Written by Amanda Marcotte for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

See all our coverage of the Kermit Gosnell case here.

Kermit Gosnell goes to trial soon for his torture of vulnerable women.

Kermit Gosnell, the sadistic monster who exploited lack of access to safe abortion care among poor and immigrant women to both torture women and kill actual babies, is finally on trial and anti-choicers are having a feeding frenzy. Unable to muster actual compassion for Gosnell’s victims, anti-choicers got right to work seeking ways to exploit his crimes to further reduce access to safe, legal abortion — and to create more Gosnells in the future. In order to achieve the goal of driving more women to monsters like Gosnell and away from safe, legal clinics, anti-choicers are telling more lies than usual. (Which hardly seemed possible, but once you wind them up, they can really get going.)  I don’t usually feel comfortable speaking for pro-choicers as a whole, but in this case, I believe we’re all on the same page, so I thought I’d use this space to get the facts straight.

So here is a list of the facts about how pro-choicers are reacting to the Gosnell case. Anyone who denies these facts is lying, and you have to ask yourself why they feel the need to lie to make their case.

Pro-choicers condemn Kermit Gosnell and hope that he sees justice. When the story broke, there was a rush of feminist journalists who covered the case and the tone was universal condemnation and advice on how to prevent such crimes in the future. A quick search of RH Reality Check demonstrates that, and you can read other feminist takes around the internet. For people who aren’t trying to prop up lies to confuse the situation, this universal pro-choice condemnation of Gosnell was entirely predictable. Not only do we believe he is a murderer and likely a sadist, but we believe he exploited the desperation of low-income women who need abortions but struggle to afford quality care. We agree with the prosecutors who wrote that Gosnell “ran a criminal enterprise, motivated by greed.” As advocates of quality health care for women, we have tried, sadly in vain much of the time, to remind people who simple fixes, such as offering Medicaid coverage of abortion, could take the issue of cost off the table and make it easier for women not to resort to illegal operators who use unsanitary and sadistic methods, like Gosnell.

Pro-choicers are the ones trying to prevent future Gosnells. Gosnell made money exploiting desperate women, so the way to prevent future monsters like him is to make sure women aren’t desperate. Pro-choicers raise money for abortion funds, so more women can afford quality care. They set up volunteer-staffed help lines to get women through the process of seeing a reputable provider. They demand an end to the Hyde Amendment, so low-income women can use Medicaid to pay for quality providers. As pro-choice blogger PZ Myers wrote, Gosnell “could get by with criminally substandard treatment because our government has been actively destroying the ethical and competent competition.” We try to keep the ethical competition afloat to keep men like Gosnell from getting business. Which should not be conflated, as lying anti-choicers are doing, with trying to stop regulation.

Pro-choicers support holding abortion clinics — and all medical facilities of any type — to a high safety standard. Pro-choicers want women to receive safe, clean, ethical abortion care. We fully and completely support government regulations of all medical facilities aimed at making sure patients get this kind of care. We are so supportive of safe, clean abortion care that we have our own organization called the National Abortion Federation to certify quality clinics. (NAF unsurprisingly refused to certify Gosnell, even though he cleaned his clinic up and pretended to have medically trained staff in an effort to trick them.)  The key here is that we believe that abortion clinics should be subject to the regulations like other medical facilities, and that those regulations should be aimed at making sure women get quality care.

Regulations demanded by anti-choicers have nothing to do with securing quality care for women.

Read the rest of this entry →

Written by Katherine Greenier for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

During the recent Board of Health vote on June 15 regarding new rules for women’s health centers that provide abortion care, a heated debate arose between Board members and representatives of the Attorney General’s Office over the authority of the Board to amend the new rules so that existing women’s health care centers would be “grandfathered in,” rather than subjected to onerous and unnecessary building requirements that are only meant for the construction of new facilities.

This week, the ACLU of Virginia sent a letter to State Health Commissioner Dr. Karen Remley and members of the Board of Health explaining that, while the Attorney General has the responsibility to review proposed regulations to determine if the Board has the authority to adopt them, the law does not give his Office veto power over the Board’s policy decisions about what to include in the final rules.   

The Attorney General has two roles to play when a state agency is considering the adoption of regulations.  One is to provide legal advice, as the Board’s lawyer. As its counsel, the AG’s advice can inform the Board’s action, but it cannot and should not decide it or force the adoption of one legally defensible policy over another. 

The second role the Attorney General plays is to “certify” on the public record whether the Board has the authority to adopt the rules under consideration. In this case, there is no credible legal basis for the Attorney General’s assertion that the Board does not have the authority to issue a regulation that excepts existing health care facilities from meeting construction and building codes adopted after they were built.  By threatening to refuse to “certify” the Board’s authority, the Attorney General essentially has claimed veto power over the Board’s policy decisions – a threat that is intended to force the Board to rewrite the rules to suit the AG’s policy objectives. That is not the AG’s job, however. 

Moreover, the AG is wrong on the law.  There is nothing in the Code (or the recently enacted law, Senate Bill 924, defining abortion providers as hospitals) that requires the Board to impose extensive, burdensome construction requirements that have no relation to the safety of the services that women’s health centers provide. This is particularly clear since the AG’s forced interpretation of the law in this instance is at odds with every other regulation of health care facilities, and far from consistent with prior interpretations of the law at issue.

This latest action from the Attorney General is yet another attempt to advance the Attorney General’s personal anti-choice ideology in this ongoing regulatory process.  Documents obtained through a Freedom of Information Act request revealed that the AG’s office intervened in the drafting of the emergency regulations of women’s health centers that provide abortion care. The AG forced inclusion of medically irrelevant requirements in the draft proposed rules that had been rejected by the Department of Health’s appointed medical panel, including the medical panel’s recommendation that the regulations stipulate that new construction physical requirements not apply to existing health centers.

Moreover, this is not the first time the Attorney General has overstepped his role as counsel by seeking to dictate his view of what state policies should be through the regulatory process. Last year, regarding new rules for protection from discrimination in non-residential and residential programs operated under the Department of Juvenile Justice, the AG’s Office representative told the Board of Juvenile Justice that, as a matter of “policy,” the Office would not certify any regulation that contained the words “sexual orientation,” arguing that the Board was without authority to  achieve the goal of protecting vulnerable children from discrimination on the basis of sexual orientation by “creating a protected class.” However, the Office made no effort to work with that Department to find a way to exercise their inherent power and responsibility to protect the constitutional rights of the youth who are their special concern.

The AG’s Office made the same assertions regarding the scope of a policy board’s authority when the Board of Social Services sought to adopt rules that would have protected Virginians seeking to adopt or foster children, and children eligible for adoption or foster care, from discrimination by licensed child placing agencies based on race, national origin, ethnicity, gender, age, religion, political beliefs, sexual orientation, disability and family status. 

Finally, the same kind of policy position was reflected in the letter the AG sent to the boards of Virginia’s public colleges and universities asserting that they did not have authority to adopt policies prohibiting discrimination based on sexual orientation against students, faculty and staff.

No matter the agency or the topic of regulatory action, the Attorney General does not and should not have veto power over policy decisions delegated to citizen boards by the legislature regarding what to include in final rules. Board members faced with “legal advice” from the AG’s office that is clearly informed more by political objectives than legal principles should decline to follow it and take whatever action is necessary to see that the regulations that they believe are in the best interests of Virginians are published and implemented. 

A copy of the ACLU’s letter can be found online. 

Written by Andrea Grimes for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Texas Republican House Representative Bill Zedler couldn’t get the anti-choice amendment he proposed during last year’s special lawmaking session approved by his peers in the legislature–he’d like to gather as much information as possible on women seeking, and doctors performing, abortions–so he’s asked the Texas Department of State Health Services (DSHS) to do it for him. And at a meeting held last week in Austin, it became clear the DSHS brass is happy to help him out.

The Texas DSHS called the abortion provider stakeholders meeting one afternoon last week to begin the process of getting public comment on “updated reporting requirements” instituted at the behest of Rep. Zedler.

It confirms the worst fears of abortion providers who suspected, when they were notified a week before about the meeting, “that the truth the state is hiding is that it now means to implement by regulation what it has failed for the past several years to accomplish through legislation.”

DSHS Health Care Quality Section Director Renee Clack told a group of about twenty abortion providers, pro-choice activists and clinical workers that the “primary reason” for the meeting was to address implementation of two laws passed last year that require mandatory transvaginal sonograms and exclude Planned Parenthood from participating in Texas’ Medicaid Women’s Health Program, and also to address “some amendments the department has included that specifically relate to a request by Representative Zedler.”

Even though lawmakers did not approve these new rules because Zedler’s amendment–and others like it–have repeatedly been shot down in legislative session or languished in committee hearings, the DSHS says it has the “authority” to initiate them anyway, so that’s what they’re going to do.

The DSHS’ willingness to take up new requirements that, by their own admission, they were not seeking to institute before Rep. Zedler’s request raises disturbing questions: Can individual lawmakers simply bypass the legislative process and “request” that state departments do their bidding? Why should lawmakers bother trying to pass laws with the consent of their fellow democratically-elected legislators when they can just “request” state departments do their bidding later on?

When pressed by RH Reality Check, the DSHS reps refused to clarify its intentions with the updated reporting requirements and specify how the updated requirements–which are redundant at best and intimidating at worst–would benefit the public health and safety of Texans. Their refrain: we have the authority to do this, so we’re doing it. 

[cont.] Read the rest of this entry →

Written by Carole Joffe for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The last ten days or so we have seen Republicans, and their religious allies, wage a war against contraception—and bungle it badly. With poll after poll showing that a majority of Americans support contraceptive coverage in health reform, and with the 98 percent figure (of American women who have ever used contraception in the context of heterosexual sex) endlessly repeated in the media, the Republicans nonetheless push ahead with this attack, providing a welcome gift to the Obama reelection campaign and much material to political artists and comics. I have lost count of the number of parodies that have been inspired by that now gone viral picture of five male clerics testifying at the Congressional hearing called by Rep. Darrell Issa (R-CA). A picture that of course immediately brings to mind another image of a similar tone deaf moment on the part of social conservatives,  the nine men surrounding President George W. Bush as he became the first president to sign a ban on a particular technique of performing abortion, in the case of so-called “partial birth abortion.”  It’s no wonder that the term “patriarchy” has made a comeback in the blogs!

The well-publicized refusal of Issa to permit the testimony of a female witness put forward by the Democrats, Sandra Fluke, a Georgetown law student planning to speak to the health consequences of denied contraception at Catholic universities, only added to the disastrous p.r. of that event. And the “aspirin between her knees” remark of Rick Santorum’s major funder later that day didn’t help either.

But while the media is momentarily fixated on the second big story this month of a losing fight against family planning (remember the Susan G. Komen Fund fiasco?), less attention has been paid to a related war that is not going well at all.  The assault on abortion that has resulted from the 2010 elections–the Republican takeover of Congress and many statehouses and governorships–has arguably produced the most serious threat to abortion access since the Roe decision in 1973.  What we mainly have heard about this situation are the statistics, the unprecedented number of abortion restrictions introduced and eventually passed in state legislatures at a time when one might assume politicians’ focus would be on the economy.

But there are real people behind the numbers and details of the restrictions. And the enormous toll that the abortion wars take on individual women seeking the procedure and the providers who try to help them are insufficiently appreciated by the general public.  Consider the case of Jennie McCormick, a destitute Idaho woman, a single mother of three, who, facing an unwanted pregnancy and unable to travel several hours to the nearest abortion clinic, ordered abortion medication over the Internet, and is now facing criminal charges.  She has also been stigmatized in her own community to a degree to which the fictional Hester Prynne of The Scarlet Letter fame could relate.  Here is a description of her daily life, as described in a British newspaper: Read the rest of this entry →

Written by Editor-in-Chief Jodi Jacobson for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

You can find our coverage on TRAP (Targeted Regulation of Abortion Providers) regulations in various states here.

The Virginia Board of Health today–and at this point one must use the term “health” loosely at best–did what most women’s health and rights advocates both feared and expected it to do by adopting medically unnecessary regulations on abortion providers in the state.  The regulations affect providers of first-trimester procedures, contain what can only be called ridiculous mandates for abortion providers, such as requiring specific sizes of rooms and lengths of hallways which have nothing to do with either patient care or safety.  These “temporary regulations” will go into effect January 1, unless Governor Bob McDonnell suddenly decides he cares more about women than ideology.

As we reported two weeks back, the “draft” regulations–which were formulated under an emergency process that bypasses public review and comment periods and standard economic assessments for new regulations and is undemocratic on its face–will be put in place for 18 months to 2 years while more permanent regulations are formulated.  The goal of these is clear: To dramatically curtail if not eliminate safe, legal first-trimester abortion in the state of Virginia. Read the rest of this entry →

Written by Kari Ann Rinker for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

As Jodi Jacobson reported earlier today, public hearings were held in Kansas today for the abortion regulations created by the Kansas Department of Health and Environment.  I presented the following testimony on behalf of Kansas NOW.

I’m the State Coordinator for Kansas NOW, which means that I stand before you today as a grassroots women’s rights activist and equality advocate.   I stand before you today, as a voice for a whole lot of Kansas women who cannot be here to tell you how they feel about these regulations.  These women want me to express what they think about the possibility of losing their access to existing abortion clinics within their state.  These are good women who have either used these clinics personally, or simply take comfort in knowing that these facilities exist should they need them.

While I may not be a public health professional, my understanding as a graduate student of Public Administration is that government enacts regulations when a public need for protection presents itself, in the case of Kansas Department of Health and Environment, when some public health concern or externality needs to be addressed.  As employees of an agency that is supported by public tax dollars, deliberative, non-ideological processes are to be expected, especially with regard to the health and well being of the citizens they work for.  I do not believe that this regulatory process met those deliberative, non-ideological tenets. Read the rest of this entry →

Written by Editor-in-Chief Jodi Jacobson for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Using a highly unusual “emergency” process, Virginia Governor Bob McDonnell is expected on Friday, August 26th to issue guidelines under what is known as a Targeted Regulation of Abortion Providers (TRAP) law that will treat clinics providing first trimester abortions as a form of hospital. There are no medical or public health indications for such regulations.

In March, McDonnell, a virulently anti-choice Republican, signed SB 924, a law that requires clinics performing first trimester abortions to be regulated as hospitals. The bill gave the state’s Board of Health 280 days to create and to enact the new regulations. Because McDonnell has invoked “emergency” status for the process, it is expected that temporary regulations–which will first be issued tomorrow and voted on by the Board of Health in September–will be put in place for a period of up to 18 months while permanent rules are developed through a more established process.

The catch is this: the McDonnell Administration is bypassing virtually all democratic processes in place for the creation of such regulations. Under the emergency designation, the normal process for public review and comment on regulations, which usually involves several opportunities for expert testimony and public comment and an economic impact assessment among other considerations, has been completely thrown out. Instead, draft regulations will be released tomorrow, and then voted on at a meeting of the Board of Health on September 15th. Instead of any public hearings or comment periods, the Board meeting will be the only time for the public to speak out.  After the board votes on these temporary regulations, they will go to the governor for final approval. Moreover, the McDonnell administration has claimed it has the authority to rewrite without any further notice or input any temporary regulations presented to it for signature.

I’d say that is as close to government by fiat as it gets.

Analysts suggest that the temporary regulations will have an insidious effect of creating uncertainty among clinics as to what to do. Normally, such regulations would include a period of time–two years–during which clinics can make accommodations for any changes that might be necessary to comply with law, such as changes in physical structure, which can be expensive.  But by issuing temporary regulations, the McDonnell Administration puts existing clinics on an uncertain path: Do they take on the expense of adapting to regulations that might be thrown out or replaced in 18 to 24 months when more “permanent” regulations are published? Or do they take the risk of being found in violation of medically-unnecessary regulations that are costly and impede their ability to provide services to women in need?

Virginia has a lot of company in creating medically unnecessary TRAP laws and regulations seeking to diminish access to abortion care. “Nearly 30 states have some sort of TRAP law,” notes Elizabeth Nash, Senior Public Policy Associate at the Guttmacher Institute. “Regulations in some states essentially require clinics providing abortions to become miniature hospitals by mandating they meet ambulatory surgical standards.”

The Center for Reproductive Rights (CRR) notes that TRAP laws generally fall into one of three categories: health facility licensing schemes, ambulatory surgical center requirements, and hospitalization requirements.

Health facility licensing schemes vary widely in their breadth and scope, but generally require that abortion facilities (but no other comparable offices or clinics) become licensed by the state and meet a range of regulations governing such matters as physical construction, staffing, and procedures.

Ambulatory surgical center (“ASC”) requirements mandate that abortion providers – including, in at least one state, those that provide only first-trimester medical or surgical abortions – be licensed as ASCs, which are sophisticated facilities designed for the performance of a range of out-patient surgeries. “These requirements go far beyond the recommendations of the national health organizations in the field of abortion care, and converting a physician’s office or outpatient clinic into an ASC can be too expensive for many providers.” notes a CRR report.

Hospitalization requirements mandate that abortions beyond a certain gestational age (generally at some point in the second trimester) be performed in a hospital. Although many states have some type of hospitalization requirement on the books, the vast majority of those laws are unenforceable because they been declared unconstitutional by a court ruling or state official, or have been superseded by another law.

In the case of Virginia, the TRAP laws specifically target first trimester abortion, one of the safest medical procedures performed in the United States. As I wrote in July:

More than 90 percent of abortions occur in the first trimester of pregnancy.  Legal, early surgical termination of pregnancy performed by a trained provider is among the safest possible surgical procedures of any kind, anywhere.  Early medical abortion (using medications to end a pregnancy) has a similar safety profile. Less than 3 percent of women who undergo early termination of pregnancy report any complications whatsoever; the vast majority of those “complications” are issues so minor they can be handled in a medical office or clinic.  Fewer than 0.5 percent of women have serious complications from early termination that require hospitalization or surgery.

Does the “emergency push” by the McDonnell administration for abortion regulations come after a rash of problems found at clinics providing abortion care? No. There is no precipitating event other than the desire by Governor McDonnell and his Attorney General Bob Cuccinelli to turn back the clock on women’s health and rights.

Advocates are unable to say at this time what will be included in the temporary regulations expected out tomorrow, but suspect they may in some form reflect those adopted in states such as South Carolina or in Kansas.

In many states with anti-choice legislatures and governors, such as Kansas, TRAP laws can literally become a farce.  In July, Kansas Governor Sam Brownback and the Kansas Department of Health put in place regulations targeting abortion clinics that proscribed the size of the janitor’s closets, the temperature at which rooms should be kept, and the size of staff and patient lockers. They further required that clinics be prepared to deal with a “live birth,” a completely superfluous and misleading regulation given that there is no such thing as a “live birth” in the first trimester of any pregnancy. In South Carolina, regulations mandate similarly irrelevant aspects of a clinic’s physical plant, down to the types of faucets to be installed in sinks. The Kansas TRAP regulations were temporarily enjoined by a federal court in a suit brought by CRR and the American Civil Liberties Union.

These actions are separate from and go far beyond the normal regulation of health clinics–licensing of physical plant and providers, standards for cleanliness, operational standards for equipment used–under which abortion clinics and other clinics performing procedures with similarly low levels of risk must already comply.

While TRAP laws are ostensibly put in place to “protect women” or “protect patient safety,” these terms are simply the Orwellian equivalent of a bait and switch. Guttmacher Institute’s Nash notes that there is no credible research on the impact of these types of TRAP regulations on patient health or outcomes, and therefore no evidence that these improve either health or outcomes in any way. It is clear the vast majority of these laws are enacted simply to make create medically-unnecessary obstacles that anti-choice lawmakers hope will be prove too great for providers to overcome, and in turn make it more difficult for women to obtain early abortions by making clinics providing them more scarce.  It is a nakedly obvious strategy to reduce access through harassment using the excuse of protecting health. In fact, the risks to women’s health are far higher if they are forced by lack of access to seek abortions later in their pregnancies.

Contrast Virginia with the states of Delaware and Maryland, which in fact have or are considering laws regulating abortion clinics truly focused on patient safety, according to Nash. In these states, for example, laws actually do focus on protecting patient health and providing a safe and clean environment by writing regulations to ensure that the physical plant of a clinic is safe, functional, and sanitary without focusing on things like the size of patient lockers or the outcomes of operations not ever performed. In this way, Nash notes, states can focus on safety by allowing for each clinic to be configured differently as long as they meet basic standards.

Though legal organizations working to protect the rights and health of women can’t predict what the regulations will contain and therefore are unable to comment on any legal strategy, women’s groups from across Virginia have sprung into action to protest efforts by the McDonnell administration to strip women of their rights. The Virginia Coalition to Protect Women’s Health formed in 2011 as a response to the attack on women’s health and safety prompted by Senate Bill 924. The goal of the coalition is to “protect and ensure access for all women in all regions of Virginia to safe first-trimester abortion and comprehensive reproductive health care services,” and to oppose “excessive, burdensome or unneeded regulations that undermine patient access to medical care for political or ideological purposes.”  The Coalition is expecting to collect at least 10,000 signatures to deliver to the Board of Health before the September hearing, and is requesting support from women in the state in this effort.