UPDATE, August 21, 4:25 p.m.: This piece has been updated to reflect the fact that RH Reality Check has now received documents from Massachusetts’ department of health.
In May, Republican members of two congressional committees—the House Judiciary Committee and House Energy and Commerce Committee—wrote letters to the departments of health and attorneys general in all 50 states, asking for thousands of pages of information about how each state monitors and regulates abortion.
“By now you are surely aware of the trial of Kermit Gosnell, who is charged with the serial murder of infants, the murder of a female patient, and other felonies committed in the operation of his abortion clinic in Philadelphia,” wrote committee chairman Bob Goodlatte (R-VA) and Trent Franks (R-AZ), chairman of the Subcommittee on the Constitution and Civil Justice, in the letter sent to all state attorneys general. “We are seeking to find out if state and local governments are being stymied in their efforts to protect the civil rights of newborns and their mothers by legal or financial obstacles that are within the federal government’s power to address.”
The letters from the judiciary committee were sent to the 50 state attorneys general, and focused on criminal laws and prosecutions relating to abortion. The House Energy and Commerce Committee likewise sent its letters—signed by six committee members, including chairman Fred Upton (R-MI)—to health departments in all 50 states, and sought information on regulations relevant to abortion, inspections of abortion clinics, and complaints related to abortions.
RH Reality Check has obtained responses to these letters provided by 38 of the state attorneys general, and 32 of the health departments. Together, these documents make up an extensive repository of rules, legislation, and official reports about abortion in the United States. RH Reality Check is making those documents available for download as part of our State of Abortion tool, and will continue to post additional documents as they are received.
The responses received to date include thousands of pages of legislation and regulations on a wide range of topics that could relate to abortion. They contain definitions of “ambulatory surgical clinics,” criminal statutes addressing feticide and the failure to provide medical care to newborns, and the minutiae of how state health officials must conduct inspections of clinics where abortions are performed. Some states also provided samples of the forms, such as the surveys that clinic inspectors have to fill in as they conduct their visits of abortion facilities, as well as samples of the application forms for facilities wishing to provide abortions. As an indication of how voluminous some of these responses are, Pennsylvania’s response ran to 1,250 pages.
An analysis of these documents shows that congressional Republicans will find no support for their arguments in favor of new restrictions on abortion care in the evidence presented by the states. In particular, to the extent that anti-choice advocates claim that women are being put at risk by abortion services, these documents—from the very state entities charged with overseeing and regulating abortion—show the contrary. They show that abortion in the United States is highly regulated and overwhelmingly safe.
The answers also underscore another reality of abortion services in this country: The rules governing access and oversight are highly complex, and they vary considerably between states.
The differences are apparent, for instance, in the fact that some states have created a category of specially designated “abortion clinics,” while in the majority of states, abortions may be performed in private doctors’ offices, ambulatory surgical facilities, or hospitals, and may be regulated no differently than other types of medical procedures performed in those categories of facility.
When parsing these documents, readers need to keep these definitional differences in mind before drawing conclusions from the responses.
For instance, a state such as California—where abortions may be performed in doctors’ offices, ambulatory surgical facilities, and hospitals—will report having no abortion clinics. Clearly, what the response means is that the state simply does not use the term “abortion clinic”—not that there are no places in California that offer safe abortion care.
That difference in terminology also means that many of the questions in the congressional committees’ letters were “not applicable” to states that do not have specially designated “abortion clinics.” Obviously, if your state doesn’t have any facilities that are called “abortion clinics,” a question that asks how many times your state has inspected abortion clinics would not apply to you.
Many states did, however, provide data about abortions that were performed in other facilities—hospitals and ambulatory surgical centers, for example. As a result, these documents still present the best and most comprehensive picture to date of the reality of abortion services throughout the United States.
Some states reported specific complaints about abortion facilities or providers, but most gave scant details about the nature of the alleged problems. Not all of these complaints resulted in investigations, and even fewer were serious enough to result in disciplinary action against doctors or facilities. (See sidebar, above, for more details.)
But despite all of the differences in regulation and oversight, some common themes do emerge.
Abortion facilities are regularly inspected:
Most states said that they conduct regular inspections of abortion clinics, or of hospitals, ambulatory surgical centers, or other types of facilities where abortions can be carried out. And most states said they were aware of very few—if any—incidents of patients being harmed as a result of an abortion.
For instance, Oklahoma inspects its three abortion clinics annually, and has not imposed disciplinary proceedings on a facility in any of the years under examination—2008 to 2013. California performs thousands of inspections of medical facilities every year, including places where abortions may be performed.
Criminal prosecutions of providers are rare, but some states prosecute mothers:
Very few states reported criminal prosecutions against abortion providers, while several said they have prosecuted mothers who have been charged with killing their newborns.
For instance, Michigan reported four instances when mothers had been prosecuted for killing their newborns. South Dakota also reported two cases of mothers who had been prosecuted for killing their newborns. And of course, in two recent high-profile cases, authorities in Indiana charged Bei Bei Shuai and Purvi Patel with crimes related to allegedly causing the death of their fetus and newborn, respectively.
State records belie the claims of fetuses “born alive”:
On the issue of infants being “born alive” after a botched abortion, Pennsylvania was the only state that reported such conduct. That was in the case of Kermit Gosnell, who has been convicted of murder.
The “born-alive” fetus is a favorite theme of the anti-choice movement, which has perpetuated the claim that a large number of viable fetuses are born alive after failed second- and illegal third-trimester abortions as a way of shifting public opinion on abortion. This claim has been heavily criticized by public health experts who say this is an exceedingly rare occurrence and is in any case already covered by existing law and regulation. Nearly 90 percent of all abortions occur within the first trimester of pregnancy, the majority of these before nine weeks. In short, the vast majority of abortions in the United States occur at the embryonic stage, prior to the fetal stage. Since only a small share of all abortions are late second-trimester (after 20 weeks), and since third-trimester abortions are illegal in all but the most exceptional circumstances, it is not surprising that state records show that the myth of “born-alive” fetuses is, indeed, a myth.
The responses provided by all other states support that view. No other state that has provided its answers to RH Reality Check found any example of so-called born-alive infants, and many provided copies of their laws that make it a crime to deny medical care to a newborn. Many states said they would treat the killing of a fetus “born alive” as homicide.
Of course, while this information provides an extensive overview of how states regulate abortion, it doesn’t necessarily paint an exhaustive view of how abortion is performed by all facilities and providers.
For instance, New Jersey is one of the states that has not yet provided RH Reality Check with copies of its responses to the committees. RH Reality Check has already reported on significant problems with an abortion provider whose practice is based in New Jersey. Until responses are received from all the states, it will be impossible to know whether they have uncovered additional problems.
Similarly, if a state hasn’t been inspecting facilities regularly, or has failed to enforce its regulations, there could—as in the case of Pennsylvania prior to the Gosnell scandal—be problems that have not been reported or uncovered.
Abortion services are already actively and aggressively monitored:
That said, with more than half of states responding, these documents suggest that most states actively and aggressively monitor abortion services. Mounds of paperwork await those who want to provide abortions. Application processes are not only lengthy and cumbersome, but also costly. Providers are then subject to onerous regulations and regular inspections, and when problems are identified providers face penalties and other sanctions, including the loss of the facility’s license. (For instance, Texas has fined facilities for failing to post their unique license number on their website.)
Certainly, nothing in the states’ responses suggests that they are being “stymied” in regulating abortion, as the congressmen suggested in their letter.
Rep. Franks championed the federal 20-week ban that was passed by the House in June. During that debate, he frequently made reference to the Gosnell case. This fishing expedition appears to have been designed to reel in information that could be used to justify that ban. Some Republican senators are now reportedly considering introducing their own version of the ban.
Given that abortion is regulated by the states, one might wonder whether the congressmen who sent these letters were using the specter of political interference as a ploy to justify a fishing expedition.
If that was the goal, it has not worked. Instead, the documents show that far from being “stymied,” states overwhelmingly share a muscular approach to regulating abortion, and there is virtually no evidence that patients are being harmed.