In what pundits have dubbed the “War on Women,” lawmakers unleashed a series of bills across the country, the most contentious of which clamped down on abortion with time restrictions and other mandates. Some laws defunded Planned Parenthood and other abortion providers. President Barack Obama’s health care law requiring insurers to cover contraception provoked a volley of slings and arrows over religious freedoms versus women’s rights. Some Republicans’ opposition to renewing the Violence Against Women Act due to expanded protections for undocumented immigrants and same-sex couples enflamed the debate. Rush Limbaugh’s misogynistic name-calling and Missouri Representative Todd Akin’s ignorant comments about rape threw noxious-smelling gas on the fire. And the controversy bled into non-reproductive issues. The clash over equal wages and working moms was so defensive on both sides it was like soldiers scuffling with shields alone.
Amidst this, Arizona passed HB 2036, banning abortions earlier than any state in the country – 20 weeks gestational age, dated from before conception – and HB 2800, barring state funds for Planned Parenthood. The bills were victories for pro-lifers and defeats for pro-choicers, but the outcome remains uncertain: Both laws were enjoined in court as of press time.
There’s certainly a war about women, but is there a War on Women? As with any conflict, it depends on perspective. (Southerners called the Civil War the War of Northern Aggression, while Northerners referred to it as the War of the Rebellion.) The sharp political battle lines – nominally Republicans against women and Democrats pro-women – is leading some politicians to call foul. John McCain said the War on Women was “imaginary,” “outlandish rhetoric” designed to “distract citizens from real issues that really matter.”
Lost in the machine gun fire of partisan debate are the laws themselves, and the women and children they affect. So let’s take a closer look at the two most explosive salvos in Arizona’s War on whatever you want to call it.
“A big tip of the hat to the state of Arizona for declaring a woman legally pregnant before she is actually pregnant,” Stephen Colbert jibed on the Colbert Report last spring, adding that state lawmakers were “not only pro life, they’re pre-life.” The impetus for his jokes – as well as nationwide jabs calling it the “Virgin Birth Bill” – was a provision in HB 2036 that defined gestational age as “the age of the unborn child as calculated from the first day of the last menstrual period of the pregnant woman.” In other words, it declared pregnancy started about two weeks before conception.
But it turns out this is actually the way obstetricians calculate the gestational age of fetuses, for the simple reason that women don’t know when they’re ovulating but usually do remember when their last period started. So the definition was nothing new in terms of determining gestational age. It was, however, groundbreaking in regards to abortion law.
Several states, including Nebraska and Idaho, had also banned abortions at the 20th week, but their laws stipulated 20 weeks after conception, making Arizona’s law the earliest abortion ban in the country. It’s noteworthy that those states’ 20-week bans already faced lawsuits because Roe v. Wade established that women had the right to abortion up to the point of viability – the time when a fetus could survive outside the womb – which is generally accepted to be at about the 24th week.
Though 20-week fetuses are not viable, there’s no question they are quite developed: they’re about 6 inches long; can hear, blink, and suck a thumb; and have fingerprints. But the key issue in the various states’ 20-week abortion laws is whether or not they feel pain.
Advocates of HB 2036 say yes. The bill’s sponsor, Republican Representative Kimberly Yee, of Phoenix, referenced a New England Journal of Medicine study in her bill to back up her assertion that “the preborn baby has the ability to feel pain well before the 20th week of life and… the medical evidence is clear that the preborn child has developed pain sensors on their face in the seventh week of life. By the 20th week of life, sensory receptors have developed all over the body.”
Detractors cite several articles including a 2010 study from the Royal College of Obstetricians and Gynaecologists that states, “Connections from the periphery to the cortex are not intact before 24 weeks of gestation and, as most neuroscientists believe that the cortex is necessary for pain perception, it can be concluded that the fetus cannot experience pain in any sense prior to this gestation.”
Cathi Herrod, president of the Center for Arizona Policy (CAP), which helped draft HB 2036, aka the Mother’s Health and Safety Act, says the law was also motivated by concern about the mother’s suffering: “The other equally important reason, even more important in some ways, is that the risk to the woman’s health increases significantly from having an abortion after 20 weeks gestational age.” The CAP cites a 2004 study in Obstetrics & Gynecology that concludes, “During 1988-1997, the overall death rate for women obtaining legally induced abortions was 0.7 per 100,000 legal induced abortions. The risk of death increased exponentially by 38 percent for each additional week of gestation.”
According to the Arizona Department of Health Services (ADHS), in 2011, 60 reported complications resulted from abortions: 29 of those occurred at or before 13 weeks, five occurred at 14-20 weeks, and one at 21 or more weeks, but 25 occurred at an unknown gestational age. So the evidence is unclear but doesn’t point to a dramatic risk increase. What is clear is that late abortions are rare: According to 2011 ADHS stats, 95 percent of abortions occurred at or before 15 weeks of pregnancy, and 1.39 percent occurred at 20 weeks or later. Bryan Howard, president of Planned Parenthood of Arizona, says women who get later-term abortions usually fall into three groups: very young girls who didn’t know they were pregnant, very poor women who were saving up money for an abortion, and women who wanted the pregnancy but learned that the fetus had a life-threatening anomaly.
“It’s particularly distressing because a lot of the diagnoses of the health of a pregnancy are happening at that point in the pregnancy – the 18th, the 19th, the 20th week,” Howard says. “So it’s very likely there will be cases where an ultrasound will be done [and] a suspicion of, for example, an anencephalic pregnancy is identified where the fetus has no brain or skull. But the attending physician will want to do a referral to a specialist for confirmation, so maybe the initial diagnosis is in the 18th or the 19th week, but by the time the patient has gone to see a specialist she’s now in the 20th or 21st week, and there is no exception... They will be told that their only option is to carry their pregnancy to term, for 20 more weeks. That seems unduly heartless.”
“The medical advice that we received from board-certified OBGYNs,” Herrod responds, “was that the diagnosis of a child with some type of fetal anomaly could be made well within a timeframe for the woman to make a decision about whether or not to have an abortion before the 20 week cutoff.”
That may be the case in most pregnancies, but not all. The stories of women’s agonizing decisions late in pregnancy are heartbreaking. Danielle Deaver, a Nebraska nurse who discovered at 22 weeks her baby would have a less than 10 percent chance of breathing on its own, was denied an abortion because Nebraska just passed the 20-week ban; the child was born and survived 15 minutes. Tiffany and Chris Campbell were told at 22 weeks if they didn’t abort one of their unborn twins, both would die of circulation problems; they were allowed to abort and saved the life of one baby.
But Mesa Representative Justin Pierce, who testified before the Arizona State House Health and Human Services Committee, tells a different story. His brother and sister-in-law discovered at 17 weeks their fetus had an anomaly that would likely be “incompatible with life.” After consulting with specialists, they were told at 36 weeks the preborn baby had “passed the point of no return” and were given the option to abort. They chose not to. Their son is now 3 years old and lives a relatively normal life.
“Our view would be that abortion is never an answer to a woman’s crisis pregnancy,” Herrod says. “That the preborn child has a right to life and that abortion not only takes the life of a preborn child but abortion also hurts women.”
Also included in HB 2036 are numerous provisions related to pre-abortion care. The law would require women to get an ultrasound 24 hours before the abortion, and for doctors to offer women a photograph of the ultrasound and the opportunity to listen to the fetal heartbeat. “The abortions restrictions we have supported or we have proposed all provide a solution to a problem,” Herrod says. “Women who have had abortions have reported that they were denied access to their ultrasound results. Women [told] us they weren’t given information about the facts of fetal development prior to having an abortion. Women did not have a consultation with a doctor. Abortion was not treated like other medical procedures as far as informed consent provisions. The requirement that a parent’s signature authorizing their minor daughter to have an abortion has to be notarized resulted from a 15-year-old girl getting an abortion at Planned Parenthood with parental consent being an email her boyfriend sent from his computer. ”
“These omnibus bills [are] really about imposing barriers; they really haven’t added to the health and safety of women,” Howard says. “Before any of [the 2011 and 2012 laws], every single patient that came to Planned Parenthood in Arizona for an abortion was getting an ultrasound... [Now] they’re required to listen to what is described in the law as the fetal [heartbeat], although what our physicians here at Planned Parenthood tell me is that in the 92 percent of abortions that happen in the first trimester, what you are hearing is the respiration and the digestive system of the patient… People like Cathi Herrod and the Center for Arizona Policy believe that if women just had some piece of information that so far has eluded the Center for Arizona Policy, suddenly they would change their minds about the health care they were receiving. Women in these circumstances are not doing this because it’s a whim; they’re choosing this health care because they believe it’s important.”
Last spring, Arizona was once again the butt of journalistic jokes, this time for statements made by Senator John Kyl, who said on the Senate floor, “If you want an abortion, you go to Planned Parenthood, and that’s well over 90 percent of what Planned Parenthood does.” But according to Planned Parenthood’s annual reports, abortion accounts for just 3 percent of their services, which primarily consist of contraception, STD treatment, and cancer screening. When Kyl’s 87-point miss was pointed out, his office announced that his comment was “not intended to be a factual statement,” prompting other senators to jokingly preface their own speeches with “this is intended as a factual statement.”
In recent years, there have been several efforts at the state and federal level to withhold taxpayer funds for abortion providers including Planned Parenthood. The efforts succeeded in several states, including Arizona. HB 2800 passed last spring and was to go into effect in August, but as of press time was enjoined in court. The law does not prevent taxpayer dollars from directly funding abortions because no government funds go directly to abortion anyway. Rather, as Cathi Herrod states on the CAP’s website, “This new law ensures that abortions are not indirectly subsidized by cutting off abortion providers from receiving family planning funds that pass through the state.” The idea is that when the state subsidizes Planned Parenthood’s mammograms and contraception, for example, it frees up funds that could be used to support abortion.
But the Arizona government does not give an annual lump sum of money to Planned Parenthood that it can divvy among departments. Instead, under its version of Medicaid (AHCCCS, or the Arizona Health Care Cost Containment System), which is available to people at or below the poverty level, the state contracts with HMOs and pays them a fixed amount per month to arrange with health care providers such as Planned Parenthood. Then, Howard explains, “If people who come to us carry those HMOs’ cards, we’re reimbursed for the care we delivered. We get no grant. There’s no pool set aside for us... We’re reimbursed only for those services that they get from us, and the eligible ones are those preventive services... We are being reimbursed between 54 to 55 cents on the dollar of what it costs us to provide the health care, so we’re losing money with each encounter. There is no money left over to subsidize another activity.”
Howard says HB 2800 violates the “any willing provider” provision of the agreement states sign when they receive federal Medicaid funds. The provision stipulates that “if you have a Medicaid card, you can go to any provider that is willing to provide service at the reimbursement rate stipulated by the program… [and] the state cannot intervene and prevent you from going to that provider,” he explains. Planned Parenthood is suing the state to halt the law.
If the law goes forward, it will strike less of a blow to Planned Parenthood than to its Medicaid patients, Howard says. “It would affect the fulfilment of our mission. It would not in a major way affect us materially or financially. We have an annual budget of about $12 million, and in the last year the total amount of care provided to Medicaid eligible women and men was $350,000… We would do everything we could to raise money to enable those patients who were no longer able to come here using their Medicaid cards to continue to be able to come to us. I don’t know if we’d be able to see all of them, to absorb $350,000 worth of care that was completely unreimbursed.”
Herrod says AHCCCS patients have plenty of alternatives to Planned Parenthood. “Women needing access to contraception can receive those services through numerous community health clinics throughout this state… Access to contraception is not the issue. The issue is that taxpayers do not want their tax dollars funding Planned Parenthood for any services. Planned Parenthood is the state’s largest abortion provider and they promote abortions.” Plus, Herrod states on the CAP blog, HB 2800 “prioritizes family planning funding to those entities that provide a range of services, rather than funding entities that provide limited care and emphasize abortion.”
The law would have a greater impact on Medicaid patients from rural areas with fewer health care providers. Howard gives the example of a Yuma husband and wife with two children. The husband is employed, but the family makes less than the poverty level, and his company does not provide health insurance. When the wife became pregnant with their third child, they decided that three children were as many as they wanted. “But they had had some challenges with keeping up with some methods of birth control between the prior pregnancies and decided that what was going to be best for them was an IUD,” Howard explains. The couple contacted numerous health care providers in Yuma County that accepted AHCCCS, but none of them carried IUDs, except Planned Parenthood. “So when the woman had the third child, she came to us and she was able to get the IUD,” Howard says. “If she were no longer able to use her AHCCCS card at Planned Parenthood, she would have to fall back on a birth control method that had not been as successful for them in the past as they wanted. So she was going to conceivably play some Russian Roulette with becoming pregnant again.”
“If you or your organization is uncomfortable with abortion,” Howard adds, “the best way to reduce the number of women needing abortion care is to ensure that as many women as possible have access to effective contraception… Whether you see this through a moral lens and say, ‘I want to see less abortion happening,’ or you see it through a public health lens and say, ‘I would like more women to be able to access lower intensity family planning than higher intensity abortion care,’ or you want to talk about it from a fiscal standpoint where the state is having to devote huge sums of money to provide public services [for], for example, labor and delivery. Fifty percent of all deliveries in the state of Arizona are paid for by Medicaid… It’s really short sighted and goes against the state’s interests to be withholding access to prevention-oriented care.”
As the bullets fly in this war over women’s issues, there may be one thing everyone can agree on. “I would hope that pro-choice and pro-life supporters all can agree that abortion should be rare,” Herrod says.
How you think that’s best achieved depends on which side of the trenches you’re on.
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