The Opinion Pages | CONTRIBUTING OP-ED WRITER
The Abortion Map Today
IN his smart opinion piece last week, “A Mason-Dixon Line of Progress,” Timothy Egan noted the “retreat to bigotry” sweeping across the old South as politicians clinging to the past (under the banner of religious freedom) line up to authorize discrimination against gay people. The column prompted me to think about whether the battlegrounds in the never-ending abortion wars display a similar geographic concentration.
The answer is that to a startling degree they don’t. The battleground is much bigger. With the exception of the West Coast and most (but not all) of the Northeast, recently enacted abortion restrictions can be found almost everywhere.
Since 2011, 10 states, from the Canadian border to the Great Lakes to the Southwest, have each imposed 10 or more new barriers to access to legal abortion. An additional 21 states have enacted between one and 10 restrictions — the lower number in some cases simply reflecting a state’s creativity in having already adopted a long menu of anti-abortion measures.
It comes as no great surprise that each of the top 10 states (Alabama, Arizona, Arkansas, Indiana, Kansas, North Carolina, North Dakota, Oklahoma, South Dakota and Texas — only four of which were part of the Confederacy) is headed by a Republican governor. Politics — political culture — outweighs geography.
The Supreme Court is now considering a Texas law that imposes unnecessary and unattainable requirements on abortion clinics in the name of protecting women’s health. The requirements that clinic doctors obtain admitting privileges at nearby hospitals and that the clinics retrofit themselves as small hospitals threatens to force most of the state’s remaining clinics to close. The eight justices heard the case,Whole Woman’s Health v. Hellerstedt, last month. It’s unclear both whether they will be able to decide it, and if they can, how a decision will affect other kinds of anti-abortion laws.
Some of what’s been happening in states scattered around the country come under the “you couldn’t make this up” category. There’s the Wisconsin law, struck down by a federal appeals court, that gave doctors a July weekend to put their hospital admitting privileges into compliance.
There’s the bill that Indiana’s governor, Mike Pence, signed last month requiring cremation or burial for aborted or miscarried fetuses. (At the gestational age when most abortions occur, the fetus is about the size of a grape.) Women have been mocking the law by calling Governor Pence’s office to let him know that their menstrual periods have arrived on time. National Review, deploring that protest as “silly,” reassured its readers that “the clear intent of the law is not to jail women who miscarry; it’s to discourage abortion.”
And then there’s Iowa, where the state Board of Medicine in 2011 authorized doctors to use videoconferencing to dispense the medication that induces abortion in early pregnancy. Under this “telemedicine” system, with a procedure developed by Planned Parenthood, a nurse performs an ultrasound examination, which the doctor views over a video link to determine the stage of pregnancy. If satisfied that a medication abortion is appropriate, the doctor sends a remote command that opens a drawer containing the pills.
The medical board’s action, aimed at providing increased access to abortion at lower cost, was controversial. Among those urging the board to reject the procedure was a prominent Catholic priest, Msgr. Frank Bognanno. After Iowa’s Gov. Terry Branstad used a recess appointment to place Monsignor Bognanno on one of the board’s three seats reserved for non-physicians, the board promptly reversed itself and barred the telemedicine procedure. Seventeen other states have done the same. (The Iowa Supreme Court ruled last June that the prohibition violated the right to abortion as understood by the Iowa Constitution. Noting that the state medical board had approved telemedicine in other settings, the court said that “the board appears to hold abortion to a different medical standard than other procedures.”)
But of all these states, Arizona wins the prize. On March 31, Gov. Doug Ducey signed a bill forbidding doctors who prescribe the abortion medication mifepristone to deviate from the Food and Drug Administration’s specifications that were in effect as of last Dec. 31. Those specifications, issued in 2000 when the agency first approved mifepristone, required a 600-milligram dose and restricted the drug’s use to the first seven weeks of pregnancy.
With doctors having prescribed millions of doses of mifepristone since 2000, it became apparent that one-third of the original dose was equally effective with fewer side effects, and that the drug was safe and effective for up to 10 weeks of pregnancy rather than seven. These “off-label” uses became standard medical practice, endorsed by leading medical organizations; doctors commonly refused to give the original dose, on the ground that it was not in their patients’ best interest.
As medication abortion grew in popularity — now accounting for about 40 percent of first-trimester abortions performed at Planned Parenthood clinics, for example — the dosage issue became a handy target of anti-abortion activism. States began to require doctors to adhere to the original label, knowing that doctors would feel ethically obliged to stop administering medication abortion rather than comply. Arizona was one of the early adopters of this strategy with a 2012 law that required adherence to the F.D.A. label. In 2014, the United States Court of Appeals for the Ninth Circuit, describing the medical grounds for the state’s law as “nonexistent,” issued an injunction against its enforcement.
That ruling, Planned Parenthood of Arizona v. Humble, was not a final judgment, and the State Legislature was determined to keep trying. The bill Governor Ducey signed was the product of the latest effort. But on March 30, the day before the bill signing, the F.D.A. announced that after 10 months of study, it was revising the label to reflect the evidence accumulated through actual medical practice: a 200-milligram dose, to be administered during the first 10 weeks of pregnancy.
Recall that the Arizona bill specified not just adherence to the F.D.A. label, but adherence to the label that existed last Dec. 31. Unfazed, Governor Ducey signed it anyway. “Some changes may need to be made in a later bill,” he said.
While a half-dozen other states have required adherence to the F.D.A. label (while not interfering with the “off-label” uses that doctors commonly make of other drugs), Arizona’s legislators are the only ones, as far as I know, to take measures to assure that a regulatory change in Washington would not render their efforts useless. There is no doubt that the courts will quickly dispose of the newly signed law, surely one of the more cynical political acts in this cynical season.
The new F.D.A. label should bring down the curtain on a fascinating and revealing episode in the abortion wars. I don’t know who first came up with the idea of requiring adherence to the old label; I do know thatmodel legislation under the title of “Abortion-Inducing Drugs Safety Act” was drafted several years ago and made available to the states by the influential Americans United for Life.
What accounts for opponents’ focus on medication abortion? After all, the procedure is limited to the first trimester, as opposed to the later-trimester abortions that would seem to be more obvious targets for legislative energy. (Gov. Gary Herbert of Utah just signed a lawrequiring doctors to administer anesthesia to women undergoing abortions at 20 weeks, on the unproven and disputed theory that fetuses feel pain at that stage.)
The F.D.A.’s decision two weeks ago hardly went unobserved, but it didn’t make quite the splash I would have expected. Maybe that’s because the abortion-rights side is so accustomed to the dreary drumbeat of bad news that it’s hard to fully assimilate good news when it comes. As for the pro-life side, its legislative strategy could really work only as a subterfuge, a claim that legislators were really doing their level best for women. In the clear light of day, it’s not easy even for the most abortion-hostile politician to stand up and declare that doctors should be required by law to give three times the evidence-based dose of medicine, any medicine.The answer is apparent: Medication abortion promises the ultimate in women’s empowerment and privacy. No need for a fancy facility (although Texas, its motives as transparently shameless as ever, requires clinics that provide only medication abortions to meet the same physical standards as those providing surgical abortion). No need for a doctor’s presence. No pickets or gauntlet of “sidewalk counselors” urging women to turn back.
Or maybe the muted response reflects a kind of shock: While everyone was looking in the other direction, waiting with hope or fear for the Supreme Court to deliver its next word on abortion, the Obama administration moved with discretion and precision to fix a particular problem. Just one piece of a bigger problem, to be sure, but the result is a changed landscape for abortion access — east, west, north and south.