NARAL Pro-Choice Missouri : Issues : Fact Sheets

I. THE ALLEGED “MEDICAL RISKS” OF ABORTION ENUMERATED IN THE BILL ARE NOT RISKS AT ALL, BUT JUNK SCIENCE CONJURED FOR POLITICAL MOTIVES.

A. The Laundry List of “Complications” and “Risks” Has No Basis in Fact.

H.B. 1327/2000 is replete with problems for the relationship between patients and their doctors. The bill operates from predicate assumptions that have been demonstrated to be medically false. Section 188.027 (1) b. requires that the same doctor who is to perform an abortion deliver to the patient, in writing, a laundry list of complications that are statistically infinitesimal in terms of risk analysis. It further directs that physician to make written disclosure of at least all of the following: “[t]he immediate and long-term medical risks to the woman associated with the proposed abortion method including, but not limited to, infection, hemorrhage, cervical tear or uterine perforation, harm to subsequent pregnancies or the ability to carry a subsequent child to term, and possible adverse psychological effects associated with the abortion.” These requirements exist without regard to the doctor's medical judgment as to appropriate communication of realistic risks to the patient.

Although these requirements may “sound like” the language of informed consent, so-called abortion trauma syndrome (surely encompassed in the language “adverse psychological risks,”) has been proven to be a political, not a medical condition. The American Medical Association, and many other regulatory medical organizations, agree that there is no such thing as “abortion trauma syndrome” and that in reality, the emotion most often experienced by women post-abortion is relief. [1]^,[2] Likewise, “harm to subsequent pregnancies or the ability to carry a subsequent child to term” is politically manufactured and not an actual significant risk to a woman having an abortion. Not one sound scientific study has divulged any link between a safe, legal abortion and subsequent unhealthy pregnancies.[3]

Nor has any reputable study established any link between abortion and breast cancer, a favorite myth of anti-choice activists; indeed, the United Kingdom's Cancer Research Institute studied 83,000 women post-abortion and found a correlation of zero between abortion and breast cancer. As to H.B. 1327/2000's emphasis on “cervical tears” and “hemorrhage,” medical authority shows these risks to be extremely negligible. Cervical tears make up 0.6%-1.2% of complications from surgical abortion, punctures of tears of the uterus comprise less than 0.4% of complications from surgical abortion, and excessive bleeding medically indicating a transfusion makes up 0.02-0.3% of complications from surgical abortion.[4]

Abortion is a safe medical procedure. Induced abortion in the first trimester causes approximately one death per million abortions.[5] In fact, a woman is ten times more likely to die during childbirth than when having an abortion.[6]

Couching further unnecessary work for doctors in the language of informed consent cannot cloak the bill's true purpose of giving the state's imprimatur to coercing women, through guilt and shame, to bear children they do not want. Further evidence of the bill's purpose is found in the requirement that medical professionals provide color photographs of a fetus at two-week gestational increments; requiring them to tell the woman that she can view an ultrasound or hear the fetal heartbeat at state-approved facilities without charge; the fetal anesthesia provision; and the requirement that facilities providing abortion care post statements about alternatives to abortion and the biological father's legal duty to pay child support.

Despite the obvious intent of such provisions to induce guilt and shame, and thereby deter the woman from obtaining an abortion, they may be found constitutional depending on the jurisdiction in which one lives, or even the court by which a case is heard. Courts disagree on the permissible limits of a wide range of Targeted Regulations of Abortion Providers (TRAP) laws, and they also are not uniform in how far a state may go in defining the contours of informed consent.

Courts may yet draw a distinction between mandating that a medical facility show a woman an ultrasound and asking her if she wants to see one, and between mandating fetal anesthesia and asking the woman if she wants it. Other courts might find the whole enterprise insidiously coercive. Still other courts might examine 22-week fetal anesthesia provisions and find them prima facie manipulative or misleading, regardless of whether the anesthesia were mandatory or at the woman's option, because the weight of reliable research suggests that a fetus could not feel pain at 22 weeks.[7]

State-mandated “informed consent” laws survive constitutional muster only if they are truthful and not misleading.[8] This precept applies to state-required physician “scripts,” state-written materials as required by H.B. 1327/2000, and statutorily mandated “optional” fetal ultrasounds and fetal heartbeat experiences for the abortion-care patient. As discussed above, the courts have tended in TRAP cases and cases involving a claim of state-coerced speech to weigh statutorily language differently and to assign importance to different factors. There is no sure predictor of how a reviewing court would treat the question of mandatory versus optional ultrasounds, the 22-week requirement for optional fetal anesthesia, or even the veracity of state-prepared materials (which have not yet been prepared). It is always possible that a court could examine the totality of requirements embodied in H.B. 1327/2000 and find that, in the totality of the circumstances, the law fails under Casey's “truthful and not misleading” test, or under Casey's coterminous “undue burden” test (considering as well the particular requirements on waiting periods and other highly specific requirements on physicians).

Wholly apart from legal rectitude, however, social scientists have begun to note the psychological warfare provisions such as those in this bill wage on women. They have noted, for example, that even truthful messages may be misleading when they take advantage of emotional influence to bias a woman's decision. Viewed in this light, legislation of the breadth of H.B. 1327/2000 have the potential to impose an impermissible burden on a woman's autonomous decision-making ability because they are calculated to bias, not to inform, her choice.[9]

III. H.B. 1327/2000 INTERFERES WITH THE RIGHT OF INTIMATE/FAMILIAL ASSOCIATION AND GENERAL PRIVACY PRINCIPLES.

A. H.B. 1327/2000 Risks Potentially Profound Interference in Intimate and Familial Relationships, in Violation of the First and Fourteenth Amendments.

A person commits the crime of coercing an abortion if the person knowingly coerces a woman to seek or obtain an abortion by. . .committing, attempting to commit, or conspiring to commit. . .assault. . .domestic assault. . .domestic assault. . .stalking or aggravated stalking. . . [or] forcibly or without her knowledge administering to or causing the woman to ingest any poison, drug, or other substance intended to cause an abortion, or attempting or threatening to do so; [or] [d]ischarging, attempting to discharge, or threatening to discharge the female employee by changing, attempting to change, or threatening to change her compensation, terms, conditions, or privileges of employment; or [r]evoking, attempting to revoke, or threatening to revoke a scholarship awarded to the woman by a public or private institution of higher education. . .[10]

Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.[11] Simply put, there is a zone of privacy into which the state may not intrude.[12]

Contrary to these well-settled principles, H.B. 1327/2000 interferes with familial and intimate relationships and substitutes the judgment of the Missouri General Assembly for that of the pregnant woman. H.B. 1327/2000 paternalistically suggests what is a “good enough reason” to have an abortion—the reality or fear of assault, poisoning, domestic abuse, stalking, or other unique personal circumstances are deemed insufficient reasons. Ironically, in the name of “protecting” women from coercion, H.B. 1327/2000 victimizes the most vulnerable women: those who are stalked, assaulted, or even poisoned by their partners, husbands, or family members. It is particularly ironic that a bill that purports to “protect” women would deny a woman an abortion in a case in which her tormentor poisoned her in order to induce an abortion. Yet this is the effect of the bill, for its final paragraph provides, “[W]henever a physician knows that the predominant reason the woman is seeking or obtaining an abortion is that the woman is a victim of coerced abortion, the physician shall certify that the woman lacks the consent required by law.” The doctor who knows that a woman is a victim of poisoning or beating that may have grievously harmed the fetus lacks the ability under H.B. 1327/2000 to give informed consent to an abortion, even if she quite rationally would not choose to bring a child into such an abusive situation.

Removing from the woman her choice to terminate a pregnancy when she has been assaulted, stalked, or poisoned or when the fetus has not reached viability (never addressed in H.B. 1327/2000) is plainly unconstitutional under Roe v. Wade. Requiring doctors to certify that women in these circumstances may not give legal consent to an abortion is also an astoundingly poor policy choice.

Nor does H.B. 1327/2000 address a realistic problem, although no one believes any woman should be forcibly made to have an abortion or be terrorized into getting one by any person. The most recent medical and factual evident suggests that it is not “coerced abortion” that is any species of problem in this country, but rather, coerced pregnancy. In a large-scale study of females ages 16-29, medical researchers found that 25% of the women they studied had experienced “reproductive coercion,” with male partners tampering with their birth control, removing condoms during sex, breaking condoms, or applying physical force to interfere with their female partner's efforts to avoid pregnancy.[13]

IV. H.B. 1327/2000 CONTAINS PROVISIONS THAT ARE INCOMPATIBLE WITH THE FEDERAL PREGNANCY DISCRIMINATION ACT.

Section 188.108 and Section 535.310 (3) contain provisions that create a complicated problem. Section 188.108 provides: “It shall never be a bona fide occupational qualification that an employee or applicant for employment seek or obtain an abortion.”[14] Section 565.310 (3) purports to define changing the terms and condition's of a woman's employment, or “threatening” to do so, as the crime of coercing an abortion.

It already is illegal under the federal Pregnancy Discrimination Act, 42 U.S.C. Section 2000(e)-k, to discriminate against a woman based on pregnancy if she still is capable of doing her job. Suppose that a woman works at a hardware store or in a stocking warehouse with a requirement that all employees be able to lift 40 pounds overhead, and that this particular woman's response to pregnancy renders her unable to meet that requirement.

The woman has a right to remain pregnant. The employer has a right to move any employee who is unable to do her regular job to light duty or to a different job of comparable pay and working conditions upon learning that the employee can no longer meet the lifting requirements of the current position. This is a job-related, neutral application of the employer's valid work requirement, and is not motivated by animus or gender-based stereotyping. The employer with 15 or more employees (the only employers subject to the PDA) would be protected in making such a transfer or shift in assignment. H.B. 1327/2000, however, would have the effect of turning an employer's gesture of accommodation of the employee's needs and protection of its legitimate business requirements into the basis of the employer's criminal liability. See Sec. 565.310. 1 (3), 2. (1-6).

If H.B. 1327/2000 passes, a Missouri employer of any size could conceivably be sued for making any change to a pregnant woman's job which she finds inconvenient or disadvantageous, regardless of whether her performance in the accustomed job were suffering as a result of her pregnant condition. There is no requirement in the bill that her allegation about any nexus to abortion be corroborated.

This regime would drastically reform the expectation of Title VII's PDA that a woman who can do her job or a lighter job while pregnant is protected from discrimination, but that an employer has a corresponding right to protect itself by adhering to legitimate, neutrally applied workplace rules.

[1] Scotland, Nada, “The Myth of Abortion Trauma Syndrome.” JAMA 1992, 268 (15), 2078-79.

[2] Broen, Anne, et al. “Course of Mental Health After Miscarriage and Induced Abortion: A longitudinal, Five-Year Follow-Up Study.” BMC Medicine 2005, 3:18.

[3] See, e. g., http://www.washingtonpost.com/wp-dyn/content/article/2007/08/15/AR2007081501737.html (summarizing studies, including a large-scale 2007 JAMA study).

[4] Henshaw SK, Unintended pregnancy and abortion: a public health perspective, in: Paul M et al., eds., A Clinician's Guide to Medical and Surgical Abortion, New York: Churchill Livingstone, 1999, pp. 11–22.

[5] Bartlett, L.A., et al. “Risk Factors for Legal Induced Abortion-Related Mortality in the United States.” Obstetrics and Gynecology, 2004, 103 (4): 729-37.

[6] “Fact on Induced Abortion.” http://www.guttmacher.org/pubs/fb_induced_abortion.html. See also: Grimes DA (1994). "The morbidity and mortality of pregnancy: still risky business". AJOG (2004) 170 (5 Pt 2): 1489–1494.

[7] Section 188.027 (5) requires that the medical facility inform the woman that fetal anesthesia is available. It also requires the facility to inform the woman that by 22 weeks' gestational age the fetus has the necessary anatomical structures/apparatus to feel pain, and that at 22 weeks' gestational age a fetus may be observed in a study to evade stimuli that the researchers in that particular study interpreted as a response to pain. The weight of scientific research, however, suggests that a fetus could not feel pain earlier than 23-29 weeks' gestational age, largely because neural receptors are insufficiently developed. See, e. g., Richardson, C.T. & Nash, Elizabeth, “Misinformed Consent: The Medical Accuracy of State-Developed Counseling Materials,” Guttmacher Policy Rev., v. 9, n. 4 (fall 2006).

[8] Planned Parenthood of Pa. v. Casey, 505 U.S. 833 (1992).

[9] See Blumenthal, Jeremy, “Abortion, Persuasion, and Emotion: Implications of Social Science Research on Emotion for Reading Casey,” 83 Wash. L. Rev. (Feb. 2008).

[10] This scholarship provision probably cannot withstand the scrutiny of common sense, let alone judicial scrutiny. The provision reaches ecclesiastical and sectarian institutions, since it reaches “private” colleges and universities. Private colleges and universities may enforce their own policies, including religious/doctrinally motivated ones, against their students. Thus, a sectarian private college that has a policy holding that premarital sex is sinful may expel a pregnant unmarried student and may certainly revoke a scholarship on that ground.

Relatedly, any public or private institution of higher learning that had awarded an athletic scholarship to a woman who became pregnant might have grounds to revoke it that are analogous to a bona fide occupational qualification (BFOQ). To illustrate, if a pregnant woman on an athletic scholarship could not, e.g., dunk a basketball or return a volleyball serve up to speed—or she misses practice repeatedly due to morning sickness—then the institution need not fear a successful lawsuit if it rescinds a scholarship. Moreover, the General Assembly cannot, consistent with First Amendment free-speech rights, turn a verbal “threat” to revoke a scholarship for the woman's failure to comply with its implicit or explicit conditions into a felony.

[11] See, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1977); Roe v. Wade, 410 U.S. 113 (1973).

[12] Id.

[13] Miller, Elizabeth & Silverman, Jay, “Partner Violence and Unintended Pregnancy: Time to Make the Connections,” available at http://www.realitycheck.org/blog/2010/02/08/partner-violence-and-unintended-pregnancy-time-make-connections. A one-page summary of the authors' findings accompanies this written testimony.

[14] This is inartfully expressed. Technically, a BFOQ involves a protected class, like race or gender. “Having an abortion” is not really a BFOQ because “women having abortions” are not traditionally understood as a protected class unto themselves.