Many women need access to abortion
care in the second trimester. Most of this care is provided by a small
number of specialty clinics, which are increasingly targeted by
regulations including bans on so-called partial birth abortion
and requirements that the clinic qualify as an ambulatory surgical
center. These regulations cause physicians to change their clinical
practices or reduce the maximum gestational age at which they perform abortions to avoid legal risks. Ambulatory surgical center requirements significantly increase abortion costs and reduce the availability of abortion
services despite the lack of any evidence that using those facilities
positively affects health outcomes. Both types of laws threaten to
further reduce access to and quality of second-trimester abortion care. (Am J Public Health. 2009;99:623-630. doi:10.2105/AJPH.2007.127530)
The 1992 US Supreme Court decision Planned Parenthood of Southeastern
Pennsylvania v Casey set a new standard for the regulation of
abortion,
making restrictions allowable as long as they do not place an "undue
burden" on women.1 In response to this decision, states have passed more
than 500 laws restricting access to
abortions.
Some of these laws, such as waiting periods, biased-counseling
requirements, and parental involvement mandates, target women's
decision-making, seeking to dissuade them from having
abortions. These laws may also impose criminal penalties on providers for failure to comply. A second set of laws directly target
abortion providers, make the provision of
abortion more difficult and costly, and provide strong incentives for physicians not to offer
abortion services. We addresses this second set of laws, which have a significant capacity to reduce access to and quality of
abortion care in the United States.
We chose to focus on regulations that specifically affect second-trimester
abortion, because, despite the ongoing need for secondtrimester
abortion services, public support for these
abortions is low.2 This lack of public support makes second-trimester
abortion
extremely vulnerable to political efforts to restrict access. We
examined two types of restrictions that affect second-trimester
abortions: bans on so-called partial birth
abortion and requirements that these later-term
abortions
take place in a setting that qualifies as an ambulatory surgical center
(ASC). Both types of laws threaten to further reduce access to and
quality of secondtrimester
abortion care.
BACKGROUND AND CONTEXT
The Institute of Medicine defines health care quality as "the degree to
which health services for individuals and populations increase the
likelihood of desired health outcomes and are consistent with current
professional knowledge." 3 This call for evidence-based practice seeks
to limit discrepancies in care, promote the use of treatment protocols
that are known to be effective, and eliminate the use of ineffective
treatments.4,5 Access to quality health care is a priority indicator in
the national public health goals outlined in Healthy People 2010,6 which
recognizes the substantial body of literature linking access to care
with improved health outcomes.5 We grounded our analysis of
abortion
regulations within the recognized need for improved access to quality
health care defined by adherence to evidence-based practice and a desire
for improved health outcomes.
Provision of Second-Trimester
Abortions
Methods for
abortion depend on the stage in pregnancy in which an
abortion is performed. In the second trimester of pregnancy, surgical
abortion
requires additional dilation of the cervix by osmotic dilators,
medication, or both. The most common procedure performed in the second
trimester is dilation and evacuation,7 in which a combination of
instrumentation and aspiration is used to remove the fetus. After 20
weeks, physicians usually initiate dilation at least one day prior to
the procedure.8 Two variants of dilation and evacuation are recognized,
although there is no bright line between them: intact dilation and
evacuation (sometimes also called dilation and extraction), in which the
fetus is removed largely intact and instruments are used to compress
the fetal skull to allow for safe removal through the cervix, and
nonintact dilation and evacuation (sometimes called disarticulation or
dismemberment dilation and evacuation), in which the fetus is removed in
pieces with forceps. A smaller number of
abortions use drugs to induce labor to expel the fetus.
These classifications, however, can be misleading, because multiple techniques may be used in the performance of a single
abortion.
Abortion
care is best understood as a continuum of techniques-from induction to
dilation and evacuation and from intact to removal in multiple
pieces-rather than as comprising distinct categories. Given these
overlapping techniques, it is impossible to determine the absolute
number of dilation and evacuation
abortions
that are completely intact or completely disarticulated. Such data are
highly unreliable and inconsistent with clinician practice.
Abortion is very safe in both the first and second trimesters. Mortality risk is approximately 0.6 deaths per 100000
abortions, and the risk of major complications is less than1%.9 The risk associated with
abortion increases with the weeks of pregnancy: one study of
abortion
complications from 1988 to 1997 found that the risk of death increased
by 38% for each additional week of gestation, throughout the pregnancy.
10 Second-trimester
abortion, however, is still a very safe procedure.11
The Need for Second-Trimester
Abortion
Although the majority of
abortions occur in the first trimester of pregnancy, many women need access to
abortion care in the second trimester. In 2004, 12% of reported legal induced
abortions occurred after 13 weeks of gestation, or almost 150000 procedures.7 The proportion of
abortions
performed after 13 weeks of pregnancy has varied minimally since 1992.7
Several studies indicate that the factors causing women to delay
abortions
until the second trimester include cost and access barriers, late
detection of pregnancy, and difficulty deciding whether to continue the
pregnancy.12-14 In part because of their increased vulnerability to
these barriers, low-income women and women of color are more likely than
are other women to have second-trimester
abortions.7,13 In addition, women who seek
abortions for fetal or maternal health indications often do not obtain an
abortion
until the second trimester15-17 because many genetic and health
conditions in the fetus are not diagnosed until after the twelfth week
of pregnancy. Similarly, health conditions in the pregnant woman may not
arise or may only become complicated in the second trimester.
The geographic distribution of secondtrimester
abortion
services in this country is uneven, and the limited available data
suggest that many women lack access to needed services. According to the
2005 survey of
abortion providers conducted by the Guttmacher Institute, the majority of
abortions between 17 and 24 weeks are performed in a few freestanding
abortion clinics.18 Only 20% of the freestanding clinics providing
abortions offered
abortions after 20 weeks (approximately 350 facilities), down from 24% in 2001. Although the majority of facilities identified as
abortion providers that had gestational limits between17 and 24 weeks were hospitals, most of these facilities provided only a few
abortions
every year, usually only in cases of fetal abnormality or health risks
to the woman.18 Case reports document the failure of some hospitals to
provide care even in these latter circumstances.19,20
The
abortion surveillance report issued by the Centers for Disease Control and Prevention in 2006 reports data collected in 2003 on
abortion
for 47 states (excluding California, New Hampshire, and West
Virginia).21 These data allow identification of states with limited
abortion availability at each gestational limit, defined as those states with less than one third the national average for
abortions
performed at each gestational limit. We applied this formula for a
rough estimate that 5 states had extremely limited availability of
services in the second trimester, nine states had extremely limited
availability of services after 15 weeks of pregnancy, and 19 states had
extremely limited availability of services after 20 weeks.21(Table 6)
Consequently, access to
abortion
care was severely limited for women living in those states (Figure 1).
Newer restrictions have further reduced access to care in some states
that were previously served.
Access to Second-Trimester
Abortion
The cost of
abortion is an important factor in access to care because
abortions
increase in price with weeks of pregnancy and are therefore more
expensive later in the second trimester. When associated expenses, such
as transportation, overnight lodging (because later second-trimester
abortions require more than one day to perform), and child care are added, the price of
abortion in the later second trimester rises dramatically.
The Hyde Amendment (first passed in 1976 and reapproved every year thereafter) prohibits the use of federal funds to pay for
abortions except for cases of rape, incest, or life endangerment, and only17 states allow the use of state funds for
abortions outside of these 3 narrow circumstances. In addition, 12 states restrict
abortion coverage in insurance plans for public employees, and 5 states restrict insurance coverage of
abortion in private insurance plans.22 Combined with the public controversy over
abortion,
confusion over insurance coverage prompts many women to pay out of
pocket rather than seek coverage clarification.23 Women who choose to
pay for their
abortions themselves also cite concerns about confidentiality and privacy.23 Finally, some
abortion clinics do not accept third-party payers.
Together, these factors cause three quarters of women receiving outpatient
abortions
to pay for the procedure with their own funds.24 Women with limited
financial resources can find themselves in an vicious cycle: by the time
they have secured the money for an
abortion
performed at one gestational limit, their pregnancy has advanced into
the next.25 Studies continue to demonstrate that lack of financial
support for
abortion results in delays that push the procedure into the second trimester.12-14
REGULATIONS THAT REDUCE ACCESS
Access to second-trimester
abortion care is already severely limited in the United States by geographic maldistribution and cost. Two types of regulation of
abortion services further exacerbate this access crisis: bans on partial birth
abortion and ASC requirements. Bans on partial birth
abortion target the specific surgical steps used by physicians in the provision of
abortion
care in the second trimester. To comply with these requirements,
physicians may feel compelled to choose between ceasing their provision
of surgical second-trimester
abortion
care altogether and altering their clinical practices in ways driven
not by medical evidence or professional judgment but by the need to
avoid criminal liability.
The second type of regulation unnecessarily requires
abortions
to be performed in ASC facilities set up for more sophisticated and
intrusive surgical procedures. These costly requirements may force many
providers to stop offering services or to raise their prices to levels
prohibitive for some women seeking care. Both regulations require the
practice of
abortion care to change without regard to evidence or clinical judgment and reduce access to quality second-trimester
abortion care.
Bans on Partial Birth
Abortion
Abortion method bans and their enforceability. At various times since the legalization of
abortion, individual states have sought to ban particular
abortion methods. This trend reached new heights in the early 1990s when
abortion rights opponents, fueled by a presentation at a national
abortion conference on the post-20-week intact dilation and evacuation
abortion
technique, invented the term partial birth abortion26,27 and convinced
legislatures in more than half the states to ban the procedure.22,28
Partial birth
abortion,
however, is not the name of any known medical procedure, and the bans
defined the term with sweeping language that encompassed most
abortion
methods: the laws made it a crime for a physician to take further steps
to remove a previable fetus (i.e., a fetus that has not developed
sufficiently to sustain life outside of the woman's body) from a woman's
body if the physician has drawn a "substantial portion" 29 of the fetus
into the vagina prior to fetal demise (that is, when there is no longer
a fetal heart beat). Because
abortion virtually always involves vaginal removal of the fetus, these bans exposed all
abortion
providers, and particularly providers of second-trimester surgical
procedures, to criminal liability for performing previability
abortions on a "living" fetus.30,31
These bans attempted to sharply curtail
abortion rights by shifting the defining characteristic of legal
abortion away from gestational development. Under Roe v Wade,32 a woman's right to
abortion
continued until fetal viability (and past that point if the woman faced
life or health risks); under this first wave of bans, the woman's right
to
abortion
ended, regardless of viability, once a substantial portion of the
living fetus passed into her vagina, an event that inevitably occurs
during virtually all
abortion procedures unless the physician takes measures to cause fetal demise in utero.
Many of the laws in this first wave of partial birth
abortion
bans were quickly challenged and were struck downby the lower federal
courts.22,8 In 2000, Nebraska's ban reached theUS Supreme Court, which
held the law unconstitutional both because it criminalized commonly used
previability abortionmethods and because it lacked an exception for
abortions
needed to protect the pregnant woman's health. The Supreme Court's
decision in Carhart v Stenberg33 rendered all comparable laws
unenforceable, nullifying this first wave of partial birth
abortion bans.
In response to the Carhart decision, Congress (and some state legislatures) sought to pass newly crafted
abortion bans, and Congress ultimately enacted the Federal Partial Birth
Abortion Ban Act of 2003.34 That law prohibits an
abortion
provider from intentionally drawing the fetal trunk or fetal head
outside the woman's body prior to fetal demise and then taking an
action, other than delivering the fetus, which causes fetal demise. The
law does not apply if fetal demise occurs in utero before the relevant
fetal part is removed. The federal ban, like the earlier incarnations,
applies to previability
abortions and has no exception for
abortions needed to protect the woman's health.
The federal ban was challenged in three separate court actions, and the
federal courts in all three actions struck the law down.35-40
Nonetheless, in 2007, the Supreme Court, composed of a different set of
justices than in 2000, upheld the law in Gonzales v Carhart (Carhart
II).41The Court generally construed the ban to apply only to "intact"
procedures and not to dilation and evacuations which were performed by
removing the fetus in multiple pieces which the Court referred to as
standard second-trimester
abortions.
The lack of any bright line between legal, standard dilation and
evacuations and illegal, intact dilation and evacuations is evident from
the Court's acknowledgment that the ban "excludesmost dilation and
evacuations inwhich the fetus is removed in pieces."41(p1629) It then
held that legislatures can ban such intact procedures, requiring doctors
to change their
abortion technique to promote "respect for the dignity of human life," even if that means the
abortion
method used will be some degree less safe for the woman.41(pp1633,1636)
In addition, the Court held that such bans need not contain a health
exception, because the medical community holds differing opinions about
the medical benefits of the banned technique and safe alternative
techniques exist.41(pp1636,1637) Carhart II was the first Supreme Court
case to uphold a ban on how
abortion is performed, as well as the first case to hold that an
abortion restriction may be valid without an exception for the health of the pregnant woman.
Following the Carhart II decision,
abortion
providers throughout the country all became subject to at least one
criminal ban on the techniques they use-namely, the federal ban. In
addition, five states (Louisiana, Missouri, North Dakota, Ohio, and
Utah) have enforceable state statutes that apply to previable
abortions and criminalize
abortion techniques falling within their definitions of partial birth
abortion,42-46
and other states may well pass further bans in the coming legislative
sessions. These new laws are likely to include both bans that mirror the
language of the federal ban (and thus permit both state and federal
enforcement) and bans that expand on the federal law to prohibit
additional forms of surgical
abortion, particularly in the second trimester.
Effect of the bans on second-trimester
abortion care. Individual clinicians differ on what techniques they prefer to use in the performance of second-trimester
abortion.
Data on the relative safety of various techniques do not exist, so
physicians must rely on their clinical judgment to determine the best
course of care for their patients. Experts in the Carhart II trials
testified that intact dilation and evacuation may be the safest
abortion
technique for some women with medical conditions such as uterine scars,
bleeding disorders, heart disease, or compromised immune systems, as
well as for women with pregnancy-related conditions such as placenta
previa and accreta (placental growth over the cervix or embedded in the
uterine muscle) and for women carrying fetuses with abnormalities such
as severe hydrocephaly. In addition, experts testified that intact
dilation and evacuation may be generally a safer technique than
disarticulation dilation and evacuation later in the second trimester
because it involves less instrumentation in the uterus and therefore
less risk of uterine perforation.47 Data from a small research study
that examined differences in outcomes between techniques support this
claim.48 The Court nonetheless upheld the ban.
Immediately after the Court's decision upholding the ban, experts in second-trimester
abortion raised concerns about how physicians might alter the care they provide in an effort to continue offering second-trimester
abortions
without running afoul of the law, while continuing to provide safe
care.49-52 These changes include decreasing the amount of cervical
dilation and using medications to cause fetal demise prior to initiation
of the
abortion.
Changes to the amount of cervical dilation are considered a
possibility, because during the course of the Supreme Court oral
argument, justices questioned whether the amount of dilation a physician
was seeking could be seen as intent to performan intact procedure.53
Reduced dilation is clinically important because adequate dilation is a
critical factor in dilation and evacuation safety,54-57 and inadequate
cervical dilation can increase the discomfort of the procedure and the
risk to the woman of potential cervical injury.8 It is unknown, however,
to what extent physicians have altered their practice in this way.
There is more evidence of the second modification to practice: the use
of a medication to cause fetal demise. Because the law only applies to a
living fetus, inducing fetal demise prior to initiating the
abortion shields the physician from violating the law. Reflecting this potential, within weeks of the Court's decision, the National
Abortion Federation, the professional organization for
abortion
providers, and Planned Parenthood Federation of America released new
clinical guidelines on digoxin administration. Digoxin, a heart
medication approved for other uses, can be injected through the abdomen
into the amniotic fluid or the fetus for the purpose of inducing fetal
demise. Other medications, such as potassium chloride, can also be used.
Use of both digoxin and potassium chloride for fetal demise appear safe
in practice.58,59
It is important to note that
some physicians articulate clinical justifications for the use of agents
to induce fetal demise prior to the initiation of any
abortion in the later second trimester beyond seeking to avoid violating the Federal Partial Birth
Abortion Ban Act. These include the belief that fetal demise prior to initiation of the
abortion
makes the procedure easier because the fetus is softer60 and the desire
to avoid the delivery of a live but nonviable fetus.61 Only one
blinded, randomized controlled trial, however, has explored the issue,
and that study (of126 procedures) found no differences in blood loss,
pain scores, procedure difficulty, or complications between procedures
preceded by administration of digoxin or a placebo.62 Thus when
physicians implement these new practices only to avoid prosecution under
the bans, their decisions are not based on scientific evidence or their
own best clinical judgment, and overall quality of care is therefore
compromised.
To avoid adopting an undesirable
change in practice, or simply to eliminate their risk of prosecution,
some providers may choose instead either to stop performing dilation and
evacuation procedures altogether or to substantially reduce the
gestational limit to which they perform
abortions. Their actions could exacerbate the shortage of second-trimester
abortion services in the United States. Because there are so few late second-trimester
abortion providers, any reduction in the number of providers could have a significant effect on access to care.
The bans may also have a significant chilling effect on training.
Physicians concerned that their actions in the operating room will be
misinterpreted or questionedmay refuse to allowmedical students, nursing
students, and residents to observe their second-trimester
abortions. This reduced exposure has implications for the future of
abortion provision: research has demonstrated that exposure to
abortion during training increases both support for colleagues who perform
abortions and trainees' willingness to provide
abortions after residency.63-65
Ambulatory Surgical Center Requirements
ASCs are a class of health care facilities significantly more
sophisticated than outpatient clinics and physicians' offices and used
for a broad range of surgical procedures not requiring an overnight
hospital stay. Procedures performed in ASCs may be quite invasive and
complex; commonly performed procedures include opening of the esophagus;
removal of breast, lymph node, and bladder tumors; and scopes of the
colon, stomach, and intestines.66 Numerous more-minor surgical
procedures may be performed in physicians' offices and outpatient
clinical settings, rather than ASCs, for reasons of cost, convenience,
and patient comfort.67(p241-244)
Several states have enacted laws limiting the performance of
abortions
to licensed ASC settings. These targeted laws do not require the use of
ASCs for the performance of other procedures of comparable complexity
and risk. Procedures that are comparable to
abortions
in the first or second trimester and that are often performed in
outpatient clinics or physicians' offices rather than ASCs include
hysteroscopy, surgical completion of miscarriage, vasectomy,
sigmoidoscopy, and minor neck and throat surgeries.68 (A few states have
abortion-neutral surgical facility laws, which are not discussed here.)
Although the state laws limiting
abortion provision to ASC settings occasionally apply to providers of
abortions at any stage of pregnancy, they more often apply only to providers of second-trimester
abortions. In these states, physicians wishing to perform second-trimester
abortions
must bring their offices into compliance with the state's ASC
regulatory scheme or else gain access to an existing ASC. The latter
option has proven illusory for many
abortion providers, however, because existing ASCs often will not permit the performance of
abortions for political, philosophical, or security reasons. At this writing, 6 states required that second-trimester
abortions,
but not other comparable procedures, be performed in facilities that
meet the states' standards for ambulatory surgical facilities: Georgia,
Indiana, Mississippi, Missouri, New Jersey, and Virginia.69-74 Four
states required that
abortions
after a particular gestational age in the second trimester be performed
inASCs: Illinois and South Carolina (18 weeks), Rhode Island (19
weeks), and Texas (16 weeks).75-79
ASC
regulations are generally quite extensive, encompassing standards for
the facility's physical plant, staffing, administration, quality
improvement, and so on.80 Consequently, ASC regulations are often
extremely costly for
abortion
providers to comply with. These costs are particularly onerous in
states that apply the physical plant requirements of their ASC
regulations to existing
abortion
facilities, rather than grandfathering those facilities for purposes of
construction standards until such time as the facilities move or
undertake substantial renovations.
The costs and
burdens stemming from the imposition of ASC requirements have hindered
or prevented physicians in some states from providing
abortions.
For pregnant women, the corresponding effect of the laws and
physicians' response to them has been to hinder (and possibly preclude)
timely access to safe and legal
abortion services. Nonetheless, no data exist to show that providing
abortions
in ASCs positively affects complication rates or patient health
outcomes or that physicians' offices and outpatient clinics are
inadequate or unsafe facilities for the performance of
abortions. ASC regulations also go far beyond the guidelines for
abortion
provision issued by professional organizations such as the American
College of Obstetricians and Gynecologists67(p382-384) and the National
Abortion Federation.81
Only a couple of court challenges have thus far been brought against
second-trimester ASC requirements, and they have met with limited or no
success.82 The courts generally view the requirements as reasonable
means of protecting patient health,83 and they quite readily accept the
states' asserted authority to regulate
abortion differently than comparable medical procedures. 1(pp873,874) Thus ASC requirements for second-trimester
abortion
providers are unlikely to be struck down by courts absent strong proof
that they prevent identifiable groups of women from obtaining timely
abortions.
We undertook 2 case studies to illustrate the profound effect that ASC laws can have on women's access to
abortion services.
Mississippi. The Jackson Women's Health Organization (JWHO) is the only outpatient
abortion provider in Mississippi. In 2004, JWHO provided
abortions up to 16 weeks' gestation and complied with existing health facility regulations applicable to providers of outpatient
abortions for pregnancies of that length.71 During 2004, approximately 375 second-trimester
abortions were performed in the state.84 That year, the state passed a new law requiring that
abortions after the first trimester be performed in a hospital or ASC.85 This law actually amounted to a total ban on secondtrimester
abortions, because
abortions are virtually unavailable in Mississippi hospitals, no existing ASC in the state provides
abortions, and in Mississippi,
abortion
clinics are not eligible to become licensed as ASCs. JWHO challenged
the 2004 law in a case brought by the Center for Reproductive Rights,
which succeeded in invalidating the law before it took effect.86
While JWHO's lawsuit was in progress, however, the legislature revised
its approach and in 2005 enacted a new law requiring that
second-trimester
abortion
providers comply with all ASC regulations, even though those providers'
facilities remained ineligible to become licensed as ASCs.87 The
Mississippi ASC regulations are comprehensive and costly. For example,
an ASC must have 1 registered nurse (RN) to supervise nursing staff and
an additional RN for every 6 patients in the facility, and every
physician in the facility must have admitting privileges at a local
hospital.88,89 Both of these requirements created unnecessary and
daunting obstacles for JWHO. For example, if 8 clinical patients were
being served in the facility, 3 RNs would be required; neither the
guidelines for the American College of Obstetricians and Gynecologists
nor those for the National
Abortion Federation recommend such staffing levels.67-81
The RN requirement in particular created a large hurdle for JWHO
because of both the high cost of hiring multiple RNs and the current
shortage of RNs in this country. The local admitting privilege
requirement was unnecessary because JWHO already had a transfer
agreement with a local hospital, which agreed to provide care for JWHO's
patients in any emergency. The requirement was impossible for JWHO to
fulfill because it relies on doctors who travel from out of state. The
use of these distance physicians is common in many parts of the United
States that have a shortage of willing local physicians.90 Physicians
are generally not eligible for admitting privileges in areas in which
they do not reside or at hospitals in which they do not routinely
provide care.
JWHO did not challenge the 2005 law
in court, but instead attempted to come into compliance with the ASC
regulations. According to Susan Hill, president and JWHO chief executive
officer (telephone and facsimile communications, August 2007), the
facility was unable to do so for more than 18 months, during which time
the clinic was unable to provide
abortions
after 12 weeks' gestation. During this period, JWHO had to turn away
approximately 600 to 700 women who visited or contacted the clinic for
abortions but who were already beyond the 12-week limit. Some of these women went out of state for
abortions,
but many women told the clinic that they lacked the resources to travel
to another provider. No data exist on how many of these women obtained
illegal
abortions or carried unwanted pregnancies to term because of the obstacles they faced in trying to obtain legal
abortion care in Mississippi.
Finally, in August 2007, the Mississippi Department of Health approved JWHO's license to provide second-trimester
abortions
after the facility was able to hire additional nursing staff and to
obtain a waiver of the requirement that all of its physicians have local
admitting privileges. JWHO obtained the waiver only after proving not
only that the facility had a transfer agreement with the local hospital,
but also that one of its staff physicians had local admitting
privileges and would admit the facility's patients in emergencies and
that the other physicians on staff had been informed in writing by local
hospitals that they were not eligible to apply for privileges.
In August 2007, JWHO once more began providing
abortions
up to 16 weeks' gestation. Given the difficulties it faced in obtaining
the necessary waivers and license to provide those services, JWHO
appeared unlikely to attempt to extend its gestational limit beyond 16
weeks at the time of this writing. Consequently, women in need of
abortion after 16 weeks cannot access professional-quality
abortion care in Mississippi. For these women,
abortion is legal but unavailable.
Texas. In 2003, more than 20 providers in Texaswere publicly known to
performabortions beyond16 weeks' gestation (Linda Rosenthal, JD, former
staff attorney, Center for Reproductive Rights, internal memorandum to
the Center for Reproductive Rights, January 2004), and 3066 such
abortions were performed in the state that year.91 State regulations allowed Texas
abortion providers to perform second-trimester
abortions in
abortion clinics and physicians' offices.92
In 2004, a state law went into effect requiring that
abortions after 16 weeks' gestation be performed in ASCs or hospitals.93 Accordingly, existing
abortion providers had to meet the state ASC regulations and become licensed as ASCs to continue providing
abortions
after 16 weeks. Compliance with the state's ASC requirements was
difficult, particularly with respect to the physical plant, and existing
facilities could not meet the standards without undertaking major
renovations or moving into new buildings. For example, the physical
renovations alone at one facility would cost $750000 (administrator of a
Texas
abortion
clinic, on the condition of confidentiality, oral communication, August
2007). Some of the providers began the work to come into compliance
with the ASC requirements, and others decided to simply cease performing
abortions later than 16 weeks.
When the 2004 law took effect, no existing
abortion provider was able to comply, and all of the outpatient
abortion providers stopped performing
abortions after 16 weeks' gestation. As a result, the number of
abortion
performed after 16 weeks in the state dropped to 403 in 2004, a
decrease of more than 85% from the previous year.94 No data are
available on how many of the approximately 2600 women who did not
receive
abortions in Texas in 2004 managed to reach out-of-state
abortion providers, sought illegal procedures, or simply carried unwanted pregnancies to term.
During 2005, a couple of the Texas
abortion providers managed to become certified as ASCs. The vast majority of
abortion providers, however, had still not qualified at the time of writing, and by 2007, there were still only 4
abortion facilities in the state that advertised
abortion services beyond 16 weeks. Because the number of providers of these services was so small and the state so big, women seeking
abortion
after 16 weeks' gestation had to travel much farther than they did in
2003. In addition, the provisions of the 2004 law caused a sharp
increase in the price of
abortions performed after16 weeks. At1facility that became licensed as an ASC, the price of
abortions increased by between $200 and $1000 per procedure, depending on the length of gestation: for example, the price for an
abortion at 16 weeks went from$495 to $695 and at17 weeks, from $595 to $895 (an administrator of a Texas
abortion clinic, on the condition of confidentiality, oral communication, August 2007).
In 2006, the number of
abortions
performed later than 16 weeks in Texas was still less than half the
number performed in 2003, and virtually all of these procedures were
performed in ASCs (with the others performed in hospitals).95
Table1presents these dramatic changes. The full effects of these changes
in
abortion pricing and
abortion access on women's health and lives have yet to be adequately measured.
CONCLUSION
Although only 12% of all
abortions occur after the first trimester of pregnancy, more than 150000 women a year need
abortion care in the second trimester. Access to quality
abortion care in the second trimester is, therefore, an important public health goal. Currently the vast majority of this
abortion
care is provided in specialty clinics, even as the number of clinics
continues to decline. Many states lack providers who offer
abortion care through the end of the second trimester.
In addition to the small number of facilities offering second-trimester
abortion care, cost for such care is a limiting factor for women seeking services. The cost of
abortion
increases with the number of weeks a woman is pregnant, and most women
pay out of pocket for those costs. Federal funds cannot be used to pay
for the
abortions of Medicaid-eligible women, and only 17 states use state funds to pay for such care. Prohibitions on insurance coverage for
abortion care increase the number of women without financial coverage for
abortion. The effect of regulations that increase the cost of
abortion is felt most acutely by low-income women, who already lack the resources to pay for
abortions.
Public support for
abortion
in the second trimester is weak, which renders this care vulnerable to
regulations promulgated for ideological or political reasons. Since the
recent Supreme Court decision in Carhart II, a ban on certain
abortion
techniques in the second trimester is federally enforceable. To comply
with the ban, some physicians may be changing their clinical protocols,
potentially increasing the cost of the procedure. These changes are
prompted not by scientific evidence or the physicians' best clinical
judgment about how best to care for their patients, but by fear of
prosecution. Other physicians may choose to limit their provision of
abortion care, in some cases completely eliminating access to later second-trimester
abortion as well as exposure to such care for trainees. Although
abortion remains safe and legal throughout the country, access may be curtailed.
Similarly, ASC laws are forcing some facilities out of the market by
imposing requirements for which compliance is extremely difficult and
costly. The lack of public financing of
abortion care and restrictions on insurance coverage mean that even small changes in the price of
abortion
can have devastating effects on access to care for low-income women.
Increases in cost disproportionately affect low-income women, who
disproportionately need these services.
The coming years are expected to bring even greater levels of regulation for providers of second-trimester
abortion care. Those physicians and clinics have already been easy targets for lawmakers opposed to
abortion rights, and the Carhart II decision will undoubtedly serve to embolden those efforts. Second-trimester
abortion providers are likely to face more onerous
abortion method bans and facilities requirements, as well as other legislation dictating how they provide
abortion care (e.g., more detailed and extensive biased-counseling provisions). Because legal challenges to second-trimester
abortion
restrictions aredifficult tomount and have met with only limited
success, many of those new requirements may take effect, becoming part
of legal landscape for second-trimester
abortion provision in this country.
The availability of second-trimester
abortion
is already very limited, and further reductions will be
disproportionately experienced by traditionally marginalized
populations. The corresponding effects of that decreased availability on
women's health, and the public health more generally, remain to be
studied.
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AuthorAffiliation
Bonnie Scott Jones, JD, and Tracy A. Weitz, PhD, MPA
AuthorAffiliation
About the Authors
Bonnie Scott Jones is with the Center for Reproductive Rights, New
York, NY. Tracy A. Weitz is with the Department of Obstetrics,
Gynecology, and Reproductive Sciences and Advancing New Standards in
Reproductive Health, Bixby Center for Global Reproductive Health,
University of California, San Francisco.
Requests for reprints
should be sent to Tracy Weitz, PhD, MPA, 1330 Broadway St, Ste 1100,
Oakland, CA 94612 (e-mail: weitzt@obgyn.ucsf.edu).
This article was accepted August 11, 2008.
Contributors
B. S. Jones conducted the legal analysis and the assessment of the
changes in service delivery as a result of ASC requirements. T. A. Weitz
conceptualized the project, provided the context and background, and
conducted the assessment of changes in clinical practice.
Acknowledgments
This project was supported in part by the David and Lucile Packard Foundation (#2007-31148).
We acknowledge Dana Sussman for her research assistance.
Human Participant Protection
No protocol approval was necessary because the study did not require human participation.
Copyright American Public Health Association Apr 2009
Jumlah kata: 7634
