Abortion restrictions: States test new tactics
■ A Nebraska ban citing fetal pain and an Oklahoma ultrasound mandate are among the latest attempts to restrict abortion and funding.
By Amy Lynn Sorrel — Posted May 10, 2010
A U.S. Supreme Court abortion ruling from 2007 and some confusion over abortion funding provisions in the federal health reform law have some states turning to their legislatures for new approaches to restrict the procedure.
So far in 2010, more than a dozen states have enacted or are considering various bills aimed at banning or regulating abortion or funding for it. The actions follow a similar run of legislative activity in 2009.
"We are seeing new ways to restrict abortion," said Elizabeth Nash, a public policy associate with the Guttmacher Institute, a nonprofit policy research organization that supports abortion rights. "It's very worrisome for those who want to protect women's reproductive rights."
But abortion opponents say that as more information about the procedure comes to light, states will continue to tamp down. "We're going to know things we didn't know before, and that may give rise to new types of regulations and restrictions. But that's common in almost any medical procedure we talk about," said Denise M. Burke, vice president of legal affairs for Americans United for Life, a nonprofit policy organization that is anti-abortion.
Both sides pointed to a landmark Nebraska law as one of the most significant developments. In April, Gov. Dave Heineman signed a statute banning abortions beyond 20 weeks of gestation based on disputed claims that a fetus begins to feel pain at that stage. It includes an exception for medical emergencies.
Burke said states had been successful before in requiring that women receive information about fetal pain. But Nebraska's statute is the first to ban abortion based on that premise. She said the legislation was bolstered by the 2007 Supreme Court ruling in Gonzales v. Carhart that upheld the federal Partial-Birth Abortion Ban Act of 2003, which prohibited certain late-term abortions.
Justices ruling in the majority said states have a "substantial interest in preserving and promoting fetal life," even in areas of medical uncertainty.
Before that, courts "would assume [an abortion restriction] was not an attempt to regulate health and safety," Burke said. "But the [high court] backed off and said, 'If [a restriction] makes good medical sense, we're going to uphold it.' And states are taking advantage of that."
Andre Van Mol, MD, a member of the Christian Medical Assn., said fetal pain has been long documented. The association, which opposes abortion, had several members testify in support of the Nebraska bill. Tighter restrictions on abortion help ensure the same safety and oversight required in other areas of medicine, said Dr. Van Mol, a family physician in California.
"It's not a level playing field," he said. "Everything in medicine is under strict scrutiny except abortion."
The Nebraska Medical Assn. did not take a position on the bill.
Breaking new ground
But some physicians and abortion rights supporters have disputed the availability of credible, scientific evidence of fetal pain.
By establishing a bright-line rule at 20 weeks, Nebraska's ban also violates more than three decades of legal precedent setting fetal viability -- typically 22 to 24 weeks -- as the point at which states may start banning abortion, said Stephanie Toti, a staff attorney for the Center for Reproductive Rights, an abortion rights legal advocacy group. The standard was first established in Roe v. Wade in 1973, and nothing in Gonzales, the late-term abortion case, altered that precedent, she said.
Legal experts expect a court challenge over Nebraska's law, though at this article's deadline, no formal action had been filed. The Center for Reproductive Rights said it was weighing its options.
The organization did file a constitutional challenge to block a new Oklahoma law requiring women seeking abortions to undergo an ultrasound. Toti characterized the statute as the most extreme of its kind.
The Oklahoma Legislature approved the bill in April over Gov. Brad Henry's veto. On May 3, Oklahoma County District Judge Noma Gurich temporarily put the statute on hold until a July 19 hearing.
The statute mandates an ultrasound using the method that provides the best image. If a woman is early in her pregnancy, when most abortions are performed, that likely means a transvaginal procedure, said Oklahoma City ob-gyn Dana Stone, MD. Physicians also must display and describe the ultrasound image or be subject to significant penalties.
"This puts the government in the decision-making process and takes it away from the doctor and the patient," said Dr. Stone, a past chair of the Oklahoma section of the American Congress of Obstetricians and Gynecologists. Oklahoma already has informed consent mechanisms in place, she added.
The Oklahoma State Medical Assn. opposed the state bill over concerns that it would interfere with the physician-patient relationship.
Mary S. Balch, a director at the anti-abortion group National Right to Life, said in a statement that the Oklahoma law helps women make more informed medical decisions. Utah and West Virginia also passed ultrasound requirements this year.
The Christian Medical Assn.'s Dr. Van Mol agreed that the physician-patient relationship is important. "But there are three people involved," he said.
Meanwhile, questions over exactly what the federal health reform law means for abortion funding has several states looking to block coverage of the procedure using taxpayer money or through private insurance plans sold in health insurance exchanges.
Arizona in April became the first state to enact such a law, followed by Tennessee. At this article's deadline, a similar bill in Mississippi was headed to the governor's desk.
An executive order signed March 24 by President Obama affirmed that the Patient Protection and Affordable Care Act did not change longstanding federal policy barring the use of public funds for abortion, except in cases of rape, incest or life-threatening emergency. But abortion opponents have expressed concern that the order, which does not carry the force of law, could be overturned easily.
The state bills are designed to ensure funding prohibitions stay in place and to clarify what constitutes public funding, the AUL's Burke said.
The Arizona law takes advantage of a provision in the federal reform statute allowing states to opt out of providing abortion coverage in state-based insurance exchanges. Other states' bills would permit health plans to offer coverage in separate policies.
But abortion rights supporters said fears that the reform law will expand abortion funding are unwarranted. They expressed concerns that the national reforms and recent state initiatives exceed existing federal policy.
"This is problematic for health plans continuing to cover abortion services," Guttmacher's Nash said. "And if health insurance is not going to cover it, that means women may not have access to medically necessary care."