Women’s Health Defense Act
(Late-Term Abortion Limit)

I. The Facts about Medical Risks of Late-Term Abortions

  • Growing medical evidence reveals significant health risks of abortion, particularly late-term abortion.

In its 1973 Roe v. Wade decision,[1] the U.S. Supreme Court relied upon limited and flawed medical information for the now widely discredited assumption that abortion is safer than childbirth.[2] Unfortunately, this assumption shaped the decision to legalize abortion, as well as decades of jurisprudence and gynecological practice that followed.

Through advancing medical knowledge and capabilities, we now have a fuller and better-developed picture of maternal health and the impact of abortion. Well-documented, contemporary studies demonstrate significant immediate and long-term medical risks to women from abortion. These risks—including hemorrhage, infections, organ damage, future pre-term births, placenta previa, mental health problems (including suicide), and death—are greatest when abortion occurs later in pregnancy.

  • As pregnancy progresses, health risks to women from abortion increase.

While all abortions pose physical and psychological risks for the woman, medical risks from abortion increase markedly as pregnancy progresses.[3] At 12-13 weeks gestation, the physical complication rate is 3 percent to 6 percent. The complication rate increases to 50 percent or higher as abortions are performed into the second trimester.

  • The risk of death from abortion increases as pregnancy progresses.

Abortion complications can result in maternal death. Since abortion was legalized in the United States in 1973, more than 400 women are known to have died from legal abortions.[4] The risk of death is higher in later stages of pregnancy. A study of national data on abortion-related mortality from 1988 to 1997 found that at 13-15 weeks of gestation, the rate of abortion-related mortality was 14.7 per 100,000; at 16-20 weeks, the rate rose to 29.5 per 100,000; and at or after 21 weeks, the rate reached 76.6 deaths per 100,000.[5]

  • Immediate health risks of abortion to women include hemorrhage, infections, incomplete abortions, and organ damage.

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.

Immediate complications affect approximately 10 percent of women undergoing abortions and approximately one in five of these complications are life-threatening.[6]

  • Abortion increases the risk of subsequent pre-term birth.

At least 113 studies show a statistically significant association between induced abortion and subsequent pre-term birth. In 2009, a meta-analysis reported that even one induced termination of pregnancy (i.e. abortion) is associated with a significant increase (36 percent) in the risk of preterm birth.[7] Women with more than one prior abortion increase their risk of delivering pre-term babies by 93 percent.

Pre-term birth poses significant risks for the woman who may suffer hemorrhage and the risks of surgery should a cesarean section (“C-section”) be required.

Moreover, pre-term babies are at higher risk for cerebral palsy and other developmental problems. Pre-term birth is the leading cause of infant mortality in the U.S. In 2006, the Institute of Medicine reported that 12.5 percent of American babies are born prematurely, a rate higher than most other affluent nations and an increase of 30 percent since 1981.[8] The cost of premature births in the U.S. is over $26 billion annually, which amounts to $51,600 for every infant born too early.

  • Abortion increases the risk of placenta previa in future pregnancies.

Abortion increases the risk of placenta previa, which occurs when the placenta covers the cervix during pregnancy.  In labor, it creates a medical emergency, requiring a cesarean section to deliver the child, with obvious risks to mother and child.  It is also the leading cause of uterine bleeding in the third trimester. Pregnancies complicated by placenta previa have increased rates of preterm birth, low-birth weight, and perinatal death. Three studies cited in 2003 article published in Obstetrical & Gynecological Survey showed a 50 percent increased risk of placenta previa after abortion.[9]

  • Abortion increases the risks of suicide, psychiatric admissions, alcohol and drug misuse, and violent death after abortion.

Over 100 studies in the medical literature demonstrate that women undergoing abortions have a significantly increased risk of subsequent suicide, major depression, and substance abuse, as compared with women who give birth. Studies from Finland, Australia, and the United States reveal a two-to-seven fold increased incidence of death from suicide, homicide, and violent death in women who have undergone abortions instead of carrying their pregnancies to term or having never been pregnant.[10]

One study found that 27 percent of women who aborted reported experiencing suicide ideation, with as many as 50 percent of minors experiencing suicide or suicide ideation.[11] The risk of suicide was three times greater for women who aborted than for women who delivered.  The researchers concluded that their findings raised the possibility that, for some young women, exposure to abortion is a traumatic life event which increases longer-term susceptibility to common mental disorders.[12]

A 1996 study found that the suicide rate was nearly six times greater among women who aborted compared to women who gave birth.[13] In 2005, another study once again found that abortion was associated with a six times higher risk for suicide compared to giving birth.[14]

Other studies have found an even higher risk following abortion.  In 1995, a study reported that, among women with no history of psychiatric illness, the rate of deliberate self-harm was 70 percent higher after abortion than childbirth.[15] A study comparing American women and Russian women found that 36.4 percent of the American women and 2.8 percent of the Russian women reported suicidal ideation.[16] While abortion has a “deleterious effect,” childbirth appears to have a protective effect against suicide.[17]

  • Abortion is linked to behaviors that are destructive to women’s health.

Studies have linked a history of abortion to sleeping disorders, eating disorders, and promiscuity, all of which are destructive to women’s health.[18] Adolescents who had abortions were three times more likely to experience trouble sleeping.[19]

  • Abortion is linked with subsequent drug and alcohol abuse.

Women who abort are twice as likely to drink alcohol at dangerous levels and three times as likely to become addicted to illegal drugs.[20] Women who never abused drugs before abortions are 4.5 times more likely to abuse drugs after abortions.[21] A study found that the use of drugs other than marijuana was 6.1 times higher among women who had abortions than woman who did not have abortions.[22] Minors who abort are nine times more likely to report marijuana use after their abortions than are minors who carry their pregnancies to term.[23]

  • The risks of negative mental health consequences for younger women are even more pronounced.

A study by a pro-abortion researcher found that 42 percent of young women experience major depression following abortion.[24] Minors who undergo abortion have a 78.6 percent chance of experiencing major depression. Teenagers have a 64.3 percent chance of experiencing anxiety after abortions and a 50 percent chance of suicidal ideation after abortions.

In 2006, researchers in a federally funded study found that adolescents who abort their unintended pregnancies are five times more likely to seek help for psychological and emotional problems afterward than those adolescents who carried their pregnancies to term.[25]

  • Abortion causes the loss of the protective effect from breast cancer of a first full-term pregnancy.

A woman who aborts her first pregnancy loses the protective effect against subsequent breast cancer that a first full-term pregnancy provides.[26]

  • Abortion is associated with an increased risk of ovarian cancer.

A 2012 study of Vietnamese women found that abortion is “significantly associated with an increased risk of ovarian cancer.”[27] The researchers noted that their finding is consistent with results of a similar study in Egypt.[28]

  • Abortion is associated with an increased risk of autism in subsequently born children.

Consistent with two prior studies, a study in 2011 by Harvard University researchers showed that a prior abortion elevates the relative odds of delivering a newborn later diagnosed with autism by 26 percent.[29]

  • Ground-breaking, comprehensive research, based upon 50 years of data in a country that has prohibited abortion since 1989, found no increase in maternal deaths related to the prohibition against abortion.

A newly released, first-ever peer-reviewed scientific study on maternal mortality, based upon 50 years of data in a country that has prohibited abortion since 1989, found that making abortion illegal (in Chile) did not result in an increase in maternal mortality.[30] In fact, during the study period from 1957 to 2007, the overall Maternal Mortality Ratio or MMR (the number of maternal deaths related to childbearing divided by the number of live births) dramatically declined by 93.8 percent.

This finding contradicts the unproven assumption advanced by supporters of unrestricted abortion-on-demand that prohibitions on abortion will cause a rise in maternal deaths. This important study demonstrates there is no such causal link.

  • A woman, particularly a young woman, who has a late-term abortion is substantially more likely to have a second late abortion with the attendant risks of both procedures.

Researchers found that women who had later abortions (second trimester) were 40 percent more likely than women who had first-trimester abortions to have had a second abortion by the end of the study period (2006). They also were nearly four times more likely to have a second late abortion, and five times as likely to have an abortion after 16 weeks gestation.

The study found that women younger than 20 years old were seven times more likely than older women to undergo repeat abortions. These younger women are more than 12 times more likely to have a second abortion during their second trimester of pregnancy.

  • A prohibition at 20 weeks will prevent the tragedy of “live birth abortions.”

Late-term abortions account for approximately 51,000 abortions annually (36,000 take place at 16 to 20 weeks gestation and 15,600 occur beyond the 20th week of gestation).

“Live-birth abortions” are the direct result of current national policy to permit late abortions. The gruesome January 2011 reports describing the deaths of numerous infants at a Philadelphia abortion clinic involved late-term abortions.[31] The abortionist, Dr. Kermit Gosnell, faces murder charges in the deaths of one woman and seven later-term babies whose spinal cords were severed after they were born alive during abortions.

  • By 20 weeks gestation, unborn children are capable of feeling pain caused by abortions.

Much has changed in fetal medicine since 1973, when Roe v Wade was decided. Through advances in medical knowledge, a growing body of evidence establishes that unborn children can feel pain at (least by) 20 weeks gestation.[32]

In 2008, Dr. Kanwaljeet Anand told The Telegraph of India that, “The evidence is undeniable.  Even a 20-week foetus is likely to feel pain, and excruciating pain.”[33] He went on to explain that he believes unborn children have the ability to feel more intense pain than newborn babies, children, or adults “because pain transmission pathways have developed in the foetus, but not the pain modulation pathways that are not effective until six weeks after birth.”[34]

In 2010, Dr. Tom Grissom, a clinical instructor in the pain medicine center at the Washington School of Medicine, testified before a committee of the Nebraska Legislature that “specialized nerve endings involved in pain transmission are seen as early as seven weeks and are found throughout all organs by 20 weeks gestation. The midbrain, brainstem, and cortex are all present in the fetus by 20 weeks gestation. This means that all the elements for the perception of pain are present by 20 weeks gestation.”[35]

II. Legal Support for a Late-Term Abortion Prohibition at 20 weeks

  • Roe v. Wade was predicated upon an unexamined and mistaken assumption that abortion is safer than childbirth, which has been disproved by advancing medical knowledge obtained over the last 40 years.

In deciding Roe v. Wade, the Supreme Court relied on several unproven assumptions: that abortion is “good” for women and their health, that abortion has few medical risks, and that abortion is safer than childbirth in early pregnancy. These medical assumptions were central to the legalization of abortion in the first trimester and to the formation of the trimester framework, with the relative state interests calibrated in each trimester. In Roe, the Court said that “in light of present medical knowledge,” “the ‘compelling’ point” of “the State’s important and legitimate interest in the health of the mother…is at approximately the end of the first trimester.”

However, the sources cited by the Court did not support the assumption that abortion is safer than childbirth.  None of the sources contained reliable data on abortion mortality rates or abortion morbidity rates and none was peer-reviewed.

  • Medical knowledge acquired over the last four decades demonstrates that abortion is riskier than childbirth for women and justifies a prohibition at 20 weeks based on concerns for maternal safety.

Existing medical data confirms that abortion is increasingly less safe than childbirth as pregnancy advances. (See Section I.) The long-term risks of abortion justify a prohibition to ensure maternal safety, in which the states have a compelling interest “once an abortion may be more dangerous than childbirth.” (City of Akron v. Akron Center for Reproductive Health, 462 U.S. at 460 (1983) (O‘Connor, J., dissenting).

  • A prohibition at 20 weeks is constitutional based on the State’s compelling interest in protecting women from the medical risks of late-term abortions.

The State has a legitimate concern for the public’s health and safety.  Williamson v. Lee Optical, 348 U.S. 483, 486 (1985). Specifically, the  State “has legitimate interests from the outset of pregnancy in protecting the health of women.”  Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847 (1992).  Moreover, the State “has a legitimate concern with the health of women who undergo abortions.”  Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 428-29 (1983).

  • A prohibition at 20 weeks does not impose an  undue burden.

An abortion prohibition at or after 20 weeks gestation and based on risks to maternal health does not impose an “undue burden” or a “substantial obstacle” (in the path of women seeking abortions) under Planned Parenthood v. Casey, 505 U.S. 883 (1992) or Gonzales v. Carhart, 550 U.S. 124 (2007). In Casey, the Court upheld the right of a “woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” (Gonzales, 550 U.S. at 145 quoting Casey, 505 U.S. at 846.) To limit a woman’s choice for a non-medically indicated abortion to 20 weeks (approximately 150 days) when it is safest to undergo an abortion does not unduly block her ability to choose to undergo an abortion.

  • An exception for medical emergencies provides for the rare situations in which a woman’s health is endangered.

An exception to the late-term prohibition that provides for abortion when a woman’s suffers a life-threatening medical emergency was upheld in Casey and is sufficient to protect women experiencing medical emergencies at or after 20 weeks gestation.[36]

This exception is included even though specialists in high-risk obstetrics and perinatology have testified that abortions in late pregnancy are never necessary to protect a mother’s health.

  • The State’s interest in the life of the unborn child increases in late term and takes precedence especially when childbirth is safer than abortion.

In Gonzales, the Court recognized “the legitimate interest of the Government in protecting the life of the fetus that may become a child” increases in late pregnancy.

The Gonzales majority approved the objective of “encourag[ing] some women to carry the infant to full term, thus reducing the absolute number of late-term abortions” and expressed concern for “the consequences that follow from the decision to elect a late-term abortion.”

The majority found all of these objectives and realities to be “legitimate government interests.”

  • A 20 week prohibition is constitutional because by 20 weeks, the State’s interest in maternal health is compelling and the state’s interest in fetal life is also strong.

Americans United for Life’s model bill, the “Women’s Health Defense Act,” a 20-week prohibition, is based upon the state’s compelling interest in maternal health and a strong interest in protecting the life of the unborn child, who, according to the best medical evidence, can feel pain at (least by) 20 weeks.

III. Policy Considerations in Support of a Prohibition against Late-Term Abortions.

  • A majority of Americans oppose late-term abortions.

A May 2011 Gallup Poll confirmed a decades-long, consistent pattern of finding that most Americans (60 percent in 2011) believe that abortion should be legal in only a few or no circumstances. The poll also showed a majority of Americans think abortion is morally wrong.

A 2005 Harris Interactive poll reported that 72 percent of Americans believe abortion should be illegal after the first trimester (and 86 percent believe it should be illegal after the second trimester).

In 2003, a Gallup Poll showed that 68 percent of Americans opposed “partial-birth abortion,” a late-term abortion procedure.

Similarly, according to a 2000 Los Angeles Times survey, 65 percent of respondents did not believe that abortion should be legal after the first trimester (except when the mother’s health is at risk).

  • Most countries prohibit late-term abortions.

The vast majority of the world’s countries (187 of 195) forbid abortion after 12 weeks gestation.[37] As a direct result of the Supreme Court’s abortion decisions that have effectively imposed abortion-on-demand throughout pregnancy through a broad “health” exception, the U.S. is one of only four nations that does not prohibit after 20 weeks gestation.[38]

  • Eleven states currently prohibit abortion at or after 20 weeks.

Eleven states prohibit abortion at or after the 20th week: Alabama, Arizona, Delaware, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska, North Carolina, and Oklahoma.

Arizona’s law, based on AUL’s “Women’s Health Defense Act,” prohibits abortion after 20 weeks gestation based on the medical risks of abortion to women and the unborn child’s capacity to feel pain by 20 weeks.

Eight states restrict or have enacted restrictions on abortion at or after 20 weeks post-fertilization based upon the unborn child’s capacity to feel pain: Alabama, Georgia (effective Jan. 1, 2013), Idaho, Indiana, Kansas, Louisiana (effective Aug. 1, 2012), Nebraska, and Oklahoma.

  • In these states, there have been no substantiated claims that the laws in any way interfere with the practice of medicine.

IV. Financial incentives, ideological commitments, and a continuing lack of awareness of medical realities drive opposition to legislation that prioritizes women’s health and safety:

  • Late-term abortions cost more than early abortions, a fact that reflects the greater health risks of later abortions and provides an incentive for the abortion industry to support late-term abortion instead of women’s health and safety.

  • An ideological agenda—not women’s health and not science—is advanced when medical evidence is ignored and the outdated, unproven 1973 Roe v Wade assumption that abortion is safer than childbirth continues to be asserted.

[1] Roe v. Wade, 410 U.S. 113 (1973).

[2] The Court cited, but did not analyze, seven studies on maternal mortality. These sources did not support the assumption that abortion is safer than childbirth. Moreover, no consideration was given to long-term medical consequences of abortion on women’s health.

[3] Several large scale studies reveal that abortions after the first trimester (144,000 performed annually) pose more serious risks to women’s physical health than first trimester abortions. S. V. Gaufberg, “Abortion complications,” 2008, http://emedicine.medscape.com/article/795001-overview (last visited May 31, 2012.) L. A. Bartlett, C. J. Berg, H. B. Shulman et al., “Risk factors for legal induced abortion-related mortality in the United States,” Obstetrics and Gynecology, vol. 103, no. 4, pp. 729–737, 2004.

[4] Centers for Disease Control and Prevention, “Abortion Surveillance—United States, 2007”, Morbidity and Mortality Weekly Report 60, no. 1 (February 25, 2011.)

[5] Bartlett, supra

[6] Shadigian, Elizabeth. “Reviewing the Medical Evidence: Short and Long-Term Physical Consequences of Induced Abortion.”  Testimony before the South Dakota Task Force to Study Abortion, Pierre, South Dakota Sept. 21, 2005.

[7] Shah PS, Zao J, Knowledge Synthesis Group of Determinants of Preterm/LBW Births. Induced termination of pregnancy and low birth weight and preterm birth: a systematic review and meta-analysis. BJOG 2009;116:1425-42.

[8] Richard E. Behrman, Adrienne Stith Butler, Editors, IOM and Board of Health Sciences Policy, Preterm Birth: Causes, Consequences, Prevention, 519 2006.

[9] Thorp, Hartmann & Shadigian, “Long-Term Physical and Psychological Health Consequences of Induced Abortion: Review of the Evidence,” 58 Obst. & Gyn. Survey 67 (2003).

[10] Gissler, et al., “Injury, Deaths, Suicides and Homicides Associated with Pregnancy, Finland, 1987-2000,” 15 Eur. J. Pub. Health  459 (2005).

[11] David M. Fergusson, et al; “Abortion In Young Women And Subsequent Mental Health,”  J. of Child Psychology and Psychiatry, Vol 47:1 (2006).

[12] Id. at 22.

[13] M. Gissler et al., Suicides after pregnancy in Finland, 1987-94: Register linkage study, Brit. Med. J. 313:1431 (1996).

[14] M. Gissler et al., Injury deaths, suicides and homicides associated with pregnancy, Finland 1987-2000, Euro. J. Public Health 15:459 (2005).

[15] A.C. Gilchrist et al., Termination of pregnancy and psychiatric morbidity, Brit. J. Psychiatry 167:243 (1995).

[16] V.M. Rue et al., supra.

[17] J.R. Cougle et al., supra, at CR162.  See also M. Gissler et al., Pregnancy-associated deaths in Finland 1987-1994: Definition problems and benefits of record linkage, Acta Obstetrica et Gynecologica Scandinavica 76:651 (1997).

[18] D.C. Reardon & P.C. Coleman, Relative Treatment Rates for Sleep Disorders and Sleep Disturbances Following Abortion and Childbirth: A Prospective Record-Based Study, J. Sleep 29:105-06 (2006); D.C. Reardon et al., supra.

[19] Id.

[20] D.M. Fergusson et al., supra.

[21] P.G. Ney, Abortion and Subsequent Substance Abuse, Am. J. Drug & Alcohol Abuse 26:61-75 (2000).

[22] K. Yamaguchi & D. Kandel, Drug Use and Other Determinants of Premarital Pregnancy and its Outcome: A Dynamic Analysis of Competing Life Events, J. Marriage & Family 49:257-70 (1987).

[23] P.J. Smith, supra (discussing P. Coleman research in Journal of Youth & Adolescents).

[24] D.M. Fergusson et al., Abortion in Young Women and Subsequent Mental Health, J. Child Psychol. & Psychiat. 41(1):16 (2006).

[25] P.J. Smith, Study Shows Abortion Takes Toll on Adolescent Mental Health (Aug. 18, 2006), available at http://www.lifesitenews.com/ldn/2006/aug/06081805.html (last visited Sept. 20, 2012) (discussing the federally funded P. Coleman research in Journal of Youth and Adolescents).

[26] Thorp, Hartmann & Shadigian, “Long-Term Physical and Psychological Health Consequences of Induced Abortion: Review of the Evidence”, 58 Obst. & Gyn. Survey 67 (2003). See also Janet Daling, et al., “Risk of Breast Cancer Among Young Women: Relationship to Induced Abortion”, 86 J. Nat’l Cancer Inst. 1584 (Nov. 1994), and Holly Howe et al., “Early Abortion and Breast Cancer Risk among Women under Age 40,” 18 Inter’l J. Epid. 300 (1989).

[27] Duc-Cuong Le, Tatsuhiko Kubo, Yoshihisa Fujino, David C. Sokal, Trinh Huu Vach,Truong-Minh Pham, Shinya Matsuda, “Reproductive factors in relation to ovarian cancer: a case–control study in Northern Vietnam.”  Vol. 86, Issue 5 Contraception 494–499 (2012).

[28] El-Khwsky FS, Maghraby HK, Rostom YA. Abd El-Rahman AH, “Multivariate analysis of reproductive risk factors for ovarian cancer in Alexandria, Egypt. J Egypt Natl Canc Inst 2006;18:30-4.

[29] Kristen Lyall, David L. Pauls, Donna Spiegelman, Alberto Ascherio, and Susan L. Santangelo, “Pregnancy Complications and Obstetric Sub-optimality in Association With Autism Spectrum Disorders [ASD] in Children of the Nurses’ Health Study II,” Autism Res. 2012 Feb;5(1):21-30.

[30] Elard Koch, John Thorp, Miguel Bravo, Sebastián Gatica, Camila X. Romero, Hernán Aguilera, Ivonne Ahlers, “Women’s Education Level, Maternal Health Facilities, Abortion Legislation and Maternal Deaths: A Natural Experiment in Chile from 1957 to 2007,” PLoS May 2012 7(5): e36613, available at http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0036613 (last visited June 22, 2012).

[31] Report of the Grand Jury, R. Seth Williams, District Attorney, Court of Common Pleas, First Judicial District of Pennsylvania Criminal Trial Division, available at http://www.phila.gov/districtattorney/PDFs/GrandJuryWomensMedical.pdf. (last visited May 10, 2012).

[32] Some medical experts argue that unborn children feel pain as early as 12 to 13 weeks.  See Care Commission on Inquiry into Fetal Sentience, Human Sentience Before Birth 5.2.1.

[33] Steven Ertelt, “Leading Researcher Confirms Unborn Children Can Feel Pain at 20 Weeks”, August 6, 2008), available at http://archive.lifenews.com/int863.html.(last visited June 28, 2012). See also, K. Anand, Pain and its effects in the human neonate and fetus, N.E.J.M. 317:1321 (1987).

[34] Id.

[35] Tom Grissom, M.D., Testimony before the Nebraska Legislature Judiciary Committee, February 25, 2010, available at http://www.kfl.org/siteresources/data/files/Fetal%20Pain-Dr.-Tom%20Grissom.pdf.pdf (last visited May 15, 2012).

[36] Cf. Gonzales, 550 U.S. at 168 (“No as-applied challenge need be brought if the prohibition in the Act threatens a woman’s life because the Act already contains a life exception. 18 U.S.C. sec 1531(a) (2000 ed.., Supp. IV).”)

[37] Joan L. Larsen, “Importing Constitutional Norms from a ‘Wider Civilization’: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation,” 65 Ohio St. L. J. 1283, 1320 (2004).

[38] Roper v. Simmons, 543 U.S. 551, 625-26 (2005) (Scalia, J., dissenting); Randy Beck, “Gonzales, Casey and the Viability Rule,” 103 NW. U.L. Rev. 249, 252 n.22, 261-267 (2009).