The Women’s Health Protection Act
(aka: The Protection from High Risk and Coerced Abortion Act)
Version 7 – 2003
Section 1. Short title. This Act may be cited as The Protection from High Risk and Coerced Abortion Act.
Section 5. Legislative Purposes.
(a) the Legislature of the State of Illinois finds that:
(1) There are well established predisposing risk factors in the medical and psychiatric literature which are predictive of a greater likelihood of adverse physical or emotional reactions to abortion. These risk factors include among others: feelings of being pressured to have the abortion; feelings of attachment to the unborn child; a history of prior psychological illness; adolescence; strong religious convictions against abortion; a second or third-trimester pregnancy. See: “Fact Sheet: The Emotional Effects of Induced Abortion,” (New York: Planned Parenthood Federation of America, 1993.)
(2) Some women seek abortions in great haste and under emotional stress. Many state that they made poor decisions in violation of their conscience and maternal desires because they did not adequately think through alternative ways of coping with their crisis situations. Officials of the National Abortion Federation report that 1 in 5 women served by their clinics are choosing abortion despite being philosophically and morally opposed to it. (Woo, J., “Abortion Doctor’s Patients Broaden Suits,” Wall Street Journal, Oct 28, 1994, B12:1.) Women who choose abortion in violation of their consciences are significantly more prone to suffer severe psychological maladjustments following an abortion.
(3) It is essential that women who are at risk of suffering severe psychological distress following an abortion be screened and counseled appropriately. “The medical, emotional, and psychological consequences of abortion are serious and can be lasting; this is particularly so when the patient is immature. An adequate medical and psychological case history is important to the physician.” H.L. v Matheson 450 U.S. 398, 411 (1980).
(4) In forming a medical recommendation, the physician is obligated to develop this opinion “in light of all factors – physical, emotional, psychological, and the woman’s age – relevant to the well being of the patient.” Planned Parenthood v Danforth 428 U.S. 51, 67 (1975). And in all cases, the weighing of all the factors should operate “for the benefit, not the disadvantage, of the pregnant woman.” Doe v. Bolton 410 U.S. 179, 192 (1973).
(5) The omission of information regarding potential risks and alternatives of abortion may increase the risk and degree of distress, or even psychological illness, following an abortion. “As the patient must bear the expense, pain and suffering of any injury from medical treatment, his right to know all material facts pertaining to the proposed treatment cannot be dependent upon the self-imposed standards of the medical profession.” Cooper v. Roberts, 220 Pa. Super Ct. 260,267,286 A.2d 647, 650 (1971). “True consent to what happens to oneself is the exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.” Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) at 780.
(6) Some injured abortion patients have suffered psychological injuries which prevent them from seeking recovery of damages or cooperating effectively with counsel prior to their recovery from their psychological disabilities. As a result, some injured patients have been denied legal representation or standing.
(7) Abortions performed by persons other than a licensed physician have many times the risk of causing death and other serious physical or psychological injury. Persons who perform illegal abortions, or who dispense medical advice regarding self-abortion techniques, are recklessly endangering the lives of women.
(b) It is the purpose of this Act to:
(1) Establish in statute a standard of care applicable to elective abortion that will reduce “the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.” Planned Parenthood v. Casey, 505 U.S. 833,882, (1992).
(2) Establish in statute a standard of care applicable to elective abortion that will most likely ensure that every woman requesting an abortion is provided with proper screening for known risk factors, is fully informed of any general or individual risks, and to ensure that her agreement to a recommendation to abort is informed and voluntary.
(3) Preserve the rights of women who may have suffered from an emotional or psychological disability following an abortion that would prevent them from being able to cooperate with counsel or to seek recovery through civil action prior to their recovery from said emotional or psychological injuries.
(4) Deter illegal abortions by expanding the rights of redress of women against those parties who endanger their lives by providing unlicenced medical advice or treatments.
Section 10. Definitions.
The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) “Abortion” means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus.
(b) “Abortion provider” means any physician or entity that performs or provides abortions. For purposes of this act abortion provider shall also include any entity that refers for abortions as a normal part of their business at least ten (10) times per year.
(c) “Medical emergency” means that condition which, on the basis of the physician’s reasonable clinical judgment, so complicates the medical condition of the pregnant woman as to necessitate an immediate abortion to avert the death of the mother or for which a twenty-four-hour delay will create grave peril of immediate and irreversible loss of a major bodily function.
(d) “Physician” means any person licensed to practice medicine in this State and includes medical doctors and doctors of osteopathy.
(e) “Qualified person” means a licensed physician or an agent of the abortion provider who is a licensed psychologist, licensed social worker, licensed professional counselor, or licensed registered nurse.
(f) “Risk factor” means any physical, psychological, behavioral, or situational factor for which there is a statistically significant association (at the .05 probability level) to a higher incidence of adverse emotional, psychological, behavioral or physical reactions as compared to individuals who do not possess that risk factor.
(g) “Self-induced abortion” means any abortion or menstrual extraction attempted or completed by a woman on her own body.
SECTION 3. Screening requirements. Except in the case of a medical emergency, in addition to whatever requirements exist under the common or statutory law of this state, it is an act of medical negligence to perform an abortion unless all of the following are true:
(a) Before the physician recommends or performs an abortion, a qualified person has evaluated the woman to identify the presence of any known or suspected risk factors and informed her and the physician, in writing, of the results of this evaluation. This screening for risk factors shall normally include, but not be limited to, the following: gonorrhea or chlamydia infection; a family history of breast cancer; prior history of gestational trophoblastic tumor; history of caesarean section; a history of prior abortion; adolescence; feelings of being pressured to have the abortion; feelings of emotional attachment to the unborn child; a history of prior psychological illness or emotional instability; lack of support from the partner or parents; moral or religious convictions against abortion; a second or third-trimester pregnancy; low expectations of coping well.
(b) In the event that any risk factors were identified, the patient has been fully informed by a qualified person which risk factors exist, why these risk factors may lead to adverse reactions, and a detailed explanation of what adverse reactions may occur. This explanation shall include quantifiable risk rates whenever relevant data exists in the detail that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.
(c) In the event that any risk factors were identified, the qualified person who has provided the screening and counseling provided a written statement to the patient and the physician certifying, to the best of the qualified person’s knowledge, that the patient fully understands and appreciates the significance of the risk factors discussed and her increased exposure to the related adverse reactions. The risk factors and related reactions shall be listed in this certificate.
SECTION 4. Abortion Information Depository (1) The State Department of Public Health shall maintain receipt-date stamped files containing the following: (a) Proof of insurance certificates filed by abortion providers. (b) At least one (1) copy of each edition of any document submitted by any individual, organization, or other entity regarding: (i) Known or claimed adverse effects of abortion; (ii) Predisposing risk factors to post-abortion sequelae. (iii) Alternative management techniques for crisis pregnancies. (iv) Reports of monetary awards and settlements in civil actions against abortion providers which shall be used as a basis for the determination of adequate proof of insurance. (v) Any other information which would be relevant to a reasonable patient or to the standard of care offered by abortion providers. (2) The State Department of Health shall maintain an index of the documents placed into the Abortion Information Depository including the date of submission. (3) All the documents described in this section shall be available for public inspection during normal business hours. (4) Copies of any document filed in the Abortion Information Depository shall made available to the public at actual cost and in accordance with copyright laws.
SECTION 5. Insurance requirements. (a) Physicians who perform abortions must have admitting privileges at a hospital which, in the event of a medical emergency, is reasonably accessible to the site at which the abortion is performed. (b) All physicians, professional corporations and freestanding clinics which provide more than ten (10) abortions per year must register with the Department of Public Health proof of insurance for malpractice, negligence, and battery related to the provision of abortion covering all employees, contract workers, and volunteers who have contact with abortion patients in an amount of not less than Two Million Dollars ($2,000,000).
SECTION 6. Civil remedies.
(1) In addition to whatever remedies are available under the common or statutory laws of this state, the intentional, knowing, or negligent failure to comply with the requirements of this act shall provide a basis for the following:
(a) Any intentional, knowing, or negligent violation of this act shall be admissible in a civil suit as prima facie evidence of gross medical negligence and shall entitle the woman or her survivors to actual damages or Ten Thousand Dollars ($10,000.00) for each violation, at her option, plus punitive damages and reasonable attorney’s fees and costs.
(b) Recovery for the woman for the death of her unborn child under the Wrongful Death Act, whether or not the unborn child was viable at the time the abortion, upon proving by the preponderance of evidence that the abortion provider knew or should have known that patient’s consent to the abortion was either not informed and or not voluntary.
(2) Any action for civil remedies based on a failure to comply with the requirements of this act must be brought no later than four (4) years after the date woman becomes, or should have been, aware that the abortion was the probable or contributory cause of a physical or emotional complication and has recovered from any psychological complications which may have impeded the patient’s ability to pursue a civil remedy.
(3) Notwithstanding the provisions of subsection (2) of this section, in the case of a woman who has died, any action under this act shall be brought within four (4) years of her death.
(4) If the physician provided a minor patient with an abortion without the informed consent of the minor’s legal guardian, as may be provided by law, the burden of proving that the minor woman was capable of maturely and independently evaluating the information given to her in the disclosure process, that the minor woman was capable of making a voluntary and informed choice, and that all aspects of the screening and disclosure were adequate shall fall upon the abortion provider.
(5) If the physician provided the patient with less than twenty-four (24) hours for reflection time to comprehend and consider all the information this act requires, the burden of proving that the woman had sufficient reflection time, given her age, level of maturity, emotional state, and mental capacity shall fall upon the abortion provider.
(6) In a civil action involving this act:
(a) In determining liability, the failure to comply with the requirements of Section 3 shall create the presumption that the plaintiff would not have undertaken the recommended abortion had Section 3 been complied with.
(b) The absence of physical injury shall not preclude an award of damages for emotional harm.
(c) The fact that a physician does not perform elective abortions, or has not in the past, shall not automatically disqualify that physician from being an expert witness. A licensed obstetrician or family practitioner who regularly helps women in resolving pregnancy related medical matters shall presumptively be qualified to testify as an expert on the screening, counseling, management, and treatment of unwanted and/or problem pregnancies.
(d) Any abortion provider that makes referrals to a physician whose practice is inside or outside this state shall be liable for ensuring that the party to whom the abortion provider refers the patient provides a standard of care equal to or better than the standard defined by this Act.
(7) It shall be an affirmative defense to allegations of inadequate disclosure under the standards and requirements of Section 3 of this act that the defendants omitted the contested information because:
(a) Statistically validated surveys of the general population of women of reproductive age, conducted within three years before or after the contested abortion, demonstrate that less than five (5) percent of women would consider the contested information to be relevant to an abortion decision; or(b) In the reasonable medical judgment of a licensed psychiatrist who examined the patient prior to the abortion, disclosure of the contested information would most likely have been the immediate and direct cause of a severe adverse effect on the physical health of the patient.
(8) It shall be conclusively presumed that the abortion provider has, or should have had, knowledge of all the information regarding potential risks, predisposing risk factors, and crisis pregnancy management alternatives that was deposited in the Department of Public Health Abortion Information Depository three months prior to the date of the abortion at issue. The abortion provider shall not be presumed to have knowledge of information that was not in the Abortion Information Depository three months prior to the abortion, but that presumption can be rebutted by the preponderance of evidence that the abortion provider had or should have had knowledge of the information. The determination of whether any particular information contained in documents deposited in the Abortion Information Depository was credible and should have been used by the abortion provider for the proper screening of risk factors, or for proper disclosure of information to the woman in all the detail that a reasonable patient may find relevant to her decision, is a question of fact to be answered by the jury.
(9) In addition to whatever remedies are available under the common or statutory law of this state, a woman, or her survivors, who attempted or completed a self-abortion except as legally prescribed by a physician, will have a cause of action for battery or reckless endangerment against any person who provided, distributed, or sold medical advice to her with the intent to assist or encourage her in performing a self-induced abortion. Upon establishing as a finding of fact or by a preponderance of evidence that a defendant who is not a physician provided, distributed, or sold medical advice with the intent to assist others to perform illegal or self-induced abortions, plaintiff shall be awarded not less than Four Hundred Thousand Dollars ($400,000) for battery or reckless endangerment. Proof of injury shall not be required to recover an award for battery or reckless endangerment under this statute.
(10) In addition to whatever remedies are available under the common or statutory law of this state, in the event that an abortion is attempted or completed by a person who is not a licensed physician, the woman upon whom the abortion was attempted or completed, or her survivors, will have a cause of action against said person. Upon establishing by the preponderance of evidence, that said person was not a licensed physician and attempted or completed an abortion on the woman, the plaintiff shall be awarded not less than Eight Hundred Thousand Dollars ($800,000) for battery or reckless endangerment. Proof of injury shall not be required to recover an award for battery or reckless endangerment under this statute.
SECTION 7. Severability. If any one or more provision, section, subsection, sentence, clause, phrase or word of this Act or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this Act shall remain effective notwithstanding such unconstitutionality. The legislature hereby declares that it would have passed this Act, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provision, section, subsection, sentence, clause, phrase, or word be declared unconstitutional.
SECTION 8. Construction. (1) Nothing in this Act shall be construed as creating or recognizing a right to abortion. (2) It is not the intention of this law to make lawful an abortion that is currently unlawful. (3) Nothing in this Act shall be construed as overturning or amending the provisions of (list title and section of any existing Women’s Right to Know law). Under no circumstances should any validity or invalidity of this act or any part thereof be construed so as to impair the independent scope of the of (list title and section of any existing Women’s Right to Know law). (4) If any section or subsection of this law is ever temporarily or permanently restrained or enjoined by judicial order, the previously enforced and upheld provisions of (list title and section of any existing Women’s Right to Know law) shall be enforced; provided, however, that if such temporary or permanent restraining order or injunction is ever stayed or dissolved, or otherwise ceases to have effect, all provisions of this law that are not restrained shall have full force and effect.
SECTION 9. Right of intervention. The Legislature, by joint resolution, may appoint one (1) of its members who sponsored or cosponsored this act in his official capacity to intervene as a matter of right in any case in which the constitutionality of this law is challenged.
SECTION 10. Effective date. (1) This Act takes effect 30 days after becoming law. (2) In the event that any portion of this act is enjoined and subsequently upheld, the statute of limitations for filing civil suit under the provisions of this statute shall be tolled during the pendency of the injunction and for four (4) years thereafter.
RECOMMENDED COMMITTEE REPORT
As legislation regarding the controversial subject of abortion is routinely subjected to close judicial scrutiny and examination of the legislature’s intent, it is the decision of this Committeeto place into the official record of these proceedings the following summary of our findings of fact and our legislative intent in recommending passage of The Women’s Health Protection Act.
Induced Abortion Entails Inherent Risks
1. Women who have abortions have twice the risk of complications in subsequent pregnancy leading to pre- or post-term delivery.(1) Premature delivery is a leading cause of neonatal death and developmental disabilities.
2. A significant minority of women experience mild to severe psychiatric reactions, including post-traumatic stress disorder and depression, that are directly related to their induced abortions.(2) In the year following their abortions, as many as 16 percent may experience reactions so severe as to interfere with their ability to work.(3) Even after controlling for prior psychiatric history, low income American women who abort are at two to four times increased risk of psychiatric hospitalization, particularly for depression, compared with similar women who carry to term.(4)
3. Women who have an abortion are at a 650% higher risk of death from suicide compared with women who carry to term.(5) A record-based measure of suicide attempts before and after abortion has shown that the subsequent increase in suicide rates among aborting women is not related to prior suicidal behavior but is most likely related to adverse reactions to the abortion.(6) Higher suicide rates subsequent to abortion persist for several years and are highest for younger women.(7)
4. Many studies have found that women who abort are several times more likely to engage in subsequent substance abuse.(8) Women with a history of abortion are also more likely to persist in the use of drugs and alcohol during subsequent pregnancies as a means of coping with unresolved post-abortion stress.(9) Substance abuse during pregnancy is a major cause of neonatal death and handicaps.
5. On average, women interviewed two years after their abortions report increasing negative feelings, declining satisfaction with their abortion decision, and no significant benefits from their abortions.(10)
6. Among women whose first pregnancy was unintended, those who abort are at significantly higher risk of long term clinical depression than those who deliver their unintended pregnancies.(11)
7. The risk of experiencing significant psychological sequelae following induced abortion (ranging from at least one percent for disabling psychiatric illnesses to over fifty percent for less severe emotional difficulties(12)) is much greater than for any other elective medical procedure.
8. “If the pregnant girl elects to carry her child to term, the medical decisions to be made entail few — perhaps none — of the potentially grave emotional and psychological consequences of the decision to abort.” H.L. v. Matheson, 450 U.S. 398, 412-413 (1980).
Some Women Are at Greater Risk of Adverse Reactions
9. It is essential that women who are at higher risk of suffering psychological distress following an abortion should be identified and counseled appropriately. “The medical, emotional, and psychological consequences of abortion are serious and can be lasting; this is particularly so when the patient is immature. An adequate medical and psychological case history is important to the physician.” H.L. v Matheson 450 U.S. 398, 411 (1980).
10. There are well established predisposing risk factors in the medical and psychiatric literature that are predictive of a greater likelihood of adverse physical or emotional reactions to abortion.(13) These risk factors include among others: feelings of being pressured to have the abortion; feelings of attachment to the unborn child; a history of prior psychological illness or emotional instability; lack of support from the partner or parents; adolescence; strong religious convictions against abortion; a second or third-trimester pregnancy; low expectations of coping well.(14)
11. Many researchers have found that women who choose abortion in violation of their consciences are significantly more prone to suffer severe psychological distress following an abortion.(15)
12. The National Abortion Federation, which represents abortion providers, reports that one in five women served by their clinics are choosing abortion despite being philosophically and morally opposed to it and are therefore at a higher risk of adverse emotional reactions.(16) Other research indicates that up to 70 percent of women seeking abortion may be morally opposed to it.(17)
13. Researchers who support abortion have found, using just five screening criteria, that 68 percent of the 326 women seeking an abortion had risk factors for a negative psychiatric outcome that should have been used to refer the patients for more extensive counseling. Of this high risk group, 72 percent actually did develop negative post-abortion reactions during the three-month follow-up period. “From a clinician’s point of view,” the researchers concluded, “this result can be viewed as erring on the right side, for a [pre-abortion screening] system that tends to select more women for counseling than is actually necessary is preferable to the reverse.”(18) Despite this finding and recommendation, even these few screening criteria are not used by all abortion providers.
14. There are many cases in which women who would prefer to keep their pregnancies feel pressured by boyfriends, relatives, or by other individuals or circumstances, to undergo unwanted abortions that they subsequently regret. These coercive pressures may be subtle or overt. Women who submit to an unwanted abortion as the result of coercive pressures are significantly more likely to suffer severe psychological maladjustments following the abortion.(19)
15. In some cases where women are feeling pressured to submit to an unwanted abortion, abortion providers have failed to assist the woman in finding relief from these coercive pressures to avoid an unwanted abortion.(20) In at least a few cases, abortion providers have participated in this coercion resulting in harm to women.(21)
Because the Factors Involved in a Woman’s Decision Regarding Abortion Are Complex, Adequate Screening and Counseling is Essential to Protect the Validity of the Women’s Consent and to Protect Her Health
16. Research conducted at abortion clinics has also found that most women seeking abortion have little or no prior knowledge about the abortion procedure, its risks, or fetal development.(22)
17. Some women seek abortions in great haste and under emotional stress. Many have stated that they made poor decisions in violation of their conscience and maternal desires because they did not adequately think through alternative ways of coping with their crisis situations.(23)
18. Journal articles by National Abortion Federation officials verify that many women in a crisis pregnancy situation may be making hasty, ill considered, dysfunctional decisions for abortion.(24) Because the woman is in a crisis situation, it is incumbent on the health care provider to bring a “cool head” to the situation in order to help the patient explore alternatives she may not have considered, to identify and explain her individual risk factors, and to arrive at a medical recommendation independently.
19. Some women report having had abortions, which they now regret, because they were unaware of alternatives or resources that were available that would have empowered them to carry their pregnancies to term.(25) Researchers have found that 30 to 60 percent of women seeking abortion express some desire to keep the child.(26)
20. Women who initially sought an abortion and then change their minds have shown that few, if any, later regret their decision to carry to term or suffer negative psychological consequences from giving birth to an unintended child.(27)
21. Most abortion providers do not screen women for all the known risk factors statistically associated with adverse physical and psychological reactions. As a result, most women considering an abortion have not been informed of the risks that are particularly associated to women matching their unique physical and psychological profile.(28)
22. Post-procedural adjustment to an induced abortion is complicated by sexual, familial, and moral dimensions. Conversely, if unresolved emotional issues exist prior to an abortion, adjustment and recovery are complicated and the risk of serious emotional sequelae is heightened.(29)
23. “It cannot be questioned that psychological well-being is a facet of health. . . . In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.” Planned Parenthood v. Casey 120 L Ed 2d 674 at 718.
Physicians Have a Legal and Ethical Obligation to Protect the Rights and Well-being of Women Considering an Abortion
24. Abortion is one of many options used by physicians to treat a crisis pregnancy. Other tools, such as a referral for financial aid, legal counseling, or marital counseling, may sometimes better serve a woman’s needs by helping to alleviate a crisis situation, allowing her to carry a wanted pregnancy to term, or otherwise better preserve a woman’s health or serve her socioeconomic needs.
25. “The abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” Roe v Wade, [hereinafter Roe] 410 U.S. 113, 166 (1973). “The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment, the patient’s pregnancy should be terminated.” Roe at 163.
26. It is clear, both in the law(30) and in standard medical ethics,(31) that patients are not allowed to prescribe their own abortion. While a woman may initiate a request for an abortion, it is the attending physician who is responsible for determining if an abortion is actually recommended and likely to be beneficial, given each woman’s individual needs and risks.
27. At least some abortion providers perform abortions on request without forming an adequate medical basis to justify recommending abortion as the best form of care compared with other alternatives for managing a crisis pregnancy.
28. In forming a medical recommendation, the physician is obligated to develop this opinion “in light of all factors – physical, emotional, psychological, and the woman’s age – relevant to the well being of the patient.” Planned Parenthood v Danforth 428 U.S. 51, 67 (1975). And in all cases, the weighing of all the factors should operate “for the benefit, not the disadvantage, of the pregnant woman.” Doe v. Bolton 410 U.S. 179 (1973) at 192.
29. It is essential to the psychological and physical well-being of a woman considering an abortion that she receive complete and accurate information on her alternatives. This is especially so since “abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of potential life.” Harris v. McRaie, 448 U.S. 297, 325 (1980).
30. A patient has the right to be fully informed of the basis for a physician’s recommendation to abort, and of the risks attendant to abortion, and of alternative forms of care. “The decision to abort, indeed, is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences.” [emphasis added] Danforth, at 67. Furthermore, provision of this information is necessary to “insure that the pregnant woman retains control over the discretion of her consulting physician.” ibid, at 66.
31. The standards for screening and provision of information placed into statute under this act are consistent with the recommendations of medical authorities: “It is essential for the gravida [pregnant woman] to be fully informed about alternative resources and options and about the safety and risks of the procedure. Psychosocial assessment and counseling are done at the very first visit [see section on psychosocial assessment]. In addition to the medical history, an in-depth social history including relationships with others, attitudes about abortion, and support systems must be obtained at this time…No decision should be made by the gravida in haste, under duress, or without adequate time and information. Special attention should be given to feelings of ambivalence, guilt, anger, shame, sadness, and sense of loss…. Patients requesting abortion must also be screened to uncover any serious medical or psychiatric conditions.”(32) [Italics added]
The Standard of Care Widely Used by Abortion Providers in Practice Is Not Always Adequate to Protect the Health Needs of Women
32. At least some abortion providers neglect to develop an adequate psychosocial profile of the woman seeking an abortion, or fail to identify and note known risk factors that would place the woman at greater risk of experiencing adverse physical or psychological sequelae after an abortion, both of which are necessary to making an informed recommendation.(33)
33. Some abortion providers have admitted a lack of expertise in providing counseling regarding all aspects of the abortion decision that might be relevant to women considering an abortion.(34)
34. Some abortion providers hire unlicenced “counselors” with no formal medical or psychological training. In some cases, the persons employed as “abortion counselors” are primarily trained to ease a woman’s concerns and fears to encourage a decision to abort with the purpose of selling abortion services.(35)
35. In a retrospective survey of 252 women who experienced post-abortion sequelae, 66 percent of the woman said their counselors advice was very “biased” toward choosing abortion. In addition, 40 to 60 percent of the women described themselves as not certain of their decision prior to counseling, of whom 44 percent were actively hoping to find an option, other than abortion, during their counseling sessions. Only 5 percent report that they were encouraged to ask questions, while 52 to 71 percent felt their questions were inadequately answered, sidestepped, or trivialized. In all, over 90 percent said they were not given enough information to make an informed decision. Over 80 percent said that it was very likely that they would have chosen differently if they had not been so strongly encouraged to abort by others, including their abortion counselor.(36)
36. At least some abortion practitioners withhold information about risks or alternatives that if provided might alter the woman’s decision and result in her refusal to undergo the recommended abortion. Sometimes this information is withheld to reduce the woman’s stress prior to the abortion, but this omission may result in greater distress, or even psychological illness, following the abortion.(37)
37. Women are ill served by those abortion providers who would patronizingly protect them from evidence of risks that they have a right and need to consider. “As the patient must bear the expense, pain and suffering of any injury from medical treatment, his right to know all material facts pertaining to the proposed treatment cannot be dependent upon the self-imposed standards of the medical profession.” Cooper v. Roberts, 220 Pa. Super Ct. 260,267,286 A.2d 647, 650 (1971). “True consent to what happens to oneself is the exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.” Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) at 780. “What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so.” Casey, at 715
38. The recommendation for abortion by some doctors is influenced by financial interests, racial bigotry, or population control ideology that may be at odds with the individual woman’s own best interests.(38)
39. Some abortion providers encourage clients to make a decision quickly and without adequate counseling necessary to alleviate stress that may result in an ill-considered decision that will later be regretted.(39)
40. At least a few abortion providers encourage women to believe that abortion is the only way to solve their crisis when in fact financial, legal, and social resources are available which might help them to resolve their social, economic, or familial problems and thereby transform their untimely pregnancy into a wanted pregnancy.(40)
41. More than 80% of all abortions are performed in clinics devoted solely to providing abortions and family planning services. Most women who seek abortions at these facilities do not have any relationship with the physician who performs the abortion before or after the procedure. Often, women do not return to the facility for post-surgical care. In most instances, the woman’s only actual contact with the physician occurs simultaneously with the abortion procedure with little opportunity to receive counseling concerning her decision.
42. Some abortion practitioners, many with a history of incompetency, move from state to state.(41)
Clarifying the Appropriate Standard of Care in Statute with Appropriate Civil Remedies for Injured Women Is the Most Practical Means of Protecting the Rights of Women Without Infringing on Their Reproductive Rights
43. Some abortion facilities or providers neglect to carry adequate insurance coverage to protect the interests of patients who may be injured because of their abortions.
44. Some injured abortion patients have been unable to recover damages in civil action for lack of adequate insurance coverage to cover their claims.
45. Some complications associated with abortion may only become clear several years, or even decades, after the abortion.(42)
46. Some injured abortion patients have suffered psychological injuries that prevent them from seeking recovery of damages in a civil action, or cooperating effectively with counsel, before their recovery from their psychological disabilities. Because these injured women may be unable to cooperate in an action for recovery before the expiration of the normal statute of limitations, some injured patients have been denied legal representation or standing.
47. Without a clear statutory provision allowing women to recover damages for delayed reactions to abortion, women are often denied just compensation for their injuries. Obstacles, such as this, in the way of injured patients recovering damages for abortion related injuries, have artificially reduced the abortion provider’s liability and undermined the financial motivations which normally work to ensure that physicians employ a high standard of care. Eliminating barriers to proper liability will encourage a higher standard of care and thereby will reduce the occurrence of abortion related injuries and, conversely, increase the likelihood that the psychosocial benefits sought by their patients will actually be achieved.
The Prevailing Low Standard of Care Discourages Competent Physicians From Providing Better Counseling Services and Safer Reproductive Health Care
48. While every licensed physician is allowed by law to perform abortions, and most have a favorable view of abortion, only a small number of physicians currently perform abortions, often in facility dedicated primarily to abortion services. According to Ronald Fitzsimmons, executive director of the National Coalition of Abortion Providers, he gets calls from doctors who want to perform abortions but he cannot help them because ”There are places in this country where there are more doctors who perform abortions looking for work than we can handle.”(43)
49. According to a front page investigative report from the New York Times tough competition has resulted in cost cutting measures that involve the use of untrained staff and variations from recommended procedures.(44)
“…unlike other areas of medicine, where prices have surged over the years, competition among abortion clinics has kept prices so low that an abortion in many cities costs less now than it did 25 years ago, without even adjusting for the nearly 500 percent inflation in medical services. If abortion had kept up with inflation in medical services, a $300 abortion in 1972 would cost $2,251 today….
“‘The fees are not set by the cost of the services but by the cost of the competition,’ said Dr. Warren Hern, owner of the Boulder Abortion Clinic in Colorado. And, he said, ‘the competition for patients is absolutely ruthless.
“Ms. Allen and Ms. Miller [owners of an Arizona abortion clinic] still have to watch every penny. Like other clinics, the owners save money by training a low-paid staff to do everything but the actual surgery, from drawing blood to doing lab tests. Most of the time, no patients are scheduled and the staff cleans and does paper work. But when the doctor comes, a parade of patients is ready for the procedure, which takes just two or three minutes in the first trimester of pregnancy…
“Now, clinics are grappling with the mifepristone dilemma. Owners feel they have to offer the recently approved abortion pill, formerly known as RU-486, because women are asking for it and seem to expect it. But its price — $270 for three pills — will be a problem. Many owners say that if they charge what it costs to provide the three pills plus the three office visits, the lab work, and the counseling, they will lose customers to competitors who say they will keep the price much lower.
“Some have found creative solutions. Ms. Chelian said she is considering offering women just one pill instead of three and to have them sign a form saying they understand that one pill is not the approved dose but that studies have shown that one pill is effective. Then she can charge them just $80 more than for a surgical abortion.
“Carmen Franco, who owns six clinics in Detroit, said she expects to charge women $450 for a mifepristone abortion with the full three-pill dose. It is less than her costs. But, she said, by making it available, she expects to draw patients to the clinic where they can see the full range of options she provides. ‘We probably will use it as a loss leader,’ she said.”
50. The specialization of abortion services has led to competitive marketing practices that emphasize high volume and low cost. The cost cutting measures have often involved compromises in the standard of care necessary to safe guard women’s health and have led to charges that many free standing abortion clinics operate on an “assembly line” basis. In many cases, the time set aside for counseling women is extremely limited. This is especially disturbing since the irrevocable decision to abort is very complex one, often made in highly emotional situations with great ambivalence, and includes many risks. Furthermore, in many cases, this very limited screening and counseling that is provided is undertaken by employees who lack any professional accreditation as medical or psychological counselors.
51. The cost-cutting measures employed by “assembly line” abortion clinics have reduced costs to a point that it is difficult for other physicians who would employ a higher standard of care to provide abortions at a comparable cost. Many physicians who would otherwise be willing to perform abortions simply cannot afford to provide abortion services at a competitive rate without making similar sacrifices in the standard of care they believe would be most appropriate.
“Dr. Hern used to have plenty of patients for first-trimester abortions at his clinic in Boulder, where he was charging $375. Then, a Planned Parenthood clinic opened in nearby Fort Collins, charging less than $300. Subsidized by the nonprofit Planned Parenthood Foundation, the clinic was able to keep its fees lower than Dr. Hern could even contemplate.
”Within a month after that clinic opened, my patient numbers dropped by 25 percent,” Dr. Hern said.
Independent abortion providers say Planned Parenthood clinics can easily undercut them. ”I would sort of compare them to Wal-Mart coming in and taking over from all the mom and pops’,” said Dr. William West, who works at an abortion clinic in Dallas.”(45)
52. To the degree that the higher standards of care that will result from this statute may increase the cost of abortion, more physicians will be able to provide abortion services at a reasonable profit without endangering their patient’s health.
53. Reports of aberrant and unethical behavior on the part of some abortion providers, and the fact many doctors who perform abortions do so in an “assembly line fashion,” have contributed to negative perceptions about abortion providers within the medical community and in society at large.(46) This perception discourages many doctors who favor abortion from actually providing abortion services.
54. Defining a higher standard of care through statute will help to reduce the perception, both within and outside the medical community, that the quality of health care provided by doctors who perform abortions is “second rate.”
55. Appropriate screening and counseling of women are necessary to protect their health and to determine if an recommended abortion is indeed likely to be more beneficial than harmful to them. It is the considered opinion of this committee that any increased costs associated with providing this necessary level of care is appropriate and necessary for the protection of women. Therefore, it is in the legitimate interests of the state to clarify the standards for screening, counseling, and disclosure by statute in order to ensure that the standard of care does not decline because of cost cutting pressures.
Providing Right to Redress Against Non-physicians Who Perform Illegal Abortions or Encourage Self-abortions Is an Important Means of Protecting Women’s Health
56. Abortions performed by persons other than a licensed physician are dangerous and have many times the risk of causing death and other serious physical and psychological injury.
57. Women who attempt or complete a self-abortion at are a much greater risk of suffering serious physical and emotional complications, including death, as compared to women who receive abortions from a licensed physician under safe conditions with appropriate screening and counseling. Persons or organizations which dispense medical advice regarding self-abortion techniques are exploiting the fears of women in crisis, encourage the false belief that a self-induced abortion can be safe, and thereby deter women them from seeking appropriate medical care from a licensed physician who can ensure that women receive adequate pre-abortion risk evaluation, counseling, and post-operative care.
58. Providing a means for women to hold non-physicians who perform illegal abortions or provide information or materials with the intent of encouraging or aiding a woman in inducing a self abortion liable for endangerment of the woman’s health and for actual injuries suffered is an important deterrent against such activity and will safe guard women’s health by better ensuring that women seeking abortion will be counseled and treated by licensed physicians.
Based on the findings described above, the Committee recommends passage of this bill to achieve the following purposes:
1. To reduce “the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.” Planned Parenthood v. Casey, 112 S.Ct. 2791, 2823, (1992).
2. To clarify the standard of care for screening and counseling of women seeking abortion so as to better ensure that physicians recommending and performing abortions have carefully evaluated and informed each woman of the risks that are most likely to be associated with a person matching her physical and psychosocial profile.
3. To better ensure that women who have abortions do so only after giving their voluntary and fully informed consent and to better ensure that a woman’s agreement to a recommendation to abort is not the result of coercion or external pressures that are in conflict with her own personal moral beliefs or desires to give birth to her unborn child.
4. To better protect women from individuals or circumstances that would pressure them into a violation of their conscience.
5. To make information about the risks and alternatives to abortion more readily available to physicians and the public.
6. To better ensure that physicians providing abortion have malpractice insurance that is sufficient to protect the interests of women who may be injured from malpractice.
7. To preserve the rights of women who may have suffered from an emotional or psychological disability that prevents them from being able to seek recovery or cooperate with counsel to bring a civil action within a reasonable time limit after they have recovered from their emotional or psychological injuries.
8. To discourage and prevent illegal abortions.
1. Zhou, Weijin, et. al., “Induced Abortion and Subsequent Pregnancy Duration,” Obstetrics & Gynecology 94(6):948-953 (Dec. 1999); Lieberman E., et. al. Risk factors accounting for racial differences in the rate of premature birth. New England J. Medicine, 317:743-748 (1987).
2. Major, B., Cozzarelli, C., Cooper M.L., Zubek, J., Richards, C., Wilhite, M., Gramzow, R.H. (2000). Psychological responses of women after first-trimester abortion. Arch Gen Psychiatry. 57(8):777-84.
3. Söderberg, H., Janzon, L., & Sjöberg, N-O. (1998). Emotional distress following induced abortion: A study of its incidence and determinants among abortees in Malmo, Sweden. European Journal of Obstetrics & Gynecology and Reproductive Biology, 79:173-178.
4. Cougle JR, Reardon DC, Rue VM, Shuping MW, Coleman PK, Ney PG. Psychiatric admissions following abortion and childbirth: a record-based study of low-income women. Archives of Womens’s Mental Health 2001; 3(4) Supp. 2:47; See also, Coleman PK, Reardon DC, Rue VM, Cougle JR. State-funded abortions vs. deliveries: A comparison of outpatient mental health claims over five years. American Journal of Orthopsychiatry, 2002; 72(1):14152.
5. Gissler M, Hemminki E, Lonnqvist J. Suicides after pregnancy in Finland: 1987-94: register linkage study. BMJ 1996;313:1431-4.
6. Morgan CM, Evans M, Peter JR, Currie C. Mental health may deteriorate as a direct effect of induced abortion. BMJ 1997; 314:902.
7. Reardon DC, Ney PG, Scheuren FJ,, Cougle JR, Coleman, PK, Strahan T. “Deaths associated with pregnancy outcome: a record linkage study of low income women,” Southern Medical Journal. 2002;95(8):834-841.
8. Morrissey E, Schuckit M. Stressful life events and alcohol problems among women seen at a detoxication center J. Stud. Alcohol 39(9):1559-1576 (1978); Reardon DC, Ney PG. Abortion and subsequent substance abuse. Am. J. Drug and Alcohol Abuse 26(1):63-80 (2000); Campbell, N., Franco, K., and Jurs, S., Abortion in adolescence, Adolescence 23(92):813-823 (1988).
9. Frank, D. A., Zuckerman, B., Amaro, H., et al., Cocaine use during pregnancy, prevalence and correlates, Pediatrics 82(6):888-895 (1988).; Oro, A. S., and Dixon, S. D., Prenatal cocaine and methamphetamine exposure: Maternal and neo-natal correlates, Pediatrics 111:571-578 (1987).
10. Major, B., Cozzarelli, C., Cooper M.L., Zubek, J., Richards, C., Wilhite, M., Gramzow, R.H. (2000). Psychological responses of women after first-trimester abortion. Arch Gen Psychiatry. 57(8):777-84.
11. Reardon DC, Cougle JR. Depression and unintended pregnancy in the National Longitudinal Survey of Youth: a cohort study. British Medical Journal. 2002; 324:151-2. See also Reardon DC, Cougle JR. Depression and unintended pregnancy in young women. Authors Reply. BMJ. 2002;324:1097.
12. Major, B., Cozzarelli, C., Cooper M.L., Zubek, J., Richards, C., Wilhite, M., Gramzow, R.H. (2000). Psychological responses of women after first-trimester abortion. Arch Gen Psychiatry. 57(8):777-84; Söderberg, H., Janzon, L., & Sjöberg, N-O. (1998). Emotional distress following induced abortion: A study of its incidence and determinants among abortees in Malmo, Sweden. European Journal of Obstetrics & Gynecology and Reproductive Biology, 79:173-178.
13. Reardon DC. Predictive risk factors of post-abortion maladjustment: clinical, legal and ethical implications. 1997 American Psychiatric Association Conference, San Diego.
14. Baker A, et. al., “Informed Consent, Counseling, and Patient Preparation,” A Clinician’s Guide to Medical and Surgical Abortion, ed. Maureen Paul, et. al., (New York: Churchill Livingston, 1999) 29. Also see: “Fact Sheet: The Emotional Effects of Induced Abortion,” (New York: Planned Parenthood Federation of America, 1993.) Reardon DC. Predictive risk factors of post-abortion maladjustment: clinical, legal and ethical implications. 1997 American Psychiatric Association Conference, San Diego.
15. Baker A, et. al., “Informed Consent, Counseling, and Patient Preparation,” A Clinician’s Guide to Medical and Surgical Abortion, ed. Maureen Paul, et. al., (New York: Churchill Livingston, 1999) 29.
16. Woo, J., “Abortion Doctor’s Patients Broaden Suits,” Wall Street Journal, Oct 28, 1994, B12:1.
17. Zimmerman, M.K. Passages Through Abortion (New York: Praeger Publishers, 1977) 69; see also Los Angeles Times Poll, March 19, 1989, question 76.
18. Belsey, E.M., et al., “Predictive Factors in Emotional Response to Abortion: King’s Termination Study – IV,” Soc. Sci. & Med., 11:71-82 (1977).
19. Council on Scientific Affairs, American Medical Association, “Induced Termination of Pregnancy Before and After Roe v Wade: Trends in Mortality and Morbidity of Women,” JAMA, 268(22):3231-3239 (1992).;Miller, W.B., “An Empirical Study of the Psychological Antecedents and Consequences of Induced Abortion,” Journal of Social Issues, 48(3):67-93 (1992); Zimmerman, M., Passage Through Abortion (New York: Praeger Publishers, 1977);Vaughan, H.P., Canonical Variates of Post Abortion Syndrome (Portsmouth, NH: Institute for Pregnancy Loss, 1990).
20. David C. Reardon, “Who Was Most Guilty?”, The Post-Abortion Review 4(2-3) Spring & Summer 1996.
21. Doris Kalasky, “Accomplices in Incest” The Post-Abortion Review 2(1) Winter 1993; Mark Crutcher, Lime 5, (Denton, TX:: Life Dynamics, 1996) 77-78. Theresa Burke and David C. Reardon. Forbidden Grief: The Unspoken Pain of Abortion. (Springfield, IL: Acorn Books, 2002).
22. Zimmerman, Passage Through Abortion, (New York: Praeger Publishers, 1977) 139.
23. David C. Reardon, Aborted Women – Silent No More (Chicago, IL: Loyola University Press, 1987) 9-15.
24. Landy, “Abortion Counseling – A New Component of Medical Care,” Clinics in Obs/Gyn, 13(1):33-41 (1986).
25. David C. Reardon, Aborted Women – Silent No More (Chicago, IL: Loyola University Press, 1987) 333-335.
26. Zimmerman MK, Passage Through Abortion (New York: Praeger Publishers, 1977), also Reardon DC, Aborted Women-Silent No More, (Chicago: Loyola University Press, 1987) and Francke LB, The Ambivalence of Abortion (New York: Random House, 1978).
27. Söderberg, H. (1998) Urban women applying for induced abortion: Studies of epidemiology, attitudes and emotional reactions. 1998. Dissertation. Departments of Obstetrics and Gynecology and Community Medicine, Lund University, Malmö, Sweden.
28. David C. Reardon, Aborted Women – Silent No More (Chicago, IL: Loyola University Press, 1987) 14-15, 335.
29. Philip G. Ney, Deeply Damaged (Vancouver, BC: Pioneer Publishing, 1997).
30. Roe at 153.
31. American College of Obstetricians and Gynecologists: Committee on Professional Standards, Standard for Obstetric-Gynecological Services (1981). Also, ACOG Executive Board, Statement of Policy – Further Ethical Considerations in Induced Abortion, (Washington, DC: ACOG, 1977), p2: “In responding to the patient’s expressed wish for termination of her pregnancy, there may be a tendency for the physician to act solely as a technician. Such action denies the physician’s traditional role as a counselor and advisor. Physicians have an ethical responsibility to assure quality counseling is provided by them or others.”
32. Friedman, E., ed., Obstetrical Decision Making, Second Edition (Philadelphia: B.C. Decker Inc., 1987), especially Borton, “Induced Abortion” p. 44 and Stewart, “Psychosocial Assessment” p. 30.
33. Carol Everett, Blood Money (Sisters, OR: Multnomah Publishers, 1992) and Pamela Zekman and Pamela Warrick, “The Abortion Profiteers,” Chicago Sun-Times, special reprint 3 December 1978 (original publication 12 November, 1978).
34. “Complaint for Injunctive Relief and Declaratory Judgment,” Presidential Woman’s Center, et al., v State of Florida et al, Circuit Court of the 15th Judicial Circuit, Palm Beach, FL CL-97-5796AG, page 22.
35. Carol Everett, Blood Money (Sisters, OR: Multnomah Publishers, 1992) and Pamela Zekman and Pamela Warrick, “The Abortion Profiteers,” Chicago Sun-Times, special reprint 3 December 1978 (original publication 12 November, 1978).
36. Reardon, Aborted Women, 15-19.
37. Statistical analysis demonstrates that patient dissatisfaction with abortion counseling is a highly significant predictor (p<.0001) of severe psychological reactions after an abortion. “Differential Impact of Abortion on Adolescents and Adults,” Wanda Franz and David Reardon, Adolescence, 1992.
38. “Doctor’s Abortion Business Is Lucrative”, San Diego Union, Oct. 12,, 1980 B1:1. Carol Everett, Blood Money (Sisters, OR: Multnomah Publishers, 1992); David C. Reardon, Making Abortion Rare: A Healing Strategy for a Divided Nation (Springfield, IL: Acorn Books, 1996) 77-79.
39. Carol Everett, Blood Money (Sisters, OR: Multnomah Publishers, 1992); David C. Reardon, Aborted Women – Silent No More (Chicago, IL: Loyola University Press, 1987) 232-271.
41. Mark Crutcher, Lime 5, (Denton, TX:: Life Dynamics, 1996).
42. Major B, Cozzarelli C, Cooper ML, Zubek J, Richards C, Wilhite M, Gramzow RH. Psychological responses of women after first-trimester abortion. Arch Gen Psychiatry. 2000 Aug; 57(8): 777-84; Miller WB, Pasta DJ, Dean CL. Testing a model of the psychological consequences of abortion. In LJ Beckman and SM Harvey (eds.), The new civil war: The psychology, culture, and politics of abortion. Washington DC: American Psychological Association; 1998; 235-67; Cougle JR, Reardon DC, Rue VM, Shuping MW, Coleman PK, Ney PG. Psychiatric admissions following abortion and childbirth: a record-based study of low-income women. Archives of Womens’s Mental Health 2001. In press.
43. Gina Kolata, “As Abortion Rate Decreases, Clinics Compete for Patients” New York Times, Dec 30, 2000, p1.
44. Gina Kolata, “As Abortion Rate Decreases, Clinics Compete for Patients” New York Times, Dec 30, 2000, p1.
45. Gina Kolata, “As Abortion Rate Decreases, Clinics Compete for Patients” New York Times, Dec 30, 2000, p1.
46. Mark Crutcher, Lime 5, (Denton, TX:: Life Dynamics, 1996) 177-178.