GOP Mandates Medical Malpractice with New Abortion Laws
Few issues incite Republican fury like medical malpractice. For conservative ideologues, malpractice lawsuits are a double affront which interferes with the righteous operation of the free market while lining the pockets of trial lawyers who help fund the Democratic Party. That's why, despite the near-total debunking of GOP mythology that frivolous lawsuits and "jackpot justice" are responsible for skyrocketing health care costs and physician departures, Republicans at the state and federal level are trying to curb damage awards and limit plaintiffs' access to the courts.
All of which makes the GOP's latest wave of draconian abortion restrictions all the more disgusting. As developments this week in the U.S. House of Representatives and the Texas legislature show, Republicans are legally requiring that American doctors commit medical malpractice. In many states, physicians must withhold potentially life-saving care or, conversely, provide unneeded tests and procedures. When it comes to topics like "fetal pain," so-called "post-abortion syndrome" and the mythical breast cancer link, doctors are mandated to lie to their patients. And if they remain silent about severe fetal conditions which might lead a woman to terminate her pregnancy, physicians would be immunized from liability.
For starters, consider a typical definition of medical malpractice like this one published by the National Institutes of Health:
Medical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.
For the likes of Arizona Rep. Trent Franks or Texas Governor Rick Perry, the patient doesn't even enter in the equation. As the Dallas Morning News explained this week's debate in Austin over legislation that could force the closure of 37 of the state's 42 clinics:
The House will meet at 2 pm Sunday to debate the bills that would ban abortions after 20 weeks of pregnancy, increase standards for abortion clinics, make doctors who perform abortions gain admitting privileges at an area hospital and mandate protocols -- opposed by the American College of OB/GYNs -for pills used to induce abortions.
The three bills were passed along partisan lines.
When it comes to mistreating and misleading American women, a quick glance around the country shows that Lone Star State Republicans have a lot of company.
Consider, for example, the unprecedented bill signed earlier this year by Kansas Governor Sam Brownback. While the final version dropped a provision "that would have banned abortion clinic workers from volunteering to bake cupcakes for their children's schools," the scope of the legislation is startling. As Huffington Post reportedin March:
The state House Federal and State Affairs Committee passed a 70-page bill that would tax abortions, establish life beginning at fertilization...and prohibit state employees from performing abortions during the workday. The bill also would require doctors to tell women that abortion causes breast cancer, even though the claim defies scientific fact. The bill is likely to pass.
To say that the mythical abortion-breast cancer connection "defies scientific fact" is an understatement.
That link has been firmly rejected by organizations including the American Cancer Association and the National Cancer Institute, which concluded that "abortion is not associated with an increase in breast cancer." Nonetheless, the Bush administration repeatedly claimed otherwise on federal government web sites aimed at teenagers and pregnant women. As a 2006 Congressional investigation found, 20 of 23 federally-funded "pregnancy resource centers," facilities often affiliated with antiabortion religious groups, incorrectly told women "that abortion results in an increased risk of breast cancer, infertility and deep psychological trauma." Nevertheless, when Kansas legislators held hearings on the subject of supposedly cancer-causing abortions, only one witness was asked to testify:
The testimony in front of the committee on Federal and state affairs came from Dr. Angela Lanfranchi, an oncologist specializing in breast cancer. The committee did not hear any other testimony before drafting H.B. 2598.
But Republicans don't merely want American doctors to proactively lie to their patients in order to discourage abortion; they want them to withhold the truth as well. Kansas, like Arizona and a growing number of red states, is seeking to ban so-called "wrongful birth" lawsuits. As the AP explained last year, "Those are lawsuits that can arise if physicians don't inform pregnant women of prenatal problems that could lead to the decision to have an abortion." In Kansas, SB 142 declares:
"No civil action may be commenced in any court for a claim of wrongful life or wrongful birth, and no damages may be recovered in any civil action for any physical condition of a minor that existed at the time of such minor's birth if the damages sought arise out of a claim that a person's action or omission contributed to such minor's mother not obtaining an abortion."
Think of it as a Republican's anti-choice, anti-trial lawyer dream. As President Bush famously proclaimed back in 2004:
"We need to do something about these frivolous lawsuits that are running up the cost of your health care and running good docs out of business. We've got an issue in America. Too many good docs are getting out of business. Too many OB/GYNs aren't able to practice their love with women all across this country. See, I don't think you can be pro-doctor and pro-patient and pro-hospital and pro- trial lawyer at the same time."
Apparently, you can't be pro-life and pro-women's health--and pro-truth--at the same time.
(Last year, an Oregon couple won a $3 million judgment in a case where the hospital's negligence, and not the doctor's silence, led to birth of a Down's syndrome child the mother would not otherwise have carried to term. As The Oregonian noted, "The judge prohibited media in the courtroom from photographing or recording images of the couple, whose attorney said had received death threats.")
The Republican obliteration of the doctor-patient relationship manifests itself in myriad other ways as well. As ThinkProgress noted earlier this year, despite a clear scientific consensus to the contrary, Texas, Georgia, Arizona and other GOP states have passed--or are seeking to pass--so-called "fetal pain" bills banning abortion after 20 weeks. That effort follows the almost decade-long effort of South Dakota and several other states to require doctors to advise women about mythical "post abortion syndrome," the utterly unproven risk of depression and suicide supposedly more likely to result following an abortion procedure.
When it comes to that supposed "deep psychological trauma," the conservative Supreme Court of the United States has made junk science - and condescension - the law of the land. In 2007, Supreme Court Justice Anthony Kennedy issued his shocking opinion in Gonzales v. Carhart. Kennedy put the nonexistent "post abortion syndrome" at the heart of his reasoning in upholding the federal ban on what Republicans deemed "partial birth abortion." As Ruth Marcus lamented, Kennedy basically decided that doctors had no right to perform the rare but medically necessary procedure because, in essence, women might get the vapors:
"Respect for human life finds an ultimate expression in the bond of love the mother has for her child," Kennedy intoned. This is one of those sentences about women's essential natures that are invariably followed by an explanation of why the right at stake needs to be limited. For the woman's own good, of course.
Kennedy continues: "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." No reliable data? No problem!
In the five-plus years since, a mountain of studies (including a new analysis in the Journal of Psychiatric Research last year) has debunked Kennedy's dangerous pseudo-science about abortion and mental health. Sadly, that these conservatives' claims aren't true has been no barrier to continuing to repeat them--and mandating that doctors and so-called "pregnancy crisis centers" warn women about them.
(Speaking of the dangerous nexus of junk science and legal paternalism, Oklahoma Republicans are seeking to prevent insurance plans from covering contraception for women "because it suppresses and disables who they are.")
Of course, conservative anti-choice leaders aren't content to violate the sanctity of the doctor-patient relationship. In state after state, they are violating women's bodies and privacy as well.
In Tennessee last year, GOP lawmakers tried to invite scrutiny - and intimidation - for women and their doctors with the Life Defense Act. Among other things, House Bill 3808 would "require the Department of Health to release more information on abortions, including the name of the doctor who performed the procedure and demographics about the women who receive them." (Similar laws in Oklahoma, North Carolina and Texas are currently facing court challenges.) As sponsor Rep. Rep. Matthew Hill, R-Jonesborough, put it:
"The Department of Health already collects all of the data, but they don't publish it. All we're asking is that the data they already collect be made public."
Sadly, that is not the only abomination that results when Republicans codify their philosophy of "Your Bodies, Our Minds."
Texas, Virginia and Alabama are just some of the red states demanding that women seeking abortions undergo and pay for medically unnecessary ultra-sound tests their physicians oppose. Even leaving aside the "forced rape" bills considered in Virginia, Alabama and other states, Republican legislators are dictating the terms of the doctor-patient relationship with the ultra-sound laws. Last year, a Federal Appeals Court upheld Rick Perry's new statute in Texas requiring abortion providers "to show or describe an ultrasound image to a woman of her pregnancy and to play sounds of the fetal heart." As Reuters explained:
While a woman seeking an abortion can decline to view the legally required ultrasound, she cannot decline to hear the physician's description of it unless she qualifies for an exception due to rape, incest or fetal abnormality.
A coalition of medical providers sued in June to block the law, arguing that it made doctors a "mouthpiece" for the state's ideological message. The First Amendment includes protections against compelled speech.
The challengers, represented by the Center for Reproductive Rights, also argued that disclosure of the sonogram and fetal heartbeat was not "medically necessary" and therefore beyond the state's power to regulate the practice of medicine.
In Wisconsin, Republicans are pushing a bill mandating that women considering an abortion must first undergo a trans-vaginal ultrasound. (Asked his position on the needless process required by the legislation, GOP Congressman Sean Duffy responded he didn't know what a trans-vaginal ultrasound is because "I haven't had one.") Meanwhile, Indiana recently adopted its own law mandating a trans-vaginal ultrasound before abortion, but only after dropping the requirement for a second violation two weeks after.
Republican states aren't just mandating what false statements doctors must say to and which unneeded and costly procedures they must perform on American women. Now in states like Virginia and Mississippi, GOP leaders are dictating where these affronts to the doctor-patient relationship can legally take place. Since in 2006, all Magnolia State facilities performing second and third trimester abortions must meet the same regulatory standards as full surgical hospitals, 36 pages of rules in all. As a result, the entire state of Mississippi, one of the poorest in the nation, now has only a single abortion clinic (the Jacksonboro Women's Health Clinic). For now. Meanwhile in Alabama, the so-called "Women's Health and Safety Act" would effectively close the last five clinics in the state:
Critics charged the bill sets impossible standards that have little to do with patient safety and that the bill stems from a template created by the pro-life group Americans United for Life.
"This bill targets regulatory standards of architectural structure, equipment and staffing that are totally unnecessary and cannot be met by the clinics," said Gloria Gray, director of the West Alabama Women's Health Center in Tuscaloosa. "How does requiring a six-foot hallway make it safer for a woman to have an abortion?"
And so it goes. In Arkansas, Republicans overrode a Governor's veto to pass the harshest abortion bill in the nation. Banning abortions after 12 weeks, the Arkansas law takes on Roe v. Wade directly by defining fetal "viability" at 12 weeks when, it is claimed, a heartbeat is first detected. While three-quarters of U.S. counties have no provider of abortion services, Iowa and other states are proposing law that would prohibit doctors from prescribing and administering abortion-causing medication via tele-medicine video conferencing systems. (As the New Republic recently documented, "Several states have recently passed or are considering legislation to limit access to abortion drugs online and off.") And while another Iowa legislator seeks to define abortion as murder and a New Mexico Republican briefly sought to have victims of rape or incest having abortions classified as felons for destroying evidence, Alaska is taking a new path to standing between a woman and her doctor:
A bill that would decide what makes an abortion medically necessary got its first hearing Wednesday, getting the stamp of approval from a developmental psychologist and two doctors with histories of opposing abortion rights.
Of course, Republicans long ago decided that they, and not American women, men and their doctors, will decide what constitutes "medically necessary" and is vital for the "health of the mother." During the 2008 presidential election John McCain used air quotes to dismiss "an exception for the mother's health and life" altogether:
"Just again, the example of the eloquence of Sen. Obama. He's [for] health for the mother. You know, that's been stretched by the pro-abortion movement in America to mean almost anything. That's the extreme pro-abortion position, quote, 'health.'"
Back in 2000, future GOP vice presidential nominee Paul Ryan took an even harsher line during a debate over the so-called "partial birth" abortion ban. (As NPR explained, the very rare intact dilation and extraction (used only 2,200 times out of 1.3 million procedures performed in 2000) was resorted to precisely to protect the health of the woman in certain late-term pregnancies.) Ryan declared:
"The health exception is a loophole wide enough to drive a Mack truck through it. The health exception would render this ban virtually meaningless."
What is really being rendered meaningless, of course, is the very doctor-patient relationship Republicans pretend they want to protect. To prevent abortion procedures from being performed in the United States, GOP leaders insist that American physicians must engage in medical malpractice. To borrow a phrase from tort reform advocate George W. Bush, it will be impossible for OB/GYNs "to practice their love with women all across this country" when the law requires them to deceive and deny their patients.