Let's Get Controversial

Filed under: by: Hey Doc Wait

I am going to delve into a scary topic here--yes, the A-word, abortion. Don't worry, I moderate my comments, and I am absolutely not interested in publishing long flame wars. This is my blog, and my opinions, and you can feel free to disagree with me and even to post disagreement in my comments, but if you call me or any of my other commenters ugly names I don't have to publish your comment. End of story.

Here's what I want to talk about. Oklahoma has passed a law requiring physicians to report to the state health department certain information about all abortions performed; this information will then be posted on the health department's website. The actual text of the bill, HB 1595, is here. The law has been challenged by a lawsuit under an odd provision in the OK Constitution that a law can only cover one subject.

Here's what makes me angry about this law. People on various websites are arguing back and forth about the women's rights being violated--and this is true, this law (I believe) directly violates a woman's HIPAA rights (which are federally guaranteed and, in my understanding, may not be undermined, only further protected, by the states). It is absolutely true that if you publish 'a white woman, age 35, married, from Y County [population 3000], with 2 prior pregnancies that ended in live births' you are publishing potentially identifiable information. But what really chaps me is when you read the law itself, it seems to be more a direct attack on abortion providers than an attack on the women who seek abortion. Because, you see, it is the doctors who must submit this information to the state.

This bill was championed under the guise of preventing abortion based on the knowledge of the gender of the fetus. Indeed, the first section of the bill deals with this: "No person shall knowingly or recklessly perform or attempt to perform an abortion with knowledge that the pregnant woman is seeking the abortion solely on account of the sex of the unborn child." (all quotes are from the bill unless otherwise indicated). The bill goes on to say that "any person who knowingly or recklessly violates a provision of this section" may be subject to injunction, which may be filed by the woman who had the abortion, "any person who is the spouse, parent, sibling, or guardian of, or a current or former licensed health care provider of, the female upon whom an abortion has been performed or attempted to be performed in violation of this section, a district attorney with appropriate jurisdiction, or the Attorney General." So in other words, anyone who knows a woman who sought an abortion based on the fact that she didn't want a fetus with XX or XY chromosomes may file an injunction against the performing physician, including the woman herself (whom we would assume knew her motives when she sought the abortion). The state penalties for violation (for the physician) will be $10,000 for the first time, $50,000 for the second, and $100,000 for the third and any time beyond, and if an injunction is brought against a physician and it is violated, the physician will be charged with a felony. Note: "No fine shall be assessed against the woman upon whom an abortion is performed or attempted". Because, clearly, it's all the doctor's fault.

Section 3 provides for the "Statistical Reporting of Abortion Act". They start off by saying the department of health must create a website that details all the pertinent state laws regarding abortion (not in itself a bad thing) and must have all forms available for electronic reporting on this website. Section 5 starts to get hairy. First, the physician has 30 days to submit the "Individual Abortion Form" for every abortion performed. Note, here they state "Nothing in the Individual Abortion Form shall contain the name, address, or information specifically identifying any patient." Yet, here is [part of] the form:

Individual Abortion Form.
The Department’s Individual Abortion Form shall be substantially similar to, but need not be in the specific format of, the following form: (TO BE COMPLETED FOR EACH ABORTION PERFORMED)
1. Date of abortion _________________
2. County in which abortion performed ________________
3. Age of mother _________________
4. Marital status of mother (married, divorced, separated, widowed, or never married)
5. Race of mother ________________
6. Years of education of mother ________(specify highest year completed)
7. State or foreign country of residence of mother ________________
8. Total number of previous pregnancies of the mother _____ Live Births _____ Miscarriages _________Induced Abortions __________________
9. Approximate gestational age in weeks, as measured from the last menstrual period of the mother, of the unborn child subject to abortion [emphasis mine]__
10. Method of abortion used: ...
11. Was there an infant born alive as a result of the abortion? ____If yes: Were life-sustaining measures undertaken? ___ How long did the infant survive? _____
12. Was anesthesia administered to mother ____ If yes, what type? _______
13. Was anesthesia administered to the fetus? _______ If yes: What type? _______ How was it administered? __________________
15. Reason for abortion (check all applicable):
Mother cannot afford the child ______
Emotional health of the mother is at risk ______
Mother suffered from a medical emergency as defined in Section 1-738.1 of Title 63 of the Oklahoma Statutes ______
Mother wanted a child of a different sex ______
Abortion necessary to avert the death of the mother ______
Pregnancy was a result of forcible rape ______
Pregnancy was a result of incest ______
Other (specify) ______
Patient was asked why she is seeking an abortion, but she declined to give a reason _________________________
16. Method of payment (check one): Private insurance __ Public health plan ___ Medicaid _____ Private pay ____ Other (specify) _________
17. Type of medical health insurance coverage, if any (check one): Fee-for-service insurance company ______ Managed care company ______ Other (specify) __
18. Sum of fee(s) collected ___________
19. Specialty area of medicine of the physician ___________________
20. Was ultrasound equipment used before, during, or after the performance of this abortion? ...
24. Were the informed consent requirements of subsection B of Section 1-738.2 of Title 63 of the Oklahoma Statutes dispensed with because of a medical emergency necessitating an immediate abortion: To avert death ______ To avert substantial and irreversible impairment of a major bodily function arising from continued pregnancy _____
25. Was the probable gestational age twenty (20) weeks or more? _____
26. Was the abortion performed within the scope of employment of an state employee or an employee of an agency or political subdivision of the state? ______
27. Was the abortion performed with the use of any public institution, public facility, public equipment, or other physical asset owned, leased, or controlled by this state, its agencies, or political subdivisions? _________
28. If the answer to question 26 or 27 is yes: Was the abortion necessary to save the life of the mother? If yes, what was the life-endangering condition? ____
Did the pregnancy result from an act of forcible rape? ____
If yes, list the law enforcement authority to which the rape was reported _____________ List the date of the report ___________ Did the pregnancy result from an act of incest committed against a minor? _________ If yes, list the law enforcement authority to which the perpetrator was reported __________ List the date of the report ___________
Filed this ____ day of __________, _____ by: ______________________________(Name of physician)

There is an awful lot of potentially identifiable information on this form. There are also some interesting tidbits. First, the bolded (by me) checkbox for "Mother wanted a child of a different sex." So, you're going to charge me $10,000 if I say yes? Hmmm... Second, the bolded (by me) wording of "the unborn child subject to abortion", which I think very clearly states the intent and purpose behind the people who wrote this law. Third, the almost disbelieving tone (later) when asking if the pregnancy is the result of rape, then demanding the law enforcement agency and date of the rape report, or to know the name of the life-threatening condition. Clearly, it's only rape if it gets reported to the authorities. Later on in the bill, they detail that if a physician doesn't complete this form on time, there is a $500 fine, and if the form is still not done after a year the physician's license will be suspended.

I think it is clear that the intention of the lawmakers who wrote this bill is to further hinder the performance of abortion by physicians. If they wanted to prevent abortion based on strictly the gender of the fetus, the opening few paragraphs would have sufficed (although I am still incensed by the lack of provision against another hugely responsible entity, the woman seeking the abortion based on the gender of the fetus). Also, this just occurred to me--unless you perform genetic testing, most ultrasounds to document the sex of the fetus are performed around 20 weeks, but [in my understanding, not being an expert in this subject] the majority of abortions are performed in the first trimester, when most women cannot be expected to know the sex of the fetus. As with the Partial Birth Abortion Act on the federal level, this is a law aimed at physicians designed to make it tougher to perform legal abortion.

The law does make provisions as to the reporting of certain statistical data on the website, but it is unclear in what form this data will be provided. If they post '280 abortions in YY county, 35% in unmarried women', etc, then it is hard to say that this will violate a woman's HIPAA rights. But if careful measures are not taken with this information, I could see it falling into the wrong hands easily. Also disturbing is the objective and private nature of much of the data. If I have to report a case of syphilis to the health department, I give the patient's name, age, and identifiable information (for tracking purposes); I do not have to report how many times they had unprotected sex, whether they got the disease by prostitution, or whether their partner was cheating on them and brought it home.

Abortion is currently legal in this country. I as a physician am not required to report to the state the illegal activity of my patients, including drug use, possession, or sale; assault; prostitution; weapons possession; or just about anything else they do on their time outside of my care (with a few exceptions, such as child abuse). Nor am I required to report on the immoral activity of my patients. Why, then, as a physician, should I be required to hand over such sensitive information on a legal activity? What does the state hope to accomplish by monitoring and tracking such data (which at least is more clear when tracking a condition like syphilis)? Why such punitive measures for physicians performing a legal procedure? What kind of idiot doctor would actually report to the state that the woman wanted a fetus of a different gender, knowing the fine is $10,000? [god forbid you make an error filling out the form!] Again, after reading the wording of this bill, I think it is less about violating the HIPAA rights of women and more about providing MORE hoops to jump through to provide a legal procedure.

Caveat: I am pro-choice, but not pro-abortion. I am not a fan. I think a huge number of abortions could be prevented by simply not having sex or using birth control, and I favor increasing education in BOTH arenas (and not the farce of abstinence-only education as it is currently implemented in this country). However, for the cases when this is not true, even though they may be rare, I consider it none of my business to confirm whether the rape was reported to the proper authorities. These are my views on a very touchy subject on which everyone has an opinion that is exquisitely personal; I do not mean to step on the toes of either the pro-abortion or the anti-abortion crowd, but simply to point out the misleading language of a law that does not really do what it portends to do (and sadly, passed 93 to 4 and was sponsored by a man running for lieutenant governor of the OK state). I think one should not fight an activity one considers immoral by going to immoral measures; to me, this kind of deception is immoral.