How Utah law extends frontier in the abortion fight

This week, Utah's governor signed a first-of-its-kind antiabortion bill. It requires doctors to administer anesthesia to women seeking abortions at the 20th week of pregnancy or after. 

In some ways, however, the new law is just the most recent example of a kind of antiabortion legislation taking shape in red states across the country. The law adopts medical language to describe its goals, despite the fact that many physicians dispute the medical claims behind it.

Similarly, Florida passed a law in March that, supporters say, intends to make abortions safer, but which abortion-rights advocates counter is essentially a backdoor attempt to restrict abortions. 

The issue is not the morality of abortion, but rather the safety of abortions that are being carried out. Not only do many medical ethicists challenge the claims underpinning these laws, they suggest that such laws could in fact make abortions more dangerous, both by adding complications to the process and by delaying it. Abortions become more difficult the later they occur in pregnancy. 

On an issue as politically and emotionally fraught as abortion, they say, it is important to at least make sure the terms of the debate are correct. 

“I think many people who support [these] laws … do so because they erroneously believe the regulations will make abortion safer,” writes Daniel Grossman, a clinical professor at the University of California in San Francisco’s department of obstetrics, gynecology, and reproductive sciences. “In fact, the evidence indicates that these laws increase risks to women,” he adds, “but people may be unaware of this.”

Another decision this week also highlighted the degree to which different interpretations of medical science have become central to the abortion debate.

On Wednesday, the United States Food and Drug Administration eased restrictions around a much-debated drug used to induce abortion. The change reduces the dosage and number of visits a woman must make to a doctor and allows her to take the RU-486 pill until the 10th week of pregnancy.

Antiabortion groups, such as the National Right to Life, say the new guidelines do not make abortion safer, though a significant body of medical research suggests they do. 

Those arguments have been flipped in debates about some abortion laws emerging from Republican-held statehouses.  

Legislators in Utah, Florida, and Indiana say new laws are meant to protect women by raising health and safety standards for abortion providers. Yet major mainstream medical organizations – including the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA) – have said that science and research show the opposite: Such laws reduce women’s access to safe and legal abortion, forcing them, in many cases, to turn to riskier methods to terminate their pregnancies.

The issue, always a politically divisive one, became even more so Wednesday after Republican front-runner Donald Trump said that, if Roe v. Wade were overturned, women who seek abortions should face punishment. The outcry from both abortion rights and antiabortion groups was swift, and the candidate issued a rare recantation, saying that abortion providers, and not women, should face penalties.

Texas's HB-2

Arguably the best-known – and most disputed – of the new laws is House Bill 2, a 2013 Texas measure at the heart of a case currently under consideration in the US Supreme Court. The law requires doctors at abortion clinics to obtain admitting privileges at a nearby hospital. The clinics themselves must also meet the standards of an ambulatory surgical center (ASC).

“What we’re talking about today truly is about the health and safety of a woman who would undergo an abortion, but also, I want to point out, we are talking about an unborn child,” said state Rep. Jodie Laubenberg (R), the bill’s author, when it passed in July 2013.

But research conducted since the passage of HB2 suggest that the law, which caused the number of abortion clinics in Texas to drop by more than half, may be negatively affecting women’s health.

“We’ve documented stories of women who were unable to obtain abortions after clinics closed, women who even though they sought abortion care early in pregnancy were delayed into the second trimester,” says Liza Fuentes, a co-investigator of a study by the Texas Policy Evaluation Project (TxPEP) published in March in the American Journal of Public Health. “We’ve even documented reports of women opting to self-induce abortions.”

“From a public health perspective, those types of outcomes are not indicative of protecting women,” says Ms. Fuentes, senior project manager at the nonprofit Ibis Reproductive Health, headquartered in Cambridge, Mass.  

Delaying abortions to the second trimester – which begins at the 13th week of pregnancy – is troubling, says Steven Ralston, associate professor of obstetrics, gynecology, and reproductive biology at Harvard Medical School’s Center for Bioethics.

“First-trimester abortion is one of the safest procedures out there,” he says. The risk of death for abortions performed before the eighth week of pregnancy is 0.3 for every 100,000, the latest data show. But that rises to 6.7 deaths per 100,000 at 18 weeks or greater.

“These laws are designed to eliminate abortion, but the effect they have is they delay abortion,” Dr. Ralston says. “We just make these procedures less safe for women.”

There also appears to be little, if any, evidence that requiring doctors to receive admitting privileges at a local hospital has medical benefit for women who have abortions.  

During the Supreme Court hearing about the Texas law in March, Justice Stephen Breyer asked Texas Solicitor General Scott Keller if he could provide examples of women who, because their doctor had lacked admitting privileges, could not get to a hospital after abortion-related complications. Mr. Keller replied that no examples were in the record.

“So what is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation, though perhaps there is one, but not in Texas?” Justice Breyer asked.

Utah's SB-234

Medical science also seems to stand in contrast to what abortion laws in other states claim to do.

Utah’s Senate Bill 234, which Gov. Gary Herbert signed into law Wednesday, will make the state the first to mandate doctors performing an abortion at least 20 weeks into a pregnancy to administer an anesthetic or analgesic to reduce any pain the unborn fetus might feel. But research suggests that fetal pain “is unlikely before the third trimester.” Meanwhile, the administering of anesthesia could add complications to what is, according to data, usually a safe procedure.The only exceptions are for cases when the mother’s health would be at serious risk or the fetus is diagnosed with a fatal defect.

The idea, Governor Herbert told reporters, is to address the question, “If we're going to have abortion, what is the most humane way to do it?”

But combined with research that takes issue with the claim of a 20-week-old fetus feeling pain, the decision to require anesthesia in that manner “is very concerning, since this will increase the medical risk and cost of the procedure,” writes Dr. Grossman of UCSF.

Getting an anesthetic or analgesic to a fetus means going through the mother first, either via general anesthesia or narcotics, Sean Esplin, a physician at Intermountain Healthcare in Utah, told the Associated Press.

Not only are those two options higher-risk than the intravenous drugs women typically get during a second-trimester abortion, but neither is standard medical practice for the procedure, said Leah Torres, an OB-GYN and abortion provider in Utah, to Vox.

Indiana HB-1337

A similar debate between lawmakers and the medical community is at play over Indiana’s House Bill 1337, which last week made the state the second in the nation to ban abortions sought because the fetus was diagnosed with a disability. The law is meant to be a “comprehensive pro-life measure that affirms the value of all human life,” Republican Gov. Mike Pence said in a statement.

“By enacting this legislation, we take an important step in protecting the unborn, while still providing an exception for the life of the mother,” he added.

While the law’s impact would depend on how the statute around fetal disability is implemented, Grossman writes, some doctors and medical ethicists have expressed concern that it could intrude on doctor-patient relationships and drive women to carry potentially risky pregnancies to term.

“I think it’s very concerning for physicians to worry whether or not they are going to entering into a legally questionable area,” says Wayne Shelton, a professor of medicine and a medical ethicist at Albany Medical College’s Alden March Bioethics Institute in Albany, N.Y.

Antiabortion advocates and some medical professionals insist that laws like HB-2 safeguard women.

“To the extent some studies on abortion safety cite low morbidity and mortality, it is because these procedures are carried out in clinical settings where health and safety policies and procedures are in place,” said Monique Chireau, an assistant professor in obstetrics and gynecology at Duke University, when she testified in 2014 against a bill that would block states from enacting abortion restriction laws. “The fact that morbidity and mortality rates are lower in these settings is clear evidence that regulation is needed and protects women.”

“Health and safety standards are designed to protect women's lives and health from abortion industry abuses,” adds Kristi Hamrick, a spokesperson for anti-abortion legal group Americans United For Life, in an e-mail. “Pro-life advocates merely say that abortionists performing these surgical abortions should follow the same laws that protect women when, for example, they have an outpatient breast biopsy or other outpatient surgery.”

She adds that the burden is on abortion providers to make sure they are investing in the best quality care for their patients.

“Health and safety standards close no clinics,” Ms. Hamrick says. “Abortionists close clinics when they don't want to invest their profits in protecting women’s health and safety.”

At the end of the day, medical practitioners and researchers say it’s less about where a lawmaker stands on the morality of abortion, but about what the laws they craft around the practice actually achieve.

“I do believe that there’s a role for lawmakers to regulate medical care. That’s why we have the FDA, the CDC,” says Ralston at Harvard Medical School. “But these laws are not improving quality, they are decreasing access to services that affect women’s health.

"It’s a very divisive, hard issue to tackle."