Defending Life 2008
Table of Contents
ABORTION CLINIC REGULATIONS:
Combating the true "back alley"
By Denise M. Burke
Vice President & Legal Director, Americans United for Life
Since the 1960s, abortion proponents have continued to argue that legalizing abortion is beneficial to the health and well-being of American women. In support of this assertion, they have put forth a litany of purported “advantages” of legalized abortion. The primary advantage they often cite is increased medical safety for women undergoing abortions.
When their campaign to legalize abortion began, proponents argued that, if abortion was legal, the procedure would be safer for women because it would become an accepted part of mainstream medical care, proper surgical procedures would be followed, and skilled and reputable gynecologists and surgeons would perform the procedure. Unskilled and incompetent butchers would no longer perform abortions. Thus, legalized abortion would eliminate the 5,000 to 10,000 deaths that abortion advocates disingenuously claimed resulted from illegal or so-called “back-alley” abortions each year.2
Proponents also argued that legalizing abortion would ensure that women receive proper care before, during, and after the procedure. Proper care would obviously include appropriate post-operative monitoring and follow-up care. Legalized abortion would ensure that no woman would bleed to death alone and in pain following an unsafe abortion.
These were the promises. But has it proven to be the reality? Has nearly 35 years of legalized abortion eliminated these problems from our national consciousness? Plainly, it has not. Instead, abortion clinics across the nation have become the true back-alleys of abortion mythology.
There is abundant evidence to support the contention that abortion clinics are the true back-alleys that abortion advocates warned us about. A quick review of just a few recent cases of substandard abortion care poignantly contrasts the reality of abortion in America today with what abortion advocates promised legalized abortion would eradicate.
CASE STUDY – South Carolina:
In 1994, several women testified before the General Assembly of the South Carolina legislature that when they walked into some of the state’s abortion clinics they saw bloody, unwashed sheets, bloody cots in recovery rooms, and dirty bathrooms. Clinic workers testified that the remains of unborn children were not disposed of properly, but rather rinsed down sinks.3
CASE STUDY – Texas:
Witnesses disclosed that abortion clinic personnel without medical licenses or formal medical training performed abortions.4
CASE STUDY – Arizona:
A young mother bled to death from a two-inch laceration in her uterus. As she lay in what medical assistants described as a pool of blood that soaked the bedding and ran down the woman’s legs, she was heard crying for help and asking what was wrong with her. Where was her doctor? He was eating lunch in the break room, refusing requests to check her condition, and later left her bleeding and unconscious to visit his tailor. The woman died after bleeding for two to three hours. Sadly, a hospital emergency room was less than five minutes down the street.5
CASE STUDY – Kansas:
Two inspections of the same Topeka, Kansas abortion clinic discovered fetal remains stored in the same refrigerator as food; a dead rodent in the clinic hallway; overflowing, uncovered disposal bins containing medical waste; unlabeled, pre-drawn syringes with controlled substances in an unlocked refrigerator; improperly labeled and expired medicines; carpeted floor in the surgical procedure room; and visible dirt and general disarray throughout the clinic. Dr. Krishna Rajanna, who operated the unsanitary clinic, also consistently violated the practice guidelines for conscious sedation.6
ISSUES
Tragically, these case studies are indicative of what some American women experience when they enter an abortion clinic. The question is what can be done about it. Each of the states involved in these case studies (South Carolina, Louisiana, Texas, and Arizona) have since enacted comprehensive abortion clinic regulations requiring clinics to be licensed by the state, to be inspected by state health department officials, and to meet minimum health and safety standards.
Enacting comprehensive abortion clinic regulations is a critical and sensible solution to the problem of unsafe, back-alley abortions in America. These regulations are designed to safeguard against unsanitary conditions, inferior equipment, and the employment of unsuitable and untrained personnel. They are also intended to put an end to substandard medical practices that injure and kill untold numbers of women each year.
Clearly, states have the authority to intervene and the duty and responsibility to act when a public health problem exists. One woman’s death is too many. One woman left infertile because of any infection caused by unsanitary conditions is too many. One woman rushed bleeding to an emergency room with a punctured uterus because her abortion provider was in a hurry to complete as many abortions as he or she could in one afternoon is too many.
TALKING POINTS
- A significant percentage of all abortions are performed in clinics devoted solely to providing abortions and family planning services. Most women who seek abortions at these facilities do not have any relationship with the physician who performs the abortion, before or after the procedure. They do not return to the facility for post-surgical care. In most instances, the woman’s only actual contact with the physician occurs simultaneously with the abortion procedure, with little opportunity to ask questions about the procedure, potential complications, and proper follow-up care.
- Abortion is an invasive surgical procedure that can lead to numerous and serious medical complications. Potential complications for first-trimester abortions include, among others, bleeding, hemorrhage, infection, uterine perforation, blood clots, cervical tears, incomplete abortion (retained tissue), failure to actually terminate the pregnancy, free fluid in the abdomen, acute abdomen, missed ectopic pregnancies, cardiac arrest, sepsis, respiratory arrest, reactions to anesthesia, fertility problems, emotional problems, and even death.7
- The risks for second-trimester abortions are greater than for first-trimester abortions. The risk of hemorrhage, in particular, is greater, and the resultant complications may require a hysterectomy, other reparative surgery, or a blood transfusion.
- As the author of a leading abortion textbook writes, “[T]here are few surgical procedures given so little attention and so underrated in its potential hazard as abortion.”8
- The United States Supreme Court (USSC) has repeatedly recognized that a state has “a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient.” Roe v. Wade, 410 U.S. 113, 150 (1973).9
- Since the Court’s decision in Roe v. Wade, federal courts have also repeatedly recognized that for the purposes of regulation, abortion services are rationally distinct from other routine medical services because of the “particular gravitas of the moral, psychological, and familial aspects of the abortion decision.”10
- Comprehensive abortion clinic regulations passed in the years immediately following the 1992 USSC decision in Planned Parenthood v. Casey were derived, in substantial part, from standards and protocols promulgated by abortion providers and abortion advocacy groups, specifically the Planned Parenthood Federation of America (Planned Parenthood) and the National Abortion Federation (NAF). The use of national abortion care standards and protocols has been a significant factor cited by federal courts in upholding these regulations against constitutional challenges by abortion providers.11
MYTHS & FACTS
Myth: Abortion clinic regulations unfairly single out abortion providers for regulation and oversight.
Fact: Federal courts have repeatedly held that abortion is “rationally distinct from other routine medical services.”12 Therefore, a state may choose to regulate abortion while leaving other types of medical or surgical procedures unregulated. As the Fourth Circuit has noted, “In adopting an array of regulations that treat the relatively simple medical procedures of abortion more seriously than other medical procedures, [the State] recognizes the importance of abortion practice while yet permitting it to continue, as protected by the Supreme Court’s cases on the subject.”13
Myth: Individual abortion providers are already licensed (as physicians) by the state medical board and their offices are already regulated under a variety of federal and state regulations. Thus, there is no need for additional and/or specifically-tailored abortion clinic regulations.
Fact: These arguments have been made and repeatedly and summarily rejected by federal courts.14 Abortion clinic regulations are designed to specifically address and meet the needs of abortion patients. Physician licensing standards and other federal or state regulations (such as those applicable to on-site laboratory services, employee safety, etc.) are not designed to meet the specific medical needs of women undergoing abortions.
Myth: These regulations will create a undue burden on women seeking abortions by increasing the cost of abortions and/or by decreasing the number of providers.
Fact: Federal courts have also summarily and repeatedly rejected these arguments.15 The so-called “abortion right” is the right of the “woman herself—not her husband, her parent, her doctor or others—to make the decision to have an abortion.”16 It is not the right of the woman to pay a certain price for an abortion or the right of an abortion provider to remain in practice or to have a financially lucrative practice.
Further, in evaluating challenges to abortion clinic regulations, federal courts have repeatedly determined that the simple fact that the regulations may inconvenience some abortion providers and/or may result in an expenditure of time and money to come into compliance with the regulations does not create a burden on the woman seeking an abortion (as opposed to the abortion provider) and, therefore, is not enough to invalidate such regulations.
Finally, even assuming that the specific regulatory scheme would lead to an increase in the cost of abortions in the state and/or result in fewer providers, the USSC has held that “the fact that a law which serves a valid purpose, one not designed to strike at the [abortion] right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.”17 Clearly, protecting maternal health is a valid and compelling reason for regulating abortion clinics.
State of the States:
Where Are We Now?
CURRENT LAW
Currently, 27 states have enforceable regulations specifically applicable to abortions clinics or other facilities performing abortions:
- Twenty-three states have varying degrees of regulation that apply to all abortions: Alabama, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, and Wisconsin.
- Four states regulate the provision of abortions only after the first trimester: Minnesota, New Jersey, Utah, and Virginia.
- Meanwhile, eight states have abortion clinic regulations that are enjoined, in litigation, and/or not currently enforced: Alaska, Arizona, Hawaii, Idaho, Maryland, New York, North Dakota, and Tennessee.
What Happened in 2007
- At least 16 states considered measures licensing and regulating abortion facilities, including Alabama, Florida, Hawaii, Illinois, Indiana, Minnesota, Mississippi, Missouri, New Hampshire, New York, Oregon, Rhode Island, South Carolina, South Dakota, Texas, and West Virginia.
- Florida amended its abortion clinic licensing laws to revise the rule-making authority of the state department of health to permit rulemaking under the general health facility laws and under the abortion clinic licensing provisions. The measure also repealed a law provision giving abortion clinics “reasonable time” to comply with any abortion clinic licensing rules, and increased the licensing fee for abortion clinics.
- Missouri enacted a measure classifying as “ambulatory surgical centers” facilities that provide five or more first-trimester abortions a year, or that provide at least one second- or third-trimester abortion in any given year. The measure subjects those facilities to regulations as such. The new law was immediately challenged in federal court and was enjoined pending the outcome of ongoing litigation.
What To Do In 2008
Obviously, there are significant opportunities in 2008 for states to protect women from unsafe and substandard abortion practice:
- In the states without enforceable abortion clinic regulations (specifically, those not currently in litigation18), legislators should seriously consider introducing and debating a comprehensive scheme of abortion clinic regulations based upon national abortion care standards. Often it takes several years to pass and enact this type of legislation, so it is important to initiate the debate and begin educating legislators and the public of the need for this legislation.
- In those states that only regulate the facilities performing post-first trimester abortions, they should amend their existing laws to regulate abortions in the first trimester (when more than 90% of abortions are performed).
Endnotes
1 Portions of the information contained in this overview were excerpted from D. Burke, Abortion Clinic Regulation: Combating the True Back-Alley, The Cost of Choice 122-131 (2004).
2 However, the numbers of deaths from illegal abortion were greatly exaggerated, as were the claims that abortions were inherently unsafe before Roe v. Wade. For example, in 1960, Planned Parenthood’s Director Mary Calderone wrote:
Abortion is no longer a dangerous procedure. This applies not just to therapeutic abortions as performed in hospitals but also so-called illegal abortions as done by physicians . . . abortion, whether therapeutic or illegal, is in the main no longer dangerous, because it is being done well by physicians.
Mary Calderone, Illegal Abortion as a Public Health Problem, 50 Am. J. Pub. Health 949 (July 1960).
Moreover, Dr. Bernard Nathanson, a founder of National Abortion and Reproductive Rights Actions League (NARAL), later conceded that these statistics were intentionally misleading:
How many deaths were we talking about when abortion was illegal? In NARAL, we generally emphasized the drama of the individual case, not the mass statistics, but when we spoke of the latter it was always “5,000 to 10,000 deaths a year.” I confess that I knew the figures were totally false, and I suppose the others did too if they stopped to think of it . . . The overriding concern was to get the laws eliminated, and anything within reason which had to be done was permissible.
Bernard Nathanson, Aborting America 193 (1979).
3 Dial, Abortion: A Dirty Industry, Citizen Magazine, July 2001.
4 Dial, supra.
5 Phoenix Police Department Report, July 15, 1998; testimony of Dr. John I. Biskind, State v. Biskind, No.CR99-00198 (Ariz. Superior Ct.), Feb. 13, 2001.
6 Consent Order, Board of Healing Arts of the State of Kansas, Docket No. 50-H, Feb. 14, 2005; Final Order, Board of Healing Arts of the State of Kansas, Docket No. 50-H-58, June 14, 2005.
7 Information on abortion complications is drawn from depositions, responses to interrogatories, and other discovery in Tucson Woman’s Clinic v. Eden, No. CIV 00-141-TUC-RCC (D. Ariz. Oct. 1, 2002).
8 Warren M. Hern, Abortion Practice 101 (1990).
9 See also Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 847 (1992).
10 Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 173 (4th Cir. 2000), cert. denied, 531 U.S. 1191 (2001).
11 For example, in upholding South Carolina’s abortion clinic regulations, the Fourth Circuit Court of Appeals noted, with approval, that the regulations were “little more than a codification of national medical- and abortion-association recommendations designed to ensure the health and appropriate care of women seeking abortions.” Greenville Women’s Clinic, 222 F.3d 157.
12 See, e.g. Greenville Women’s Clinic, 222 F.3d at 172-75; Casey, 505 U.S. at 852.
13 Greenville Women’s Clinic, 222 F.3d at 175.
14 See Tucson Woman’s Clinic, No. CIV 00-141-TUC-RCC; Greenville Women’s Clinic, 222 F.3d 157; Women’s Med. Ctr. of Northwest Houston v. Bell, 248 F.3d 411 (5th Cir. 2001).
15 See Greenville Women’s Clinic, 222 F.3d 157; Bristol Reg’l Women’s Ctr., P.C. v. Tenn. Dep’t of Health, No. 3:99-0465 (D. Tenn. Oct. 22, 2001); Bell, 248 F.3d 411.
16 Casey, 505 U.S at 877.
17 Casey, 505 U.S at 874.
18 Arizona’s abortion clinic regulations are currently in litigation.