come in primarily four forms:
- Both parents must consent to the abortion. -- This was overturned by the US Supreme Court who found that in many instances, there is reason that telling one or the other parent causes unnecessary burden and does not fit the requirements of other medical laws associated with minors. However, two states still have this law on their books.
- Both parents must be notified of the abortion before it happens. -- Laws of this type passed by States have all been challenged in Court for reasons stated above. One parent may simply be dangerous, unavailable, or not trustworthy. No Supreme Court decision has been held on notification, so these cases are generally all active in the system.
- One parent must consent to the abortion. -- This is far and away the most common notification law for US States, and Europe, if they have any notification.
- One parent must be notified of the abortion before it happens.
- One parent must be notified of the abortion. -- This is after the fact notification, modeled on the Spousal Notification acts.
- Several states have attempted to pass laws that do not give the child the right to petition the Courts, but those laws have all been overturned on appeal. The US Supreme Court has upheld state's rights to require a minor have a guardian consent before an abortion.
TRAP laws (Targeted Regulation of Abortion Providers) are laws specifically designed to regulate clinics out of business.[note 4] These can include anything from mandating particular (and logistically impossible) building codes, to requiring that clinics maintain an unreasonable number of doctors on staff, to regulating the types and levels of insurance coverage. They include anything done with the intent of making business financially impossible for abortion clinics.
Admission privileges requirement
One of the recent tactics being used to regulate abortion providers are provisions that would require the physicians working at abortion clinics have "admitting privileges" at local hospitals. That is to say, any doctor who performs an abortion must have a right to see patients at whatever hospital. This provision is done under the common guise of "protecting women's health"; the claim is that having doctors who can admit patients to the hospital would somehow save lives. Of course, not only is it highly uncommon for abortion care patients to have serious complications, on those rare chances they do, a doctor simply calls the local 911 and explains the situation. Each of the laws as written make no provisions for other outpatient clinics, including ones far more dangerous to the patient, like colonoscopy clinics or dental surgical clinics, to have such "admitting privileges".
States that have tried to pass or have passed admitting privileged requirements include: Mississippi (2012), Alabama (2012), Louisiana, Wisconsin (2012), North Carolina (2013), North Dakota (2013), and Texas (2013).
A Federal Court in Mississippi has ruled that the state cannot enforce this provision of their anti-choice legislation. The Federal Court in Arkansas required that if the provision remains in place, no hospital may refuse a qualified doctor who wishes admission privileges.[note 5]
In August of 2012, Federal Judge William M. Conley issued an injunction against Wisconsin's admission privileges requirement stating:
“”Most telling of all is defendants’ inability—despite repeated opportunities and prompting by this court—to provide a single example of the recognized importance of local admitting privileges for any other clinical or outpatient procedure than abortion anywhere in Wisconsin, and not just by a governmental entity, but by any medical group or society. The reason for this would appear obvious: were a procedure sufficiently dangerous as to require, or even have a substantial risk of hospitalization, it would likely be performed in a hospital. The fact that procedures demonstrably more dangerous (by a factor of ten or more) including procedures requiring general anesthesia, are performed in outpatient facilities underscores defendants’ present failure, and likely inability, to meet their burden of proof that a reasonable relationship exists between admitting privileges and continuity of care.
At this point, other than a direct appeal to the Roberts (conservative majority) Supreme Court, it is unlikely any state's admission privilege requirement will hold up. History has shown, however, that conservative lawmakers will not likely care.
Building code and licensing regulations
One of the single most effective ways to close the doors of abortion clinics is to rewrite local rules about the building, creating extremely expensive, impractical, or even impossible requirements for abortion clinics to comply with. The first attempt was in Missouri, in 2007, which would have reclassified abortion clinics as surgical centers, requiring higher ceilings (for equipment, apparently), wider doors, and hallways throughout the clinic. The bill was passed, and all the State's clinics were affected, unable to function as abortion centers until a Judge overturned the rule, showing it was politically and religiously motivated, and that the clinics had no need to be classified as hospitals.
Other states watched and learned, and enacted their own laws. In 2010, Kansas passed a law that required clinics to have more bathrooms, larger waiting areas, and even larger janitorial closets. No real medical justification was given, but such is often not needed in building codes. The clinics were given 3 months to comply — an almost impossible time limit. If they did not comply they were shut down, and the renewal process would take up to a full year, due to waiting periods, signatures from neighbors agreeing to have a clinic in the area (even though it already had existed), etc. As of June 2011, due to the new regulations and licensing requirements, there were only 2 clinics in Kansas.
In 2011, Virginia reclassified all clinics which provide 5 or more abortions (how often?) as hospitals, requiring emergency facilities more commonly found in operating rooms, widening all doors to double wides to support a professional gurney with a four man running team. "The regulations are not designed to safeguard women’s health; they are designed to close down as many clinics as possible,” said the one Board member who voted against the re-designation. Well over 30 clinics were closed, unable to rebuild and/or acquire the emergency equipment necessary for a hospital.
Spousal consent and notification
Spousal consent was one of the earliest attempts to limit access to abortion. A pregnant person's child is their spouse's child too, so the spouse has a say in the killing of the child. Consent laws were struck down in Planned Parenthood v. Danforth, 428 U.S. 52 (1976), on the grounds that:
- Abortion is legal under particular circumstances.
- A pregnant person's body is their property and not their spouse's.
- Legal medical decisions they make are their right to make as an independent being.
They also took into account the unspoken reality that the husband may not actually be the father, and that this does not constitute a crime.
If consent doesn't work, how about at least notification? Clearly, that is a right of the father! Planned Parenthood v. Casey (1992) struck that option down, providing two critical arguments amongst a host of others: the pregnant person's child may or may not be the spouse's child, if it is not the spouse's child, the spouse does not have a right to know. The spouse may be a violent person. It is an undue burden to pregnant people to risk their health (or even their life) or their marriage, or a different relationship, because the State mandates they tell someone about a private medical decision.
All spousal notification and consent laws have therefore been struck down, though they pop up every now and then.
- Some states where abortion is still legal may still have certain overbearing regulations written with circumvention of Roe in mind, on the books, however.
- Assistant professor in the Department of Obstetrics, Gynecology & Reproductive Sciences at the University of California, San Francisco.
- The FBI now defines rape as ""penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." Huffington
- Rather... odd, considering the faith in free enterprise and disgust with big gub'mint and regulation usually evinced by "conservatives"...
- In July of 2013, North Dakota's Federal Court enjoined the entirety of the 2013 ND law, including the provision for admitting privileges, for a full trial, date not yet set. yahoo news
- In Ultrasound, Abortion Fight Has New Front, New York Times
- Alabama Bill Could Require Women To Undergo Invasive Ultrasound To Convince Them ‘To Keep The Child’
- Transvaginal ultrasound unconstitutional
- Study: Ultrasounds Do Not Influence Women’s Decisions On Abortion
- Appeals Court Panel Lifts Injunction Against Texas Ultrasound Law
- U.S. judge allows enforcement of Texas abortion law
- text of the bill
- text of the bill
- 1 of 3 Kansas Abortion Clinics Denied State License
- http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=439x1351818 Kansas: The First Abortion-Free State?] (Forum thread)
- Board approves abortion clinic regulations
- The Battle to Shut Down Virginia's Abortion Clinics
- Frogs and Ravens Blog: What is spousal notification *really* about