Discussion Points Regarding the Elliot Institute’s Women’s Health Protection Act

1. Discussion Points Regarding the Elliot Institute’s Women’s Health Protection Act For a copy of bill and support documents, go to www.afterabortion.info/law

2. 4 Reasons Abortionists Are Insulated From Liability for Psychological Injuries • Short statute of limitations. • Law adverse to awarding standing and damages for emotional injuries unless proximate to a physical injury. • Standard of care is determined by experts in the field – namely other abortionists. • Lack of awareness among malpractice attorneys of negligence regarding screening for known risk factors.

3. Deteriorating Standard of Care Lack of liability has resulted in abortionists engaging in • widespread denial of emotional risks • failure to screen for even the best established risk factors for emotional maladjustment post-abortion.

4. Clinics Ignore Risk Factors • Many abortion clinics use cursory intake procedures by persons who are not qualified to do a proper psycho-social evaluation. • As a result, many clinics neglect to screen patients for well known risk factors that predict physical and psychological problems after an abortion. • As many as 70 percent of abortion patients have one or more of these risk factors.

5. Propaganda Regarding Lack of Suits for Mental Health Injuries • Pro-aborts point to scarcity of suits for mental health injuries as “proof” that mental health problems are rare. • Malpractice attorneys are hesitant to accept abortion malpractice cases, especially when there is “only” emotional injuries.

6. Overlapping But Separate Issues • Right of women to be informed of risks and alternatives to participate in an informed decision. • Obligation of doctor to be informed of risk factors so he can give an informed medical recommendation • Duty of State to protect citizens from unscrupulous business practices…consumer protection legislation.

7. Customer vs. Client • A customer is “one that purchases a commodity or service” whereas a client is “a person who is under the protection of another.” Webster's Seventh New Collegiate Dictionary, 1965. • Salesmen have customers. • Buyer beware. • Professionals have clients. • Professionals protect clients from their own foolishness.

8. Requiring Abortionists to Act Like Doctors Screening for risk factors serves two functions • Necessary for doctor to develop an informed and reasonable medical opinion regarding the best course of treatment • Necessary to inform patient of risk profile so patient can participate in the risk/benefit decision.

9. Roe Denies A Right to Abortion On Request Without Regard to a Medical Assessment of Risks and Benefits • “[A]ppellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.” Roe, 410 U.S. at 153 • "The privacy right involved, therefore, cannot be said to be absolute. . . . The Court has refused to recognize an unlimited right of this kind in the past.” Roe. at 154. • "Even an adult woman’s right to an abortion is not unqualified." H.L. v. Matheson, 450 U.S. 398, 419 (1981) (Powell, J. & Stewart, J. concurring).

10. Roe Actually Expects Doctor’s Should Be Held Accountable for Protecting Women’s Health • “[T]he abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.” - Roe, 410 U.S. at 166.

11. Overview of Women’s Health Protection Act

12. Clarifies standard of care regarding screening in statute • Defines negligent screening as the failure to provide for a “qualified person” who screens for statistically validated risk factors published in peer reviewed journals. • "Qualified person" means a licensed physician or an agent of the abortion provider who is a licensed psychologist, licensed social worker, licensed professional counselor, or licensed registered nurse.

13. Establishes Minimum Damages By setting minimum damages for failure to screen...without the need to prove any other injury... we are making this a form of a consumer protection law.  Similar to laws that allow suits for deceptive advertising without proving that anyone was actually deceived. SECTION 5. Civil remedies. (1) In addition to whatever remedies are available under the common or statutory laws of this state, the intentional, knowing, or negligent failure to comply with the requirements of this act shall provide a basis for the following: (a) Each violation of this act shall entitle the woman or her survivors to Ten Thousand Dollars ($10,000.00) for each failure to screen for a risk factor and for each failure to inform her of associated complications plus actual damages and reasonable attorney’s fees and costs. (b) Recovery for the woman for the death of her unborn child under the Wrongful Death Act, whether or not the unborn child was viable at the time the abortion, upon proving by a preponderance of evidence that the abortion provider knew or should have known that patient’s consent to the abortion was either not informed or not fully voluntary.

14. Removes Additional Obstacles Section 5 (6): In a civil action involving this act: (a) In determining liability and validity of consent, the failure to comply with the requirements of Section 3 shall create the presumption that the plaintiff would not have undertaken the recommended abortion had Section 3 been complied with. (b) The absence of physical injury shall not preclude an award of damages for emotional harm associated with the abortion. (c) The fact that a physician does not perform elective abortions, or has not in the past, shall not automatically disqualify that physician from being an expert witness. A licensed obstetrician or family practitioner who regularly helps women in resolving pregnancy related medical matters shall presumptively be qualified to testify as an expert on the screening, counseling, management, and treatment of unwanted and/or problem pregnancies. (d) Any abortion provider or licensed health care worker that makes referrals to a physician whose practice is inside or outside this state shall be liable for ensuring that the party to whom the abortion provider refers the patient provides a standard of care equal to or better than the standard defined by this Act.

15. Advantage of Defining Negligent Screening in Statute • This bill removes or reduces the burden of plaintiff’s counsel to establish what the standard of care for screening is. (No need to find an abortionists who testifies that he screens for this or that risk factor). • Allows for summary judgments on behalf of plaintiffs.

16. Protects Women From Coerced Abortions • Between 30% and 50% of women who have abortions are submitting to an unwanted abortion primarily because of pressure to abort from boyfriends, parents, husbands, or others. • In order to protect women from feeling forced to undergo unwanted abortions, this bill would make clinics liable for failing to screen for coercion or for participating in such coercion.

17. Minimum Insurance Requirements SECTION 4. Insurance requirements. (a) Physicians who perform abortions must have admitting privileges at a hospital which, in the event of a medical emergency, is reasonably accessible to the site at which the abortion is performed. Physicians who are not residents of the state are exempted from this requirement if they comply with clause (b) of this section. (b) All professional corporations and freestanding clinics which provide more than ten (10) abortions per year, and any physician licensed by the state who is not a resident of the state, must register with the Department of Public Health proof of insurance for malpractice, negligence, and battery related to the provision of abortion covering all employees, contract workers, and volunteers who have contact with abortion patients in an amount of not less than Two Million Dollars ($2,000,000) per incident.

18. Extends Statute of Limitations • This bill recognizes that shame, grief, guilt, and emotional reactions to abortion can create a psychological disability that precludes women from being able to cooperate with counsel in seeking to recover damages. • This bill remedies this problem by ensuring that women have a two year period of time after recovering from such psychological disability to file their suit.

19. Extended Statute of Limitations Section 5 (2) Any action for civil remedies based on a failure to comply with the requirements of this act must be brought no later than two (2) years after the date woman becomes, or should have been, aware that the abortion was the probable or contributory cause of a physical or emotional complication and has recovered from any psychological complications which may have impeded the patient's ability to seek or cooperate with counsel to pursue a civil remedy.

20. Prevents Return to "Back Alley” and Self-Abortions Section 5 (8) and (9) • Creates standing for woman to receive a minimum $800,000 award against any person, other than a licensed physician, who attempts or completes an abortion on a woman. • Creates standing for woman to receive a minimum $400,000 in damages for reckless endangerment against any party who knowingly provides information or materials with the intent that they be used for self-abortions, which are inherently dangerous.

21. Why Address Illegal Abortions? • Blocks courts from using the fear of illegal abortions (which would be even more dangerous) from standing in the way of holding doctors accountable for legal abortions. • To truly stop illegal abortions, and the radical feminists from selling do-it-yourself kits.

22. Ban Bills Also Need to Address Solution to Back Alley Abortions • Any proposed Abortion Ban Bill must address the boogey-man threat of dead women being found in back alleys and bathtubs. • Every ban bill should include provisions to create standing for women to sue illegal abortionists and/or promoters of self-abortion. • May be key to preventing defection of Kennedy and even picking up Souter’s support for a bill focused totally on preventing only those abortions which are unwanted, unsafe, or unnecessary.

23. Enhances Woman’s Right to Know Act Without Placing At Risk • This bill will enhance the effectiveness of the Woman’s Right to Know Act by better ensuring women received customized counseling. • By defining negligence screening, rather than informed consent requirement, and by clauses separating it from existing Women’s Right to Know legislation, the bill protects existing legislation from a new judicial review.

24. Imposes Immediate Liability Risk SECTION 9. (2) In the event that any portion of this act is enjoined and subsequently upheld, the statute of limitations for filing civil suit under the provisions of this statute shall be tolled during the pendency of the injunction and for four (4) years thereafter.

25. Immediate impact • By tolling the statute of limitations for bringing a suit until after any injunction is resolved, abortionists will face liability risk even if act is enjoined.

26. No Argument Regarding Individualized Counseling • In challenging informed consent laws, abortionists are on record that every woman is different and should be counseled differently according to her circumstance.

27. Teflon Coated to Minimize Challenges by Abortionists • Enforcement relies exclusively on civil remedies. • Since it erects no threats of criminal penalties or loss of license, it provides no standing for abortion providers to sue the state, as affirmed in Okpalobi v Foster, 244 F_3d 405 (5th Cir_2001)

28. Only Possible Federal Challenge Would Place Women vs. Women • The only possibility for a challenge in federal courts would require women who contemplated a future need for abortion asserting the right to seek abortions on demand without regard to its potential risks. • Amici consisting of women injured by abortion would be a strong counter argument against these plaintiffs claiming a hypothetical desire for access to abortion without screening for risk factors.

29. Such A Challenge Would Also Be Rebutted By Research Showing Women Desire Screening and Disclosure • PK Coleman, DC Reardon, MB Lee, "Women's preferences for information and complication seriousness ratings related to elective medical procedures," Journal of Medical Ethics, 32:435-438 (2006).

30. Immediate Result: An end to assembly line abortion clinics • Assembly lines are financially viable only because they provide a one-size fits all, customer beware service. • Liability for proper pre-abortion screening means an end to assembly line abortions.

31. Constitutional Issues • How is this bill positioned to survive challenges once it is subject to judicial review?

32. Screening Can Never Impose an Undue Burden On Women • Arguments we should make: • Proper screening is by definition a “due burden” on access to medical care imposed properly imposed by conscientious doctors – not the State. Statute is only necessary due to abuses. • As there is no threat by the State, doctors are free to perform risky abortions, and even to ignore screening. But in either case, patients should be able to hold them liable for negligent screening / advice. • Arguments they must make: • Women seeking an elective abortion have the right to remain ignorant of risks uniquely associated with each woman’s risk profile. • Women have a right to waive the normally expected duty of a physician to screen for risk factors and to give informed medical advise. • In other words, the special class of women seeking an abortion have a right to order the physician to act as a technician rather than a medical advisor.

33. Does the Doctor Have Constitutional Rights that Are Infringed? Do doctors have a constitutional right to protection from civil liability if they • perform a potentially dangerous medical procedure without assessing known risk factors for the patient? • making an uninformed medical recommendation? • perform an elective procedure at the request of patient who is herself uninformed about her own risk profile?

34. Even Liberal Judges Must Acknowledge That Screening is a Fundamental Duty Screening is necessary to fulfill one’s: • Duty to make a diagnoses • Duty to weigh treatment options • Duty to make a reasonable medical recommendation • “Abortion may be legal, but it is still practiced with the ethics of the back alley.” - Kevin Sherlock

35. Political Advantage of Pro-Woman / Pro-Life Bill • The only people who can oppose this bill are those who care more about the PROFITS of the abortion industry than the WELFARE of women.

36. Screening vs. Recommending • The core of the bill is really about negligent screening Section 3 (a) through 3(b) • Section 3 (d) and Section 3 (e) regarding the doctors obligation to document the basis for his recommendation for an abortion and to consider alternatives is optional. • The core of the bill could be reduced to a single sentence

37. One Sentence Basics • Except in the case of a medical emergency, it is an act of medical negligence to recommend or perform an abortion unless a licensed physician, licensed psychologist, or licensed registered nurse has completed a risk assessment for the individual woman, including at least a checklist identifying any pressures to have the abortion and both the positive and negative results of the evaluation for each physical, psychological, behavioral, demographic or situational factor for which a statistically significant association (p<0.05) to a higher incidence of adverse medical, psychological, emotional, or behavioral effects following an abortion has been reported in a peer reviewed journal, and this risk assessment has been discussed with the patient and retained in each patient’s written record.

38. Doctor’s Duty to Make Good Recommendation Section 3 (d) The physician recommending or performing the abortion has in good faith formed a reasonable medical judgment, documented in the permanent record, that the abortion is medically advisable to prevent (1) the imminent death or serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman, (2) other health risks arising directly from the pregnancy itself, provided that the physician has reasonably determined and documented that the preponderance of statistically validated medical studies demonstrate that the continuance of pregnancy, in such a circumstance and for such a patient, is likely to involve one or more injuries to the health of the pregnant woman, excluding any associated with raising a child, that significantly exceed the combined physical, psychological, familial, and behavioral risks associated with abortion. Section 3 (e) The physician has made a good faith effort to ensure that there are no other available options that can lessen the health risks associated with continuing the pregnancy to a degree less than the health risks associated with an induced abortion.

39. Roe Actually Expects Doctor’s Should Be Held Accountable for Protecting Women’s Health • “[T]he abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.” - Roe, 410 U.S. at 166.

40. Our Bill Would Clarify in Statute the Doctor’s Obligations to: • Form a reasonable medical opinion based on each patient’s medical, psychosocial and risk profile, • Consult with the woman regarding the doctor’s well informed medical advice, and • By implication, suggests that doctors might sometimes discourage or refuse an abortion that is medically contraindicated.

41. “Proper Medical Judgment” • Nothing in Roe precludes requiring a “reasonable medical opinion” versus “good faith medical opinion” • State has a putative right to clarify the standard of care expected for the exercise of “proper medical judgment” • “Evidenced based medicine” is a widely accepted medical standard for judging the strength of evidence and improving medical judgments.

42. The Standards of Evidence Based Medicine Disfavor Recommendations for Abortion • No statistically validated studies show general benefits of abortion • No statistically validated studies show benefits for even certain classes of women or circumstance. • A large number of statistically validated studies showing greater risks associated with abortion compared to childbirth both for the general population and for specific higher risk groups.

43. UK – Comparative Judgment • Abortion allowed only when “continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman …” • Two doctors – only good faith is required…not a reasonable medical opinion

44. US – Comparative Judgment • “[Because it is] now-established medical fact . . . that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth[,] It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” Roe at 163, and Casey at 929. • Because better scientific evidence shows that it is now an established fact that abortion, even in the first trimester, is associated with higher mortality rates, it follows that the State may regulate abortion to preserve and protect maternal heath in the first trimester.

45. Liability for Medical Justification for Abortion Needed With Any Ban • Reasonable medical judgment reflecting awareness of risk factors and statistically validated benefits must be part of any exceptions to a general ban on abortion. • With proper liability provisions, even a broadly defined “health exception” is actually very narrow.

46. When Does A Ban Become Unconstitutional? • All abortions are illegal, but women and their doctors are never subject to prosecution. (Such a toothless “ban” would be constitutional since it only asserts the State’s moral distaste for abortion.)

47. When Does A Ban Become Unconstitutional? • All abortions are illegal, but doctors acting in good faith are never subject to prosecution. (Practically toothless, but raises at least a minimal level of professional competence.)

48. When Does A Ban Become Unconstitutional? • All abortions are illegal, but doctors acting on the basis of reasonable medical opinion that the abortion poses less risks to the woman than allowing the pregnancy to continue are not subject to prosecution. (Raises interesting constitutional issues, especially if the reasonable medical opinion requires reliance on statistically validated studies). Additional conditions may also ratchet up the standard. • Two independent doctors must concur. • A psychiatrist must concur. • Abortion must be reported to states attorney for investigation • The physicians recommending and performing abortion cannot be compensated.