It’s not just forced ultrasound: Abortion rights under assault

Last year, some 1,100 bills targeted reproductive rights -- and 135 passed in 36 states. The cost? Women's health

Topics: Abortion, Reproductive Rights, Planned Parenthood, War on women,

It's not just forced ultrasound: Abortion rights under assault (Credit: Alex Kalmbach via Shutterstock/Salon/Benjamin Wheelock)

A young girl in a green tank top lies on the examination table in a stark exam room in a Houston clinic. Her pink toenails dangle below the sterile covering draped over her thighs. The doctor inserts a probe between her legs and the two watch a grainy blob blossom on a sonogram screen suspended below the room’s industrial fluorescent lights. He gives a state-mandated description of the fetus: almost exactly seven weeks, he says, “nice and early.” She is well within the time frame for an abortion pill, rather than surgery.

The doctor, an avuncular, silver-haired man who’s been providing abortions, in the words of one colleague, “pretty much since Roe v. Wade,” turns the screen toward her and traces the outline of her uterus and the embryo, while the girl looks on blankly. He plays the heartbeat, which rises from the machine in a loud, shrill electronic pulse. The ritual, which is repeated several times a day at this Planned Parenthood in Houston and in clinics across the state, is mandated by a new Texas law designed to intensify the experience of abortion — to impress upon a woman, with images and sounds, the sense that she’s about to terminate a living thing.

Ultrasounds are a routine procedure at Planned Parenthood and many other clinics, a tool doctors use to gauge gestational stage — which can affect which procedure to use — or to detect complications. Some abortion patients prefer to see the sonogram, others are indifferent, others are traumatized by the very idea. But the new law makes displaying the ultrasound mandatory. Under Texas law, even if a woman averts her eyes, the doctor must give a verbal description of the fetus anyway. And it’s just the latest addition to a bureaucratic juggernaut of regulations that restrict how abortion providers practice in Texas.

In recent years, lawmakers across the country have enacted a dizzying array of arcane rules dictating everything from the dimensions of their buildings to the advice they must offer to patients about “abortion alternatives.” Thirty-five states, including Texas, have enacted pre-abortion counseling laws, which in many cases force women to make extra clinic visits. Legislatures in 10 states have introduced new measures for pre-abortion counseling and waiting periods in 2012. In addition, 18 states have introduced bills for ultrasound requirements this year, according to the Guttmacher Institute, a reproductive rights research institute.

Most states with counseling regulations also provide inaccurate health information to patients. In Alaska, Kansas, Mississippi, Oklahoma and Texas, written materials inaccurately assert a link between breast cancer and abortion. In Kansas, Michigan, Nebraska, North Carolina, South Dakota, Texas, Utah and West Virginia, written materials incorrectly describe negative emotional responses resulting from abortion. Doctors and patients alike say the cumulative effect is to make abortion more unpleasant and more onerous. And for antiabortion lawmakers, that’s precisely the point.

Last year state lawmakers feverishly churned out a raft of bills related to reproductive rights: More than 1,100 proposed legislative measures targeted reproductive health, up from 950 in 2010. According to a policy analysis by Guttmacher, 135 of those measures were enacted by 36 states. Many of these regulations mirrored model legislation crafted by antiabortion activists, most prominently, the Washington, D.C.-based Americans United for Life. While earlier efforts to push back against Roe v. Wade through state legislatures focused on mandatory waiting periods for patients and forced pre-abortion counseling, the push for ultrasound policies emerged in the 1990s, intensifying political interference with physicians’ interactions with their female patients.

The issue of forced ultrasounds briefly made headlines earlier this year when Virginia was embroiled in a political battle over a proposed mandate for “transvaginal ultrasounds” — a procedure involving a vaginal probe rather than a sensor applied to the belly, which some opponents likened to rape. But such rules are increasingly common. Guttmacher reported that as of Oct. 1, 21 states, including Texas, now have ultrasound regulations on the books. Of those, six require providers to offer women a chance to view the images and two require doctors to show women the images, like it or not.

While the political battles over these laws have attracted significant press coverage, the way these laws are lived, endured and adapted to each day — by women and medical workers — tends to stay hidden inside clinic walls.

* * * * *

Jennifer Baltazar, a mother of four in her mid-20s, found the ultrasound requirement effective, in a perverse way. I spoke with her at Planned Parenthood Houston in June, shortly after she received her pre-abortion ultrasound, and just as she began her mandatory 24-hour wait. (In her case, as with many other women, it would actually take several days due to scheduling hassles.) “Now I understand why they want you to see it,” she said. “Because it messes with your conscience basically … Just to give you a reminder of what you’re doing and what you’re about to give up.”

Baltazar had resettled in Houston after a rough adolescence in New York, working hard to study and secure a stable job while caring for her young children. She didn’t need another reminder of why she couldn’t handle a bigger family right now. A few years earlier, she’d had an abortion in New York, but there it was a simple, one-day procedure, unlike the multiple appointments she had to make in Houston over several days. She was dealing with crippling, unexplained pain throughout her body and was further weighed down by the discovery that she was pregnant with twins, one of which had already died in her uterus. Now she and her boyfriend, who was already distressed over the decision, would have to wait even longer to put it all behind them. “It’s frustrating,” she said. “It feels like the longer you wait, or the longer you have to imagine this, and picture this, it’s harder to give it up.”

The Texas law, enacted in 2011, went into effect in February following an unsuccessful legal challenge from reproductive rights advocates, and immediately changed day-to-day operations at several dozen abortion providers across the state. When the law was being considered, the bill’s author, Republican state Sen. Dan Patrick, who represents Houston, told the Austin American-Statesman: “We have 80,000 abortions in Texas every year. So let’s just say that one out of five women, after they see the sonogram, make a decision to either put the baby up for adoption or keep the baby. You’re talking about 16,000 lives.”

Actually, if the sonogram experience changes anyone’s life, it’s likely the woman’s. Various studies, including a long-term analysis published by Guttmacher in 2009, show that for the most part, abortion trends have not been significantly affected in areas where authorities have imposed access restrictions. But according to doctors, patients and advocates I spoke with in Texas, Wisconsin and Missouri, the requirements can take a social and economic toll on women who have chosen to terminate a pregnancy, aggravating the trauma of what might be the hardest medical decision they’ve ever had to make.

Yet lawmakers may not be so concerned with the real world consequences, anyway. Imposing obstacles to abortion allows legislators to demonstrate their anti-choice bona fides to their conservative donors and constituents. Patrick, for example, has campaigned as a conservative evangelical, touting the endorsement of the Texas Right to Life Committee.

Texas’ ultrasound law was hardly the first. Its terms echo a law passed in Wisconsin, where the Legislature pushed through a spate of abortion restrictions in the 1990s. In 2004, those regulations forced Judy Alberts, a 49-year-old hotel administrator and mother of one, through an emotional gantlet. She had wanted to keep the pregnancy, but decided on termination after her doctor told her that she was at high risk for developing a life-threatening blood clot. Yet she was still forced to undergo counseling on how a fetus develops, have yet another ultrasound, and then wait a day before returning to the Madison Planned Parenthood clinic for the procedure. “There was no decision at that point to be made for us,” she recalled. “There [didn't need] to be a 24-hour period. That was something between myself, my husband and my doctors.” When the wait was finally over, she still had to brave heckling protesters outside. She told me she went through the ordeal “crying the whole time,” feeling “totally powerless.”

Carolyn Jones, an Austin-based writer in her mid-30s, experienced a similar mental shock early this year when she became one of the first patients to be subjected to her state’s new ultrasound mandate. She had decided to have an abortion halfway through a wanted pregnancy when she and her husband learned that the fetus had a major neurological abnormality. The discovery had left them deeply shaken, and the choice to abort had been wrenching enough. But being forced to have her fetus visualized again in the final hours of her pregnancy felt cruel and absurd.

Jones, who later wrote a provocative Texas Observer article about her ordeal, had to force herself to hold still during the process. She recalled in an interview, “for me to then be forced to lie on an operating table, and be forced to see the image of my sick child, whom I now was going to do something I think was best for him. To me it felt like torture … I had to do it, I had to go through it, because it was the law and I had no choice. But it was horrendous.” (Jones later learned that the law actually exempts women from the verbal sonogram description in the case of a fetal abnormality, but the Planned Parenthood staff were apparently unaware of this at the time.)

Though ultrasounds are routine in prenatal care, providers who criticize the mandates point out they are rarely medically necessary during the first trimester, when the vast majority of abortions are performed. Researchers and reproductive health advocates report that forced ultrasounds can increase the cost of abortions, sometimes by several hundred dollars, and some insurance companies refuse to cover them if they aren’t deemed medically necessary. But the providers I spoke with were mainly concerned about being trapped by a hostile political culture in a symbolic struggle over doctors’ autonomy.

The legal challenges that reproductive rights groups have brought against these antiabortion policies tend to center on the rights of doctors and patients. Attorneys have raised constitutional challenges, arguing that rules that compel doctors to disseminate medically inappropriate, unnecessary or misleading information — such as suggesting a spurious link between abortion and breast cancer — would violate free speech and privacy rights.

In lawsuits filed against mandatory ultrasound laws in Texas and North Carolina, legal challenges have turned on whether the state can impinge on patients’ medical privacy and doctors’ professional and ethical responsibilities, and on the physical sovereignty of pregnant women. A lawsuit against North Carolina’s law, litigated by the Center for Reproductive Rights and other civil liberties advocates last fall, held that the mandates would harm both patients and medical providers by “depriving them of their constitutional rights to due process, free speech, privacy, liberty, bodily integrity, and freedom from unreasonable searches and seizures.” A few weeks later, a federal court’s preliminary injunction blocked the ultrasound provisions.

Antiabortion activists have long deployed confrontational pressure tactics, ranging from in-your-face clinic protests to undercover video “sting” operations to online listings of abortion doctors’ office addresses and phone numbers. But unlike direct harassment, this new round of coercive laws intimately affects the way doctors see patients and themselves.

Paula Gianino, president and CEO of Planned Parenthood of the St. Louis Region and Southwest Missouri, said that laws dictating how abortion providers treat patients “are forcing our staff and our physicians to be agents of the state, by handing to women state-mandated materials and, in some states, attempting to script the speech of physicians.” She sees these laws as “the new battle lines” for abortion rights, a fight over “whether or not the state can force physicians to tell patients certain things.”

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“Physicians find themselves needing to comply with the law,” she added. “But still they are ethical and moral people.”

* * * * *

The clinic isn’t hard to find, tucked in a low building on a shabby street in Kansas City, but it’s not easy to enter. On a typical day, a woman first passes a small cluster of hecklers who keep a vigil outside, sometimes noisy, sometimes prayerfully somber. Once inside, she is confronted again, this time by her elected representatives, who wrote into Kansas’ 1992 abortion regulations the exact words that clinics must prominently display to their patients, down to the font size: three-quarters of an inch. The alarmist text, posted next to the waiting area, reads in part, “It is against the law for anyone, regardless of their relationship to you, to force you to have an abortion. By law, we cannot perform an abortion on you unless we have your freely given and voluntary consent … You have the right to change your mind at any time prior to the actual abortion and request that the abortion procedure cease.”

Neither the hecklers nor the advisory seem to have given any patients second thoughts today as they sit quietly in the drab but cozy reception area, with friends, relatives or husbands at their sides. Women dressed in bright pink scrubs bustle around the narrow space, a former bank building. A coat hanger hovers over the receptionist’s desk, a memorial to the close friend of the clinic manager’s mother-in-law, who, according to a note attached to the hanger, obtained an underground abortion during the 1960s in a Kansas City warehouse building and got an infection that left her unable to bear children.

As one of just three abortion clinics in all of Kansas (reflecting a nationwide shortage of abortion providers), the privately run facility works efficiently, always under the tight surveillance of the state. In recent months, the clinic has been embroiled in litigation with the state over abortion-specific licensing regulations that require such extensive building upgrades that the facility couldn’t afford to comply and would likely have to close. For now, the clinic does abortions two days a week, shepherding about nine women per clinic day, over the course of a few hours, through a choreographed process involving various “informed consent” procedures mandated by the state’s antiabortion restrictions, including state-directed counseling from staff and required ultrasound imaging.

The clinic abides diligently by all these mandatory pre-abortion protocols. They present women with medical information that, word for word, is generally medically correct, the staff told me — but with a political subtext: to make women think again, and again, before they terminate a pregnancy.

For patients under the age of 18, the requirements are tighter. Minors must undergo one-on-one counseling, in addition to reading the printed information, and the nurse or counselor must read a set of declarations in the first person, a write-up they’ve scripted based on state requirements for ensuring “informed consent.” Echoing the sign in the reception area, one of the items on the list reads, “I understand that I may change my decision to have an abortion at any time before the abortion is performed.” Medical providers must also assure that the patient has “had a discussion of the possibility of involving” her parents or other adult family members or guardians in her decision. As the perfunctory dialogue proceeds, the nurse periodically pauses to clarify that it’s not too late for the patient to change her mind.

One of the more dubious items on the list reads, “I have been given information on agencies available to assist me and agencies from which birth control information is available,” which pro-choice advocates charge is worded in a way to pressure the provider to refer vulnerable women to groups that promote “abortion alternatives,” such as so-called crisis pregnancy centers that strategically set up shop near abortion clinics. According to F., a nurse at the clinic, the staffers comply with this regulation by simply asking if the girl has consulted with anyone other than the clinic about her decision. “[An] agency doesn’t have to be a place with desks,” F. said. “It can be a single person.”

That protocol was crafted by clinic staff in coordination with legal counsel in order to ensure compliance while still delivering the best possible care — a trying task when dealing with a law explicitly aimed at making abortion more difficult. F. described it as a kind of subtle game, for both lawmakers and clinics: “They’ll write the law, and our lawyers will look at it and go, ‘Well, what’s the least that we can do to meet the law?’”

* * * * *

When Kelly went to a Planned Parenthood in St. Louis in 2010, during her senior year of high school, the 17-year-old could tell that clinic staff were trying hard to make her feel as comfortable as possible despite laws aimed at doing exactly the opposite. After weeks of making appointments and filling out required paperwork to certify that she had parental consent, shuttling to and from her small Missouri town with her mother, she faced one of the last hurdles the state placed before her — a lecture on the development of her fetus. The counselor gave the standard recitation of the stages of pregnancy, including when the fetus she was about to abort would grow legs. At one point, Kelly recalled, “she actually told me she completely disagreed with the fact that she had to do that. … She was just like, ‘This is ridiculous, but I have to do this.’”

But the emotional pressure intensified during the mandatory ultrasound. While the images flashed before her, Kelly suddenly realized she was crying uncontrollably.

To ensure its doctors and other staff comply with Missouri’s abortion regulations, Planned Parenthood has created training programs and guidelines for staff, all carefully legally vetted. Dr. David Eisenberg, medical director of the St. Louis region Planned Parenthood, said that within the letter of the law, physicians and staff have carved out a comfort zone in which “we are able to explain to our patients what is medically necessary versus what is legally required.”

For instance, Eisenberg said, since the law requires the dissemination of state-approved medical literature but does not mandate the exact words a doctor may say to patients in advance of an abortion — at least, not yet — he is allowed to explain that he is legally required to provide certain written information, but that he does not medically endorse it. “I am required by law to hand you these materials,” he routinely tells them. “The state has said that I must do this. However, the information may not be pertinent to the decision that you’re making today.” He then goes on to clarify “that not all of it is medically or scientifically accurate, and that you’re welcome to read it, or not.”

Overall, Eisenberg said, patients tolerate these coercive protocols; after all, they have no choice. Though they may not follow the culture wars that produced the clinical mandates, Eisenberg said, they understand “that it really has everything to do with politics, and individuals who have an agenda. They understand the BS that’s really coming into the consult room with the patient that has nothing to do with her health or her family’s health.”

Carolyn Jones, the Austin writer, recalled her medical staff taking pains to ease her visible discomfort during her procedure earlier this year. The staff played cheery radio in the background during the procedure, to help calm her, and she recalled the doctor saying during the ultrasound, “’I'm so sorry, if I don’t [do this], I’ll lose my license.’” The staff “were trying as best they could to introduce some humanity to this horrible law that no one in the room wanted to abide by, but we all knew that we had to.”

One physician I spoke with at a Planned Parenthood in Texas told me that since the law went into effect, the mood of both clinic staff and patients has worsened, in great part due to what is now an extraordinarily complicated scheduling process. Although her arrangement with Planned Parenthood lets her work at the clinic only a few days a week, the state requires that the doctor providing the abortion be the same one who administered the ultrasound. That means her staff have to carefully space her patients’ appointments to ensure that she is available for both procedures. This juggling of appointments poses particular risks for a woman who is nearing 20 weeks of pregnancy, which is the latest her particular Planned Parenthood clinic will provide abortions. “If somebody comes in and is 19 weeks and four days, but their provider isn’t going to be back for four or five days, it makes it very difficult,” she said. Anxiety about missing the deadline escalates, she said, so “everybody’s stress level is higher.”

“It’s frustrating to have to do all of this essentially just for the state, not for the woman,” she said. “If this was something that was making the woman’s experience better, we would all suck it up and deal with it. But it’s not. It’s just pissing everybody off.”

And research suggests these laws may have the effect of forcing many women to delay an abortion well into their second trimester, when the procedure is higher risk. Studies have also found that the laws increase the economic burden on poor women, particularly women of color and women living in rural areas.

The legal challenges to these coercive abortion statutes often hinge on whether an “undue burden” has been placed on women seeking an abortion. Yet, Gianino, president of the St. Louis Planned Parenthood, observed, “all of these waiting periods, all of these state-mandated materials, all this additional rhetoric — none of those, individually or, as a group, are an ‘undue burden’ as yet defined. Patients still come. Patients still come even with our picketers, who are pretty awful … Patients need this service.”

* * * * *

One afternoon, after the waiting area at the Kansas City clinic empties out for the day, members of the medical and support staff relax together in the back office, chatting quietly. Today passed without much drama, which counts as a success. The protesters outside had conducted their usual vigil quietly.

I ask them about how they see their jobs, and a few say they simply avoid telling people where they work, fearing a hostile reaction from friends or family. But one nurse is unapologetic. “If [the government] said abortion was illegal, then these women would be doing what they did years ago in the fifties: going to back alleys, and they were getting infections,” she says. “We’re providing a service for the women to keep them safe.”

The clinic manager — the one who had come up with the idea for the coat hanger memorial — leavens the mood. “If we were here to help men with erections, we’d have the FBI, the Army, the Air Force and the Navy protecting us,” he says, laughing. “‘Don’t you bother these men!’”

One longtime clinic staffer, a middle-aged woman who had previously worked for a local abortion doctor in the early post-Roe days, talks about how much the law frustrates the patients. These women come from all over the state, sometimes driving hours or saying overnight to complete the procedure. Having been through so much just to get to the clinic, they often get exasperated when they come in only to confront still more paperwork and delays. “They get mad at us because of the 24-hour waiting period,” she says wearily. “We try to be so good to them and say, ‘We can’t help it, it’s the law.’”

This article was reported in partnership with The Investigative Fund at the Nation Institute.

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