A New Goal for Abortion Bills: Punish or Protect Doctors
For the first time since the fight over abortion access was kicked to the states after the Supreme Court overturned Roe v. Wade, newly elected legislatures around the country are coming into session and are putting the polarizing issue at the top of their agendas. Around 300 bills in 40 states have been proposed so far — with a majority seeking to restrict access to abortion, and others trying to strengthen it.
Most of the bills are in the early stages, and many are not likely to survive politically divided state governments to make it into law. But if there is one thing that is evident, the legislative flurry shows that both sides of the debate agree on at least one point: Doctors are the critical link — and that has made them the most vulnerable to punishment. At least three dozen bills are aimed at doctors and other medical personnel as a way to regulate abortion.
In a bill in Wyoming, doctors and nurses who perform abortions or prescribe medication for abortions could face five years in prison.
In Nebraska, where abortion is currently legal until 22 weeks after a woman’s last menstrual period, a bill to make it illegal after around six weeks would strip doctors who perform abortions of their medical licenses if they perform one after detecting cardiac activity on an ultrasound, or even if they fail to provide an ultrasound before an abortion.
“Our goal isn’t to throw a lot of doctors in jail; our goal is accountability,” said Sue Liebel, the director of state affairs for Susan B. Anthony Pro-Life America, an anti-abortion group that lobbies for restrictions and bans.
More than a dozen states already ban most abortions, and those laws punish doctors with prison and steep fines. That tactic has largely worked: Abortion providers have shut down in states with bans, and doctors and hospitals are reluctant to provide abortions until women are sick enough to qualify for exceptions that say the procedure is legal when a woman’s life is in danger.
In states with bans, abortion pills have become a crucial workaround. Although bans prohibit abortion by any method, including medication, pills are tougher to regulate. Before Roe was overturned, medication was already used in more than half of all abortions in the United States. Pills and their providers are increasingly becoming targets of attempts to restrict abortion. A suit filed by anti-abortion groups in federal court in Texas is seeking to overturn federal approval of a key abortion drug.
In Iowa, where abortion is currently legal until 22 weeks after a woman’s last menstrual period, a new bill would make it a felony for doctors or anyone else to distribute abortion pills, punishable by up to 10 years in jail. The bill would not penalize women who take or obtain the pills.
Dr. Jamila Perritt, an obstetrician-gynecologist and the president of Physicians for Reproductive Health, which favors abortion rights, said the surge of new legislation should be “a rallying call” for doctors who had not been previously engaged.Credit…Alyssa Schukar for The New York Times
Abortion rights advocates are guardedly optimistic that several states with Democratic legislatures will preserve or strengthen executive orders signed by current or previous governors, making it harder for future elected officials to change the law if political dynamics change.
In Hawaii, one bill would allow physician assistants to perform abortions. Another would shield doctors and patients from out-of-state subpoenas relating to reproductive health and preclude doctors who perform abortions from losing their medical licenses — not unlike one that was recently signed into law in Illinois, and another that was introduced in Vermont.
More on Abortion Issues in America
- A Missed Opportunity: Abortion rights activists say President Biden’s State of the Union speech could have done more to address what they view as a national health crisis.
- State Constitutions: Divergent decisions by state supreme courts in South Carolina and Idaho displayed how volatile the fight over abortion rights will be, as advocates and opponents push and pull over state constitutions.
- A New Lawsuit: A company that makes an abortion pill filed a lawsuit challenging the constitutionality of West Virginia’s ban on the medication. A wave of similar cases are expected to be filed in coming months.
In New Hampshire, where abortion is legal until 24 weeks, doctors who perform them beyond that time may no longer be subject to prison sentences, under newly proposed legislation.
Nine abortion-related bills have been filed, according to New Hampshire Right to Life, which opposes abortion. One bill would ban abortions if cardiac activity is detected, which is usually around six weeks. Another would require medical professionals to provide written instructions and warnings about abortion medication and mandate the right to view ultrasound images.
Another bill, sponsored by Representative Daniel Wolf, a moderate Republican, would repeal the penalties against physicians who violate the existing abortion law: a prison sentence up to seven years and a fine up to $100,000.
Mr. Wolf said he had heard from doctors and hospitals, already short-staffed, who worry about recruitment and retention.
“You can’t go to jail for screwing up an appendectomy — that’s the thing that gets to me,” he said. “If somebody will show me where there are other types of surgeries that a doctor can do that can send you to jail, let me know.”
Though a handful of legislatures, like Florida, have yet to kick off their sessions, a majority of new doctor-related bills seek to punish providers and are being proposed in states where some abortion limits are in effect, or are being litigated, as a way to tighten regulations. Even bills not directly aimed at doctors still feature mechanisms to hold them accountable.
In Idaho, a bill that would make the transporting of minors seeking abortions a human trafficking crime stipulates that the burden is on doctors to prove in court that they didn’t break the law.
As part of the “Life Is a Human Right Act” in Wyoming, performing an abortion or administering abortion medication would be considered a felony, and doctors and those with professional licenses who are implicated would lose their licenses. Women who received an abortion could sue for civil damages. Wyoming’s current ban on abortion is on hold because of a legal challenge. The new bill, which easily passed the House last week, would take effect if the existing ban is ruled unconstitutional.
In a Feb. 1 hearing, the bill’s primary sponsor, Representative Rachel Rodriguez-Williams, a Republican from northwestern Wyoming, cited “the integrity of the medical profession.”
In response to emailed questions seeking more details about the punitive impact on doctors, Ms. Rodriguez-Williams wrote that the bill “clearly defines what is prohibited and makes abortion as defined in the bill a crime with appropriate penalties.”
She added: “I believe the abortion industry is placing profits over people, causing physical and emotional harm to women and girls facing unplanned pregnancies.”
On the same day as that hearing, around 100 people testified for eight hours at a health committee hearing in Lincoln, Neb., where doctors also took center stage.
Under the Nebraska Heartbeat Act, abortion would be banned when any fetal cardiac activity is detected. The bill would revoke the license of any doctor who performed an abortion, with exceptions for rape, incest or if the pregnant woman is in danger of dying.
But during the hearing, opponents said that legislators were potentially opening doctors up to criminal charges.
“I do not need you to believe abortion is OK — what I need from you all is to allow me to be a doctor,” said Dr. Abigail Delaney, a reproductive endocrinologist. “I need you to get out of our exam room. I need you to allow me to shoulder the ethical burdens of the profession I chose.”
The committee adjourned without taking a vote.
To Dr. Catherine J. Wheeler, a retired physician in Colorado who used to perform abortions, but is now opposed to them, these measures are overdue.
“If we’re protecting the most vulnerable, then yes, you do want to punish the people or do something that has teeth in it to stop the people who are propagating it,” said Dr. Wheeler, who is a member of the American Association of Pro-Life Obstetricians and Gynecologists.
But Molly A. Meegan, the chief legal officer and general counsel of the American College of Obstetricians and Gynecologists, which opposes any “criminal penalties, lawsuits, fines or other punishments for providing the full spectrum of evidence-based care,” said that doctors, who are already under incredible duress, were caught in the middle.
“They are becoming a punching bag for legislators trying to make a political point,” she said.
The Interstate Medical Licensure Compact, which coordinates and streamlines the process by which physicians can be licensed in multiple states, has taken a neutral stance on abortion legislation. But it did change its rules in November after being prompted by increased concerns from doctors.
Previously, a physician whose license in one state was revoked or suspended would automatically face the same penalty for 90 days in the nearly 40 states that have joined the compact. But now if a physician is licensed in, say, two states and one of them takes away the physician’s license solely because of abortion, the other state does not have to abide by that suspension order.
“It’s up to each state how they should govern how medicine is practiced in their state,” said Marschall Smith, the commission’s executive director.
In Montana, where abortions are legal up to viability, usually around 23 weeks, the House approved a bill last week requiring doctors to agree in writing to participate in abortion procedures. Referred to as a medical conscience bill, the legislation also gives medical institutions and health care providers the right to decline abortions based on ethical or religious beliefs.
Dr. Jamila Perritt, an obstetrician-gynecologist and the president of Physicians for Reproductive Health, which supports abortion rights, said the surge of new legislation should be “a rallying call” for doctors who had not been previously engaged.
“There is no state — there is no place — that is safe,” she said. “Everything is at risk right now.”