Friday, May 22, 2009

Expanding Informed Consent Or Restricting Rights?

Missouri legislators recently voted on a new bill that would add to the long list of Missouri abortion restrictions. If you follow local politics, you can probably guess how this one turns out. But just to set the stage, let's look at Representative Bryan Stevenson's February comments regarding the Freedom of Choice Act.

First of all, the Freedom of Choice Act (FOCA) is a piece of federal legislation meant to codify the protections set out for women in the Supreme Court's 1973 Roe v. Wade decision. It is very controversial, and also--as of right now--entirely hypothetical. It was introduced in the 108th and 110th Congress, but not the current (111th) Congress. So the legislators aren't working on it, but what about the president? President Obama has supported it in the past, but in an April 29th news conference, he said "the Freedom of Choice Act is not highest legislative priority." Pretty clear, right? FOCA appears to be a bit of a non-issue at the moment. And that's at the federal level, where it actually would come into fruition were the Congress and the President suddenly to become interested in it once again.

With all of this non-activity and lack of progress on FOCA, you can naturally see why Missouri State Representative Stevenson felt compelled to call FOCA "the greatest power grab by the federal government since the War of Northern Aggression." Oh yes! The War of Northern Aggression! But the very best part is this: his remarks came up during a discussion concerning "a proposal urging federal leaders to oppose an abortion proposal." What abortion proposal would that be? Oh, I think you know.

That's not even what I wanted to actually write about. That's just some background information I thought you should know; in order to get a feel for Missouri politics when it comes to abortion issues. So. On to the Missouri bill.

It didn't pass; that's the first thing you should know. The state Senate sent it back to the House of Representatives with changes that the House rejected, and that's likely the end of it (for this year at least) since the legislative session is now over. The bill attempted to expand the informed-consent guidelines, in part by requiring that "women seeking abortions be told in person, a day in advance, about the potential risks of the procedure and about the development of their fetuses." The House version of the bill, which the Senate refused to take up, also included language making it a crime to coerce a woman into having an abortion.

The coercion language might sound good at first, because of course we want women to make choices freely and without pressure from others. But the House version included this provision, at the very end: "whenever a physician knows that the predominant reason the woman is seeking or obtaining an abortion is that the woman is a victim of coerced abortion, the physician shall certify that the woman lacks the consent required by law."

Here's the problem. How is "knowledge" defined? That might sound like silly, Bill Clinton-esque levels of linguistic parsing ("that depends on what the meaning of "is" is"), but remember- Clinton is a lawyer. He understands that Very Important Questions often do turn on word choice. How does this law define "knowledge?" How does it define "predominant reason?" What if a woman comes to a clinic seeking an abortion, and the doctor knows her boyfriend has been physically abusive and wants her to have the abortion, but she says she wants to have it as well (a desire independent from the boyfriend's own motivations)? Does the doctor now "know" that the "predominant reason" for the abortion is the boyfriend's coercion? The woman says she wants the abortion too; but is that just her fear talking? Can the doctor believe her?

Important questions, because if the doctor DOES perform the abortion despite knowing the predominant reason is coercion, he or she is actually performing the abortion without consent: the bill dictates that if "the woman is a victim of coerced abortion, the physician shall certify that the woman lacks the consent required by law." Domestic violence advocates have expressed concerns that the "coercion" clause would make it nearly impossible for a rape victim to legally consent to an abortion.

The House version of the bill is a mess, with imprecise language in danger of overreaching: making it very difficult for medical professionals to ensure compliance with the law and potentially criminalizing those who would give advice given to women, lest that advice be considered insufficiently pro-life and thus tantamount to coercing the woman to have an abortion.

That last bit might sound unfair, but I actually have good reason to suspect that the pro-life position of the authoring politicians might influence the way counseling and advice would be interpreted within the bill's provisions. If you need an example of the power and influence wielded by the pro-life interest groups, consider this: one provision in the bill requires abortion providers to "prominently display" the following statement: "it is the public policy of the state of Missouri that the life of each human being begins at conception, and that unborn children have protectable interests in life, health, and well-being." Of course, the bill also requires that "all information shall be presented in an objective, unbiased manner designed to convey only accurate scientific and medical information." Y'know, an objective and unbiased manner. Illustrated by the state of Missouri, which takes the liberty of defining when human life begins and discusses the protectable interests of unborn children. Scientifically and medically.

Add cognitive dissonance to the list of problems. The authors couldn't resist inserting pro-life talking points despite their presence rendering the bill internally inconsistent.

This particular bill didn't pass, but that is definitely not the end of the story. Missouri legislators will almost certainly continue their efforts to further restrict reproductive freedom in the next session. Missouri is still home to very restrictive abortion laws, including a mandatory counseling session followed by a 24-hour waiting period. Salon's Lynn Harris has likened waiting periods to "timeouts" for grown women, and I think the comparison is apt. Statistics show that waiting periods serve "only to delay women's access to a procedure they have already chosen, rather than to inform their decision making." Studies of Mississippi's counseling and waiting period laws show a decline in Mississippi abortion rates but a matching increase in both out-of-state and second-trimester procedures.

Missouri State Senator Joan Bray said she was "sick of women being treated like they're so stupid that they can't be responsible for their own reproductive decisions." I share her frustration. Waiting periods begin with the rather insulting presumption that women have simply failed to consider their options. Because it's obviously highly unlikely that a woman would have considered the impact of her decision before being given a clinic brochure and instructed to return in 24 hours? But even worse, waiting periods have no discernible benefit. They result in later abortions, which are less safe and more expensive. They also disproportionately hurt poor women by requiring two separate trips to the clinic; trips that cost time and money. This is especially true given the extremely high likelihood that the woman seeking an abortion has had to travel out-of-town to the clinic in the first place (according to NARAL, 96% of Missouri counties have no abortion provider).

It's important to keep an eye on our Missouri legislators. Because these kinds of bills can be complicated and full of dense language, and it's easy to overlook them, but that's how rights are lost- slowly, a piece at a time, because nobody is paying attention. Since she is more eloquent than I can ever hope to be, I think Justice Ruth Bader Ginsburg's dissent in Gonzales v. Carhart is an appropriate summation of this issue:
At stake in cases challenging abortion restrictions is a woman's "control over her [own] destiny." "There was a time, not so long ago," when women were "regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution." Those views, this Court made clear in Casey, "are no longer consistent with our understanding of the family, the individual, or the Constitution." Women, it is now acknowledged, have the talent, capacity, and right "to participate equally in the economic and social life of the Nation." Their ability to realize their full potential, the Court recognized, is intimately connected to "their ability to control their reproductive lives." Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.

This particular bill failed to pass. The next one just might.

Reproductive Health Reality Check has more on HB 46/343 here and here.

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