Abortion Is Health Care (Except When It’s Not)

Katie Short

Take this quiz:

Planned Parenthood believes abortion should be a matter between a woman and

a) her doctor

b) her nurse practitioner

c) her nurse-midwife

d) her physician assistant

e) any of the above

The correct answer is (e), any of the above.

Planned Parenthood, the ACLU, and other pro-abortion organizations are currently pushing legislation in California that would allow non-physicians to perform first trimester surgical abortions. The theory is that California, with one of the highest abortion rates in the country, nonetheless suffers from an acute shortage of abortion providers. Current California law making it a crime for non-physicians to perform abortions is thus a “barrier to access” to abortion and must be eliminated.

To pave the way for the new law, abortion activists at the University of California at San Francisco sponsored a project, Health Workforce Pilot Project 171 (HWPP 171), to train non-physicians to perform these procedures and also to provide data demonstrating that non-physicians so trained can perform the procedures with the same level of competency as physicians. HWPP 171, which was funded primarily by a grant from one anonymous donor, has over the past five years trained approximately 40 non-physicians. Under a waiver of the criminal law granted to the project and its trainees, these trainees have performed approximately 8000 abortions, almost exclusively at Planned Parenthood clinics throughout California.

The next step in the process of changing the law was the introduction of SB 1338, a bill that would have allowed anyone trained under HWPP 171 or a similarly structured program to be certified to perform first trimester surgical abortions. Despite the overwhelming pro-abortion make-up of the California legislature, the bill surprisingly failed to make it out of committee.

The bill was then amended to provide that only those individuals who had completed training under HWPP 171 would be authorized to perform, or continue performing, abortions. In other words, the Legislature was proposing to grant only the project’s few dozen “graduates” the right to continue performing abortions. Among other problems with this legislation was the fact that there is no publicly available list of who these graduates are. LLDF’s efforts to learn the identities of the graduates were rebuffed by UCSF, which claimed to be concerned about their personal safety. LLDF then filed a petition for writ of mandate to obtain the names, but the writ was denied, again on the grounds of a supposed threat to the participants’ safety. This created the bizarre situation of the legislature being asked to certify a defined group of individuals to receive special privileges, amounting to a waiver of criminal law, without anyone being able to find out who these people are.

With the pilot project due to expire in September 2012, abortion proponents are now pursuing another, presumably less controversial, path: they have introduced legislation to extend the project for another 16 months, effectively extending the project’s waiver of the criminal law while purportedly providing time for the results of the project to be peer reviewed and published. As we go to press, the fate of that bill is unknown.

Even for those who aren’t pro-life, there are lots of reasons not to like SB 1338 and its progeny, including the increased danger of surgical complications from non-physicians performing abortions. Data from the project shows a 50% higher complication rate for non-physicians.

At the same time, however, SB 1338 and other efforts to repeal physician-only abortion laws reveal a truth that abortion proponents have long sought to obscure: abortion is not health care.

Almost forty years ago, in Roe v. Wade, Justice Blackmun, writing for the Court, repeatedly stressed the centrality of the physician, not in the technical performance of an abortion procedure, but in the pregnant woman’s decision-making process. The Court listed factors that “the woman and her responsible physician necessarily will consider in consultation.” The Court stated, that “for the period of pregnancy prior to this ‘compelling’ point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.” The Court continued: “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” The Court summarized its decision as “vindicat[ing] the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.”

In 1997, the California Supreme Court premised its decision striking down the state’s parental consent law on the presumed involvement of responsible physicians in the minor’s decision-making process:

“pregnant minors who do not have the capacity to provide informed consent remain fully protected under the pre-Assembly Bill 2274 statute, because a physician may not perform any medical procedure, including an abortion, unless he or she determines that the patient is capable of giving (and has given) informed consent. Of course, physicians are well qualified to determine a minor’s capacity to provide informed consent and regularly do so in providing medical care under California’s numerous medical emancipation statutes.”

If California were to allow non-physicians to perform abortions, would the state supreme court be willing to revisit this ruling, based on the fact that there would no longer be “well qualified” physicians determining whether a particular minor is capable of giving informed consent? Not likely, because proposals such as SB 1338 show that, contrary to Justice Blackmun’s naïve insistence in Roe, abortion is not a medical decision. It is a social decision that involves medical personnel to carry out, and even then only to ensure a certain level of technical competence.

By concerning itself solely with the technical aspects of the abortion procedure, SB 1338 exposes the mythical nature of Roe’s conception of the role of the physician in the decision-making process of women — and girls — seeking abortions. With any surgical procedure other than abortion, a patient provides informed consent only after consultation with a physician who can provide educated answers to questions and concerns about her particular situation, including whether the surgery is advisable in the first place. Only with abortion has “informed consent” been dumbed down to the point where it can consist of nothing more than the incantation of rote, disconnected phrases from a checklist provided by a non-physician who assumes that the decision to abort has already been made.

While working to repeal physician-only abortion regulations as “barriers to access,” Planned Parenthood and its ilk continue to invoke the sacrosanct physician-patient relationship as grounds to oppose even the most minimal restrictions on abortion. For example, in countering proposals to ban sex-selection abortion, a Planned Parenthood spokeswoman recently stated, “Decisions about whether to choose adoption, end the pregnancy or to raise a child have to be left up to a woman, her family and her faith, with the counsel of her doctor.”

Unfortunately, abortion proponents have been successful in enshrining the myth of abortion as medical care in our national health care policy. Obamacare (the Patient Protection and Affordable Care Act) is permeated with it, from the abortion premium mandate to the funding of school-based clinics offering “reproductive health services” to mandated coverage of contraceptives and abortifacient drugs. Opposition to this invasion of abortion into health care is termed a “war on women,” which the ACLU describes as “a wide range of policy efforts to place restrictions on women’s health care and erode protections for women and their families.”

But wait—if abortion is health care, isn’t it up to the doctor, the licensed professional, to have the final say over whether or not he or she will provide it? Not necessarily, according to the American College of Obstetricians and Gynecologists, which in 2007 issued a an Ethics Committee Opinion entitled “The Limits of Conscientious Refusal in Reproductive Medicine.” The title tells you all you need to know about the contents: where conscience and abortion collide, conscience loses. The doctor is relegated to the position of a technician, a service provider who must check his personal and professional ethics at the door. No practice of medicine going on here, no, sir. Just a service that’s been demanded and had better be provided.

Inconsistent? You bet. But what else is new when it comes to rationalizing abortion? Defending a “right” founded on lies, abortion proponents don’t spend a lot of time worrying that their contradictions will be noticed. And, unfortunately, on that score, they’re on solid ground.


[This article was printed in Lifeline Vol. XXI, No. 2 (Summer 2012) Read in PDF.]

Author: Life Legal

The Life Legal Defense Foundation is a non-profit law firm that specializes in the defense of vulnerable human life, especially life in the womb.