The national anti-abortion-rights group behind Virginia’s controversial ultrasound bill last week released seven new bills it plans to push through state legislatures this year.
For the seventh year in a row, Americans United for Life, a national law and policy group based in Washington, D.C., will publish a collection of what it calls “trend-setting” state-based legislation aimed at adding as many restrictions as possible to abortion. In the last year, governors across the country have signed 28 of these model bills into law, according to AUL.
The Defending Life book of model laws is due to come out in March, but in the midst of last week’s frenzy over the Virginia legislature’s attempt to mandate invasive ultrasounds for women seeking an abortion, AUL released a preview (PDF) of the new book, which includes legislative proposals that could lend themselves to similar controversy if states choose to adopt them.
“[T]he time is right for building on a foundation of success,” Yoest said in a statement on the new proposals. “Many of these initiatives simultaneously lay the groundwork necessary for the ultimate reversal of Roe v. Wade, while also eliminating taxpayer funding of abortion providers.”
Of the seven proposed laws, two are particularly strategic in their goals. One is designed to read like a women’s health protection bill, but its legislative intent is to ban abortion after 20 weeks’ gestation. The other is a model to eliminate public funding to organizations that provide abortions — additionally it would prohibit public funding to groups that have any ties to organizations like Planned Parenthood.
Some medical and legal experts have expressed concern that laws like those being crafted by AUL’s attorneys allow state governments to overreach in restricting abortion. Further concern is that the reasoning behind such laws is based more on politics and ideology than on medical fact.
‘Women’s Health Defense Act’
A new study published this month in the American College of Obstetricians and Gynecologists’ medical journal found that childbirth is 14 times more fatal than an induced abortion. The study, authored by two physicians who perform abortions, was a reaction to increasing laws that use the risks of abortion to legislate restrictions. AUL’s new model law — “Women’s Health Defense Act” — is an example of this strategy.
This bill bans abortion after 20 weeks’ gestation. Physicians charged with violating this law would face criminal penalties, including a fine between $10,000 and $100,000 and/or one to 10 years in prison.
The first legislative finding in the bill is a list of 28 different potential risks of abortion, which according to the group, become increasingly dangerous as pregnancy progresses.
From the model law:
Abortion can cause serious physical and psychological (both short- and long-term) complications for women, including but not limited to: uterine perforation, uterine scarring, cervical perforation or other injury, infection, bleeding, hemorrhage, blood clots, failure to actually terminate the pregnancy, incomplete abortion (retained tissue), pelvic inflammatory disease, endometritis, missed ectopic pregnancy, cardiac arrest, respiratory arrest, renal failure, metabolic disorder, shock, embolism, coma, placenta previa in subsequent pregnancies, preterm delivery in subsequent pregnancies, free fluid in the abdomen, organ damage, adverse reactions to anesthesia and other drugs, psychological or emotional complications such as depression, anxiety, sleeping disorders, and death.
AUL also cites a 1987 study by Dr. K.J.S. Anand to support the claim that “substantial and well-documented medical evidence that an unborn child by at least 20 weeks gestation has the capacity to feel pain during an abortion.”
This is the reason most often cited in bills banning abortion after 20 weeks. But this claim is disputed by most of the nation’s large medical communities and is mostly supported by Anand’s study. In the study, which was published by the New England Journal of Medicine, Anand described how “neural pathways for pain” spread to “all cutaneous and mucous surfaces” of an unborn baby by the 20th week of gestation. But he also noted that science did not yet know how a fetus perceives pain at that stage.
In another February Obstetrics & Gynecology article reacting to Elizabeth G. Raymond and David A. Grimes’ pregnancy-abortion study, Dr. Mitchell D. Creinin, a professor and chair in the Department of Obstetrics and Gynecology at the University of California–Davis, argues that using the risks of abortion as a reason to restrict or ban abortion implies that the risks of any given procedure should be a reason to restrict or ban the procedure. In short, he accuses legislators of misrepresenting the realities of medicine and science for a political purpose.
“Is the court going to outlaw pregnancy altogether?” Creinin writes, referring to the fact that severe depression is a risk of pregnancy that is often cited as a possible consequence of abortion and thus a reason to ban it. ”A lack of understanding or misrepresentation of medical data are at the root of what allows many laws that limit abortion to come into existence; the time has come for this to stop.”
In the article, Creinin compares abortion to cigarette smoking and argues that if legislation restricting abortion were really only about safety, the government would most assuredly ban the act of smoking a cigarette.
“Raymond and Grimes report 2,856 deaths over 7 years from pregnancy and 64 deaths over 7 years from abortion. The Centers for Disease Control and Prevention estimates 443,000 deaths annually from cigarette smoking,” he writes. “Whereas access to abortion is being restricted more and more by legislation that has nothing to do with the existing safety of the procedure, a greater health risk – smoking – is not being restricted in a similar manner. Community laws that prohibit where someone can smoke are not the same type of restriction that limits provision and access to abortion services.”
In 2010, Nebraska started the trend of banning abortion at 20 weeks based on the notion of fetal pain. In 2011, Alabama, Idaho, Indiana, Kansas, and Oklahoma followed suit. Though none of these laws has been challenged in court, abortion-rights advocates have frequently argued that these bans at 20 weeks are unconstitutional because they conflict with previous Supreme Court rulings that prohibit states from imposing an undue burden on women seeking an abortion before the fetus is considered viable. Last year when Idaho was considering the law, the bill’s sponsor, state Sen. Chuck Winder (R-Boise), received an opinion (PDF) from the Idaho attorney general’s office, which said the ban could be unconstitutional, as reported IdahoReporter.com.
Part of the opinion reads:
The Supreme Court has never squarely addressed the constitutionality of legislation that proposes to ban some non-therapeutic abortions prior to viability on the basis of fetal pain. Nevertheless, there is strong reason to believe that Section 5 is unconstitutional under existing precedent, as set forth below. … It follows that Section 5 may well be deemed to evince a legislative intent not only to erect a substantial obstacle to the right to choose a non-therapeutic abortion of a non-viable fetus upon twenty weeks, but to eliminate the right altogether.
‘Defunding the Abortion Industry’
Unlike AUL’s bill banning abortion after 20 weeks, its model for defunding Planned Parenthood is more overt. But its strategy of trying to sever Planned Parenthood’s ties to other organizations that receive public money, such as the Susan G. Komen for the Cure, is less obvious.
The model is called “Defunding the Abortion Industry and Advancing Women’s Health Act of 2012.” This proposed bill would deny state-based family planning grants to organizations that also provide or refer for abortions. In addition, the law would prohibit federal family planning grants from being used to pay the “direct or indirect costs” of abortion procedures, referrals, or counseling.
AUL acknowledges that under federal law, taxpayer money already cannot be used to fund abortion services, but the group argues:
Left unrestricted or unregulated, federal and state funds for family planning services can, in some cases, effectively and indirectly subsidize contractors, individuals, organizations, or entities performing or inducing abortions, referring for abortions, or counseling in favor of abortions through shared administrative costs, overhead, employee salaries, rent, utilities, and various other expenses.
The model law appears to be an attempt to eliminate funding to state affiliates of Planned Parenthood Federation of America, the county’s largest network of abortion providers, which each year receives more than $300 million in federal funding to provide low-cost family and planning and sexual health services to underserved communities around the nation.
However, this bill goes beyond defunding abortion providers. Buried in the model law is a provision that attempts to prevent any group that’s in any way “associated” with an organization like Planned Parenthood from receiving public money: “No organization that receives funds authorized or appropriated by the state may use those funds to perform or promote abortions, provide counseling in favor of abortion, or to make referrals for abortions, or may associate with entities that perform, promote, and/or provide counseling or referrals for abortion.”
This is how AUL defines “associate”:
To enter into any written or oral contract or agreement with another contractor, individual, organization, or entity that provides, induces, refers for, or counsels on behalf of abortions; exert any degree of ownership or control over another contractor, individual, organization, or entity that provides, induces, refers for, or counsels on behalf of abortions; or own, direct, or control shares in another contractor, individual, organization, or entity that provides, induces, refers for, or counsels on behalf of abortions.
Ruthann Robson, a professor of law at City University of New York, who is also a blog editor for the Constitutional Law Prof Blog, said that on its face, the law as a whole appears to be constitutionally sound, but that the reference to “written or oral contract or agreement” is a little vague. “Does that mean you can’t say the word [abortion]?” she said.
Robson explained that the 1991 court decision Rust, et al., v. W. Sullivan, Secretary of Health and Human Services, cited extensively throughout AUL’s model legislation, established the principle that it is constitutional for the federal government to prohibit recipients of government funds from advocating, counseling or referring for abortion.
“If the government is giving money, then they can put whatever strings they want on it,” Robson said. “[Organizations] are free not to take the money.”
But another court decision (based on federal cases DKT v. USAID and AOSI v. USAID) established the precedent that states cannot dictate what federally funded organizations can and cannot say. The 2005 policy that sparked the lawsuits dictated that U.S.-based HIV/AIDS-prevention service organizations to denounce prostitution in order to keep receiving federal grants. But federal judges declared that this rule was a violation of free speech.
Americans United for Life did not respond to requests for comment.
David J. Garrow, a professor of history and law at the University of Pittsburgh and an oft-quoted abortion scholar said AUL’s model laws are “impressively crafted” but an overreach of government power.
“These laws are, in a technical sense, well written, but whether someone in their right mind should vote for this is another question,” said Garrow, who supports abortion rights. “As we’ve seen so dramatically [last] week in Virginia, it’s a question of overreach.
Both Robson and Garrow told TAI that state lawmakers considering these laws should carefully consider their effects. Garrow said he hopes lawmakers do their own research when reviewing these models.
“Simply the fact that it’s professionally drafted and appropriately decorated doesn’t mean it’s full, fair, and complete,” he said, noting that citations used to support AUL’s legislative findings are selective. As an example, he said that in its bill banning abortions after 20 weeks, AUL referenced the one study that supports the idea of fetal pain without addressing many more studies that don’t.
“Overreach” was also the word of choice for Nancy Keenan, president of the national abortion-rights advocacy group NARAL Pro-Choice America, which led efforts last week to oppose the Virginia ultrasound bill.
“They’ve overreached in Virginia,” Keenan said during a televised debate with AUL’s Charmaine Yoest on PBS NewsHour. “And I think this is a place where a state law is requiring a woman to undergo a procedure she didn’t ask for, nor that her doctor recommended, and that these are politicians that are practicing medicine without a license. … This is not about information, nor is it about consent.”
The debate (similar to another one Keenan and Yoest had last month over Texas’s controversial ultrasound law) was essentially about the necessity of anti-abortion laws that AUL crafts and supports versus the politics of these laws.
Yoest argued that ultrasounds are the “gold standard of medical care prior to an abortion.”
“Look, the chairman of the Americans United For Life’s board is an OB-GYN,” she said. “Our attorneys have been working on this bill, and so I can tell you exactly what it’s all about. Ultrasounds are the gold standard for protecting women’s health. You need to have an ultrasound prior to an abortion in order to determine the gestational age of the baby. You need to know where the baby is located.”
When challenging mandatory ultrasound laws, Planned Parenthood and other abortion providers have often argued that ultrasounds are standard protocol, used before or during the abortion when recommended by the physician, and available if the patient requests it. Where abortion providers and abortion-rights advocates objected to the Virginia bill was that the legislative language mandated a trans-vaginal ultrasound in instances where they might not be required based on medical necessity.
During the NewsHour discussion, Yoest contradicted her own argument that using legislation to require an ultrasound before an abortion was necessary to ensure that a woman receives an ultrasound before an abortion. Responding to host Judy Woodruff’s comment that Virginia Gov. Bob McDonnell himself believed the law mandated an invasive procedure, Yoest argued that abortion providers at Planned Parenthood already perform ultrasound scans before abortions.
“So then why do you need the state law?” Keenan asked?
Watch the full exchange:
Watch Va. Proposal Mandating Ultrasound Before Abortion Debated on PBS. See more from PBS NewsHour.
But beyond Virginia’s law, Woodruff wanted to know if AUL’s model legislation generally is part of a coordinated effort to restrict abortion access across America.
“What is the goal of these state-by-state efforts, Charmaine Yoest?” she asked. “Is it to get as close as possible to practically overturn Roe vs. Wade? What would you say is the goal?”
“I think it’s responding to the fact that the majority of the American people say that they’re pro-life,” Yoest said. “And there’s a huge consensus in this country on commonsense regulations on abortion like sonograms. Sonogram laws are – in 22 states have passed because the American people think this is commonsense things that we can all agree on no matter what your opinion on abortion is. Informed consent, parental consent, these are things that the American people do agree on.”
Garrow told TAI that AUL’s legislative strategy is effective because of its subtlety. Together, all of these model laws make abortion increasingly more and more restrictive, leading up to, as AUL’s Charmaine Yoest has admitted, “the ultimate reversal of Roe v. Wade.” But unlike proposed “personhood” laws — which would define life at conception, effectively criminalizing abortion and potentially some forms of birth control and fertility treatments — laws banning late-term abortion and regulating abortion clinics are less controversial and thus more likely to win support by the public and by lawmakers.
Referring to AUL senior counsel Clarke Forsythe and James Bopp, Jr., another prominent anti-abortion attorney, Garrow said, “They are very politically astute and adept at focusing on margins and keeping the super-ultra crazies boxed out.”
“But I’m a little surprised that they would show their hand quite so publicly,” he added, referring to AUL’s public release of its model laws. “I would think they would want to make them seem homegrown rather than farmed out from D.C.”
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