[Today’s guest article is by Daniel Gump.]
House Resolution 3755, entitled the Women’s Health Protection Act of 2021, was introduced and referred to the House Committee on Energy and Commerce on June 8, 2021. It narrowly passed the House of Representatives 218-211 on September 24th and was sent to the Senate as S.1975, where it stalled after the second reading on September 29th. Senate Majority Leader Chuck Schumer (D-N.Y.) intends to hold a vote today.
The stated purpose of this legislation is:
To protect a person’s ability to determine whether to continue or end a pregnancy, and to protect a health care provider’s ability to provide abortion services.
Thankfully, the measure needs 60 votes to pass, which the abortion lobby does not have. Still, it is important to understand the scope of this proposed legislation, watch how your Senators vote, and remember for the next election.
Summary of Legislation
More than half of the content comes in §2 “Findings and Purpose” and §3 “Definitions,” which contain non-binding rhetoric and clarification for later sections, respectively.
The core of the legislation resides in §4 “Permitted Services,” which aims to codify judicial decisions regarding induced abortions, like Roe v. Wade (410 US 113, 153-54; 1973), Doe v. Bolton (410 US 179; 1973), and Planned Parenthood v. Casey (505 US 833; 1992). This section creates a statutory right for licensed health care providers to perform abortions and for pregnant patients to receive them.
Subsection (a) declares the following rights:
- NO REQUIREMENT for tests or procedures before performing abortion (other than those for medically-comparable services)
- NO REQUIREMENT that abortion provider be the same one who also performs any pre-abortion tests, services, or procedures
- NO REQUIREMENT for providing “medically inaccurate” information before the abortion
- NO LIMITATION for dispensing of drugs (other than generally-applicable for medical services)
- NO LIMITATION for telemedicine (other than generally-applicable for medical services)
- NO REQUIREMENT OR LIMITATION regarding physical plant, equipment, staffing, hospital admitting privileges, or staff credentials (other than those for medically-comparable services)
- NO REQUIREMENT for in-person patient visits deemed unnecessary
- NO PROHIBITION on pre-viability abortions done by any specific methods
- NO PROHIBITION on post-viability abortion prohibitions, when pregnancy poses risk to life or health
- NO PROHIBITION on immediate abortion services, if a delay is believed to pose risk to health
- NO REQUIREMENT that patients provide any reasons for pre-viability abortions; and NO LIMITATION on such procedures for any reason by the patients, regardless of the providers’ knowledge of such reasons
Subsections (b) further declares that any restrictions relating to those in Subsection (a) can not single out abortion providers nor impede access to abortion services in relation to time, cost, location, etc., unless they significantly advance the safety of patients.
Subsection (c) lists the following factors a court may consider in determining whether abortion access has been impeded by any limitation or requirement:
- It interferes with the ability to provide care or render services; it poses risk to the patient’s health or safety.
- It delays or deters accessing abortion services.
- It will likely increase the cost of abortion services.
- It will likely necessitate an additional trip to a healthcare provider.
- It will likely decrease the availability of abortion services in a State or region.
- It will likely impose penalties relating to conduct or failure to act that would be unique to abortion providers.
- Any cumulative impacts when combined with other limitations or requirements
Subsection (d) reiterates Subsection (b) with a patient focus on exceptions only being allowed if they advance safety or patients.
§5 “Applicability and Preemption” states that the legislation is to supersede and apply to all Federal and State statutory and common laws regarding induced abortions, except for the following:
- The Religious Freedom Restoration Act (42 USC 2000bb)
- Freedom of Access to Clinic Entrances (18 USC 248)
- Insurance coverage
- The Partial Birth Abortion Ban Act (18 USC 1531)
- Applicable state contract law
Further sections cover “Effective Date” (6), “Rules of Construction” (7), “Enforcement” (8), and “Severability” (9).
Discussion of specific provisions
Inevitably, the most questioned and debated portion of this legislation will be §4 “Permitted Services,” as it proposes limitations across all divisions of government. Some of the restrictions referenced have previously been upheld in court, while others have been blocked.
Tests or Procedures in Advance
Though not specifically defined, this provision could prevent requiring pregnancy tests or ultrasounds. These changes could be impactful.
Naresh Patel of Oklahoma was stripped of his medical license in 2016 for selling abortifacients to patients who were not pregnant. It is unclear if this legislation would offer protections for abortion providers committing such fraudulent acts.
Abortion proponents frequently fight advanced ultrasound requirements, under the pretense that it is cruel for their patients. However, such tests are common medical practice to identify ectopic pregnancies, for which women require immediate medical treatments.
Requiring abortion providers to be able to perform tests
This provision would eliminate requirements that abortion providers be the ones to conduct any medically-necessary tests before inducing or performing abortions. Any providers that choose to narrow their scope to just abortions would cause patients to visit additional medical providers to seek any tests before returning to procure the abortions. An unintended side effect would be the providers’ violations of multiple provisions in §4(c).
Providing “medically inaccurate” information
This would inevitably become contentious, as certain topics lack enough detailed studies to be conclusive, or studies on the topics conflict one another.
For instance, one can find scholarly studies establishing that a fetus can feel pain starting at eight, twelve, twenty, twenty-four, or thirty, weeks… or not at all. Which of these would abortion providers (and authors of legislation expanding abortion access) claim as valid to share with patients?
Another topic of contention is the potential for heightened risk for breast cancer after induced abortions. The American Cancer Society cites numerous international studies on the topic. Most studies show no increased risk; a few show a slight increased risk; some known outliers show a decreased risk. What would be considered accurate to tell a patient?
Other areas of major debate for which “truth is in the eye of the beholder” include abortion pill reversal, ultrasound viewing, and post-abortive depression. However, even medically accurate information may be deemed unconstitutional, if found to dissuade patients from proceeding with abortions (Thornburgh v. ACOG, 476 U.S. 747).
The effects of this provision are difficult to gauge. Would this have caused the number of Federal drug charges against Kermit Gosnell to have been lessened? Would Naresh Patel have been able to escape conviction? Could treating the providing of drugs as a statutory right change the entire physician-patient dynamic regarding liability for patient injury?
For the past several years — and especially during the COVID-19 pandemic — abortion providers have been fighting for the ability to distribute abortifacients after only remote communication with patients. Since this bypasses blood tests, ultrasounds, and other in-person testing, it could endanger the lives of patients who have any of numerous pre-existing conditions. Thus, this attempt to reduce the labor costs of abortion facilities could actually lead to the unintended consequence of bringing abortion facilities into violation of §4(c)(1) and allow states to enforce their bans on telemedicine abortions under §4(d)(1), as both provisions relate to patient health.
Hospital admitting privileges, facility and staffing requirements
In recent years, hospital admitting privilege requirements of abortion providers have been blocked in both Whole Woman’s Health v. Hellerstedt (579 U.S. 582) and June Medical Services v. Russo (591 U.S. ___). The lack of such requirements causes a break in the chain-of-custody for patients, meaning that for injuries during botched abortion procedures, the patients are left to fend for themselves. (Such instances were discussed in the latter case.)
Additionally, patients are often instructed by abortion providers and abortion advocacy groups that in the event of an injury requiring an emergency room visit, they should lie to hospital staff that they had miscarriages. This is little more than a scheme to protect abortion facilities from liability.
This legislation also aims to ban specific facility and staffing requirements, meaning that facilities already failing inspections (e.g. June Medical Service v. Russo, Alabama, Missouri, etc.) may no longer be in violation of many existing state-level requirements. In 1982, Simopoulos v. Virginia (462 U.S. 506) upheld the conviction against a provider for performing a second-trimester abortion at an unlicensed facility in Virginia and leaving the patient to take care of herself in a hotel room two days later. Would such a conviction even be possible under this legislation?
Pre-viability policy of “don’t ask, don’t tell”
State health departments often compile anonymized survey data collected by abortion providers. This opens the opportunity to address underlying societal reasons that may lead to women seeking abortions. A ban on such data collection could potentially harm women of several demographics.
Additionally, this legislation declares it a statutory right for providers to perform pre-viability abortions for any and all reasons. As a right, there is no further obligation to report known or suspected illegal activities. Mandatory reporting is something abortion providers have fought to block for years. As stated in SisterSong v. Kemp (462 F.Supp.3d 1297), they fight mandatory reporting because they believe it adds scrutiny to themselves by law enforcement. Abortion providers commonly hide or ignore serial rape, sex trafficking, and pedophilia, allowing crimes to perpetuate. By banning any obligations to report crimes that lead to the abortions, this will further endanger victims of the heinous crimes.
No mentioning of age
The declaration of a statutory right to abortion and no mention of age could lead to a ban on any parental notification laws for minors. Such laws were upheld in Bellotti v. Baird (443 U.S. 633), as long as other legal avenues were available. Preventing states from having such laws could lead to more abortions being performed in secret on underage sexual abuse victims, allowing the crimes against them to perpetuate.