Author: Hayley Cronquist

On March 29, 2015, SB 234 was signed into law making Utah the first and only state in the nation to require that doctors administer anesthesia or analgesic for women who are undergoing abortions at 20 weeks and later in order to prevent fetal pain. In 2015, Montana Governor, Steve Bullock, vetoed a very similar measure.

Those in favor of the law say that the regulation prevents fetuses from suffering during abortions. However, at the center of the debate in the legislature was the scientifically disputed notion that a fetus can feel pain during the procedure. Doctors in Utah and across the United States say there is no proof that fetuses are able to feel anything at that point in the pregnancy. Literature reviews from the Journal of the American Medical Association and the American Congress of Obstetricians and Gynecologists state that fetal pain is unlikely before the third trimester which begins at 28 weeks. Doctors opposing the law further say that sedating a woman during an abortion procedure puts the woman at risk for complications, and that it will interfere with the relationship between a physician and patient.

Senator Curt Bramble, the bill’s sponsor and a CPA with no known medical background, says the purpose of the bill is to protect those who have no voice. Bramble, who originally wanted to ban abortions after 20 weeks, further says that if abortions are going to be at all legal, then doctors must take steps to alleviate pain to the unborn child. However, an OB-GYN and abortion provider in Utah, Dr. Leah Torres, has since emailed the governor because she does not understand what the law is requiring her to do. As ‘fetal anesthesia’ does not exist in standard medical practice, the law does not specify how doctors are supposed to administer anesthesia or analgesic in these situations. When the Montana Legislature proposed a similar law, which was later vetoed, physicians asked similar questions as those doctors were also unsure what exactly was being asked of them.

How safe is anesthesia for the mother? There are three main types of anesthesia: local, regional, and general, though the Utah legislature did not specify which type or how it should be administered. Doctors tend to avoid general anesthesia except in cases where they find it to be absolutely necessary. Dr. Esplin, a Utah doctor who testified at the committee hearing for this law, said, “women having abortions will either be placed under general anesthesia – meaning they’re unconscious and hooked up to a breathing tube – or sedated with a heavy dose of narcotics.” Those opposing the law say that not only is there no benefit for the woman in administering an anesthetic, but it adds an additional risk to the woman’s health.

Based on inconclusive evidence, women in Utah are now mandated to undergo anesthesia to have an abortion at 20 weeks and later, where previously, women were given a choice whether or not they wanted to be anesthetized. Fetal pain is a complicated and controversial topic in science, but the ability to feel pain at that specific point in gestation is, for now, unproven. In absence of scientific evidence proving fetal pain, perhaps such a bill is simply another way to limit abortion access for women.

On March 2, the Supreme Court of the United States heard oral arguments in the most significant case about abortion in decades: Whole Woman’s Health v. Hellerstedt. The outcome of this case has the potential to affect millions of women and revise the constitutional principles governing abortion rights.

Taking a look back at legislative history, in 1992 the Supreme Court affirmed the landmark abortion-related case, Roe v. Wade (1973), in Planned Parenthood v. Casey. The Court in Casey struck down abortion restrictions that imposed an “undue burden” on women. Restrictions included “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” Since the Casey decision, there have been many challenges to laws testing just what “undue burden” means.

At issue now in the Whole Woman’s Health case is a controversial Texas law, HB-2, which will dramatically change the way Texas women can access reproductive health care. The law, authored by pro-life activist Jodie Laubenberg (R-TX), requires abortion care providers to have admitting privileges at a hospital within 30 miles, and requires that abortion clinics comply with standards for ambulatory surgical centers (ASCs). Many clinics rely on physicians who are unable to obtain privileges at local hospitals for reasons unassociated with the quality of the doctor’s care. For example, some clinics are surrounded by religiously affiliated hospitals that deny abortion providers admitting privileges based on pro-life beliefs. This law was said to protect women’s health and safety, though some, such as the American Medical Association and the American College of Obstetricians and Gynecologists, find that the regulations put in place are medically unnecessary and burdensome. For example, the ASC requirement regarding the size of a janitor’s closet does not directly affect women’s health and safety. This law, known as a “TRAP” (Targeted Regulation of Abortion Providers) law, is designed to shut down more than 75 percent of all women’s health clinics that provide abortion services in the state. Additionally, it also impacts women seeking abortion care through higher costs, lengthier delays, and extra steps, such as traveling hundreds of miles, for women seeking abortion care. 

The petitioners in Whole Woman’s Health, a group of abortion providers represented by the Center for Reproductive Rights, filed a lawsuit in 2014 challenging the requirements for admitting privileges and the ambulatory surgical center standards. They said that the regulatory burdens imposed by these laws will dramatically reduce the number and geographic distribution of medical facilities in Texas where women would be able to access a safe abortion. They argued that this creates an undue burden on women’s right to access, which violates the 14th Amendment to the U.S. Constitution.

The federal district court granted declaratory and injunctive relief of the measures, finding both requirements in violation of the 14th Amendment. The U.S. Court of Appeals for the Fifth Circuit, however, partially reversed the injunctions because the plaintiffs failed to show that they placed a substantial burden in the path of a woman seeking an abortion.

Since Justice Scalia’s untimely death, all eyes are on Justice Kennedy, who some say would likely be the possible swing vote in this case. Should the Court rule 4-4, the Fifth’s Circuit decision will remain in place. This would mean that the Texas law will stay in effect and for many women, their decision to exercise their constitutional right to end a pregnancy will be severely hindered.