Supreme Court Abortion Case Explained
By Dr. Deborah Oyer
I’d like to start by talking about what really happens during a first-trimester abortion procedure. Let’s talk first about surgical abortion. A first-trimester surgical abortion takes about 4-7 minutes from the time the speculum goes into the vagina until the time it is removed and the procedure is done. And most are far closer to the 4-minute mark than the 7-minute mark. There is no cutting involved. The patient can be awake or sedated. Her choice. Regardless of her level of consciousness during the procedure, the most common comment after it is over is, “Was that it? That was so much less than I expected.”
Prior to my meeting the patient, she has filled out a medical history form, had an ultrasound, had minimal blood work done, and talked with a patient educator/counselor about her decision to have an abortion, the process, risks and benefits of the procedure (informed consent), possible contraceptive options. She has had the opportunity to ask questions. At this point I meet the patient. I confirm that she wants to end her pregnancy today; I make sure she has no further questions about the procedure and sign her informed consent. I ask about her medical history that is pertinent to her visit today. After a physical exam the patient is given sedation if that is her choice. The speculum is placed. I gently clean the cervix and vagina with an antiseptic solution. I numb the cervix with a few injections that the woman may or may not feel. I tell her she may feel some pinching, poking or come and go cramping. I then start to dilate her cervix. The cervix is the part of the uterus that opens into the vagina. It has a hole in it through which menstrual blood comes out, sperm goes in, and a baby comes out during a delivery. I gently stretch this hole open. When a woman is in labor the hole in the cervix opens to 10 centimeters. In the first trimester I generally open it to about 7 or 8 millimeters. My tendency is to dilate in millimeters to the number of weeks pregnant a woman is (measured from the first day of her last normal menstrual period). Once the cervix is dilated I insert a plastic tube that is attached to a suction device. With gently twisting and moving the tube, I remove the pregnancy and the uterine lining that has built up. (During the dilation and the suctioning the woman may feel cramping akin to that she feels during her period.) The speculum is then removed and the woman is given time to recover. (If a woman wants an IUD as her birth control method, I put it in before I remove the speculum.) Once the woman is comfortable, I go to the lab to make sure I have the appropriate amount of tissue ensuring that the procedure is complete.
If a woman is 10 or fewer weeks from her last period she can choose to end her pregnancy with medication. This is done with a combination of pills. The first pill, mifepristone (Mifeprex), is given to the woman while she is in the clinic. She swallows it and it begins to separate the pregnancy from the uterine wall. She is then sent home with a second medication, misoprostol, which causes the uterus to contract and push out the pregnancy tissue. Most commonly the woman uses the second medication the day after she is seen in the clinic. What the medications do is effectively induce a miscarriage. The process usually is over within a few hours of the misoprostol use.
Abortion is one of the most common outpatient surgical procedures done in the United States. It is also one of the safest. The risk of death from an abortion at 8 weeks or less is one in a million. If the abortion is done between 16 and 20 weeks the risk of death is 1 in 29,000. After 21 weeks of pregnancy the risk is about 1 in 11,000. But let’s compare that to continuing a pregnancy and delivering a baby. The risk of death from this has increased in recent years from about one in 10,000 to one in 7,000. Again for comparison, some common plastic surgical procedures carry a risk of death of about one in 5,000.
And death isn’t the only complication that is rare. One’s risk of needing hospitalization after a first-trimester abortion is less than 0.05%. The most common risks (not serious enough to require hospitalization) all occur less than 1% of the time and include hemorrhage, infection and retained pregnancy tissue.
So now that you know the safety of the procedure let’s talk about what Texas HB2 requires.
Texas HB requires that all abortions take place in Ambulatory Surgical Centers (ASCs). I would argue that these requirements are far above and beyond what is necessary for either a surgical or medication abortion. ASCs are effectively mini-hospitals that include only operating suites and recovery areas. There are many specified requirements, some of which are: how large the exam room needs to be, how big the janitorial closets need to be, how wide the hallways need to be (wide enough to allow 2 gurneys to pass in the hallway), types of medications that must be available in emergencies, what people going into the operating rooms must wear (including the patients).
What we know is that for a safe surgical procedure one needs a large enough exam room for the appropriate equipment and personnel. It should be roomy. It doesn’t have to be enormous. The hallways need to be comfortably wide in case of emergency. But as you can see from the numbers I have given you regarding emergencies and hospitalizations, the chance of needing to be using two gurneys to transport patients at once is essentially zero. The medications that must be stocked in case of emergency are never used. It costs clinics thousands of dollars per year to purchase those medications and then replace them when they expire.
Patients must wear hospital gowns instead of their own clothing on the top and a drape over their lap. As a result they are often cold and feeling more exposed than necessary. Providers must wear surgical caps, surgical masks, goggles, gowns and shoe covers. For a first trimester procedure scrubs and goggles are more than sufficient. Each extra layer of clothing on the provider and the lack of clothing on the patient make it all much more impersonal and more frightening for the patient. It makes the usual reassurance harder.
And while this is ridiculous for a surgical procedure, it is even more so for a medical procedure. Quite frankly all we really need is a cup of water and a pill. Instead, HB2 would have women taking this pill in a gown in a very large operating suite.
These regulations do nothing to enhance the safety of the patients. They serve to close clinics due to the significantly increased costs, frighten patients, and make and abortion no longer a reality for many, many women.
Another aspect of HB2 is that all physicians providing abortions must have hospital privileges at a hospital within 30 miles of the clinic. But first you need to know that hospital privileges have been changing for everyone over the past decade or so. During this time period new specialties have cropped up. We now have hospitalists whose job is to take care of the patients that are admitted to the hospital. They may specialize in internal medicine and therefore see those patients in for heart attacks or strokes, or they may be ob/gyns who are there for pregnant patients. So many, many doctors no longer see their patients once they are admitted to the hospital. In order to have hospital privileges one must admit and follow (and this can vary from hospital to hospital) at least 10 patients a year in the hospital (and the emergency department doesn’t count). I have never been able to have the standard hospital privileges since as an abortion provider who works in a clinic and I haven’t had 10 patients a year to admit to the hospital. In fact, I have had about 10 patients in the 25 years that I have been practicing. And most of these only received observation in the ER, so they wouldn’t even count. (As a result I have had a different class of privileges called “courtesy privileges.” It is unclear whether that would count in the Texas scenario.)
The reality of medical practice in this day and age is that most providers doing outpatient procedures, even those with hospital privileges, if they have a complication in the clinic, they stay at the clinic and finish their day while the patient needing further treatment is sent to the hospital for the hospitalist or the ob/gyn on call to manage. And as we stated previously, the risk of hospital transfer is very, very small.
In addition, it is important to know that hospital emergency rooms need to take all-comers. They can’t pick and choose whom to see. So in the rare case that a patient is sent to the emergency room, the patient will be well taken care of.
Given the political nature of abortion, when physicians who do abortions apply for privileges they are very often denied. Solely for the fact that they perform abortion.
Like the ASC requirement, the stipulation that all abortion physicians must have hospital privileges does nothing to protect women. But it has forced many clinics to close because the doctors don’t have privileges. So the rule makes it harder for a woman to obtain an abortion. And in some areas it is so difficult that it takes her longer to get an appointment so the pregnancy is farther along. It is then more expensive and has a greater chance of complications.
I had my courtesy privileges for 22 years. Two years ago when I changed my practice setting, my malpractice insurance changed as well. It now only covers me for the patients I see in the clinic. As a result, even my courtesy privileges were dropped. If I had wanted to maintain my privileges I would have had to buy more malpractice insurance for extra thousands of dollars each year, for privileges I would never use. So increased cost and frustration to the providers, as well as the women, for no gain in safety.
The TRAP laws in many states have been proposed under the illusion that they protect women. But, not only is there no true added safety, they often actually increase risks by making it harder to find a provider so the abortion takes place later in pregnancy. And even worse, sometimes women get desperate enough that they take matters into their own hands.
Original Presentation at Separating Fact from Fiction: What are Trap Laws Really About?
Legal Voice salon event, Seattle WA, on 3/29/2016