So many abortion restrictions have been introduced in the states since 2010 — 231 of them enacted into law — you might think there could be no more surprises in the effort to ban or restrict the procedure. But judging from the events of a single day last week, you’d be wrong.
On March 25, the Arizona legislature passed a so-called “abortion reversal” bill, requiring doctors to inform their patients that they could possibly reverse an abortion mid-procedure. On the same day, the Kansas legislature passed a so-called “dismemberment abortion” ban, not a medical term, but apparently banning later abortions. Both bills are the first of their kind and are likely to be signed into law by governors who oppose abortion. Both have been derided by medical and legal experts as defying scientific evidence and constitutional rights. And both bills were immediately introduced in various forms in other states – in the Arizona law’s case, Arkansas; and in Kansas’s case, Oklahoma. This won’t be the last you will hear about such measures.
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So what, exactly, is an abortion reversal? Well, the first thing you need to know is that the American College of Obstetricians and Gynecologists says there is no evidence for such a thing. “We like to practice medicine that is evidenced based and unfortunately the protocol that has been suggested for reversing a medication abortion has no evidence to support it,” Dr. Ilana Addis testified in a legislative committee hearing.
An increasingly popular method of terminating a pregnancy, known as medication abortion, involves a doctor administering two pills that ultimately induce miscarriage. The purported “reversal” happens in the event that after taking the first pill, the woman changes her mind. That’s when the doctor injects her with the hormone progesterone, which allegedly stops the abortion in its tracks. Anti-abortion physicians are already experimenting with such “reversals” across the country, and claiming success with subsequent live births.
But not only has there been no formal medical study or FDA approval of the protocol or its potential side effects, there’s no reason to think the progesterone is even doing anything to stop the abortion. Abortion provider Dr. Cheryl Chastine told Talking Points Memo, “The medical literature is quite clear that mifepristone on its own” – the first pill in a medication abortion – “is only about 50% effective at ending a pregnancy. That means that even if these doctors were to offer a large dose of purple Skittles, they’d appear to have ‘worked’ to ‘save’ the pregnancy about half the time.”
Under Supreme Court precedent, states may require that women be given information that is intended to talk them out of having an abortion – as long as that information is “truthful and not misleading.” Given the tenuous data behind it, the Arizona law very likely runs afoul of that principle, although the call will be made by the federal judge who will hear the case when it is almost certainly challenged. (It helps abortion rights advocates that Arizona sits in the liberal-leaning Ninth Circuit.)
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The Kansas legislation also involves banning an invented medical concept, the “dismemberment abortion,” which appears to refer to dilation and extraction, the abortion procedure that takes place after around 15 weeks of a pregnancy. The National Right to Life Committee is quite plain about the intentions of the bill: To focus on the more graphic details of what happens to a fetus during an abortion, and to replicate the political and legal success of the so-called Partial Birth Abortion Ban, upheld by the Supreme Court in 2007. In his opinion for the court in that case, Gonzalez v. Carhart, Justice Anthony Kennedy went on at length about what he saw as the gruesome details of the procedure. One difference is that the earlier law, banning an extremely rare procedure, was upheld without an exception for the health of the woman because, the court said, there were other alternative procedures that were safe. The dilation and extraction procedure, however, is extremely common for later abortions well before fetal viability, and the Supreme Court hasn’t yet budged from its holding that you can’t ban abortion before viability.
Kennedy, the swing vote keeping abortion legal throughout the United States, is the ultimate audience for any abortion law. Luckily for the crafters of the Kansas and Arizona bills, and not coincidentally, Kennedy’s last abortion opinion both included the woman regretting her choice and horror at the details of what an abortion looks like.
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But long before the current slate of impending laws make their way through the lower courts, the Supreme Court already has a chance to decide whether it wants to wade back into the abortion debate, as it has been asked to hear two major restrictions that are arguably ripe for its review. The state of Mississippi has asked the Supreme Court to allow it to enforce a law that would shut down the last abortion clinic in the state by requiring that all abortion providers have admitting privileges in a local hospital, a law that has been copied all over the country and that is impossible to comply with in areas where every hospital opposes abortions. And North Carolina has appealed to the Supreme Court after a panel of federal judges said forcing doctors to describe the contents of an ultrasound to an abortion patient, even if both objected, violated the First Amendment. It just so happens that the First Amendment is dear to Kennedy’s heart.
In the meantime, abortion opponents will throw things at the wall — dubious science, tendentious framing — and see what sticks.
Irin Carmon