Unconstitutional and Unethical Abortion Bills in Oklahoma

[NeoDevin]

http://www.smh.com.au/world/antiabortion-bill-to-block-foetal-test-results-20100421-szqu.html"

The governor of Oklahoma is considering tough new abortion bills that would allow doctors to withhold test results showing foetal defects and require women to answer intrusive questions.

The results of the questionnaires would be posted online.

Women would also be required to have a vaginal ultrasound and listen to a detailed description of the embryo or foetus in a third bill passed by the legislature on Monday.

Withholding test results from patients?
Publishing patient information online?
Forcing procedures and propaganda on patients?

Is this constitutional? I know it's not ethical, it violates both patient autonomy and confidentiality. If I were a doctor (or a woman) in Oklahoma, I would be moving somewhere else, fast. How is a pregnant woman to properly prepare for a handicapped child if information about defects is withheld because she might decide to get an abortion. How is a family to choose a pediatric neurosurgeon for a child with spina bifida (for example), if that information is withheld from them?

I don't want this to turn into an anti-life/anti-choice discussion, but rather to focus on whether this is constitutional and/or ethical. This isn't even pro-life anymore, putting the information online is all about slut-shaming, plain and simple.

 

[NeoDevin]

It's almost http://www.theonion.com/video/new-law-requires-women-to-name-baby-paint-nursery,14393/" in real life.

 

[TheStatutoryApe]

A law requiring that personal medical information be published online would certainly seem to violate the right to privacy. I do not believe that the law can compel a doctor to violate confidentiality without good reason. The requirement to answer certain questions may be valid but only so long as they serve a legitimate purpose otherwise they can come under easy attack for violation of privacy. I am unsure about withholding test results. Obviously if withholding such information could endanger the child or the mother it would be shot down in a heart beat. Otherwise it could probably be argued that if one submits to and/or pays for a test that they are legally entitled to the results by implicit contract.

 

[MotoH]

Interesting. A story about Oklahoma, in a website from Australia.

 

[NeoDevin]

Interesting. A story about Oklahoma, in a website from Australia.

There are other sources, this was just the first one I found. Anything relevant to the discussion?

 

[NeoDevin]

http://www.guardian.co.uk/world/2010/apr/21/oklahoma-abortion-united-states-bill

Another bill places an obligation on doctor and patient to fill out a questionnaire with 38 questions about the woman, including her age, race, marital status, education, number of pregnancies including miscarriages and abortions, and reason for the termination.

Hardly medically relevant.

In small communities this information is probably enough to individually identify a woman, despite omitting the name.

 

[Char. Limit]

If they're going to ignore the basic human right to privacy anyway, why even bother with all of these other laws? Just ban it then. Oklahoma pols are illogical here...

And I believe withholding test results is actually quite illegal.

 

[zomgwtf]

If they're going to ignore the basic human right to privacy anyway, why even bother with all of these other laws? Just ban it then. Oklahoma pols are illogical here...

And I believe withholding test results is actually quite illegal.

My thoughts exactly. I don't see any purpose in this other than humiliation.

 

[MotoH]

The information will show that poor, white/black people have more abortions than upper class people. No need to ask 38 questions to find out of someone is white trash or not.

 

[NeoDevin]

Any thoughts on whether any of these will hold up if challenged in court? I'm not in the US, so I don't know that much about the court system.

 

[Ivan Seeking]

It has no chance of surviving legal review.

 

[Char. Limit]

slut-shaming

If the person is actually a slut, she probably won't care. Of course, most people who are named "slut" actually aren't, so I'm not sure the above word really applies.

 

[NeoDevin]

If the person is actually a slut, she probably won't care. Of course, most people who are named "slut" actually aren't, so I'm not sure the above word really applies.

From the perspective of fundamentalists, anyone who has sex outside of marriage is a slut. The goals of these laws is not to preserve the life of a foetus, but rather to make sure that women are punished for having sex.

 

[NeoDevin]

It has no chance of surviving legal review.

Are there any precedents?

 

[Ivan Seeking]

Are there any precedents?

I'm sure there are. While I don't know of any specifics, this flies in the face of so many cherished American values that I can say with confidence it will never stand. Cities and States try to pass all sort of crazy laws which are then shot down by the courts. It is very common.

We have a bunch of nannies who try to pass ridiculous laws here in Oregon as well. By the time one hears about them, they're well on their way to being overturned by a court. My favorite was the law allowing police to pull you over if they think you might be going to commit a crime!

 

[Evo]

Off topic posts deleted. Let's stay within the guidelines set forth in the OP.

 

[NeoDevin]

At this point in time, abortion is a legal elective medical procedure. If you wish to debate that topic, please start another thread, and I will debate that with you there.

The only one of the questions cited in the guardian article I linked to which could possibly have medical relevance for someone who elects to have an abortion is the question on prior pregnancies (though I'm not a doctor, so I don't know for sure that even that one has any relevance). I don't see how anyone could argue that any of the other questions listed (does anyone know where we could find the details of all the questions?) are anything other than an invasion of the woman's privacy. Posting the results of those questions online is a breech of doctor-patient confidentiality.

I don't know how any doctor who goes along with this will be able to sleep at night.

 

[NeoDevin]

The information will show that poor, white/black people have more abortions than upper class people. No need to ask 38 questions to find out of someone is white trash or not.

If they're intending to use the information for a study, then they should conduct the study ethically, with proper approval from the appropriate authorities (I don't know what the regulations on medical studies are in the states, but I'm reasonably certain it's considered unethical, even South of the 49th, to force people to participate in a study).

Further, removing patient names alone is not sufficient to anonymise the data.

 

[Evo]

Actually, let's not start a thread on abortion again, because it ends up in a flame war, everyone gets infractions and the thread is locked. Let's say we did and don't.

If you want to get worked up about the subject, just re-read one of the many locked threads on it.

Thank you!

 

[NeoDevin]

http://webserver1.lsb.state.ok.us/2009-10bills/HB/HB1595_ENGR.RTF"

F. Individual Abortion Form. The Department’s Individual Abortion Form shall be substantially similar to, but need not be in the specific format of, the following form:
Individual Abortion Form
(TO BE COMPLETED FOR EACH ABORTION PERFORMED)
1. Date of abortion _________________
2. County in which abortion performed ________________
3. Age of mother _________________
4. Marital status of mother ________________
(married, divorced, separated, widowed, or never married)
5. Race of mother ________________
6. Years of education of mother ________________
(specify highest year completed)
7. State or foreign country of residence of mother ________________
8. Total number of previous pregnancies of the mother ________________
Live Births _________________
Miscarriages _________________
Induced Abortions __________________
9. Approximate gestational age in weeks, as measured from the last menstrual period of the mother, of the unborn child subject to abortion _______________________________
10. Method of abortion used:
Suction Aspiration ___________
Dilation and Curettage ___________
RU 486 ___________
Methotrexate ___________
Other drug/chemical/medicine (specify) ___________
Dilation and Evacuation ___________
Saline ___________
Urea ___________
Prostaglandins ___________
Partial Birth Abortion __________
Hysterotomy ___________
Other (specify) ___________
11. Was there an infant born alive as a result of the abortion? __________
If yes:
Were life-sustaining measures undertaken? ___________
How long did the infant survive? ___________
12. Was anesthesia administered to mother __________________
If yes, what type? _________________
13. Was anesthesia administered to the fetus? ___________
If yes:
What type? _______________________
How was it administered? _______________________
14. Method of fetal tissue disposal _______________________
15. The abortion provider or agent shall ask the pregnant female to provide, orally or in writing, the reason(s) she is seeking the abortion.
REASON GIVEN FOR ABORTION (check all applicable):
Having a baby:
Would dramatically change the life of the mother _________
Would interfere with the education of the mother _________
Would interfere with the job/employment/career of the mother ______
Mother has other children or dependents ________
Mother cannot afford the child ______
Mother is unmarried ________
Mother is a student or planning to be a student ________
Mother cannot afford child care _______
Mother cannot afford the basic needs of life ________
Mother is unemployed _________
Mother cannot leave job to care for a baby _________
Mother would have to find a new place to live _________
Mother does not have enough support from a husband or partner _____
Husband or partner is unemployed _______
Mother is currently or temporarily on welfare or public assistance _________
Mother does not want to be a single mother _______
Mother is having relationship problems ________
Mother is not certain of relationship with the father of the child ________
Partner and mother are unable to or do not want to get married _______
Mother is not currently in a relationship _______
The relationship or marriage of the mother may soon break up _______
Husband or partner is abusive to the mother or her children _______
Mother has completed her childbearing ________
Mother is not ready for a, or another, child _______
Mother does not want people to know that she had sex or became pregnant ________
Mother does not feel mature enough to raise a, or another, child _______
Husband or partner wants mother to have an abortion ______
There may be possible problem affecting the health of the fetus ________
Physical health of the mother is at risk ________
Parents want mother to have an abortion _________
Emotional health of the mother is at risk ______
Mother suffered from a medical emergency as defined in Section 1-738.1 of Title 63 of the Oklahoma Statutes ______
Mother wanted a child of a different sex ______
Abortion is necessary to avert the death of the mother ______
Pregnancy was a result of forcible rape ______
Pregnancy was a result of incest ______
Other (specify) ______
Patient was asked why she is seeking an abortion, but she declined to give a reason _________________________
16. Method of payment (check one):
Private insurance _______
Public health plan _______
Medicaid _______
Private pay _______
Other (specify) _________________
17. Type of medical health insurance coverage, if any (check one):
Fee-for-service insurance company ______
Managed care company ______
Other (specify) __________________________________
18. Sum of fee(s) collected ___________
19. Specialty area of medicine of the physician ___________________
_______________________________________________________________
20. Was ultrasound equipment used before, during, or after the performance of this abortion?
Before? _____ Vaginal, abdominal, or both? _____
During? _____ Vaginal, abdominal, or both? _____
After? _____ Vaginal, abdominal, or both? _____
21. If ultrasound equipment was used, was the ultrasound, as required by Section 1-738.3b of Title 63 of the Oklahoma Statutes, performed by a:
Physician ______
Certified Technician as defined in Section 1-730 of Title 63 of the Oklahoma Statutes ________
22. Was the information required by paragraph 1 of subsection B of Section 1-738.2 of Title 63 of the Oklahoma Statutes provided to the mother? ___________
a. If yes, was it provided:
In person ___________
By telephone ___________
b. Was it provided by:
A referring physician __________
The physician performing the abortion _________
An agent of a referring physician ___________
An agent of the physician performing the abortion ________
23. Was the information required by paragraph 2 of subsection B of Section 1-738.2 of Title 63 of the Oklahoma Statutes provided to the mother? ___________
a. If yes, was it provided:
In person _______
By telephone _________
b. Was it provided by:
A referring physician _________
An agent of a referring physician ________
The physician performing the abortion ________
An agent of the physician performing the abortion _______
24. Did the mother avail herself of the opportunity to have the printed materials described in Section 1-738.3 of Title 63 of the Oklahoma Statutes mailed to her? ______________
25. Were the informed consent requirements of subsection B of Section 1-738.2 of Title 63 of the Oklahoma Statutes dispensed with because of a medical emergency necessitating an immediate abortion:
To avert death ______
To avert substantial and irreversible impairment of a major bodily function arising from continued pregnancy _____
26. Was the probable gestational age of the unborn child twenty (20) weeks or more? _____
a. If yes, was the mother provided the information described in subsection A of Section 1-738.8 of Title 63 of the Oklahoma Statutes? _____
(1) If yes, was the information provided:
In person ______
By telephone ______
(2) If yes, was the information provided by:
A referring physician _____
An agent of a referring physician _____
The physician performing the abortion _____
An agent of the physician performing the abortion _____
b. Did the mother choose to be given or mailed the materials described in Section 1-738.10 of Title 63 of the Oklahoma Statutes? ___________
c. To the best of the information and belief of the reporting physician, did the mother go on to obtain the abortion? ________
27. Was the abortion performed within the scope of employment of an Oklahoma state employee or an employee of an agency or political subdivision of the state? ________
28. Was the abortion performed with the use of any public institution, public facility, public equipment, or other physical asset owned, leased, or controlled by this state, its agencies, or political subdivisions? _________
29. If the answer to question 27 or 28 is yes:
a. Was the abortion necessary to save the life of the mother? _______
If yes, what was the life-endangering condition? __________
b. Did the pregnancy result from an act of forcible rape? _______
If yes, list the law enforcement authority to which the rape was reported ___________________
List the date of the report ___________
c. Did the pregnancy result from an act of incest committed against a minor? _________
If yes, list the law enforcement authority to which the perpetrator was reported ________________
List the date of the report ___________
THIS PORTION TO BE COMPLETED IN CASE OF MINOR
30. Minor’s age ___________
31. Was a parent of the minor provided notice prior to the abortion as described in Section 1-740.2 of Title 63 of the Oklahoma Statutes? ________
a. If yes, how was the notice provided?
In person _______
By mail _______
b. If yes, to the best of the reporting physician’s knowledge and belief, did the minor go on to obtain the abortion? ________
32. Was informed written consent of one parent obtained as described in Section 1-740.2 of Title 63 of the Oklahoma Statutes? ______
If yes, how was it secured?
In person ___________
Other (specify) _________
33. If no notice was provided nor consent obtained, please indicate which of the following apply:
Minor was emancipated ___________
Abortion was necessary to prevent the death of the minor _____
Medical emergency, as defined in Section 1-738.1 of Title 63 of the Oklahoma Statutes, existed ___________
Minor received judicial authorization to obtain abortion without parental notice or consent ___________
34. If no notice was provided nor consent obtained because a medical emergency existed, please indicate:
Whether parent was subsequently notified (state period of time elapsed before notice was given) ____________
Whether judicial waiver of notice requirement was obtained ________
35. If the minor received judicial authorization to obtain an abortion without parental notice or consent, please indicate which of the following applies:
Judge ruled that minor was mature enough to give informed consent on her own ___________
Judge ruled that abortion was in the best interest of the minor ___________
36. If the female was a minor at the time of conception, please indicate the age of the father of the unborn child at the time of conception ________
37. If at the time of conception the ages of the mother and father were such that a violation of Section 1111, 1112, 1114, or 1123 of Title 21 or Section 7115 of Title 10 of the Oklahoma Statutes occurred, was the rape or abuse reported to the proper authorities ________
Filed this ____ day of __________, _____ by:
______________________________
(Name of physician)
_____________________________
(Physician’s license number)

 

[NeoDevin]

http://webserver1.lsb.state.ok.us/2009-10bills/HB/HB1595_ENGR.RTF"

Most of that is not medically relevant, and what is, is basic medical record-keeping, which should never be made public.

 

[mheslep]

If they're intending to use the information for a study, then they should conduct the study ethically, with proper approval from the appropriate authorities (I don't know what the regulations on medical studies are in the states, but I'm reasonably certain it's considered unethical, even South of the 49th, to force people to participate in a study).

Further, removing patient names alone is not sufficient to anonymise the data.

"even South of the 49th"? How wonderfully smug. Why keep pretending you want an actual discussion?

 

[NeoDevin]

"even South of the 49th"? How wonderfully smug. Why keep pretending you want an actual discussion?

It's called sarcasm: My point was that, while I don't know the details of the laws in the states, I'm reasonably certain that they're similar enough to Canada's in that this sort of thing is unethical/illegal.

 

[Evo]

Most of that is not medically relevant, and what is, is basic medical record-keeping, which should never be made public.

It is actually against the law here in the US for a health care provider to release, post, or share this information without patient consent. Like Ivan said, this won't fly.

My doctor can't even leave me a phone message without my consent every single time I call. My doctor's office will not use e-mail for any reason due to the remote chance files could get hacked. Nothing is electronically transmitted, even though that would be so helpful. All records are hand carried. Anything paper not held in a protected file is shredded the same day. No computer records are online or held on a server.

I have to go to the office that has my MRI, sign out a DVD of the MRI, then hand carry it myself to the doctor, even though the doctor is at the same office and part of the practice that did the MRI. He can't go down the hall and view my MRI, and they can't give it to him.

http://www.hhs.gov/ocr/privacy/hipaa/understanding/consumers/index.html

 

[NeoDevin]

So basically Oklahoma government is just wasting their time and money?

 

[Evo]

So basically Oklahoma government is just wasting their time and money?

Sounds to me like it's a play by politicians to earn brownie points from constituents who are in favor of this kind of thing.

If this got passed, it would basically fly in the face of all laws we have worked to put in place.

Of course, in this country... I've seen crazy things passed, just to get it into a higher court.

We're talking about a country that managed to make alcohol illegal within our parent's lifetime.

 

[BobG]

http://www.smh.com.au/world/antiabortion-bill-to-block-foetal-test-results-20100421-szqu.html"

Withholding test results from patients?
Publishing patient information online?
Forcing procedures and propaganda on patients?

Is this constitutional? I know it's not ethical, it violates both patient autonomy and confidentiality. If I were a doctor (or a woman) in Oklahoma, I would be moving somewhere else, fast. How is a pregnant woman to properly prepare for a handicapped child if information about defects is withheld because she might decide to get an abortion. How is a family to choose a pediatric neurosurgeon for a child with spina bifida (for example), if that information is withheld from them?

I don't want this to turn into an anti-life/anti-choice discussion, but rather to focus on whether this is constitutional and/or ethical. This isn't even pro-life anymore, putting the information online is all about slut-shaming, plain and simple.

There's many precedents for withholding test results from patients. It was fairly common at least up into the 60's. One famous case was when George Wallace's wife ran for governor, since term limits prevented Wallace from running for a third term. At the start of the campaign, his wife was diagnosed with cancer and the doctors asked Wallace if he wanted his wife to be told. He chose not to, since it would cause her stress and probably result in her not running for governor. She won the election, but going without treatment caught up with her and she died shortly after. So while there's precedents for withholding information, it would probably be considered malpractice today.

Publishing the information on-line is very iffy. It may be anonymous, but I think it still could be a violation of the Privacy Act. There's a very fine balance between enabling statistical medical research and protecting patients' privacy. Some leeway should be given, or else you wind up with some reckless treatments seeming perfectly reasonable for quite some time - and key info can't be separated from each other if you're going to correlate results to key factors. I'm not sure what purpose is served by making the info available on-line, though.

I don't think there's any laws against fully informing patients of the consequences of a medical procedure. Things that are clearly medically irrelevant, such as telling prospective abortion patients that they'll go to hell, have a good chance of being tossed out, but I think most have learned how far they can push the envelope when it comes to deciding what info has to be provided to prospective patients. Forcing a patient to undergo medical procedures definitely won't fly.

 

[NeoDevin]

I don't think there's any laws against fully informing patients of the consequences of a medical procedure. Things that are clearly medically irrelevant, such as telling prospective abortion patients that they'll go to hell, have a good chance of being tossed out, but I think most have learned how far they can push the envelope when it comes to deciding what info has to be provided to prospective patients. Forcing a patient to undergo medical procedures definitely won't fly.

So the requirements for vaginal ultrasounds before abortions will likely be thrown out as well?

 

[Evo]

So the requirements for vaginal ultrasounds before abortions will likely be thrown out as well?

There shouldn't be any requirement for any medical procedures prior to a woman's decision to terminate a pregnancy if it meets legal criteria. The only time it might legally be ordered if the woman is showing signs of a late term pregnancy and it is ordered to decide the gestation period.

 

[Char. Limit]

http://webserver1.lsb.state.ok.us/2009-10bills/HB/HB1595_ENGR.RTF"

Also, if you look at some of the language that I can find inside of it...

"unbord child"
"having a baby"
"Husband or partner is abusive to the mother or her children"
"forcible rape"

I have problems with each of these. The first two just seem like leading terms to me. The second one, I'm wondering where the option of "Mother is abusive to the husband or her children" is... seriously, men aren't the only abusers of children, you know. And finally, what exactly is "forcible rape"? Is there a non-forcible rape? I thought we just called that sex. If the rape isn't forced, is that suddenly a different condition for an abortion or something? I tend to think that all rape should be covered under the same laws when it comes to abortion due to rape... and that it that it should be allowed if the mother was raped. I'm not listing my other views on abortion, but I think we can all agree on that one at least.

 

[NeoDevin]

And finally, what exactly is "forcible rape"? Is there a non-forcible rape?

There is statutory rape and date/drug assisted rape.

 

[Char. Limit]

There is statutory rape and date/drug assisted rape.

OK, but why are those rapes subject to different abortion conditions than forcible rape? Are they even? Why single out "forcible" rape, when there are other kinds of rape that should warrant the same treatment?

 

[Evo]

OK, but why are those rapes subject to different abortion conditions than forcible rape? Are they even? Why single out "forcible" rape, when there are other kinds of rape that should warrant the same treatment?

I agree, these questions should not be asked, the entire form is an insult, an invasion of privacy, and psychological abuse of the woman.

 

[NeoDevin]

OK, but why are those rapes subject to different abortion conditions than forcible rape? Are they even? Why single out "forcible" rape, when there are other kinds of rape that should warrant the same treatment?

I don't know. I know that sometimes statutory rapes are treated differently from other forms of rape, so maybe they are including drug enabled rapes as "forcible", and meant to distinguish it from statutory?

 

[NeoDevin]

It is actually against the law here in the US for a health care provider to release, post, or share this information without patient consent. Like Ivan said, this won't fly.

So who's going to get into trouble if the doctor follows this? The doctor? The government? Both? They have sections in the bills to get doctors in trouble for not submitting the survey. If a doctor can be sued for releasing the information, and penalised for not releasing it, then they may be stuck between a rock and a hard place.