Access to Second Trimester Abortions: A Public Health Perspective

1. Access to Second Trimester Abortions: A Public Health Perspective Tracy Weitz, PhD, MPA Director Advancing New Standards in Reproductive Health (ANSIRH) Bixby Center for Reproductive Health Research & Policy University of California, San Francisco

2. Today’s Presentation • Overview of 2nd trimester abortion • Current barriers to provision • A recommitment to 2nd trimester abortion care

3. What is 2nd Trimester Abortion?

4. 2nd Trimester Abortion in Practice • Generally • Abortions between (14) and (24) weeks LMP • Involves use of Dilation and Extraction (D&E) • Can be done with medications as an induction • Providers vary on to what gestational limit they do abortions • CPT Codes distinctions • 59840: By D&C –Any trimester • 59841: By D&E -- 14 weeks 0 days up to 20 weeks 0 days • 59841-22: By D&E -- 20 weeks 0 days or more

5. Abortions by Gestational Age Almost 90% in the 1st Trimester Source: Elam-Evans et al., 2002 (1999 data)

6. Many Women Need Care • 10% of 1.3 million is still a lot of women • 130,000 procedures in the 2nd Trimester • 26,000 women over 21 weeks LMP • Women who need care • Access barriers • Social barriers • Diagnosis barriers • Life circumstances • Health care disparity and human rights issue

7. Who Needs 2nd Trimester Abortions • Greater likelihood for women who are: • Low income • Non-Hispanic black • Geographically isolated • Young

8. What factors delay abortion • Funding needs • Only 17 states still allow for Medicaid funding • Significant factor in use of 2nd Ti • Late diagnosis of pregnancy • Late diagnosis of medical need • Logistics • Difficulty finding a provider • Referral from a prior clinic

9. Barriers to Provision Lack of Providers Increasing Regulation

10. Lack of Providers • Graying of the Abortion Provider • Concentration in High Volume Outpatient Clinics not in Hospitals • Lack of Training • In Residencies • For the Practicing Physician • Inadequate Compensation • Out-of-Pocket Services • Medicaid Restrictions • Insurance Prohibitions

11. A More Complicated Story • # of providers is an inadequate measure • MFM physicians may do procedures for fetal abnormalities • Separating “Good” from “Bad” Abortions • Newer providers unwilling to do such high volume •  requirements are  cost without  compensation => specialization

12. Increasing Federal and State Regulation of 2nd Trimester Abortion “Partial Birth Abortion” Bans “Fetal Pain” Consent Bills Targeted Regulation of Abortion Provider (TRAP) Laws

13. “Partial Birth Abortion” (PBA) Bans

14. What is “PBA” • Not a medically recognized term • Introduced into the public after a 1992 presentation by Martin Haskell at the National Abortion Federation (NAF) meeting was leaked to anti-abortion activists • Supposedly describes the dilation and extraction (D&X) technique • where the fetal body is brought through the cervix intact and then the skull is compressed to safely move it through the cervix • There is no bright-line distinction between D&E and D&X • most appropriately called intact D&E

15. Why Perform an Intact D&E? • Reduce instrumentation of the uterus • Fetus presentation necessitates • Result of dialation of cervix with laminaria or misoprostol or other cervical preparation technique • Process of fetal loss • Preserve the fetus for post-procedure examination

16. Early Efforts to Ban PBA • Federal legislation to ban PBA passed by Congress in March 1996 and again in October 1997 • President Bill Clinton vetod both bills • Override votes passed in the House of Representative but failed in the Senate • Many states began to pass PBA bans

17. State-based “PBA” Bans • 26 states have bans on PBA that apply throughout pregnancy • 18 bans have been specifically blocked by a court • 7 bans remain unchallenged but are presumably unenforceable under Stenberg because they lack health exceptions • Ohio’s ban has been challenged and upheld by a court • 5 states have bans that apply after viability • Utah’s ban has been specifically blocked by a court because it lacks a health exception • Montana’s ban remains unchallenged but is presumably unenforceable under Stenberg because it lacks a health exception • 3 bans are currently in effect • 4 states have bans that include a health exception • 2 states broadly allow the procedure to protect against physical or mental impairment • 2 states narrowly allow the procedure to protect only against bodily harm • 27 states have bans without a health exception • 19 bans have been specifically blocked by a court. • 8 bans remain unchallenged.

18. State-based PBA Bans • Found unconstitutional in Stenberg v Carhart [2000] • Challenge to the state of Nebraska ban on so-called “Partial Birth Abortion” • Found unconstitutional on 5-4 decision • Stevens, Breyer, Souter, Ginsburg, O’Connor: • Four separate dissenting opinions were filed: Rehnquist, Scalia, Kennedy, Thomas • Must have a health exception • In spite of this- Congress passed a the 2003 Partial Birth Abortion Ban without a health exception

19. Signing the PBA Ban of 2003

20. What Does the Law Say “An abortion in which the person performing the abortion, deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.”

21. Immediately Challenged • 3 Legal Challenges • Planned Parenthood v. Ashcroft • San Francisco • National Abortion Federation v. Ashcroft • New York • Carhart v. Ashcroft • Nebraska • Temporary Injunction • Who is covered?

22. Planned Parenthood v. Ashcroft/Gonzales • Challenged by Planned Parenthood, joined by the City and County of San Francisco on behalf of San Francisco General Hospital • Subpoena to obtain medical records • Federal District Judge Phyllis Hamilton struck down the law on 3 grounds (6/1/04): • Because it places an 'undue burden' (i.e., "a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus") on women seeking abortion • Because its language is unconstitutionally vague • Because it lacks constitutionally-required provisions to preserve women's health • Upheld by 9th Circuit (1/31/06)

23. NAF v. Ashcroft/Gonzales • Challenged by the ACLU Reproductive Freedom Project on behalf of the National Abortion Federation (NAF) • New York District Judge Richard C. Casey (8/26/04) • found the Partial Birth Abortion Ban Act unconstitutional • ruled that the act must contain exceptions to protect a woman's health • Very inflammatory language reg the fetus • Upheld by 2nd Circuit (1/31/06)

24. Carhart v. Ashcroft/Gonzales • Challenged by the Center for Reproductive Rights on behalf of a Nebraska physician Carhart • U.S. District Judge Richard Kopf (9/8/04) • “The overwhelming weight of the trial evidence proves that the banned procedure is safe and medically necessary in order to preserve the health of women under certain circumstances. • In the absence of an exception for the health of a woman, banning the procedure constitutes a significant health hazard to women." • Upheld by the 8th Circuit Court of Appeals (7/8/05)

25. The Supreme Court • 2 cases (Planned Parenthood & Carhart) heard 11/8/06 • Expect opinion at end of term • What do we expect • Will depend on Kennedy’s dissent in Carhart? • Has science and evidence changed • What is undue burden

26. Kennedy’s Strong Opposition • states should be able to outlaw “a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life” dissent in Stenberg v Carhart, 2000

27. Implications of Reversal • Could ban all 2nd trimester abortions • Impose criminal sentences on physicians who violate the ban • Chilling effect on 2nd tri provider • Fundamentally change the meaning of abortion right articulated in Roe • Restrict abortion in states with more liberal laws

28. What Will Providers Do? • Survey of 2nd Trimester providers attending the 2006 meeting of the National Abortion Federation • N = 46 (US only) • Average gestation limit 21wks LMPrange [16-27+] • Median gestation limit 23 wks LMP

29. If PBA is upheld will you:? • alter the way you use misoprostol for cervical ripening • use digoxin at earlier gestational ages* • reduce the gestational age to which you perform abortions • stop performing intentionally intact D&Es • change who you allow in the procedure room • change the clinical technique for performing D&Es

30. Use Digoxin at Earlier Gestation Age? • What is Digoxin (“Dig”) • A feticide injected into the fetal heart to stop fetal cardiac activity • Change clinical practice • Yes: 11 (24%) • No: 28 (61%) • No Answer: 7 (15%)

31. Why Isn’t Dixogin the Answer? • Scientific evidence demonstrates does not increase safety or ease of procedure and has medical risks • Drey, E. A., L. J. Thomas, N. L. Benowitz, N. Goldschlager, and P. D. Darney. 2000. "Safety of intra-amniotic digoxin administration before late second-trimester abortion by dilation and evacuation." Am J Obstet Gynecol 182:1063-6. • Jackson, R. A., V. L. Teplin, E. A. Drey, L. J. Thomas, and P. D. Darney. 2001. "Digoxin to facilitate late second-trimester abortion: a randomized, masked, placebo-controlled trial." Obstet Gynecol 97:471-6.

32. Other Complicating Factors • Increased difficulty • at reduced gestation age • with obesity • Cost • What is “fetal death” • How prove?

33. Where is the “Pro-Choice Movement” • Wavering support • Discomfort with the “techniques of abortion’ • A desire to “not focus on the issue” • Belief that we lose when we discuss the issue • Belief that few women will be hurt by these bans • Focus on “reframing” and terminology rather than real understanding

34. Implications for Health Care Beyond Abortion • Legislate a particular medical technique • What does this mean to the concepts of informed consent?

35. “Fetal Pain” Bills

36. “Fetal Pain” Counseling Reqs. • Require a doctor performing an abortion at 20 or more weeks to read to the woman a statement saying that the fetus may experience pain and to offer to give the fetus anesthesia • In place in 3 states and under consideration in others

37. What is Pain • Pain is a feeling – a subjective sensory experience – and as such, an individual must possess some level of consciousness or awareness in order to perceive a stimulus as unpleasant. To be conscious and capable of experiencing pain, an individual must have a functional cerebral cortex.

38. Inconsistent with Science • Systematic review published in JAMA, 2005 • Pain vs Movement • No “pain” prior to 29 wks gestation • “Wiring is in place but lights don’t come on” • Even if pain, no means for fetal anesthesia • Increased risk to the pregnant woman • Other concerns • Informed consent and notions of risk • Mandated physician speech

39. Shouldn’t Women Decide? • I can understand why we shouldn’t require fetal analgesia/anesthesia for all abortions, but why shouldn’t we allow the woman to chose for herself whether she wants fetal analgesia/anesthesia during an abortion?

40. How to Answer the Question • Patient autonomy is undoubtedly a consideration of primary importance. However, there is no known safe and effective fetal analgesia/anesthesia to offer in the context of abortion. • Additionally, patients should be advised that such measures are unnecessary because science does not support that fetuses feel pain before the third trimester. • The goal of quality patient care is to inform women of the most up-to-date scientific information. Requiring that women be offered care that is not needed nor demonstrated as safe violates that goal.

41. Targeted Regulations of Abortion Providers (TRAP) Laws

42. What are TRAP laws? • Targeted Regulations of Abortion Providers (TRAP) • TRAP laws = Purported health facility regulations that apply only to facilities in which abortions are performed

43. TRAP laws often include: • Licensing and inspection provisions • Authorization for searches • Administrative requirements • Minimum training requirements for staff • Physical plant specifications

44. TRAP laws are different than other abortion laws • Other abortion specific laws attempt to influence the pregnant woman’s decision • premise to protect potential life • TRAP regulate the medical aspects of the abortion procedure • premise is to promote health

45. How prevalent are TRAP laws? • Over half of all states have TRAP laws, all deal with 2nd Trimester care • Legal challenges have failed to reverse TRAP laws • Before 1992, many TRAP laws were struck down as unconstitutional • Since Casey when the Supreme Court established the undue burden standard, almost impossible to prove

46. Not regulated like similar care • Procedures with magnitude and risk greater than abortions up to 20 wks that are not regulated in the outpatient setting • hysteroscopy • surgical treatment of miscarriage • diagnostic dilation & curettage • endometrial biopsy • ovum retrieval • sigmoidoscopy • vasectomy • What about after 20 wks?

47. What are the implications of TRAP laws? • TRAP laws • segregate abortion from the general practice of medicine • deter physicians from becoming providers • unnecessarily raise the cost of abortions • Results in reduced access to and quality of abortion • increasing disparities particularly for low-income & rural women

48. The Mississippi Story “The Last Abortion Clinic” A Frontline Special

49. Clever TRAP Laws • Regulate clinic as an outpatient surgical center • Requires that physician have admitting privileges at the local hospital • Physicians are flown in from out-of-state • No hospitals would grant privileges • Essentially outlawed 2nd Trimester Abortion in Mississippi

50. “It is the women with resources who continue to be able to get abortion. And it is the low-income women, people in marginalized populations, people that live in rural areas, who just don't have good access to legal abortion and turn to very unhealthy alternatives." Jones, 2006