by Craig Klugman, Ph.D.
I am a man writing about abortion. I am a bioethicist outraged that a bunch of JDeities believe they know more about medicine than doctors, and more about a woman’s body than a woman living in her body. I am a citizen incensed that a bunch of legislators are trying to force their narrow view of morality on a nation that has prided itself on freedom and individual liberty. I am a scholar petrified that these moves are intended to favor one religion over all others and to subjugate women to second class citizen status.
The story begins in 2003 when the U.S. Congress outlaws dilation and extraction (anti-abortionists call this, partial birth abortion), This medical procedure was used in the third trimester of pregnancy and only for threats to the mother’s health or for a fetus with severe anomalies. The legislature granted itself a medical degree, deciding what procedures doctors could not do, even if they were safe, approved, and rare. In 2015, Kansas and Oklahoma became the first states to outlaw Dilation & Evacuation, a medical procedure that consists of aspiration, dilation and curettage to remove products of conception. This method can be used to perform a second trimester abortion, but it can also be used to help manage a miscarriage. Since that time, ten states have passed similar laws, though all but two of those states have had these laws enjoined by courts. Last year, Ohio passed a similar law (with an exemption for medically necessary D&E) but with a new clause. Now a doctor who performs a dilation & evacuation could be charged with a fourth-degree felony which carries a financial penalty as well as an 18-month prison sentence. In March 2019, a federal court blocked this law.
This past week has seen three states enact draconian abortion restriction laws. The most recent comes from Missouri where the state House has passed a restrictive trigger billthat would ban abortions after 8 week’s gestation (only exception is for the medical necessity of saving the mother’s life. No exception for rape or incest assault.). The trigger is that the bill comes into effect only if Roe v. Wade is overturned. For this discussion, however, the important part of this bill is that a doctor who performs an abortion would be charged with a class B felony that carries a prison sentence of 5 to 15 years and revocation of medical license.
Georgia passed a sweeping bill this week that takes effect on June 1 of this year. This bill says that a fetus with a detectable heartbeat is a “natural person”, meaning “any human being”. The only exceptions are in the case of incest or rape. Let’s consider how this bills gets the science completely wrong. First, this and similar bills define a detectable heartbeat at week 6 of gestation. The problem is that at week 6, the embryo does not have a heart. Instead, it has some cells that start beating in unison and that will, between weeks 10 and 12, become a heart. Second, from an embryological perspective, a gestating potential human only becomes a “fetus” when it reaches week 9 of pregnancy. Thus, if they want to talk about 6 weeks, they should be using the term “embryo”. Why the difference? Politics. The fetal period extends from weeks 9 to 40, so one can exaggerate and say that pro-choice people support killing babies just before birth. If one says embryo, then it is definitely in the early stages of a pregnancy.
Because the Georgia law defines any embryo with “a heartbeat” as a human being, a doctor who performs an abortion (or a nurse who assists) could be charged with murder by an ambitious prosecutor (Georgia does have a feticide law on the book that may prevent a murder charge, but how the two laws will interact is not known). If a doctor refers a woman to an out-of-state provider or helps her in any way to connect with services for an abortion, that health care provider could be charged with accessory to murder. To receive a permitted abortion for rape or incest after six weeks of pregnancy, the woman has to file a police report of the crime. One of the problems here is that rape is an underreported crime. Sixty-three percent of rapes are not reported because of fear of reprisal, fear that police are biased against victims, fear of being maligned and stigmatized, or to protect the rapist. This law could mean more rapists being punished, or it could mean an increase in stigmatization and reprisals and more women forced to carry their rapists’ babies to term.
The third, and most restrictive law comes from Alabama. Without a court challenge, this law takes effect in November 2019 and essentially bans all abortions in the state at any stage of pregnancy. The only exceptions are “serious health risk” to the mother or if the “unborn child has a lethal anomaly.” A physician in Alabama who performs an abortion outside of these narrow exceptions would face a felony charge and a potential 99 year prison sentence.
One of the goals of such laws is to provide a challenge to Roe v. Wade in the U.S. Supreme Court. The recent appointment of two conservative justices has shifted the balance of opinion in the court toward pro-life. Other critics have suggested the purpose of these laws is to limit the freedom of women over their bodies. These recent laws also try to control the practice of medicine by providing for serious criminal penalties against physicians. If a physician is found guilty of a felony for providing a proper and safe abortion, they also lose their medical license. These laws are trying to scare doctors away. The reasoning is that if there are no abortion providers, then there would be no abortions.
The reality is likely to be far different. Before Roe v. Wade some states had legal abortion and some did not. In the “illegal” states, abortion went underground, being performed by untrained people or done using unsafe means. In those days, roughly 200,000-1,200,000 illegal abortions were done each year (for comparison, in 2018, there were 638,000 abortions done in the U.S.). The death rate before Roe is estimated at 3.3 deaths per 100,000 procedures (about 20% of all maternal deaths) compared to 0.4 deaths per 100,000 after Roe. Thus, the first outcome will be an increase in illegal abortions—women who can afford it going to places where the procedure is legal—and others returning to the days of “back alley” abortions. In countries where abortion is illegal, abortions are mostly done with black market mifepristone and misoprostol.
Another possible outcome is that doctors may leave these states rather than face prison terms or limiting their practice. Not just abortion providers, but women’s health care practitioners may pack up and leave. What would it mean if Ob/Gyns fled Alabama and Georgia? Those states already have among the worst stats for women’s health such as high maternal mortality rates. These bills will do more than send abortion underground, they will send doctors packing, increasing the risks to women who seek abortion as well as to those who carry to term.
It is essential that those of us in the health care fields push back against attempts by legislators to control medical decisions that rightfully belong in the patient-provider relationship. We can start by voting these paternalists out of office. We can donate money to organizations that protect a women’s right to choose who are fighting these laws. Health care providers can turn to their professional associations: The American College of Obstetrics and Gynecology (ACOG) has already come out against these statutes: “Physicians should never face imprisonment for providing necessary care.” The AMA position on this topic, however, is untenable: “The Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion in accordance with good medical practice and under circumstances that do not violate the law.” What about when the law is unjust; what about when the law undermines the standard of care and the professional opinion of the health care provider is dismissed? All medical, nursing, and health associations need to join ACOG with public statements and lobbying against these laws. All health care providers, bioethicists, scholars, citizens, and human beings need to make our voices heard and tell the legislators to keep their hands out of our pants.