ARTICLES

Bammo, Instant Abortion

New State Laws Protect Woman's Right to Kill

By Eric Reslock

At an exuberant public ceremony in San Francisco on September 5, Governor Gray Davis signed Senator Sheila Kuehl's (D-Santa Monica) Reproductive Privacy Act, along with three other pro-abortion bills at an exuberant public ceremony in San Francisco. The Kuehl bill, which went into effect on January 1, 2003, creates a sweeping new abortion law that replaces the 35-year-old California Therapeutic Abortion Act with provisions that provide women the legal means to obtain abortions under almost any circumstance.

Kuehl said that, without the new law, many of California's abortion rights were implied by court decision but were not protected by statute. With her bill, California can, in the event that the Supreme Court repeals the Roe vs. Wade decision, conduct its pro-abortion business as usual. But opponents of the bill say that even those who are not opposed to abortion should be concerned about the new law because it has loosened regulations governing non-surgical abortions and goes beyond what has been previously established by judicial fiat.

California's new abortion law deletes references to the 1967 Therapeutic Abortion Act and establishes that it is the public policy of the state of California that every woman has the fundamental right to obtain an abortion. This would include minor girls. When they opposed the bill in committee, the California Catholic Conference pointed out that, under this law, it would be illegal for local school districts to refrain from offering abortion and contraception services at their schools, with or without parental permission. This would expand the ability for minors to get an abortion even beyond a 1997 California supreme court decision (American Academy of Pediatrics v. Lungren), which invalidated a statute requiring a minor to obtain parental consent before receiving an abortion.

While the thrust of some of the new abortion law's language appears to place some restrictions on the practice of abortion, the practical effect of the new law is to expand the number of those who are qualified to terminate pregnancies by allowing nurses, for example, to administer the abortion drug, mifepristone, or RU-486. The Kuehl law provides that the performance of an abortion is unauthorized if either the person performing, or assisting in, the abortion is not a health care provider authorized to perform or assist in an abortion pursuant to the business and professions code. The law as it stood before January 1 was much stricter in that it established criminal liability for someone who is not licensed to practice as a physician and surgeon or who does not have a "certificate that authorizes him or her to perform or assist in performing a surgical abortion."

An aide in a pro-life senator's office said, "the important thing to remember about [the new law] is that it allows non-physicians to prescribe a drug regimen that has caused the deaths of two women, and the serious illnesses of another four, including cardiac arrest in a healthy 21-year-old French woman. [RU-486] is not just a pill, and, bammo, instant abortion. You come in one week, take the regimen, come in the next week and take it again." The aide pointed out that taking the pill results in significant blood loss. He said, "one woman hemorrhaged for two weeks and almost lost her life. And we're going to turn this over to non-physicians? It just goes to prove that when they say they just want to keep abortion safe and legal, that this is a lie. They only care about keeping it legal."

In a press release, the California Prolife Council noted that, as recently as April 19, the federal food and drug administration posted on their website a letter from Danco laboratories, the manufacturer of RU-486, informing physicians of the two women who died after RU-486 abortions, and of the one who suffered cardiac arrest.

The new California law specifies that nurses must be supervised by a doctor, but the law also specifically says that the doctors do not have to be physically present to supervise nurses. In one scenario envisioned by a pro-life activist, a nurse could set up a practice apart from a hospital or doctors to provide RU-486 and call a doctor perhaps once a year and claim to be following the law. Jan Carroll, of the California Prolife Council, said, "if the clinics are successful marketing RU-486, people will die. Fortunately, they have been unsuccessful so far."

The new law repeals the part of the Therapeutic Abortion Act which read: "the committee of the medical staff. must, in all instances, consist of not less than two licensed physicians and surgeons, and if the proposed termination of pregnancy will occur after the 13th week of pregnancy, the committee must consist of at least three such licensed physicians and surgeons. In no event shall the termination be approved after the 20th week of pregnancy." In place of this, the law now reads, "the state may not deny or interfere with a woman's right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to preserve the life or health of the woman."

The new law defines viability as "the point in a pregnancy when, in the good faith medical judgment of a physician, on the particular facts of the case before that physician, there is reasonable likelihood of the fetus's sustained survival outside the uterus without the application of extraordinary measures." However, this issue of viability is rendered meaningless because it only applies where a physician decides that continuing the pregnancy would pose "no risk to the life or health of the pregnant woman." Art Croney with the Committee on Moral Concerns, concluded that, with the new law, "there is no such thing as an illegal abortion, as long as the abortionist is licensed."

One part of the Therapeutic Abortion Act that pro-lifers hoped to maintain provides that in no event shall termination of a pregnancy be approved after the 20th week of pregnancy. This limitation was overturned by the U.S. Supreme court in Roe v. Wade, but would have been enforceable in California in the event that decision were overturned. The new abortion law deletes this provision.

The new law also deletes the provision in the Therapeutic Abortion Act that asked the department of health services to have a system for reporting abortions to determine their demographic effects and to assess legal and medical standards pertaining to abortion practices and report its findings to the legislature every two years. The elimination of this mandate will have little effect in California because the reporting mandate did not have enough teeth to allow the department to require that doctors provide the information. California did try to collect the information for a number of years, but found that survey responses vastly undercounted the number of abortions they knew were being performed because abortionists were simply refusing to disclose what they were doing.

On the same day Davis signed the Kuehl bill, he signed another bill which requires all accredited residency programs in obstetrics and gynecology to provide abortion training, making California the first state to have such a requirement. The bill has a conscience clause that allows institutions with moral or religious objections to refuse to provide the training as long as they provide for it indirectly by "ensuring" that their residents can receive it elsewhere. In an additional insult to religious institutions that object to abortion, the new law requires them to publicize the availability of abortion training at other institutions. This may run afoul of existing federal law, which has a blanket conscience clause that protects institutions from having any involvement in abortion in any manner. In California, the state receives federal funds, which it allocates to hospitals; thus, if California requires hospitals to provide abortion training, even indirectly, the state, and, therefore, the hospitals, may risk losing federal support. The bill's premise was that the expansion of Catholic healthcare in California has led to residency programs that do not train enough physicians to perform abortions. The simple fact that most physicians do not want to perform such a gruesome procedure is not listed as a cause. The California ProLife Council asserts that, to the extent that there is a shortage of abortionists (which 300,000 abortions in recent years belie), it is because most physicians go into medicine in order to preserve life, not to destroy it.

Another abortion bill signed by Davis could also face a similar confrontation with federal law. This new law requires that hospitals discuss abortion options with victims of rape and offer them the equivalent of RU-486. Although Washington state has a similar law, both it and the California law appear to be in conflict with the federal law which protects hospitals that conscientiously object to abortion. However, it is not clear which, if any, Catholic hospitals would object to this requirement because, according to the Alliance of Catholic Health Care, Catholic hospitals already provide "emergency contraception" when treating rape victims. There are 18 Catholic hospitals in California that are identified as county hospitals for rape trauma.

The minimum standards for the examination and treatment of sexual assault victims are set forth in California's penal code. Law enforcement must be notified, consent for the physical examination must be obtained and the exam must follow state guidelines. The code requires the victim to consent to each part of the exam and evidence gathering procedure. The new law does not provide the victim with the same control as the rest of the procedures. The new law mandates counseling, regardless of the victim's wishes. Is this compassionate? Opponents of the bill point out that the removal of this discretion from medical professionals may add trauma to some of the victims; young girls, especially, who are victims of sexual assault, but are not yet of child bearing years, will be forced to have this counseling.

The last bill in the four-bill abortion package signed by Davis is one which expands the address confidentiality program for victims of domestic violence to include women's health care service providers, including services related to pregnancy or the termination of pregnancy. The bill was originally intended to protect police officers and their families but was expanded to include abortion providers. This expansion beyond law enforcement personnel was opposed by the secretary of state's office, which believed this additional mandate would dilute the efficacy of the program under the office's restricted budget.

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