Access to Second Trimester Abortions:

A Public Health Perspective

Tracy Weitz, PhD, MPADirectorAdvancing New Standards in Reproductive Health (ANSIRH)Bixby Center for Reproductive Health Research & PolicyUniversity of California, San Francisco

Today’s Presentation

Overview of 2nd trimester abortion Current barriers to provision A recommitment to 2nd trimester

abortion care

What is 2nd Trimester Abortion?

1st Tri 2nd Tri 3rd Tri

ACOG’s Committee

on Coding and Nomenclature

LMP to < 14 wks 14 -28 wks 28 wks +

Roe v Wade LMP to12 wks 13-24 wks 25 wks +

2nd Trimester Abortion in Practice

Generally Abortions between (14) and (24) weeks LMP Involves use of Dilation and Extraction (D&E) Can be done with medications as an induction

Providers vary on to what gestational limit they do abortions

CPT Codes distinctions 59840: By D&C –Any trimester 59841: By D&E -- 14 weeks 0 days up to 20

weeks 0 days 59841-22: By D&E -- 20 weeks 0 days or more

57.6%

20.3%

10.2%6.2% 4.3%

1.5%

0%

10%

20%

30%

40%

50%

60%

70%

% o

f ab

orti

ons

<9 9-10 11-12 13-15 16-20 21+Weeks

Source: Elam-Evans et al., 2002 (1999 data)

Abortions by Gestational Age

Almost 90% in the 1st Trimester

Many Women Need Care

10% of 1.3 million is still a lot of women 130,000 procedures in the 2nd Trimester 26,000 women over 21 weeks LMP

Women who need care Access barriers Social barriers Diagnosis barriers Life circumstances

Health care disparity and human rights issue

Who Needs 2nd Trimester Abortions

Greater likelihood for women who are: Low income Non-Hispanic black Geographically isolated Young

What factors delay abortion

Funding needs Only 17 states still allow for Medicaid

funding Significant factor in use of 2nd Ti

Late diagnosis of pregnancy Late diagnosis of medical need Logistics

Difficulty finding a provider Referral from a prior clinic

Barriers to Provision

Lack of ProvidersIncreasing Regulation

Lack of Providers

Graying of the Abortion Provider Concentration in High Volume Outpatient

Clinics not in Hospitals Lack of Training

In Residencies For the Practicing Physician

Inadequate Compensation Out-of-Pocket Services Medicaid Restrictions Insurance Prohibitions

A More Complicated Story

# of providers is an inadequate measure MFM physicians may do procedures for

fetal abnormalities Separating “Good” from “Bad” Abortions

Newer providers unwilling to do such high volume

requirements are cost without compensation => specialization

Increasing Federal and State Regulation of 2nd Trimester Abortion

“Partial Birth Abortion” Bans “Fetal Pain” Consent Bills Targeted Regulation of Abortion

Provider (TRAP) Laws

“Partial Birth Abortion” (PBA) Bans

What is “PBA”

Not a medically recognized term Introduced into the public after a 1992

presentation by Martin Haskell at the National Abortion Federation (NAF) meeting was leaked to anti-abortion activists

Supposedly describes the dilation and extraction (D&X) technique where the fetal body is brought through the

cervix intact and then the skull is compressed to safely move it through the cervix

There is no bright-line distinction between D&E and D&X most appropriately called intact D&E

Why Perform an Intact D&E?

Reduce instrumentation of the uterus

Fetus presentation necessitates Result of dialation of cervix with

laminaria or misoprostol or other cervical preparation technique

Process of fetal loss Preserve the fetus for post-

procedure examination

Early Efforts to Ban PBA

Federal legislation to ban PBA passed by Congress in March 1996 and again in October 1997 President Bill Clinton vetod both bills Override votes passed in the House of

Representative but failed in the Senate Many states began to pass PBA

bans

State-based “PBA” Bans

26 states have bans on PBA that apply throughout pregnancy 18 bans have been specifically blocked by a court 7 bans remain unchallenged but are presumably unenforceable

under Stenberg because they lack health exceptions Ohio’s ban has been challenged and upheld by a court

5 states have bans that apply after viability Utah’s ban has been specifically blocked by a court because it

lacks a health exception Montana’s ban remains unchallenged but is presumably

unenforceable under Stenberg because it lacks a health exception 3 bans are currently in effect

4 states have bans that include a health exception 2 states broadly allow the procedure to protect against physical or

mental impairment 2 states narrowly allow the procedure to protect only against

bodily harm 27 states have bans without a health exception

19 bans have been specifically blocked by a court. 8 bans remain unchallenged.

State-based PBA Bans

Found unconstitutional in Stenberg v Carhart [2000]

Challenge to the state of Nebraska ban on so-called “Partial Birth Abortion”

Found unconstitutional on 5-4 decision Stevens, Breyer, Souter, Ginsburg, O’Connor: Four separate dissenting opinions were filed:

Rehnquist, Scalia, Kennedy, Thomas Must have a health exception

In spite of this- Congress passed a the 2003 Partial Birth Abortion Ban without a health exception

Signing the PBA Ban of 2003

What Does the Law Say

“An abortion in which the person performing the abortion, deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.”

Immediately Challenged

3 Legal Challenges Planned Parenthood v. Ashcroft

San Francisco National Abortion Federation v. Ashcroft

New York Carhart v. Ashcroft

Nebraska

Temporary Injunction Who is covered?

Planned Parenthood v. Ashcroft/Gonzales

Challenged by Planned Parenthood, joined by the City and County of San Francisco on behalf of San Francisco General Hospital Subpoena to obtain medical records

Federal District Judge Phyllis Hamilton struck down the law on 3 grounds (6/1/04): Because it places an 'undue burden' (i.e., "a

substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus") on women seeking abortion

Because its language is unconstitutionally vague Because it lacks constitutionally-required provisions

to preserve women's health Upheld by 9th Circuit (1/31/06)

NAF v. Ashcroft/Gonzales

Challenged by the ACLU Reproductive Freedom Project on behalf of the National Abortion Federation (NAF)

New York District Judge Richard C. Casey (8/26/04) found the Partial Birth Abortion Ban Act

unconstitutional ruled that the act must contain exceptions to

protect a woman's health Very inflammatory language reg the fetus

Upheld by 2nd Circuit (1/31/06)

Carhart v. Ashcroft/Gonzales

Challenged by the Center for Reproductive Rights on behalf of a Nebraska physician Carhart

U.S. District Judge Richard Kopf (9/8/04) “The overwhelming weight of the trial evidence

proves that the banned procedure is safe and medically necessary in order to preserve the health of women under certain circumstances.

In the absence of an exception for the health of a woman, banning the procedure constitutes a significant health hazard to women."

Upheld by the 8th Circuit Court of Appeals (7/8/05)

The Supreme Court

2 cases (Planned Parenthood & Carhart) heard 11/8/06

Expect opinion at end of term What do we expect

Will depend on Kennedy’s dissent in Carhart?

Has science and evidence changed What is undue burden

Kennedy’s Strong Opposition

states should be able to outlaw

“a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life”

dissent in Stenberg v Carhart, 2000

Implications of Reversal

Could ban all 2nd trimester abortions Impose criminal sentences on

physicians who violate the ban Chilling effect on 2nd tri provider Fundamentally change the meaning

of abortion right articulated in Roe Restrict abortion in states with more

liberal laws

What Will Providers Do?

Survey of 2nd Trimester providers attending the 2006 meeting of the National Abortion Federation N = 46 (US only) Average gestation limit 21wks LMP

range [16-27+] Median gestation limit 23 wks LMP

If PBA is upheld will you:?

alter the way you use misoprostol for cervical ripening

use digoxin at earlier gestational ages* reduce the gestational age to which you

perform abortions stop performing intentionally intact D&Es change who you allow in the procedure

room change the clinical technique for

performing D&Es

Use Digoxin at Earlier Gestation Age?

What is Digoxin (“Dig”) A feticide injected into the fetal heart to

stop fetal cardiac activity Change clinical practice

Yes: 11 (24%) No: 28 (61%) No Answer: 7 (15%)

Why Isn’t Dixogin the Answer?

Scientific evidence demonstrates does not increase safety or ease of procedure and has medical risks Drey, E. A., L. J. Thomas, N. L. Benowitz, N.

Goldschlager, and P. D. Darney. 2000. "Safety of intra-amniotic digoxin administration before late second-trimester abortion by dilation and evacuation." Am J Obstet Gynecol 182:1063-6.

Jackson, R. A., V. L. Teplin, E. A. Drey, L. J. Thomas, and P. D. Darney. 2001. "Digoxin to facilitate late second-trimester abortion: a randomized, masked, placebo-controlled trial." Obstet Gynecol 97:471-6.

Other Complicating Factors

Increased difficulty at reduced gestation age with obesity

Cost What is “fetal death”

How prove?

Where is the “Pro-Choice Movement”

Wavering support Discomfort with the “techniques of abortion’

A desire to “not focus on the issue” Belief that we lose when we discuss the issue Belief that few women will be hurt by these

bans Focus on “reframing” and terminology

rather than real understanding

Implications for Health Care Beyond Abortion

Legislate a particular medical technique

What does this mean to the concepts of informed consent?

“Fetal Pain” Bills

“Fetal Pain” Counseling Reqs.

Require a doctor performing an abortion at 20 or more weeks to read to the woman a statement saying that the fetus may experience pain and to offer to give the fetus anesthesia

In place in 3 states and under consideration in others

What is Pain

Pain is a feeling – a subjective sensory experience – and as such, an individual must possess some level of consciousness or awareness in order to perceive a stimulus as unpleasant. To be conscious and capable of experiencing pain, an individual must have a functional cerebral cortex.

Inconsistent with Science

Systematic review published in JAMA, 2005 Pain vs Movement No “pain” prior to 29 wks gestation “Wiring is in place but lights don’t come on” Even if pain, no means for fetal anesthesia Increased risk to the pregnant woman

Other concerns Informed consent and notions of risk Mandated physician speech

Shouldn’t Women Decide?

I can understand why we shouldn’t require fetal analgesia/anesthesia for all abortions, but why shouldn’t we allow the woman to chose for herself whether she wants fetal analgesia/anesthesia during an abortion?

How to Answer the Question

Patient autonomy is undoubtedly a consideration of primary importance. However, there is no known safe and effective fetal analgesia/anesthesia to offer in the context of abortion.

Additionally, patients should be advised that such measures are unnecessary because science does not support that fetuses feel pain before the third trimester.

The goal of quality patient care is to inform women of the most up-to-date scientific information. Requiring that women be offered care that is not needed nor demonstrated as safe violates that goal.

Targeted Regulations of Abortion Providers (TRAP) Laws

What are TRAP laws?

Targeted Regulations of Abortion Providers (TRAP)

TRAP laws = Purported health facility regulations that apply only to facilities in which abortions are performed

TRAP laws often include:

Licensing and inspection provisions Authorization for searches Administrative requirements Minimum training requirements for

staff Physical plant specifications

TRAP laws are different than other abortion laws

Other abortion specific laws attempt to influence the pregnant woman’s decision premise to protect potential life

TRAP regulate the medical aspects of the abortion procedure premise is to promote health

How prevalent are TRAP laws?

Over half of all states have TRAP laws, all deal with 2nd Trimester care

Legal challenges have failed to reverse TRAP laws Before 1992, many TRAP laws were

struck down as unconstitutional Since Casey when the Supreme Court

established the undue burden standard, almost impossible to prove

Not regulated like similar care

Procedures with magnitude and risk greater than abortions up to 20 wks that are not regulated in the outpatient setting hysteroscopy surgical treatment of miscarriage diagnostic dilation & curettage endometrial biopsy ovum retrieval sigmoidoscopy vasectomy

What about after 20 wks?

What are the implications of TRAP laws?

TRAP laws segregate abortion from the general

practice of medicine deter physicians from becoming

providers unnecessarily raise the cost of abortions

Results in reduced access to and quality of abortion increasing disparities particularly for

low-income & rural women

The Mississippi Story

“The Last Abortion Clinic”A Frontline Special

Clever TRAP Laws

Regulate clinic as an outpatient surgical center

Requires that physician have admitting privileges at the local hospital Physicians are flown in from out-of-

state No hospitals would grant privileges

Essentially outlawed 2nd Trimester Abortion in Mississippi

“It is the women with resources who continue to be able to get abortion. And it is the low-income women, people in marginalized populations, people that live in rural areas, who just don't have good access to legal abortion and turn to very unhealthy alternatives."

Jones, 2006

Despite This Reality

Very little attention by the “Pro-Choice Movement” Search of “Mississippi” and “Abortion”

focuses on the overt ban not the convert ban

Failed legal challenge by the Center for Reproductive Rights

Desperate need to study the effects of this reality

Ensuring Access

Women’s Option Center, San Francisco General HospitalMedical Director: Eleanor Drey, MD, EdM

ACCESS/Women’s Rights CoalitionExecutive Director: Parker Dockray, MSW

Women’s Options Clinic

A provider of last resort

Serving the Most Acute Need

Primary referral site for medically complicated patients

Only provider in Northern California that accepts “emergency” Medi-Cal after 20 weeks in pregnancy

Fee $1000 for 2nd trimester procedure

Turning Women Away

Caring for 23 wks patients first Rescheduling 21-22 wk patients 1-2 patients a week

Turning away patients who are >23 weeks and one day A new study to look at health outcomes

What is happening in Southern California

?

ACCESS

Making Choice A Reality Since 1993

Mission

ACCESS exists to make reproductive health and freedom a concrete reality - not just a theoretical right - for ALL women

ACCESS is a project of the Women's Health Rights Coalition, founded in 1974 as the Coalition for the Medical Rights of Women, a network of activists, consumers and health care professionals

The ACCESS Hotline

Provides free and confidential information, referrals, peer counseling and consumer advocacy about all aspects of reproductive health

Connects women with public insurance programs

Refers to organizations that help with other issues such as IPV, sexual assault, drug addiction, homelessness, or child-care

Practical Support Network

The Practical Support Network ensures that women can obtain abortions and other urgent reproductive health care without isolation or delay

The network of over 125 volunteers provides the transportation, overnight housing, child-care and other support women need to actually get to their appointments

ACCESS can also pay for hotel rooms and bus tickets when women must travel great distances to find a provider

Meeting Only Some of the Need

Approx 600 calls per month Resources to help between

150-200 women English and Spanish only

Raising Awareness

“The Other Abortion Battle: Abortion may be legal in California – but that doesn't mean you can actually get one”

Tali Woodward The Bay Guardian10/10/06

Working Together to Ensure Access and Care Provision

The Medi-Cal Reimbursement Project

Medi-Cal in California

Estimated 90,946 Medi-Cal funding induced abortions

Approx. 39% of all CA abortions (n=236,000)

The Challenges for Medi-Cal Recipients

Approximately 38% of reproductive aged CA women are eligible for Medi-Cal based on their income level

Only 20% of practicing CA Ob/Gyns accept Medi-Cal

56% of Medi-Cal beneficiaries stated that finding doctors in close proximity who accepted Medi-Cal even for routine medical care was difficult or very difficult

Medi-Cal Policy Institute. Speaking out: What beneficiaries have

to say about the Medi-Cal program. March 2006

Locating a Medi-Cal Abortion Provider

Review of the 148 publicly-advertised CA abortion providers defined as all providers listed under

abortion services in the yellow pages 53% accept Medi-Cal through the 1st

trimester 20% accept Medi-Cal into the mid-

second trimester (up to 20 weeks gestation)

Only 4% accept Medi-Cal past 21 weeks

Acute Provider Shortage

Of the 23 abortion providers who provide abortions past 20 weeks only 3 accept Medi-Cal through 24

weeks 10 don’t take Medi-Cal at all

Acceptance of Medi-Cal by Second Trimester Abortion Providers (21-24 Weeks)

16 18 20 22 24

1

3

5

7

9

11

13

15

17

19

21

23

Ab

ort

ion

Pro

vid

ers

(N

=2

3)

Gestation (in weeks)

Medi-CalAccepted

AbortionPeformed

Not All Medi-Cal is Alike

Medi-Cal Categories Full Scope Fee-for-Service Full Scope Managed Care “Emergency” Pregnancy-related

Medi-Cal May accept one and not the other

Impossible to acertain

Survey of Abortion Providers

A survey of abortion providers who perform abortions through 24 weeks but no longer accept Medi-Cal Conducted by ACCESS Revealed that reimbursement rates for

2nd Trimester Abortions are too low to cover the expenses associated with the procedure

Accepting Medi-Cal seen as not financially feasible

Estimating Cost v Reimbursement

Freestanding clinics that provide abortions past 20 weeks report an average of $467 in total reimbursements from

Medi-Cal for the procedure, ultrasounds, tests, and medications and supplies

providing these 2nd trimester abortions costs a clinic an average minimum of $637

leaving an estimated deficit of at least $170 per procedure

For a hospital to perform the same procedure is much more costly the average 2nd trimester abortion is reimbursed

$581 total related hospital costs are approximately

$1,860 leaving a deficit of $1,280 per 2nd trimester abortion

Advocacy Project

California Coalition for Reproductive Freedom

Proposal to State Office of Medi-Cal Increase reimbursement for later

second trimester abortion ?--How deal with the

“We take Medi-Cal but not for that”

Second Trimester Abortion as a Public Health and Human Right

Reverse the Provider ShortageProvide Medically Appropriate CareEnsure Access to Those Most in NeedStand Up for 2nd Trimester Care

Frances Kissling, CFFC

“a new era in prochoice advocacy—one that combines a commitment to laws that affirm and enhance the right of each woman to decide whether to have an abortion or bear and raise a child with an expressed commitment to human values that include respect for life, recognition of fetal life as valuable and a concern for fostering a society in which all life is valued”

Is There Life After Roe?: How to Think About the Fetus, Conscience, Winter 2004-05

William Saletan

“Maybe that six-month window made more sense in 1973 than it does today. Maybe, if we spend the next 10 years helping women avoid second-trimester abortions, we won't have to spend the next 20 or 40 years defending them. Maybe the best way to end the assault on Roe is to make it irrelevant.”

Life After Roe, Washington Post, 3/5/06;B01

Other Warning Signs

NARAL Prochoice America refused to oppose the Unborn Pain Awareness Act

Many public opinion polls ask questions only about 1st trimester abortion

Advocates warn about “bringing up the fact that abortion is legal in the 2nd trimester”

Standing Up

DO NOT sacrifice the human rights of the women who need them most in the name of “keeping abortion legal for everyone”

DO NOT sacrifice the health of women who need abortion care simply because it is too difficult to talk about that care

The Illogic of It All

Restricting 2nd Trimester Abortion Does not:

lead to increase prevention make people not have sex

Does Make people parents who do not want to

be Medically risk the lives/health of women Shift the burden to women of color, low

income women and geographically isolated women

Thank you!