In 2013, Expect “Super-Sized” Versions of Last Year’s Bills: The Forced 72-Hour Waiting Period


Editor’s Note: This article was corrected at 12:00 central January 10th to correct an error. The author stated that Alabama has one clinic. The piece should have stated that Arkansas only has one surgical clinic, not Alabama.

From 2010 to 2012, there was a surge of legislation in states hostile to abortion rights, all of which originated with “model legislation” from anti-choice advocacy groups like Americans United for Life, the Susan B. Anthony List, and the National Right to Life Committee. Now that the dust has settled, we are about to enter a 2013 legislative session with a country divided into pockets of states run by anti-choice legislatures and states where abortion is more easily accessible. The number of proposed abortion restrictions has declined from its high point in 2010, but still represents a clear and aggressive campaign to block a woman from easily accessing safe abortion care, not to mention other reproductive health services.

With President Barack Obama beginning a second term in office and the 40th anniversary of Roe v. Wade around the corner, anti-choice activists will be seeking newer, more extreme ways to enforce their beliefs on women in the states that they can still control. Abortion opponents have already sought to frame their restrictions as “women’s safety measures,” serving the two-pronged attack of supporting their claim that they are trying to protect women just as much as they are hoping to end abortion, as well as adding an additional cushion to any challenge against the constitutionality of the law, since a key component of the Planned Parenthood v. Casey decision said that women’s health should be a factor when restricting the procedure.

The early indications from across many states is that in 2013, we will see a lot of the same old bills in new states. According to Elizabeth Nash, State Issues Manager for the Guttmacher Institute, the legislative proposals so far look mostly like repeats. “It still looks like we will see the same issues that were in play in 2012 such as 20 week bans, restrictions on medication abortion, clinic regulations and abortion coverage restrictions, along with counseling, waiting periods and ultrasound provisions,” Nash told RH Reality Check via email.

Nash admitted that bills in the past have become so extreme, she wouldn’t be surprised if something new came out of the woodwork. But perhaps the bills we should be prepared for aren’t going to be “new,” but instead super-sized versions of the ones that are already in place.

Passing more extreme versions of current legislation may be the easiest way for anti-choice politicians to continue restricting abortion without incurring wrath from an electorate that has grown tired of their anti-women bills. After all, if the state already has agreed to one version of a law as being necessary to protect women, why not a more dramatic version of the same bill?

Most likely to be turned into a super-sized restriction in 2013? The forced waiting period. According to Guttmacher, 26 states have forced waiting periods, all but two of them 24 hours long (Indiana is 18, Utah 72). It is Utah’s forced 72-hour waiting period that is the most worrisome, especially as Planned Parenthood Minnesota, South Dakota and North Dakota recently decided to not challenge that portion of the new restrictions passed in 2011 as part of the mandatory crisis pregnancy center counseling bill.

The decision to drop the challenge on the 72-hour forced waiting period was made in an attempt to focus greater efforts on opposing the crisis pregnancy center counseling rule, but it sets an uncomfortable precedent for other states. With South Dakota no longer fighting it as an “undue burden,” it opens the door for new states to propose the same lengthy period, either as a new forced waiting period or by extending one already in effect.

With 87 percent of counties lacking an abortion provider, the spread of 72-hour waits could be a devastating blow to access, especially for women in rural areas. Abortion will inevitably become more expensive, occur later in pregnancy where it can increase complications, and force some women to give birth against their wishes.

That waiting periods of some kind are about to be proposed somewhere is without a doubt. The National Right to Life Committee is suddenly and inexplicably citing a study that was published six years earlier stating that forced waiting periods decrease the suicide rate in states that have them in place—a claim completely unsupported by any evidence or data in the study, which doesn’t even use the number of women having abortions in a given state as a point of data for the analysis. NRLC writes:

In the study “Mandatory Waiting Periods for Abortions and Female Mental Health” by Jonathan Klick, it was determined that the suicide rate of women between 25 – 64 dropped by 10% in states where waiting period and counseling (informed consent) legislation was passed. When adjusted for other factors, the number increased to 30%.

The study came to the following conclusion:

“It would appear as though waiting periods (and the counseling that usually accompanies them) induce a more reasoned approach to the abortion decision, avoiding rash decisions on the part of the pregnant women. Better decision-making processes presumably lead to fewer regrets later on, lowering the incidence of depression and, ultimately, suicide. These results suggest mandatory waiting periods represent public policies that generate large welfare gains for women faced with unwanted pregnancies.”

Although it supplies soundbites claiming otherwise, the full study isn’t exactly definitive when it comes to supporting its own conclusions (and even provides a small section questioning whether denying Medicaid coverage for abortions might increase suicide as well), NRLC is promoting it no doubt as a way to argue that forced waiting periods are in fact a way of protecting women’s health.

That’s quite a stretch says Dr. Tracy Weitz, Associate Professor and Director of the Advancing New Standards in Reproductive Health (ANSIRH) at the University of California, San Francisco (UCSF), who called the study an “analytical disaster” in an interview with RH Reality Check. “It’s looking at huge levels of data and saying that these two things happened in the same state, therefore they must be because of this. No, there is no evidence that waiting periods do what they say they think they do.”

According to Weitz, waiting periods overall have no big effect on anything, other than possibly causing a delay of up to a week. At least, not for the general population. Where they can have adverse effects are on specific populations—rural, poor—who already have difficultly accessing the procedure.

Weitz pointed to the results of ANSIRH’s Turnaway study, which shows that for lower-income women and women in rural areas with low clinic access, obtaining a termination becomes burdensome to the point where for some women it is downright unfeasible. In fact, some women who wish not to bear a child will not be able to access safe abortion care at all.

Weitz recounted some interviews with women who have had difficulty accessing abortion even without a forced waiting period because of travel issues, cost and other circumstances. They eventually obtained a termination, but only because they only had to make one trip to the clinic. “When we’ve asked them before a waiting period went into effect if the waiting period would have stopped them from getting an abortion, there are some women who say, ‘Yes, I would not have been able to get an abortion if I needed to come more than once,'” said Weitz.

In fact, when it comes to protecting women’s health, providing more and easier abortion access is key to both physical and emotional well-being. “When women face a number of barriers and then are not able to get their abortion, not getting an abortion that you wanted has physcial and socio-economic reprucussions.

“As long as we allow them to argue that health is a factor, we ignore women’s autonomy,” said Weitz. “Even if it were proven to be unhealthy, does that justify making a woman’s decision for her. We make all sorts of bad decisions throughout our lives. We all have a lot of regrets in our lives. We don’t expect the state to protect us from them for us.”

We may not expect states to save us from “bad decisions” under the guise of protection, but multiple states are poised to do just that. A 72-hour forced wait in North Dakota or Arkansas, where there is only one provider, could be extremely burdensome, but less obvious candidates are Texas, whose legislators have never met a restriction they didn’t love, or Alaska, which could make getting an abortion completely unobtainable for a woman who lives outside the major metro areas—that is, unless she has thousands of dollars for airfair and hotel expenses.

Many state legislatures being beginning to convene for their 2013 legislative sessions. There is no question that more restrictions are on the way. The only question is will the bills be regular, or super-sized?

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  • maryanna-price

    Any and all restrictions on abortion are a sex-based hate crime.