Guttmacher Policy Review GPR 2017 | Vol. 20 Flouting the Facts: State Abortion Restrictions Flying in the Face of Science By Rachel Benson Gold and Elizabeth Nash he past year has seen wild swings in sexual HIGHLIGHTS and reproductive health and rights policy. In June 2016, the U.S. Supreme Court • At least 10 major categories of abortion restrictions—including struck down a Texas law that imposed crip- T measures based on claims of protecting a woman’s health—lack pling and unnecessary regulations on abortion a foundation in rigorous scientific evidence. providers, which was passed under the pretext of protecting women’s health and safety. In its • These restrictions include unnecessary regulations on ruling, the Court admonished the federal appeals abortion facilities and providers, counseling and waiting period court for deferring to the Texas legislature’s stated requirements that belie the scientific evidence, and laws based intentions instead of examining the extensive and on false assertions about when fetuses can feel pain. compelling factual record, which showed that the • Three in 10 of all U.S. women of reproductive age live in one of restrictions did nothing to protect women’s health the 17 states with at least five of the types of restrictions that and demonstrably impeded their access to care. conflict with the science; more than half live in a state with at Justice Ruth Bader Ginsburg underscored that least two of these types of laws. point in her concurrence, saying that laws like the one in Texas “that ‘do little or nothing for health, but rather strew impediments to abortion’…cannot survive judicial inspection.”1 In other words, sound data and evidence win. Restrictions Targeting Abortion Providers Most states require abortion facilities and other But within months, the nation was confronted with health care facilities to meet standards designed to a new administration expounding what one key ensure patient safety. However, some states have spokesperson infamously described as “alternative imposed specific standards for abortion providers facts.”2 Indeed, the Trump administration—which that do little or nothing to improve safety, but sig- includes a health policy advisor on the President’s nificantly limit access to abortion. Those standards Domestic Policy Council who contends that con- include measures that impose excessive physical traception impairs future fertility3—has many plant requirements or require providers to have observers deeply concerned that we are entering a admitting privileges at local hospitals, such as in fact-free era when it comes to setting policy around the Texas case; other restrictions ban the use of sexual and reproductive health and rights. telemedicine for medication abortion and limit the provision of abortion to licensed physicians. In reality, however, much of the antiabortion universe has long been an evidence-free zone, Ambulatory surgical center standards. Especially as many of the movement’s signature initiatives since 2010, states have moved aggressively to and proposals are devoid of any factual founda- regulate the facilities where abortion services are tion. In fact, at least 10 major categories of abor- performed to, in the words of Texas Gov. Greg tion restrictions conflict with the established Abbott (R), “protect innocent life, while ensuring the scientific evidence. highest health and safety standards for women.”4 Guttmacher Policy Review | Vol. 20 | 2017 www.guttmacher.org 53 All abortion regulations apply to abortion clinics, “to protect the safety of women.”12 This assertion, but some go so far as to apply to physicians’ offices however, clearly contradicts a recent practice bul- where abortions are performed or even to sites letin from the American College of Obstetricians where only medication abortion is administered. and Gynecologists (ACOG), which says that “medi- Eighteen states have abortion clinic standards in cal abortion can be provided safely and effectively effect as of April 15 that are equivalent to those in via telemedicine with a high level of patient satis- place for ambulatory surgical centers, even though faction.”13 Notably, the Iowa Supreme Court cited surgical centers tend to provide more invasive and that bulletin when it struck down the state’s tele- riskier procedures, and use higher levels of sedation medicine ban.14 (see table).5–9 These standards as applied to abortion clinics often include onerous physical plant require- Yet, at the same time that abortion opponents ments, such as room size and corridor width, in the are lining up against allowing telemedicine for guise of ensuring patient safety in the event of an abortion services, the wider health community is emergency. increasingly looking to that same technology to improve access to care. For example, according These standards are one of the two types of to the American Hospital Association, telemedi- so-called targeted regulation of abortion provid- cine “is vital to our health care delivery system, ers (TRAP) requirements that were at issue in enabling health care providers to connect with the Texas case. After reviewing the evidence, patients and consulting practitioners across vast the Supreme Court agreed with the conclusion distances.”15 And in its release of ethical guidance that the surgical center requirement will neither in June 2016, the American Medical Association promote better care, nor yield more positive described telemedicine as “another stage in the outcomes. According to the Court, the evidence ongoing evolution of new models for the delivery “supports the ultimate legal conclusion that the of care and patient-physician interactions.”16 surgical center requirement is not necessary.”1 The irony of states’ attempts to ban telemedicine Hospital admitting privileges. In its brief to the for medication abortion was on full display in Supreme Court, Texas argued that the state had a law enacted by Arkansas in 2015. Overall, the adopted the admitting privileges requirement to measure was aimed at encouraging the use of help ensure that women have easy access to a telemedicine as a way to improve the delivery and hospital should complications arise in the course accessibility of health care by reducing barriers of an abortion.10 In reality, however, abortion pro- resulting from “geography, weather, availability cedures are extremely safe: Fewer than 0.3% of of specialists, transportation and other factors.”17 U.S. abortion patients experience a complication Nonetheless, the measure banned using this oth- that requires hospitalization.11 And in the unlikely erwise promising strategy for abortion services. event of an emergency, federal law requires a hos- pital to treat a woman, regardless of whether the Allowing only physicians to perform abortions. abortion provider has admitting privileges at that In 38 states, the law permits only licensed physi- facility. In its decision, the Court found no relation- cians to provide abortions.5 Many of these laws ship between laws requiring admitting privileges date to the 1970s, when that was the widely at a local hospital and a state’s legitimate inter- accepted standard of care. That standard has est in protecting women’s health, and noted that changed over the decades, however, as advanced Texas was unable to provide evidence “of a single practice clinicians—such as physician assistants, instance in which the new requirement would have nurse practitioners and certified nurse mid- helped even one woman obtain better treatment.”1 wives—have been recognized as safe and effective providers of a wider array of services. In its 2012 Barring telemedicine. Eighteen states have moved guidelines, the World Health Organization conclud- to ban the use of telemedicine to administer ed that trained advanced practice clinicians can medication abortion7—often contending, as did safely provide abortion care.18 Studies looking at the Iowa medical board, that the ban is needed the performance of abortion in the United States Guttmacher Policy Review | Vol. 20 | 2017 www.guttmacher.org 54 Twenty-eight states have at least two abortion restrictions that conflict with science Laws in effect as of April 15, 2017 COUNSELING AND WAITING RESTRICTIONS ON PROVIDERS PERIOD REQUIREMENTS FETAL PAIN TOTAL ASC Admitting Barring Physician Mental Future Breast Waiting 20-week Counseling STATE RESTRICTIONS standards privileges telemedicine only health fertility cancer period ban on fetal pain MAJOR Kansas 8 X X X X X X X X CONFLICTS (5+) Texas 8 X X X X X X X X Louisiana 7 X X X X X X X Oklahoma 7 X X X X X X X South Dakota 7 X X X X X X X Arkansas 6 X X X X X X Indiana 6 X X X X X X Mississippi 6 X X X X X X Missouri 6 X X X X X X Nebraska 6 X X X X X X Alabama 5 X X X X X Arizona 5 X X X X X Michigan 5 X X X X X North Dakota 5 X X X X X South Carolina 5 X X X X X Utah 5 X X X X X Wisconsin 5 X X X X X MODERATE Georgia 4 X X X X CONFLICTS Kentucky 4 X X X X (2–4) North Carolina 4 X X X X Ohio 4 X X X X Alaska 3 X X X Minnesota 3 X X X Pennsylvania 3 X X X Tennessee 3 X X X West Virginia 3 X X X Idaho 2 X X Virginia 2 X X NO OR Delaware 1 X LIMITED CONFLICTS Florida 1 X (0–1) Hawaii 1 X Iowa 1 X Maine 1 X Maryland 1 X Massachusetts 1 X Nevada 1 X New Mexico 1 X New Jersey 1 X Rhode Island 1 X Wyoming 1 X California 0 Colorado 0 Connecticut 0 Illinois 0 Montana 0 New Hampshire 0 New York 0 Oregon 0 Vermont 0 Washington 0 Total 149 18 3 18 38 6 4 5 27 17 13 Notes: ASC=ambulatory surgical center.