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Lying for the State

Quacks lie.  In some ways, that’s what separates us from them.  Real doctors are stuck with the messy truth: with bad news, with uncertain outcomes.  It’s this reliance on the truth which gives us much of our credibility.

Laws forcing doctors to lie to patients take me back to reading Kundera in the 80s; the hovering fear that everyday actions might bring the authorities to your door. These feelings affect every portion of your life, whether you are a patient or a doctor.  Lying in service of the state is pervasively oppressive.  Laws requiring doctors to lie have become a popular tactic in the abortion wars.

Let’s look at Texas’s law, it’s requirements, and internal contradictions.

Sec. 171.012. VOLUNTARY AND INFORMED CONSENT.

(a) Consent to an abortion is voluntary and informed only if:

(1) the physician who is to perform the abortion informs the pregnant woman on whom the abortion is to be performed of:
(A) the physician’s name;
(B) the particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate:
(i) the risks of infection and hemorrhage;
(ii) the potential danger to a subsequent pregnancy and of infertility; and
(iii) the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer;
(C) the probable gestational age of the unborn child at the time the abortion is to be performed; and
(D) the medical risks associated with carrying the child to term;

We have encountered a problem.  Informed consent is a medical term d’art that protects both the patient and the doctor. To the extent possible, a doctor must communicate risks and benefits of a proposed procedure in a way the patient can understand and acknowledge. These risks and benefits are not set in statutes but found in the medical literature.  Statistics such as complication rates of various procedures are usually easy to find and to cite.

The statute does not use the medical definition of informed consent but it’s own concoction.  It throws in “…when medically accurate…” but then insists that the doctor state information that is counterfactual (that is, a lie).  In this section, the most glaring lie is that abortion is associated with breast cancer.  It most certainly is not. And where are the “benefits” in “risks and benefits”? It is implied that there are none.

What about the next section?

(2) the physician who is to perform the abortion or the physician’s agent informs the pregnant woman that:
(A) medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;
(B) the father is liable for assistance in the support of the child without regard to whether the father has offered to pay for the abortion; and
(C) public and private agencies provide pregnancy prevention counseling and medical referrals for obtaining pregnancy prevention medications or devices, including emergency contraception for victims of rape or incest;

The above section is slightly murkier.  It looks superficially to be innocent enough, perhaps even compassionate. This makes the lie even more dangerous.  The section infantalizes the woman seeking an abortion, assuming that she needs this information to make her choice.  Likely, she’s already made her choice.  It’s not up to a doctor to give information that is clearly designed to topple the patients autonomy.  It’s also only somewhat factual.  ”Medical assistance may be available…” (emphasis mine).  I’m sure that’s very comforting, a real promise of assistance (sarcasm mine). I’m sure that the state can hunt down the father and find a way to make him pay child support (additional sarcasm), assuming the patient feels this is wise, safe, and desired (although the patient’s desires aren’t taken into account here).   And then there are “referrals” to agencies that provide pregnancy counseling (often thinly-veiled anti-abortion offices) and to “emergency contraception” for rape and incest.  If they are seeking an abortion, it’s a bit late for Plan B. And why only for rape and incest?  According to the law, the crime must be reported in order to avoid some of this law’s consequences. This is problematic in ways that would take another full post.

This section assumes that it is economics or assault driving the patient to choose an abortion, that it is not a well thought-out choice by an adult who wishes control over her own body.  It makes the woman invisible, except for her womb.

The following section goes on to delineate exactly how the doctor is to perform the state-mandated rape of the patient with an ultrasound probe*.  This violation of trust between the physician and patient is too obvious to mention, but mention it I will.  It’s bad enough to demand we lie, but to demand we commit rape is, it would seem, obviously bad.

The statute also requires the doctor to give the patient a booklet full of misinformation about abortion with trumped up descriptions of risks, and no discussion of benefits.

The statue does a lot of bad things I haven’t listed, as do similar statues being passed in other states.  The point here is not that statues that essentially outlaw abortion, infantalize and shame women, and require forcible penetration are bad.  Any sensible person knows this.

The other consequence is the complete destruction of the doctor-patient relationship. If the state can compel a doctor to lie to a patient in one circumstance, it can in any circumstance, and patients will no longer be able to believe anything a doctor says.  They would be fools to trust us.

When the state can demand that we violate our basic responsibility to our patient—that of delivering the truth—we are no better than quacks, and deserve no better than quacks.

________________________
*

Here is the ultrasound part of the statue for your revulsion:

(A) the physician who is to perform the abortion or an agent of the physician who is also a sonographer certified by a national registry of medical sonographers performs a sonogram on the pregnant woman on whom the abortion is to be performed;
(B) the physician who is to perform the abortion displays the sonogram images in a quality consistent with current medical practice in a manner that the pregnant woman may view them;
(C) the physician who is to perform the abortion provides, in a manner understandable to a layperson, a verbal explanation of the results of the sonogram images, including a medical description of the dimensions of the embryo or fetus, the presence of cardiac activity, and the presence of external members and internal organs; and
(D) the physician who is to perform the abortion or an agent of the physician who is also a sonographer certified by a national registry of medical sonographers makes audible the heart auscultation for the pregnant woman to hear, if present, in a quality consistent with current medical practice and provides, in a manner understandable to a layperson, a simultaneous verbal explanation of the heart auscultation;
(5) before receiving a sonogram under Subdivision (4)(A) and before the abortion is performed and before any sedative or anesthesia is administered, the pregnant woman completes and certifies with her signature an election form that states as follows:
“ABORTION AND SONOGRAM ELECTION

(1) THE INFORMATION AND PRINTED MATERIALS DESCRIBED BY SECTIONS 171.012(a)(1)-(3), TEXAS HEALTH AND SAFETY CODE, HAVE BEEN PROVIDED AND EXPLAINED TO ME.
(2) I UNDERSTAND THE NATURE AND CONSEQUENCES OF AN ABORTION.
(3) TEXAS LAW REQUIRES THAT I RECEIVE A SONOGRAM PRIOR TO RECEIVING AN ABORTION.
(4) I UNDERSTAND THAT I HAVE THE OPTION TO VIEW THE SONOGRAM IMAGES.
(5) I UNDERSTAND THAT I HAVE THE OPTION TO HEAR THE HEARTBEAT.
(6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO HEAR AN EXPLANATION OF THE SONOGRAM IMAGES UNLESS I CERTIFY IN WRITING TO ONE OF THE FOLLOWING:
___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT, INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT HAS BEEN REPORTED TO LAW ENFORCEMENT AUTHORITIES OR THAT HAS NOT BEEN REPORTED BECAUSE I REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT RISK OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.
___ I AM A MINOR AND OBTAINING AN ABORTION IN ACCORDANCE WITH JUDICIAL BYPASS PROCEDURES UNDER CHAPTER 33, TEXAS FAMILY CODE.
___ MY FETUS HAS AN IRREVERSIBLE MEDICAL CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE DIAGNOSTIC PROCEDURES AND DOCUMENTED IN MY MEDICAL FILE.
(7) I AM MAKING THIS ELECTION OF MY OWN FREE WILL AND WITHOUT COERCION.
(8) FOR A WOMAN WHO LIVES 100 MILES OR MORE FROM THE NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED UNDER CHAPTER 245 OR A FACILITY THAT PERFORMS MORE THAN 50 ABORTIONS IN ANY 12-MONTH PERIOD ONLY:
I CERTIFY THAT, BECAUSE I CURRENTLY LIVE 100 MILES OR MORE FROM THE NEAREST ABORTION PROVIDER THAT IS A FACILITY LICENSED UNDER CHAPTER 245 OR A FACILITY THAT PERFORMS MORE THAN 50 ABORTIONS IN ANY 12-MONTH PERIOD, I WAIVE THE REQUIREMENT TO WAIT 24 HOURS AFTER THE SONOGRAM IS PERFORMED BEFORE RECEIVING THE ABORTION PROCEDURE. MY PLACE OF RESIDENCE IS:__________.
____________________
____________________
SIGNATURE DATE”;

Posted in: Science and Medicine

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165 thoughts on “Lying for the State

  1. nybgrus says:

    I got into an argument with a couple of people about these laws. Their basic premise was that an ultrasound is routinely done during pregnancy, so what’s the big deal with the law?

    My initial response was that transvaginal ultrasounds are not so routinely done, usually it is transabdominal.

    “Ok, so what’s the big deal still? Isn’t this just a benign medical procedure that is still reasonably common and won’t cause any harm to the mother or fetus?”

    “That’s not the point,” I said. This legislates away medical decision making. It forces a doctor to do a medical procedure that may not be indicated. And even if it is indicated, a patient still has the right to refuse it! However, this law removes that right and removes patient autonomy.

    And really, the ultimate point is that the state should never be legislating medical protocol. There are no absolutes in medicine and thus either someone will have their autonomy violated or the law will be broken at some point. Period. And in cases where that would never happen, (“in cases where a patient has completely lost function of his or her phrenic nerve, the physician is required to insert an endotracheal or other definitive airway and attach the patient to a ventilator set as medicall necessary”) the law is utterly superfluous and completely pointless.

    So why legislate such a thing? It has absolutely no other purpose than to shame a woman out of having an abortion.

    And that was all before I read the actual wording of the law and it is even more despicable than I imagined.

    As this physician says, sadly under the veil of anonymity because of fear of a bad reputation from it, we are our patient’s advocates. First, last, always. And we must never forget that.

  2. windriven says:

    Roe v. Wade was decided in 1973 – 40 years ago. That there are still people trying to relitigate that decision is astounding. What strikes me as most disingenuous is that I rarely – if ever – hear those voices that are crying in anguish over the murder of the unborn also lobbying to reform adoption laws, bringing foster children into their homes, mentoring at-risk youth through programs like Big Brothers. I’m not saying that it doesn’t happen – only that the decibel level advocating for children without homes is decidedly lower than that advocating against abortion.

  3. Angora Rabbit says:

    @windriven – you’ve got that exactly right. I always make a point to ask these people point-blank how many homeless and unadopted children they’ve taken in. How much do they donate to organizations in support? And do they also support WIC and other programs that provide child support. Of course at this point they turn beet red and shut up. Because of course the majority are just fetus lovers and morality slangers, and are unwilling to do the hard work of helping children after they’re born.

    I occasionally wonder if it is time to start mailing coat hangers to legislators again, for those of you old enough to remember those days.

  4. DugganSC says:

    I’ll admit that I’m a little hazy. What are the benefits of an abortion other than getting rid of the baby? And isn’t that covered in the section where they are required to describe the potential medical risks of the pregnancy?

    As regards the “pro-life people only care about fetuses”, I’d have more respect for the argument if it weren’t always phrased as a “I said this to one person and they didn’t have an answer, and I think it applies to everyone in that group”. :) That’s not much different from the various CAM people who claim to have met doctors who are in it only for profit, and therefore they all are. Personally, as someone pro-life, I do donate to organizations that help abandoned and orphaned children. I donate to funds that help pay for the costs of raising children in the case that a single mother decides to keep their child. Just like the other side’s arguments, this is just anecdotal evidence since I’m just one data point, but I am one data point.

    Minor thing, you have a lot of references to “statues” near the end.

  5. Mrs. N. says:

    @windriven, you clearly don’t know enough people actively involved in the pro-life movement.

    I don’t agree with the law in totality, especially with the t/v ultrasound. I believe that any such discussion about assistance, counseling, etc. should be an administrative issue that doesn’t need to be handled by the physician. All clinics have administrative staff and counselors. However, knowing that many women make these decisions for financial reasons and/or because they’re being compelled by the family or babby-daddy, I have a hard time seeing how exposure/emphasis of the alternatives are a BAD thing, especially for the woman only reluctantly has an abortion.

    My mother was one of them, and it has had a lasting negative effect on her life and relationships.

  6. BKsea says:

    I missed the part of the law where they explain the risks of a medically unnecessary ultrasound procedure and where to get assistance suing the state of Texas in case of injury.

  7. chaos4zap says:

    In my mind, I like to think that Obama is posturing. When he gets reelected (I’m making this assertion based entirely on my lack of desire to even think about one of the current GOP candidates running the show), I really like to think that he will clean house, going from state to state and taking on anything that is anti-human rights or just plain not in the best interest of Americans as a free society. It just blows my mind how a single group of people can talk about preserving the constitution and keeping the government out of business can, at the same time, do everything they can have the government (at the state level) deny women and homosexuals some fairly basic human rights. I’m well aware that my Obama fantasy is just that, a fantasy. How sad is it that I can’t even imagine the possibility of someone being elected that took each issue one at a time and evaluated it in a rational, logical way? The concept of someone being president that makes decisions based on reality and not ideology doesn’t even seem remotely possible. To keep from rambling more, I’ll simply digress for now. I’m sure I’m not the only one that gets disillusioned from time to time over it all. Even in the midst of the overall, big picture being so messed up……Texas? Wow! Even though I know there are some very smart and awesome people in Texas, with what goes on with the politics in that state….I sincerely can’t imagine a scenario that could get me to move and live there. It’s like the septic tank of the US for irrational leadership and just plain crazy. Rick Perry and Alex Jones actually live in the same state? Does anyone really want to go anywhere near that state? At least if the crazy is all herded together, they are easier to avoid.

  8. David Gorski says:

    I must admit that the term “state-mandated rape” makes me uneasy, because it strikes me as intentionally emotionally loaded rhetoric that sheds far more heat than light on the medical and informed consent issues involved. The reason is that there are actual real medical indications for doing a transvaginal ultrasound before performing an abortion. (There was an excellent post elsewhere enumerating those indications; I’ll have to see if I can find it again.) The issue, besides the state trying to destroy a woman’s autonomy, is that the state is mandating an invasive medical procedure that is usually (but not always) medically unnecessary.

    As for the state-mandated misinformation that doctors are ordered to provide women seeking abortions, I see no difference between this and what I have referred to as “misinformed consent,” in which, for example, antivaccinationists vastly exaggerate the risks of vaccination (and even make up risks that don’t exist, such as the risk of vaccine-induced autism) while downplaying its benefits. I have to wonder whether a physician’s duty to his patient demands that, while obeying the letter of the law, he undermine the law any way he can, such as by telling the patient that the contents of the state-mandated “information” are not supported by science. For instance, as a breast cancer specialist, I could easily follow the letter of the law while undermining its spirit by saying something like:

    State law tells me that I must tell you these things “when medically accurate,” including an elevated risk of breast cancer after abortion. That is not medically accurate, as epidemiological studies and clinical trials do not demonstrate an increased risk of breast cancer after abortion.

    Or, I would just not mention breast cancer at all. Then, if challenged, I would justify my omission by saying that it’s not medically accurate to attribute an increased risk of breast cancer after abortion. If further challenged, I would then provide the challenger the copious evidence from the peer-reviewed medical literature and position statements from major women’s health societies that back up my assessment, all sitting on my hard drive and in files in my office, ready for just such a challenge.

  9. Peter Lipson says:

    @duggan
    If you explicitly list risks you must Also lit benefits. We do that for all procedures. For an abortion a potential statement would be “the benefits of this procedure are the successful termination of your pregnancy per your wishes.” if you want to get pedantic you could go into all of the dangers of pregnancy and childbirth avoided.

    I don’t think any doctor would have asked the question you did so thank u..

  10. Peter Lipson says:

    @davidG

    I agree that rape is an intentionally loaded term but it is also accurate.

  11. MarniMD says:

    The NH Legislature is attempting to pass a similar bill in NH. It has already passed the House. It is called, apparently without a shred of irony, “The Women’s Right to Know Act.”

    I have blogged about it at http://www.patientspatienceandpaces.blogspot.com/2012/03/dear-nh-senate-please-stay-out-of-my.html

  12. Geekoid says:

    Since it falls under the FBI and UN definition of rape, can a doctor be charged with rape?

  13. Harriet Hall says:

    One benefit of abortion is that it prevents the many health risks and complications associated with pregnancy. Abortion is safer than full-term pregnancy.

  14. Harriet Hall says:

    You mention that the statute infantilizes women. It also infantilizes and insults doctors, implying that state coercion is required to get them to do their job of providing informed consent.

  15. Harriet Hall says:

    @nybgrus,
    “So why legislate such a thing? It has absolutely no other purpose than to shame a woman out of having an abortion.”

    Well stated. Why single out abortion? They don’t apply the same standard to other elective procedures such as breast augmentation and facelifts. They don’t even apply it to another hot button issue: neonatal circumcision. They didn’t propose a law requiring auto mechanics to explain what they are doing, to show customers the damaged parts, and to offer options like rebuilt parts instead of new ones.

  16. thatguybil81 says:

    “the ultimate point is that the state should never be legislating medical protocol”

    Oh but they do it all the time. We do also sorts of things because the law / core measure has not caught up the current best practice.

    Where does the law specify a trans-vaginal ultrasound? It only states sonogram.
    Why is it revulsive to have a sonogram prior to aborting the fetus? The fetus is not alive. It is not a person, so what does it matter if you see a sonogram prior to removing it? It typical of other procedures to do imaging studies prior to removing the foreign body or offending lesion. It is after all, just a tissue that needs to be removed by request of the patient.

    In other news, the abortion issue really has no place on Science-Based Medicine. I do not come here for hard hitting social issues. I come here for… Science-Based Medicine and anti-quackery,

  17. thatguybil81 says:

    “Well stated. Why single out abortion? They don’t apply the same standard to other elective procedures such as breast augmentation and facelifts”

    Well typcially they do show before and after pictures for these types of proceduers prior to performing the procedure.

    Also typically breast augmentations are not funded using public tax dollars. When you start taking tax dollars you come under the perview of the politics of the public purse strings.

  18. Brandt says:

    1. How can you consider the term “Rape” accurate when it is a legal term with a precise definition depending upon the jurisdiction? Under what jurisdiction would a t/v ultrasound be rape? (A non-consensual medical procedure could be a civil battery.)

    2. The above cited statute does not require the physician to lie. It requires the physician to inform “the pregnant woman on whom the abortion is to be performed of: (iii) the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer;” If the possibility of increased risk is 0%, that is what the physician is required to advise.

    This hyperbole only detracts from your argument.

  19. lamamaloca says:

    Transvaginal ultrasounds are, in fact, routine in the first trimester in pregnancy. The law doesn’t specify a transvaginal US, but it assumed that when that is the appropriate type of ultrasound, it is what must be done.

    It doesn’t list “and benefits” to the abortion, but it does list that the patient should be informed of the medical risks of carrying the child to term, which is where most of the benefits of the abortion would be.

  20. lamamaloca says:

    @Brandt, under many laws, penetration with an object constitutes rape. A transvaginal ultrasound involves pentration with a probe, so if it were done against the patient’s consent, it may qualify as rape.

  21. Janet Camp says:

    “One benefit of abortion is that it prevents the many health risks and complications associated with pregnancy. Abortion is safer than full-term pregnancy.”

    Thank you Dr. Hall. The importance of this simple statement is very much overlooked by one side and not given enough repetition by the other.

    I post this simple statement every time I come across an abortion debate. I read many years ago when pregnant with my first child (in a book given to me by my OB and published by the Guttmacher Institute) that a woman’s body goes through more physical changes during pregnancy and birth than during open-heart surgery. I don’t know if this is a medically significant statement, but it offers some perspective for those who seem to think it is “no big deal” to be pregnant or give birth.

    I have had a number of the abdominal type of ultrasounds and one of the vaginal kind. I am not modest at all and have little illusion about the need to be poked and prodded by all sorts of medical personnel during ob/gyn care, but I was really disturbed by the vaginal ultrasound and I had it for an important reason. I cannot imagine having been forced to have it. What is most galling, is that the same people who don’t want anyone “forced” (which isn’t even true–you simply pay a penalty/tax if you don’t) to buy health insurance have no problem forcing these onerous procedures onto women.

  22. Brandt says:

    @Lamamaloca – please cite the law under which the procedure required by statute referrenced in the main article is rape. In the alternative please provide a cite to law that supports the “straw man” that you offer “under many laws, penetration with an object constitutes rape. A transvaginal ultrasound involves pentration with a probe, so if it were done against the patient’s consent, it may qualify as rape.”

  23. tommyhj says:

    Why does everyone instanstly opt for the transvaginally sonography? As the statue states, it’s should be consistent with current medical practice, and who is to say that routine sonography of the uterus on women who are seeking abortion, should not be transabdominal (with full bladder)? As I see it, there are mane good arguments against transvaginal sonography, so gynechologists should just write up a few articles and establish some “current medical practices” on the area. And if the uterus isn’t visible transabdominaly, so be it – that is the image quality, and it is limited by our new “current medical practice”.

    It reminds me of the time when a gynechologic examination was mandatory before the first prescription of birth control pills. That was removed because some teenage girls would rather risk pregnancy than have that examination.

  24. BKsea says:

    thatguybil81: “the abortion issue really has no place on Science-Based Medicine”

    While it is fairly clear where most of the people here stand on the issue of abortion, this post is not about the abortion issue. It is about whether medical procedures and statements that are not science-based and not medically indicated should be mandated by law. The Texas law is ideology-based medicine just like woo is based on ideology and being anti-vaccine is based on ideology. Science-based medicine has every right and imperative to fight this.

  25. David Gorski says:

    In other news, the abortion issue really has no place on Science-Based Medicine.

    Legislating that doctors in effect must provide women with misinformed consent before a medical procedure is every bit as much within the purview of science-based medicine as the misinformed consent that the “health freedom” (i.e, the pro-quackery) movement tries to promote or the misinformed consent that antivaxers promote. So is the claim that abortion increases the risk of breast cancer (part of the aforementioned misinformed consent that this law mandates) well within the subject matter of this blog. That is what this issue is about, not abortion per se.

  26. thatguybil81 says:

    “The Texas law is ideology-based medicine”

    It is a mandate mandating the minium level of informed consent required prior to performing this procedure in the state of Texas.

    The Texas law may be ideology driven but it is not medicine. At least not any more then the FDA mandating what REMS guides need to be handed out to what patient, and for what drugs all in the name of “informed concent”.

  27. DW says:

    I’d be careful with the “rape” language. I know you don’t mean it to be so, but it’s potentially offensive to actual rape victims. I totally agree with the objections to these laws and I also see that a woman forced into this situation could feel violated in a way. But a safe and hygienic procedure performed by a physician in an office, even with the patient basically feeling that she had no choice, is not going to be comparable to the experience of rape, especially as the latter often involves physical violence and fear of death. The comparison could probably only be suggested by someone who hasn’t been a rape victim.

  28. thatguybil81 says:

    @ David Gorski
    Peter A. Lipson did not make a case for misinformed consent.

    He asserts that the states mandates that they hand out a patient “a booklet full of misinformation” but does not show what that misinformation is.

    He then goes onto to assert that the law mandates a trans-vaginal ultrasound and that this is analogus state-mandated rape. The law does not mandate a trans-vaginal ultrasound, and even if it did it would not be rape, which is a legal term with a legal definition that are not met.

    He states that the statue “insists that the doctor state information that is counterfactual (that is, a lie). But does not show what part is counterfactual.

    (A) the physician’s name;
    How is this a lie?

    (B) the particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate:
    (i) the risks of infection and hemorrhage;
    Is this a lie?

    (ii) the potential danger to a subsequent pregnancy and of infertility;
    Is this a lie?

    (iii) the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer;
    As pointed out by Brandt above, if the current literature states that there is no possibility of an increased risk, then the informing provide should state “no increased risk”

    (C) the probable gestational age of the unborn child at the time the abortion is to be performed; Is this a lie?

    (D) the medical risks associated with carrying the child to term;
    Is this a lie?

    Dr. Peter Lipson has not made a case for “misinformed consent”. He made a list of assertions using inflammatory language base on a particular political point of view. That is what has no place on Science-Based Medicine.

  29. Dawn says:

    @DW: Wrong. Forcing me to have a transvaginal ultrasound against my will would be as bad as the rape I experienced. You are FORCING me to have something done I don’t wish to have done. Rape does not “often involve(s) physical violence and fear of death.” Mine didn’t. Many women I know who were raped were not in fear of death nor did they experience physical violence. It was still physical contact without my consent. Rape, by any definition.

    I have been pregnant; I have had both transvaginal ultrasounds (to deal with an ectopic pregnancy) and abdominal ultrasounds. It is VERY rare that a provider would need to perform a transvaginal ultrasound for a TOP to determine gestational age. As a midwife, I could give you within a week or so just by physical exam. Most good physicians could also. An ultrasound is useful if there is question of either actual gestational age based on LMP to exam, or a possible non-uterine pregnancy.

    And why should physicians be forced to lie to women about false risks? Any medical procedure is risky. Informed consent requires knowledge of the TRUE risks, not fake ones that the anti-choice people want to have spouted. This is about true informed consent, no matter where you stand on the abortion side. Not forcing doctors to lie about the risks and benefits, and not forcing women to have unnecessary treatments against their will.

  30. Dawn says:

    @thatguybil81: Anwers:

    He states that the statue “insists that the doctor state information that is counterfactual (that is, a lie). But does not show what part is counterfactual.

    (A) the physician’s name;
    How is this a lie?

    That is not a lie. Most providers do give their name to the client.

    (B) the particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate:
    (i) the risks of infection and hemorrhage;
    Is this a lie?

    No. However, the risk of infection and hemorrhage are measurably less than carrying the pregnancy to term, when the termination is performed by an experienced provider in a medical setting.

    (ii) the potential danger to a subsequent pregnancy and of infertility;
    Is this a lie?

    Yes. Studies have shown that first trimester abortions do not lead to an increased risk of infertility nor do they lead to increased problems in susequent pregnancies.

    (iii) the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer;
    As pointed out by Brandt above, if the current literature states that there is no possibility of an increased risk, then the informing provide should state “no increased risk”.

    Therefore, this is another lie. Completing pregnancy is NOT protective. Breastfeeding several children over several years may be. Have an abortion does not increase this risk.

    (C) the probable gestational age of the unborn child at the time the abortion is to be performed; Is this a lie?

    No, but why does the provider need to tell the woman the probable age? Do they think she is clueless? That she is doing this for the fun of it? That she is too stupid to have any idea how pregnant she is? While some women are unaware of how pregnant they are, most women who come for first trimester terminations are exactly that – first trimester.

    (D) the medical risks associated with carrying the child to term;
    Is this a lie?

    The risks of carrying a child to term are more often then not downplayed by the anti-choice people.

    In any case, this is about true informed consent. And the laws are forcing physicians to hide the truth.

    Oh, and just FYI – public funds, by federal law, MAY NOT be used for abortions. I do wish people would get that straight. Planned Parenthood’s books prove that, no clinic uses public (Medicaid, Medicare, whatever) funds for abortions.

  31. thatguybil81 says:

    Dawn, it is not up to you to make the case. It is up to the original author to make the case. My point is that he did not make that case.

    “No, but why does the provider need to tell the woman the probable age?”
    Why does the provider tell a cancer patient the size of a tumor? Why do they tell the patient how many and how large of gallstones they have?

    “Studies have shown that first trimester abortions do not lead to an increased risk of infertility.”
    Then the answer would be “there is no increased risk of infertility for your 1st trimester abortion”.

    However, you understand, while in aggregate there may be no increased risk, depending on how a particular procedure goes the patient may have complications that cause an increased risk of infertility. Typical informed consent documents spell out every risk factor, potential poor outcome, and complication under the sun, be they real or theoretical. If you compare this legal minium IC to the typical IC document, you will find they are not that different.

  32. Peter Lipson says:

    Bill you do realize that u r both being pedantic and moving the goalposts right?

  33. Amy (T) says:

    Thank you for the great post, and some great comments as well.

    It is completely disingenuous when they try to use the “informed consent” argument, which is turning in to Dr. Gorski’s “misinformed consent” in about every aspect of medicine by those trying to promote their ideology under this guise.

    As an aside, do any state legislatures mandate that OBs/CNMs discuss and give written information on all the risks associated with pregnancy and childbirth? I’m pregnant with my 2nd child in one of these conservative states proposing these (and other) anti-abortion laws, and have not received booklets about all possible risks associated with the pregnancies. Our legislature wants to pick and choose when to hand out “risk vs. benefits” as it suits their ideological preference.

  34. mdstudent says:

    Requiring physicians to spread misinformation completely undermines patient autonomy and should not be tolerated.

    However, every effort should be made to educate patients requesting an abortion that such a procedure will ultimately result in the termination of a human life which is what, as far as I understand, the law is trying to do. Just because a fetus isn’t born does not mean it has any less right to live.

    The issue of abortion is complex and of course there has to be exceptions which the law provides:

    (6) I UNDERSTAND THAT I AM REQUIRED BY LAW TO HEAR AN EXPLANATION OF THE SONOGRAM IMAGES UNLESS I CERTIFY IN WRITING TO ONE OF THE FOLLOWING:
    ___ I AM PREGNANT AS A RESULT OF A SEXUAL ASSAULT, INCEST, OR OTHER VIOLATION OF THE TEXAS PENAL CODE THAT HAS BEEN REPORTED TO LAW ENFORCEMENT AUTHORITIES OR THAT HAS NOT BEEN REPORTED BECAUSE I REASONABLY BELIEVE THAT DOING SO WOULD PUT ME AT RISK OF RETALIATION RESULTING IN SERIOUS BODILY INJURY.
    ___ I AM A MINOR AND OBTAINING AN ABORTION IN ACCORDANCE WITH JUDICIAL BYPASS PROCEDURES UNDER CHAPTER 33, TEXAS FAMILY CODE.
    ___ MY FETUS HAS AN IRREVERSIBLE MEDICAL CONDITION OR ABNORMALITY, AS IDENTIFIED BY RELIABLE DIAGNOSTIC PROCEDURES AND DOCUMENTED IN MY MEDICAL FILE.

  35. Mark Crislip says:

    More of the same

    Under a new law, doctors in Pennsylvania can access information about chemicals used in natural gas extraction — but they won’t be able to share it with their patients. A provision buried in a law passed last month is drawing scrutiny from the public health and environmental community, who argue that it will “gag” doctors who want to raise concerns related to oil and gas extraction with the people they treat and the general public.

    http://www.theatlantic.com/health/archive/2012/03/for-pennsylvanias-doctors-a-gag-order-on-fracking-chemicals/255030/

  36. Amy (T) says:

    mdstudent:

    “termination of a human life”

    wait a minute, a blastocycst, embryo, and fetus are not a human life. does the medical literature ever refer to these as human life?

    “Just because a fetus isn’t born does not mean it has any less right to live”

    abortions before 10 weeks gestation are aborting an embryo, not a fetus. your opinion is probably still the same about an embryo, but still, it’s not a fetus.

  37. ConspicuousCarl says:

    If this ends up in court, which it most likely will, the disproportionate detail of abortion risks (vs. the single line mandating unspecified risks of pregnancy and birth) can be used to show that the legislators had a motivation other than general education.

    I was leaning away from calling it “rape”, but if I were a judge hearing the case eventually brought against the state, I would like to ask the defendants to offer their explanation as to why it isn’t (tangent related to the federal healthcare case: a judge’s asking of a deeply-probing question does not necessarily mean that they aren’t going to accept the answer). Saying that it is sometimes necessary or voluntary does not count. Sexual intercourse is also sometimes voluntary or necessary, but that doesn’t mean there is no such thing as rape.

    Also, which part of this law addresses which type of sonogram is to be used?

  38. mdstudent says:

    @ Amy T:

    Zygote, blastocyst, embryo, fetus, baby, slimy scuba thing… you can call it whatever you want. As far as I understand from embryology, cell biology, and genetics, as soon as a sperm delivers it’s payload to the ovum you have human life (albeit in its most rudimentary form). If you’re aware of another definition of human life that enjoys broad scientific support please let me know.

  39. EricG says:

    Just because a fetus isn’t born does not mean it has any less right to live

    just because it’s a fetus doesn’t give anyone the right to tell another how to live

  40. mdstudent says:

    @ EricG:

    Yes it does.

    Every parent has responsibilities towards their children and as far as I’m concerned you become a parent as soon as you conceive. Let the baby live, care for it, and educate it so that at the least it has fighting chance to live a full and healthy life. This, I completely understand, is easier said than done but still, the challenges and inconveniences of parenthood should not be an excuse to rob the unborn of life.

  41. ConspicuousCarl says:

    mdstudent on 30 Mar 2012 at 5:34 pm
    as soon as a sperm delivers it’s payload to the ovum you have human life (albeit in its most rudimentary form). If you’re aware of another definition of human life that enjoys broad scientific support please let me know.

    This implied definition of “human life” is inadequate for distinguishing between a whole and sentient person and any scrap of tissue with a full set of chromosomes. Whatever the reality may be, this definition is not useful.

  42. mdstudent says:

    @ conspicuousCarl

    I disagree.

    Latent within the “scrap of tissue with a full set of chromosomes” is a human being. Once the wheels of embryonic development are set in motion, it would be unfair to justify stopping them because they had yet to reach an arbitrarily defined stage of “whole and sentient person”.

  43. weing says:

    “Every parent has responsibilities towards their children and as far as I’m concerned you become a parent as soon as you conceive. ”

    I never conceived, so according to your definition, I am not a parent and don’t have any responsibilities. In your world, it appears, only mothers can be parents. As the church lady would say. “How convenient.”

  44. mdstudent says:

    @ weing,

    Obviously, men can be parents (ova don’t spontaneously self-conceive despite what “the church lady” may have been telling you). If you’ve never conceived or adopted a child or in any way become the legal guardian of a child than obviously you won’t have the same responsibilities to a child as their parents or legal guardians. How many times have you been charged with child abuse for failing to send any random kid to school?

  45. weing says:

    “as soon as you conceive” can only refer to a woman. Are you changing your definition of a parent now?

  46. thatguybil81 says:

    @ Peter
    You missed the field goal not me. If you wanted to make a case about state and federal government not regulating informed concent because of they don’t do a good job, please make that case.

    Please do not state that I am being pedantic after your blantant use of inflammatory rape rhetoric.

    What is your revulsion about a sonagram being performed prior the removal of the unwanted tissue?

  47. weing says:

    “What is your revulsion about a sonagram being performed prior the removal of the unwanted tissue?”
    What would be the medical indication for it? In other words, why the hell do you need to do it? Maybe make some sonographers rich? Laudable goal. But still not medically indicated as it will not improve the outcome for the patient.

  48. mdstudent says:

    @ weing,

    I think you missed my point but sure, I’ll change my definition. Fathers are just as much responsible for their children (born or unborn) as mothers.

    Next time I’ll be more careful with my use of the word “conceive”.

  49. weing says:

    @mdstudent

    “Fathers are just as much responsible for their children (born or unborn) as mothers.”
    You don’t really believe that do you?

  50. DW says:

    Dawn: “Rape does not “often involve(s) physical violence and fear of death.” Mine didn’t.

    No, I’m not wrong. Rape DOES often involve physical violence and fear of death.

    I’m opposed to the law. I am not wrong that the rape terminology will be offensive to many rape victims.

  51. Peter Lipson says:

    A couple of additional points:

    This was not meant as a comment on the morality of abortion, although my beliefs are clear. It was as mentioned above to point out that the government is making us into doctors who are no better than quacks if we must lie to keep our licenses.

    The pedantry above is idiotic. This is not about who is the high school debate team champion; my point was clearly made and you may or may not agree, but asking for closer and closer details in order to puff yourself up is not an argument. An argument would be to address the basic points, not the minutiae. Whether or not you can poke a hole here or there is irrelevant, unless you can invalidate my argument in some cogent matter.

    The legal definition of rape is also irrelevant. Treating a woman’s body as an object to be penetrated/punished for the purposes of the state’s ideology is by any moral definition rape.

    From an ethical standpoint it’s only a little less wrong to do a less invasive ultrasound.

    And while it was not my intention to incite a discussion of when life begins or the morality of abortion, the fact is it is a legal procedure with known risks and benefits. Your personal belief in its immorality is irrelevant to the discussion.

  52. Barry2 says:

    Good article. It’s hard enough to find a doctor one can trust, as Harriet Hall’s recent article and the comments on it demonstrate. Now apparently women are supposed to add to the list of criteria, “How knowledgeable and reputable are the legislators who are telling my doctor what to say to me?” How could this not be a problem?

  53. ConspicuousCarl says:

    mdstudent on 30 Mar 2012 at 6:58 pm

    @ conspicuousCarl

    I disagree.

    Latent within the “scrap of tissue with a full set of chromosomes” is a human being. Once the wheels of embryonic development are set in motion, it would be unfair to justify stopping them

    First you said that we have “human life” as soon as sperm and egg combine. That does not make any reference to latent potential, which is what you are appealing to here. If that is your point of view, go ahead and re-word your initial statement.

    because they had yet to reach an arbitrarily defined stage of “whole and sentient person”.

    Your point of view seems to rest on that supposedly-arbitrary person being latent within a piece of living tissue.

    It is funny that you claim to disagree with my criticism, then add more specifics to address my criticism, and then declare to be “arbitrary” the very thing which your correction relies on.

  54. mdstudent says:

    @ ConspicuousCarl,

    Dr Lipson is right to point out that it was not his intention to incite a discussion of when life begins or the morality of abortion (it’s tough not getting sidetracked on such a controversial topic).

    And just to reiterate, I completely agree with the main point of the article that law-makers requiring physicians to spread misinformation (to whatever end) cannot be tolerated.

    If you like we can continue our discussion by email. But I won’t post my email since it contains my real name which I don’t feel particularly comfortable posting on an open forum.

  55. mdstudent says:

    The same goes for weing.

  56. Harriet Hall says:

    If an egg becomes a person when it is fertilized by a sperm, should a pregnant woman count as two people for the car pool lanes? Should she have to pay for an extra passenger when she rides the ferry? Should she be allowed to bring her fetus into a theater playing an R-rated movie? Should she be prosecuted for child abuse if she goes into a bar and has a martini, thereby bringing her underage child into a restricted area and providing him or her with alcohol? Should she be prosecuted for murder if she uses a birth control method that works by preventing a fertilized egg from implanting in the uterus? It seems to me the meaning of “person” is changeable depending on the circumstances.

  57. annappaa says:

    @mdstudent

    For me, the question of when life begins is not an issue. The question is, does a fetus’ rights supersede my own? I don’t believe that a fetus has more of a right to bodily autonomy than I do. I think this is the crux of the matter for most of us in the pro-choice movement, not whether or not life begins at conception.

  58. Brandt says:

    “An argument would be to address the basic points, not the minutiae. ”

    A basic point, a major premises is that this statute requires a doctor to lie to the patient. This is false. This has been pointed out above by thatguybil81. This is not pedantic or focused on the minutiae of the argument. It is the argument.

    The portion of the statue your cited requires the doctor to inform the patient of “the particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate . . .” If what follows this clause is medically accurate it must be related to the patient. If not, all you are required to do is inform the patient of the “particular medical risks associated with the particular abortion procedure to be employed” nothing more, nothing less. It does not require that you lie.

    Likewise section 2 requires no lying. All the statements are true. You are even free to deliver them with all the disclaimers and sarcasm you like and would still be following the letter of the law.

    In fact, you can provide true informed consent based upon the most up-to-date evidence and not run afoul of the statute.

    Even if earlier premises were true, “The other consequence is the complete destruction of the doctor-patient relationship.” is not logically entailed. “Complete Destruction?”

    This slippery slope to what I believe to be the final conclusion of the argument is not supported:
    “If the state can compel a doctor to lie to a patient in one circumstance, it can in any circumstance, and patients will no longer be able to believe anything a doctor says. ” Even if the State could compel this behavior it does not logically follow that the State can compel a doctor to lie in “any” circumstance.

    All that we have here is a poorly drafted law that appears to be relatively easy to circumvent.

    NOTE: I have not read the full text of the law, only the portions that you cited here.

  59. weing says:

    ” the possibility of increased risk of breast cancer following an induced abortion and the natural protective effect of a completed pregnancy in avoiding breast cancer;”

    That statement is a lie. There is no such thing. The state is forcing the physician to tell this whopper to the patient. This is destructive of the doctor-patient relationship as the physician is ethically obliged to tell the patient the truth.

    What is the medical reason for the ultrasound? How will the results of the ultrasound affect the procedure? If a test is not medically necessary, why do it?

  60. Peter Lipson says:

    You also are missing the point.

  61. Bogeymama says:

    Thank you for this post. It’s hard to imagine this ever becoming an issue in Canada, and I sure hope it never gets there. The other recent issue that has me scratching my head is the insurance coverage in the U.S. In general, our insurance plans cover birth control but not Viagra, which is seen as a “lifestyle” drug – the opposite of what happens in the U.S. if media coverage is accurate. In 2 countries where lifestyles are so similar, it’s hard to believe things are so different where reproductive rights are concerned. Birth control is so inexpensive, I think employers are convinced it’s cheaper to pay for it than to pay for a maternity leave – which is 1 year up here!

  62. Mrs. N. says:

    Look, I’m about as pro-life as they come, but this deals with medicine and law, not philosophy.

    Do I think that the woman should be counseled for mental health, making sure this is her “choice” and not because she feels she’s being forced into it by people or circumstance? Yes. Do I think that the doctor should be compelled to say anything other than the realistic complications from an abortion (i.e. the kinds that would be the same as a D & C for miscarriage)? No.

    Abortion is predominantly a moral issue and it is completely disingenuous for either side of the debate to bully the other by abusing law… which they BOTH do, sadly. Until abortion is defined as murder under law, it operates in the realm of surgical medicine, and medicine has to deal in objective data. The data shows that pregnancy more risky for a woman’s body than pregnancy. It’s wrong to try to scare the woman with unsubstantiated “what ifs”.

    Is it better off for her long-term mental health? I definitely DO NOT think so, but I’m heavily influenced by personal anecdote (my mother’s deep regret and ensuing mental health issues, joy from friends who’ve decided to keep their unplanned babies). Unless there is objective evidence to confirm what I believe, though, I don’t think that my opinion should be forced upon others operating under the umbrella of medicine.

    Pro-lifers: Stick to your strong points– moral arguments. It really betrays our cause by nefariously trying to “scare” women out of abortions.

  63. weing says:

    What the legislature could do is to guarantee benefits to the woman for prenatal, neonatal, and child care from birth to adulthood. I think a physician would be glad to inform any pregnant woman of such benefits.

  64. Brandt says:

    I guess so. What is the point, since I am unable to locate it in the title or text of the post?

  65. DW says:

    Exactly how does the prochoice movement “abuse the law”? I’d like to hear that. News flash – abortion is legal.

  66. Mrs. N. says:

    @DW Obstructing free speech, such as setting up ‘protected’ zones around clinics, and legal intimidation are just a couple ways. I’ve chosen to not bury my head in the sand about the less-than-admirable tactics from my side of the debate. I suggest you do the same.

  67. MerColOzcopy says:

    Commit rape with a ultrasound probe, really? I am not a Doctor, but what path is taken to perform the actual abortion? This seems to be more about moral issues with the author than with the law, or SBM.

    It seems the law serves not only to shame a woman out of having an abortion, but to guilt a doctor into performing it. A Win-win for the unborn.

    Just think of the odds of your very existence. Abortion, what a waste. How sad some find themselves in this situation. I wonder what its like for a Doctor to perform abortions during the day, then go home at night and have dinner with their children.

    Is midwifery CAM?

  68. bgoudie says:

    @ Mrs. N

    Yes clearly zones around clinics where protesters aren’t allowed to interfere with patients are exactly on par with the pro life crowd’s harassing of medical personnel in their private lives and “legal” intimidation is the same as the physical threats and actual assaults on those involved in abortion services.

    You have to play very fast and loose with your definition of abusive behavior to try and make any claims of equivalency between the two sides.

  69. weing says:

    “It seems the law serves not only to shame a woman out of having an abortion, but to guilt a doctor into performing it.”

    Don’t understand the second part. I think you meant into not performing it. Anyway. Why not be upfront about it and make abortion illegal? Better yet. Make abortion unnecessary by guaranteeing full support for the woman and child until it reaches adulthood? I think these anti-choice people don’t believe in carrots, only in sticks. Beat on the weak, shame them, and feel good about it because you have the moral high-ground.

  70. gretemike says:

    There should be NO apologies for referring to these statutes as state-mandated rape. The common law definition of rape was, “A carnal knowledge of a women not one’s wife by force or against her will.” These laws come awfully close to that (under the common law carnal knowledge required actual penile penetration).

  71. gretemike says:

    MerColOzcopyon,

    There was a lot more to the post than just the ultrasound issue. Requiring that the doctor lie is bad enough by itself. As for what the doctors feel when they go home and eat with their kids: I cannot speak for them, but perhaps they are glad that the aborted cells won’t develop into an unwanted or uncared for child, I suspect that many doctors have seen all too many of those. Personally, I cringe more at the idea of subjecting a rape or incest victim to the law’s requirements.

  72. BillyJoe says:

    It is undeniable that a new life begins at fertilisation.
    The question is: when does personhood begin?
    The next question is: when does this person’s rights override that of the mother?

    1. Harriet Hall says:

      @Billy Joe,
      “when does this person’s rights override that of the mother?”
      That’s an interesting question that is often overlooked. Does a fertilized egg have the right to take over a woman’s body without her consent, to endanger her health, take away part of her food, cause 9 months of inconvenience, cause severe pain when exiting her body, and then require her to care for it and support it for the next 18 years? This could be considered a form of parasitism and coercion.

  73. evilrobotxoxo says:

    @mdstudent:

    When you’re a practicing physician, you will be forced to confront the ambiguity of definitions of “life” in the context of definitions of “death.” Modern biology holds that there is nothing fundamentally different about systems that are “alive” from ones that are not – the discredited belief system that posits such a difference is called vitalism. Therefore, “life” is by necessity somewhat arbitrarily defined, like whether Greenland is a continent or not. It’s not a scientific question, it’s a semantic question.

    In any case, I think it’s important to distinguish between cellular “life” and organism-level “life.” It’s undeniable that cellular life begins at fertilization, but cellular life is not relevant in normal clinical contexts. Living cells can be harvested from patients hours after “death” as defined by any normal clinical criterion. There are also people like Henrietta Lacks, who died something like 50 years ago, but her tumor cells (HeLa cells) are still growing in laboratories worldwide. IIRC, the normal criteria for brain death involve a flat EEG, lack of brain stem reflexes, and no spontaneous breathing. We consider those people “dead,” i.e. not “living,” despite a beating heart and lots of living cells. And those criteria are probably overly conservative, as demonstrated by cases like Terri Schiavo or babies born without a telencephalon that can still breathe.

  74. DW says:

    “The common law definition of rape was, ‘A carnal knowledge of a women not one’s wife by force or against her will.’”

    Yes, but that’s a horrible definition, not least because it leaves out wives! Not to mention husbands! We won’t get anywhere going back to abandoned, archaic definitions. The definition of rape has certainly expanded since then, but it shouldn’t be stretched for political purposes to fit any procedure or action that someone doesn’t like or that someone is subjected to by force of the law. That just dilutes the notion of rape. Let’s not try to solve one problem by creating dozens of others. Dawn also tried to squeeze this coerced ultrasound into “rape” by calling it unwanted physical contact etc. Not every instance of unwanted physical contact is rape. Some unwanted physical contact is assault and battery, intimidation, threats, sexual harassment, bullying, or simple rudeness and obnoxiousness.

    If nothing else, it’s stupid to try to pass laws (or overturn laws using techniques) that will quickly get shot down in court. Plainly a physician performing an ultrasound is not, in usual circumstances, committing a rape. Stick to the problem at hand.

  75. DW says:

    Mrs. N., antiabortioners’ free speech rights have not been denied. A protected zone around a clinic recognizes that the procedure is legal and that patients arriving for their appointments shouldn’t be threatened and harassed on the way in, in an already unpleasant and distressing situation for them. That’s not “abusive.” It’s an attempt to spare the patient from abuse while she visits her medical practitioner for a perfectly medically sound and legal reason.

    “Legal intimidation” is too vague to mean anything, so I don’t know what you’re complaining about there.

  76. DW says:

    “Is midwifery CAM?”

    Some midwifery is certainly CAM, some is not.

  77. mdstudent says:

    @ evilrobotxoxo

    “When you’re a practicing physician, you will be forced to confront the ambiguity of definitions of ‘life’ in the context of definitions of ‘death.’”

    I dread the day, but hopefully I’ll be ready.

    Thank you for making such interesting points.

  78. DugganSC says:

    You know, it strikes me that if we’re going to be characterizing a trans-vaginal ultrasound (which, as noted above, is not actually called out in the law) as rape, what are we going to be calling the insertion of a thermometer? On the other hand, that’s bound to make pediatrician literature more exciting… “More pediatricians recommend anal rape than oral rape when taking toddler temperatures.”

  79. weing says:

    DugganSC,

    You cannot compare the two. The thermometer reading will give you information that will affect your management of the patient. It’s not done to satisfy someone’s perversion.

  80. Jann Bellamy says:

    @ConspicuousCarl

    “If this ends up in court, which it most likely will . . .”

    It already has. The Texas law was challenged as unconstitutional on several grounds. A U.S. District Court in Texas agreed with the plaintiffs that the law violated physicians’ First Amendment rights by compelling the physician to make certain statements with which he or she may disagree and which may not be medically necessary in the physician’s judgment. Tex. Med. Providers Performing Abortion Servs. v. Lakey, 806 F. Supp. 2d 942 (W.D. Tex. 2011), vacated in part, remanded by, 2012 U.S. App. LEXIS 548 (5th Cir. Tex., Jan. 10, 2012).

    I agree with the district court’s decision. It is a well-reasoned discussion of why the Texas legislature went beyond what is constitutionally permissible under current U.S. Supreme Court decisions. Unfortunately, the U.S. Court of Appeals for the Fifth Circuit overturned the district court’s ruling, which effectively ended the case in the defendants’ favor. However, a similar law in North Carolina was also challenged and found unconstitutional by a U.S. District Court for the same reasons as the Texas district court. Stuart v. Huff, 2011 U.S. Dist. LEXIS 123244 (M.D.N.C. Oct. 25, 2011). It is likely on appeal now, or will soon be. As it will be heard in the U.S. Court of Appeals for the Fourth Circuit, the Fifth Circuit’s opinion will not be binding. I suspect these imaginatively named “right to know” statutes will wind up in the U.S. Supreme Court. The U.S. Supreme Court, in Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833, 112 S. Ct. 2791(1992) has already decided that a physician could be compelled to make certain disclosures, such as fetal age, to the woman seeking an abortion, and to direct her to other information which she could choose to review, or not. However, as the district courts noted, the Texas and N.C. statutes go far beyond what the U.S. Supreme Court has sanctioned.

  81. DW says:

    Really great points, Dr. Hall. This is the reason the “slippery slope” to declaring fetuses full persons is so dangerous and idiotic. If the fetus is a person, we can have women suing their fetuses. The fetus is essentially “raping” the mother on exiting the birth canal! No one else has access to my birth canal without my permission! Put those fetuses in jail … a whole new legal specialty is born … defending fetuses who are charged with terrible crimes against their mothers, everything from rape to assault and battery. Then how about infants? Charge ‘em with sexual abuse for breastfeeding … why, some toddlers just lift up their mothers’ shirts and demand access! That’s pretty egregious sexual harassment. We could charge toddlers and preschoolers with all kinds of things. How about home invasion? These little people just move in without asking, demand food, they wake you up in the middle of the night, they frequently destroy things … we’ve got at least stalking, theft, vandalism, and disturbing the peace there.

  82. nybgrus says:

    @mdstudent:

    evilroboto made an excellent point there that you should very seriously consider. Additionally:

    Latent within the “scrap of tissue with a full set of chromosomes” is a human being. Once the wheels of embryonic development are set in motion, it would be unfair to justify stopping them because they had yet to reach an arbitrarily defined stage of “whole and sentient person”.

    Latent within every ova and every sperm is also the potential for a human being. Is menstruation and masturbation the same as preventing the implantation of a blastocyst via the Plan B bill? How about if the Plan B changes the mucous and cervical environment such that the sperm simply can’t reach the each in time? What if the blastocyst implants and the pill still induces the shedding of the endometrial lining? Where do we draw the line here? When you get into pedantic discussions about a “full set of chromosomes” having the potential for human life as the basis of your argument you are immediately in an extraordinarly precarious position.

    You were taught (I hope) in medical school that on the order of 40-50% of all “sperm meets egg” encounters end in spontaneous abortion? And most, but not all, are from chromosomal abberancies? Therefore a reasonable number of such spontaneous abortions are of otherwise viable blastocysts. So perhaps your statement need be “latent within the “scrap of tissue with a full set of chromosomes” is an 80-90% chance of being a human being”?

    And what about those scraps of tissue with a full set of chromosomes that aren’t able to become a person (aka a hydatiform mole)? Where does your argument take us there?

    And of course, what about those that don’t have a full set of chromosomes but are none the less still able to and do become born? Does a Turner’s baby not count as a person because she has only 45 chromosomes? Or a Down’s, Edward’s, or Patau because they each have 47? Or what about an Angelman’s or Prader-Willi that contain the full set, but because of methylation don’t have the ability to express it all and thus have, in effect, a less than full chromosome count?

    Do you see how arguing on such pedantic levels as “I believe the moment sperm meets egg is the beginning of life” is simply an untenable and non-productive avenue to pursue?

  83. evilrobotxoxo says:

    @mdstudent: you won’t be ready, but you’ll make it anyway ;)

  84. DW says:

    Inserting of thermometers in pediatrics … strikes me as exactly the right comparison. It’s a good example of a procedure that certainly involves physical contact and is very often done against the very loudly expressed displeasure of the person on the receiving end. But it would be crazy to call it rape. The transvaginal ultrasound isn’t rape either. The issues are simply all mixed up. Abortion politics need to be dealt with as abortion politics … not by dragging other crimes and misdemeanors into it, which will just make a terrible legal mess.

    I’m not even sure “lying for the state” is a helpful framework. Although doctors can claim some legal issues here, I think the reproductive rights of the mother should be kept front and center. That is the real battleground and always has been, regarding abortion. The issues feminists defined a long time ago regarding abortion are still correct: it is about a woman’s right to control her body: her absolute right to determine whether to carry a pregnancy to term. No other individual has a right, and certainly no state has a right, to overrule the mother’s decision for any reason whatsoever.

    Women’s right to complete bodily and reproductive integrity needs to be asserted ever more forcefully in the present political climate, with prereptilian creatures like Rick Santorum questioning even a woman’s right to prevent a pregnancy in the first place (i.e., contraception).

  85. DW says:

    “Is menstruation and masturbation the same as preventing the implantation of a blastocyst via the Plan B bill?”

    Keep in mind that in the current political climate such a question is not at all absurd, where a candidate like Rick Santorum, with his medieval theology, is actually something resembling a viable presidential candidate. I don’t think he’s got anything against menstruation, but in his theology, masturbation is indeed not allowed.

  86. nybgrus says:

    You know, it strikes me that if we’re going to be characterizing a trans-vaginal ultrasound (which, as noted above, is not actually called out in the law) as rape, what are we going to be calling the insertion of a thermometer?

    The point is will it change management? A temp can indeed change management and there is genuine informed consent coupled with medical necessary to boot. Having said that I would also be against legislation demanding that physicians always get a temp on every patient presenting for pharyngitis since, while almost universally done and generally non-invasive, it may not really be necessary and removes the autonomy of the patient to refuse the thermometer and still get treated. The point here is that if a person comes in with throat pain and clear signs of bacterial pharyngitis, but refuses the thermometer (for whatever reason! that is the point of autonomy) I, as the physician, can still reasonably treat the patient! But with this law, if a woman comes in and wants an abortion, but refuses the ultrasound (TV or not! and once again, for whatever reason!) I will now no longer be able to treat my patient, even in cases where prior to the law I reasonably could. And that is the problem with the law, and the point that Dr. Lipson was trying to make.

    The further point is that it only takes ONE case to make it an unjust law. Only one patient need to be coerced into a procedure she does not want or need. And if you are dangling antibiotics in front of your patient and saying “You can only have them if you let me take a temp” regardless of whether it is oral or anal (i.e. TV or trans-ab) matters not. You have used the position of power to remove your patient’s autonomy and thus restrict their options for treatment. Period. The buck stops there. Nobody would dream of arguing this for antibiotics and pharyngitis because it is asinine and not ideology is violated there. But when it comes to abortions all sorts of contortionist linguisitics are brought to bear because some people find it morally abhorrent to them. And not to get off on too much of a political rant, but very oftenly and especially in the public political arena, those same people are all for the death penalty and for sending over troops to foreign lands to kill each other. Their insanely pedantic worship of the sanctity of life of a “scrap of tissue with a full set of chromosomes” simply does not extend beyond the womb. And for those to whom it does (as was mentioned above) then that is great and I respect you. It still does not give you (or anyone else) the right to remove autonomy from others because of your own personal moral cogitations.

    Furthermore, I won’t go through and cite all the comments to the effect above, but “why is it necessary for a doctor to tell the patient the size of a tumor before removing it” is a plainly stupid argument.

    We tell patients the size of the tumor because it changes their prognosis, it changes their management, and could materially affect how aggresively they pursue treatment (and what kinds) depending on the outcome of that measurement.

    The informing a woman of the gestational age of the embryo or fetus to TV or really any ultrasonographic accuracy does NOT change her prognosis, treatment, or materially affect her decision. A 4 week abortion is materially indifferent from a 10 week abortion. Any other information the ultrasound can tell you would also be immaterial.

    It only becomes useful in certain cases of surgical (vs medical) abortion and in case extra-uterine pregnancy is suspected. Beyond that, it has no utility in the management of the case.

  87. nybgrus says:

    @ thatguybill:

    “Studies have shown that first trimester abortions do not lead to an increased risk of infertility.”
    Then the answer would be “there is no increased risk of infertility for your 1st trimester abortion”.

    So we should now legislate everything that a doctor should say isn’t reality?? In what world does that make sense?

    Should we have a law that every physician should “disclose the risk of autism before administering vaccines” and then have them say “the law says I have to tell you about this risk, which is zero?” Really? That is your argument in defense of this legislation?

    That is the whole point – the law is defended and promulgated on such pedantic and asinine notions as yours. The intent of the law is clear – to legislate hurdles for abortion that are unreasonable and clearly intended to find a way to legally decrease abortion rates because of ideology.

    “well, the doctor can just say the truth – that it is zero% risk” Then why should the doctor say anything at all? You also have a zero% risk of going blind from masturbation. Should we make a law that all doctors should inform pre-adolescent male patients of the risks of going blind from masturbation? No? Really? Why not? It is just as useful as informing women about to undergo abortion of the risks of breast cancer associated with their autonomous decision.

    The rhetoric of this comment thread has degraded to pure asininery (yes, I invented a word so it could get through the filters) because issue is abortion. Just change “abortion” and “ultrasound” and “risks of breast cancer” to “pharyngitis” and “temperature” and “risks of autism” and see if you can still make the same type of arguments.

  88. nybgrus says:

    @dw:

    Keep in mind that in the current political climate such a question is not at all absurd, where a candidate like Rick Santorum, with his medieval theology, is actually something resembling a viable presidential candidate. I don’t think he’s got anything against menstruation, but in his theology, masturbation is indeed not allowed.

    Indeed. it is a very serious problem that said individuals (Romney famously) do not appreciate.

  89. nybgrus says:

    and I just thought of one more, based on mdstudent and Dr. Hall’s comments:

    What about the scenario in which the fetus poses a direct and real threat to the mother’s life?

    Say in a case of ecclampsia – the only therapy is delivery. Failure to do so could end the mother’s life. Yet, in cases of early ecclampsia the fetus may have a very low chance of survival if delivered. Holding on an extra week at that point would vastly improve the fetus’ chance of life, while simultaneously decreasing the mother’s.

    Who wins? Whose odds to we cut in favor of?

    What if the woman wants to continue the pregnancy for as long as she possibly can knowing the risks to herself because she wants to improve her fetus’ chance of life as much as possible?

    Who gets to make that decision then?

    Is it the pregnant woman in all cases? Doesn’t that speak to the level of autonomy of each entity in question here?

  90. gretemike says:

    DW,

    Of course there’s problems with the common law definition of rape, that’s why it was codified in every State.

    Rape was, under the common law, “A carnal knowledge of a women not one’s wife by force or against her will.”

    As you point out, it leaves out men and wifes. So we edit it thus:

    “A carnal knowledge of a person by force or against his/her will.”

    But now we have the problem of “carnal knowledge,” which means only penile penetration. So in New Hampshire, that was changed to “sexual penetration,” which is in turn defined in part: “any intrusion, however slight, of any part of the actor’s body, or any object manipulated by the actor into genital or anal openings of the victim’s body.” So now we can further edit the common law thus:

    “Any object manipulated by the actor into genital openings of the victim’s body against her will.”

    Which leaves open the question as to whether or not a woman who was raped, or who is under a great deal of stress for a variety of reasons, or who is pregnant as a result of incest, etc., whether that woman is really consenting when The State of Texas demands that an object be shoved up her vagina so that she can be shamed for her decision – what is required to be done with the images can very fairly be described as designed to shame.

    So I stand by what I said, that people shouldn’t back away from referring to this as rape, even though it isn’t technically correct. But if you insist, I don’t really mind much referring to it as State-Mandated-Shoving-An-Object-Into-A-Woman’s-Vagina-For-The-Purpose-Of-Causing-Shame Law. Perhaps your objections will be satisfied by that high degree of accuracy.

    And I again remind readers that there were plenty of other reasons to dislike this law.

  91. DugganSC says:

    @nybgrus:
    Honestly, that’s a non-starter in terms of arguments for most people in the pro-life movement. In such a case, you have a medical issue where two people will die or one person will die, and only one is able to communicate for consent. Thus, it falls into standard medical ethics. :) You’re not the only person who pounces on that argument as if it will shatter the scales of the eyes of the opponent, but it’s an old one, and one which is as well settled as any argument involving the lives of two people and having to choose.

    @gretemike:
    Yeah, the use of the word “rape” really made few people discuss the article on its own merits. Just goes to show that sensationalism cuts both ways. Heck, if someone were able to make a case of “rape” because the ultrasound involves an insertion of instruments or they can’t get the abortion done, how are these clinics going to justify inserting the rest of the equipment to do the abortion? This, of course, being apart from the fact acknowledged by these clinics themselves that they already do ultrasounds before and either to confirm the location and existence of the baby. I think this is one of those cases where the author’s pen got a little too smart in choice of words, resulting in having to defend the article’s content on what it says rather than what was intended, i.e. getting people riled up.

  92. daedalus2u says:

    It really is not a close call. Shoving something into a woman’s vagina against her will so as to shame and humiliate her is rape.

    This type of law is bad on so many levels. To me, it is a clear violation of human rights mandated by a state actor, which makes it a Crime Against Humanity under the Rome Statute.

    http://www.icrc.org/ihl.nsf/FULL/585?OpenDocument

    [start quotes from Rome Statute]
    Article 7
    Crimes against humanity
    1.For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

    (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
    (f) Torture;
    (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
    (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

    2. For the purpose of paragraph 1:
    (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
    (e) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
    (g) “Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

    Article 25
    Individual criminal responsibility
    1.The Court shall have jurisdiction over natural persons pursuant to this Statute.
    2.A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
    3.In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
    (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
    (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
    (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
    (f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.

    Article 29
    Non-applicability of statute of limitations
    The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.

    Article 33
    Superior orders and prescription of law
    1.The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
    (a) The person was under a legal obligation to obey orders of the Government or the superior in question;
    (b) The person did not know that the order was unlawful; and
    (c) The order was not manifestly unlawful.
    2.For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

    [end quotes from Rome Statue]

    These laws compel physicians to commit a clear violation of the Declaration of Helsinki.

    http://www.wma.net/en/30publications/10policies/b3/index.html

    4. The Declaration of Geneva of the WMA binds the physician with the words, “The health of my patient will be my first consideration,” and the International Code of Medical Ethics declares that, “A physician shall act in the patient’s best interest when providing medical care.”

    That compulsion to violate the Declaration of Helsinki makes physicians victims of Crimes Against Humanity too.

    From the Universal Declaration of Human Rights

    https://www.un.org/en/documents/udhr/

    Article 5.
    No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

    Article 29.
    (1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
    (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
    (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

    To me, these are not close calls. The laws have a clear purpose, to shame and humiliate women seeking abortion and to compel physicians to be complicit in that shame and humiliation. Shaming and humiliating an identifiable group is not an acceptable purpose of any law. Such laws are manifestly unlawful. Compelling anyone to act in ways that shame and humiliate an identifiable group is also manifestly unlawful. Punishing or sanctioning anyone for a refusal to shame and humiliate an identifiable group is also manifestly unlawful.

  93. Brandt says:

    Not to beat a dead horse – but to those who continue to defend the use of the term “rape” in this context, I would like to introduce you to your compatriots who insist that abortion is “murder”, or as I refer to them, individuals who lack the critical thinking skills to construct a decent argument and must resort to incendiary pseudo-reasoning. I hope that you are happy together.

  94. weing says:

    ” This, of course, being apart from the fact acknowledged by these clinics themselves that they already do ultrasounds before and either to confirm the location and existence of the baby. ”

    Are you sure that is correct? It’s not my specialty, but I was not aware that an ultrasound was standard operating procedure in these cases. If it is, then why bother mandating it? If the physician feels it is medically indicated, that is between the physician and the patient to decide.

  95. MerColOzcopy says:

    If I was in need of an Abortion, and after reading all this, I think I would be looking for CAM, ie. a coat hanger right about now:((

  96. DW says:

    Gretemike, the argument was always ridiculous, so getting ever so slightly more accurate doesn’t help. It’s not that there is no resemblance or relationship between the coerced ultrasound and rape, but they are two different things. Rape is not a procedure in a doctor’s office. Even if the events occurring appear superficially the same, what is going on is not the same thing. The doctor isn’t raping anyone, the doctor is performing a well-known medical procedure. The patient understands what it is for, its medical purpose. She is not being physically restrained, the doctor does not have a weapon, the doctor did not grab her unexpectedly, the doctor is not telling her he will kill her if she doesn’t lie still. The doctor isn’t doing it to humiliate her or control her or terrify her … but to get images of the fetus. Do I really need to go on? The whole argument is disingenuous.

  97. gretemike says:

    DW wrote that “the doctor isn’t doing [the ultrasound] to humiliate her . . . but to get images of the fetus.”

    Oh, give me a break. As Dr. Gorski pointed out in his reply up near the top, that type of ultrasound is usually not necessary. So in most cases the doctor would not do the ultrasound at all but for the interference of the legislature. It is obtained in all cases (as mandated by the law) purely as a means to make the woman feel ashamed for deciding in favor of an abortion (showing her the pictures of the cute little kid). Mandating it for all abortions has no medical purpose whatsoever, and your claim to the contrary is disingenuous. And in addition, the law is mandating that the doctor say something that is not true. And that treatment is being mandated with utter disregard for whether or not the woman’s life is in danger (a real possibility in some cases, as discussed here by the doctors); whether or not the woman has been raped; whether or not horrible medical conditions may exist that the woman cannot afford (I find it ironic that the side of the political spectrum that supports this law is generally the side of the political spectrum that is opposed to universal health insurance), etc.

    It’s a disgusting law that not only interferes with an intensely personal decision, but is specifically designed to make a woman feel bad for making what in some cases might be a choice that saves her life (ecclampsia).

    Oh no, the rape victim is not restrained, you are correct. Instead she is taunted, humilitated and shamed. And the doctor is required to be an active participant. This is utterly intolerable.

  98. gretemike says:

    As an aside, the rape thing didn’t originate here, but in a Doonesbury cartoon.

    http://www.guardian.co.uk/world/2012/mar/11/doonesbury-strip-texas-abortion-law

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