Oct 19 2009
Nan Hunter has just run a good summary of recent legislation in Oklahoma that, taken as a whole, is designed to prevent women from having abortions altogether. The state’s determination shows that, Roe v. Wade not to the contrary, there’s plenty that states can do to restrict what the Court has declared to be part of a fundamental right to self-governance, privacy, and autonomy.
The state’s zeal, though, shows that ideologues on a mission can wreak havoc with settled public health principles, thereby jeopardizing the public’s trust in health care — just in case there’s any such trust left. There are at least two recent examples of this misguided approach.
First, a recent piece of legislation — later declared unconstitutional — required women to undergo an ultrasound (vaginally in the case of early pregnancies) before an abortion could be performed. Such coerced invasion of the body has typically been required only in cases of epidemic; even there, often the resisting party can usually forego vaccination and pay a fine, or suffer the less objectionable deprivation of liberty. This would have been the first case I’m aware of where an unwanted, invasive procedure would have been made a prerequisite for a procedure that someone has a legal right to have, and where that first procedure isn’t needed for some other medical reason. In other words, this is quite different from requiring a biopsy before surgery to remove a tumor.
Laws educating women about fetal development (although also typically a smoke-screen for restricting access to abortions) are OK with me, at least in principle. This weird law, on the other hand, is creepy and offensive, and it’s lucky that the legislators blew it through a technicality (shoving too many subjects into a single piece of legislation).
The second, and more recent example, is a law currently under challenge. This one would set up publicly available, web-based reports on anyone who obtains an abortion. The information would have to be reported to doctors, who would then be required to pass it on to public health officials. This is a very, very bad idea. I don’t even need to talk about abortion (thankfully!) to explain why.
This law will drive a wedge between physicians and their patients. Many people have distrust of the medical and public health professions, and won’t be warmly encouraged to make that next visit to their provider — or to any other — when they’re met with a battery of identifying questions that can then be used to pick them out of a probably hostile community. As a flimsy subterfuge for the laws’ true intent, names aren’t required — but, as a lawyer from the Center for Reproductive Rights has pointed out, names won’t be needed to identify someone from sufficiently small communities, especially when so much other identifying information is exposed. According to this article, quoted extensively by Hunter, there will be “answers to 34 questions including…age, marital status and education levels, as well as the number of previous pregnancies and abortions. Women are required to reveal their relationship with the father, the reason for the abortion and the area where the abortion was performed.”
It’s clear that the legislators are trying to slap a different kind of scarlet “A” on these women, hoping that the shame and ostracism of expected discovery will keep them from carrying out their intended abortions. It might have this effect, but the more sweeping result will be a lack of trust that will penetrate relationships between patients, doctors, and public health practitioners. Patients will learn how to lie their way around the obviously unenforceable law (some of the facts sought depend on patients’ willingness to disclose, such as “reason for seeking the abortion” and, often, the number of previous pregnancies), and doctors may be less than forthcoming with public health officials if they see them as interfering with the MD/patient relationship. And any public health official with good training will despise and, one thinks, try to circumvent the law.
Even in states that require doctors to report HIV infection to public health, the goal is partner notification and contact tracing to eliminate an established risk. These laws are controversial, but they at least have arguments to recommend them — and the results aren’t published on public websites.
With this level of identifying information, the Oklahoma statute looks more like the sex-offender laws (which have their own problems, btw) than anything else. What more do you need to know?
Postings on this blog do not necessarily reflect the opinions of Widener University or Widener University School of Law.