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Virginia’s busiest abortion clinic closed its doors last week, unable to meet strict new rules imposed by the state. Sponsors say the new regulations will improve safety, but opponents insist the real motive is to shut down abortion clinics. Kojo explores how Virginia and Maryland — where doctors, not legislators, wrote the new rules — are handling the latest legislative skirmishes in the abortion battle.
- Erik Ekholm National Correspondent, New York Times
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, upheaval in Egypt creates a diplomatic dilemma for the U.S. But first, Virginia's busiest abortion clinic closed its doors last week, unable to meet strict new regulations for abortion clinics passed by the state.
MR. KOJO NNAMDIVirginia was one of dozens of states passing new regulations in recent years putting requirements around hallway widths and surgical standards at the center of the abortion debate. Sponsors say the new regulations are needed to address safety concerns but opponents insist the real motive is to shut down abortion clinics.
MR. KOJO NNAMDIMeanwhile, another state close to home, Maryland, also passed new rules for oversight of abortion clinics and managed to avoid those ideological debates. Joining us to discuss this is Erik Ekholm.
MR. KOJO NNAMDIHe is a national correspondent for the New York Times covering special issues including abortion. He joins us from studios at the New York Times. Erik Ekholm, thank you for joining us.
MR. ERIK EKHOLMThank you, glad to be here.
NNAMDIErik, as we said, a clinic in Fairfax, Va. closed down last week this after regulations that went into effect this year imposing strict new standards on abortion clinics. What do these new rules require?
EKHOLMWell, they impose hospital type standards in terms of architecture, sizes of room, equipment, staffing, how many parking spaces there must be outside and these have been done in several states now in the name of safety.
EKHOLMBut if you look at the legislative history quite often, well, first of all these are being promoted by the anti-abortion movement and there's seldom a lot of evidence of any safety problem being met by them.
EKHOLMSo those in the pro-choice movement feel that these are really just a rather transparent attempt to drive up their costs or put them out of business.
NNAMDICan you talk a little bit about how Virginia's rules came about?
EKHOLMWell, the legislature the last couple of years has been dealing with a number of anti-abortion issues. At one point they were going to require ultrasounds and that blew up into a big national issue because it might've required intrusive, trans-vaginal ultrasounds and that was dropped.
EKHOLMBut this other, this area of regulating clinics and their facilities and doctors' qualifications and so on is a whole other major front in the abortion wars now. And in Virginia they passed one that imposes basically the standards that are being imposed on brand-new hospitals and when there was a proposal that at least existing clinics should be grandfathered in without making these changes that was rejection.
NNAMDIBy Attorney General Ken Cuccinelli, right?
EKHOLMThat's right and the state's health director actually resigned in protest. She said, "These rules are not germane to me doing a good job as protector of the state's health." But there are coming into effect and last week's was the second clinic to shut down.
EKHOLMIt's sort of a staggered impact because clinics have to comply within, I think, a year after their last inspection and so this one in Fairfax did not have the proper building facilities and then when they tried to rent new space the Fairfax city government has imposed some new hoops to go through and licensing. So they had to shut down.
NNAMDI800-433-8850 is the number to call if you have a question or comment for us. We're talking with Erik Ekholm, he is a national correspondent for "The New York Times" covering special issues including abortion. Do you think abortion clinics should be required to meet hospital standards? 800-433-8850, you can send email to email@example.com.
NNAMDIVirginia was not alone in putting through these new regulations. At the federal level the House of Representative recently passed a bill banning abortions after 20 weeks. New rules have been passed by state legislators around the country. You mentioned that this a part in large measure of the anti-abortion movement but Texas just passed the strictest new rules in the country for abortion clinics. What's the story there?
EKHOLMWell, part of what Texas has done is very similar to Virginia's. One thing they did which has not happened in Virginia is they banned abortions after about 20 weeks into pregnancy and that's probably not going to stand up to constitutional muster in the courts because the Supreme Court has held very clearly a woman has a right to abortion until the fetus is viable outside the womb and that's usually about 24 weeks in a pregnancy and in a few states with that law it already has been stayed by the courts pending a trial and not allowed to come into effect.
EKHOLMBut in a constitutional sense that may be the biggest step Texas took and several other states but from a practical point of view this requirement that every abortion clinic meet surgery center standards has a much bigger, immediate impact.
EKHOLMIn Texas something like 37 out of the 42 clinics in the state that perform abortions do not meet those standards and the standards are being applied in both states to clinics that only do the very, the much safer, quicker, first trimester abortions which really, really it's sort of a 10 minute procedure and people, you know, don't need to lie on a gurney with massive equipment around them afterwards, very good safety record. So it's, I think in both states these will be challenged under both state and federal law.
NNAMDIThe laws in Virginia, Texas and several many states all sound very similar and, in fact, in many cases the laws that get put before these state legislatures are drafted elsewhere, often in Washington. Can you talk about that?
EKHOLMYes, well there are groups particularly Americans United for Life that have model legislation. These are anti-abortion groups that have a set of goals that they're trying to push in every state and one of them is, you know, imposing surgical center standards and, again, it's always described as, well we have to make abortion safe. But the other side feels that that's really kind of a sham.
NNAMDIMaryland also passed new rules for abortion clinics recently but Maryland's new regulations came in response to a specific case from the 2010. Can you tell us about that case?
EKHOLMYes, it was a rather bizarre kind of medieval sounding story. A doctor named Steven Briggem (sp?) who's been operating for the last 20 years, he owns a bunch of clinics in several states including four, he did established four in Maryland.
EKHOLMA number of them in New Jersey, Pennsylvania and Virginia and he himself is a doctor. But he in New Jersey is not authorized to perform second and third trimester abortions. He's been in some, he's actually lost his medical license in a couple of states including New York and he did not have the advanced facilities that New Jersey requires for later abortions when the fetus is bigger and it's more complicated and a little more dangerous.
EKHOLMSo he, but he was advertising in New Jersey to offer this service and in the case that really blew up it turned out he'd been doing this for many months. But a woman shows up at his clinic in New Jersey and he starts what is a two day process for a second or third trimester abortion.
EKHOLMYou start dilating the cervix and you give an injection that stops the heartbeat of the fetus, that kills the fetus. And then the next day is when the fetus is extracted or emerges. So he started this in New Jersey then he had women come back the next morning and follow him their cars driving 60 miles south across Delaware to Maryland to this town of Elkton, Md.
EKHOLMAnd he had set up a clinic in a sort of storefront there without any signs, without telling anyone and he was doing the final stages of these late abortions there. Well, one woman was very severely damaged. He had another doctor working with him who discovered that she was, instead of pulling on the fetus, she was pulling on a piece of the woman's intestines, she had perforated the uterus and it was a real medical emergency.
EKHOLMThe woman ended up getting Medivac'd to Johns Hopkins in Baltimore but the state officials discovered that they didn't have a lot of rules, you know. every state including Maryland and all the states regulate doctors through the medical board, that you get a medical license, if there are complaints of bad practice or reports of, you know, you're unqualified then you get sanctioned or you lose your license.
EKHOLMBut there were no special clinics for abortion clinics, no special regulations for abortions clinics and the officials realized that he hadn't even broken the law by opening this very odd clinic in Elkton which only did the sort of second half of these late procedure and did not have good safety procedures at all.
EKHOLMI mean, when this woman was injured they spent a lot of time debating, should we call an ambulance or not and they finally drove her in a car to a hospital and doctors there at that hospital and at Johns Hopkins were really shocked by the kind of shoddiness of the whole procedure.
EKHOLMSo this began a process in Maryland where the state health department led the way saying we are going to develop some special regulations for abortion clinics which we've never had before and they talked to all sides including the anti-abortion movement and national organizations of abortion providers and they drew upon their law for surgical centers but they didn't just wholesale impose it.
EKHOLMThey tried to figure out what makes sense. If our goal is safety, protecting health from a really bad actor what do we need to? And so they've just, at the beginning of this year the new rules took effect and they've been shown to have teeth. They've required a number of clinics to have make changes and they have shut down four of them.
NNAMDIAnd they were apparently able to get approval both from the anti-abortion groups and from the pro-choice groups, you mentioned that they talked with the National Abortion Federation about this.
EKHOLMRight, right, I mean, it's very unusual because when these were first issued you actually in "The Baltimore Sun" you saw Planned Parenthood leaders and anti-abortion leaders praising this as a good thing and I can't think of any other example in this area for a long time where that's been true.
EKHOLMIt wasn't everything that everyone wanted. The anti-abortion movement would like to go all the way with Virginia type rules but they saw this really was an improvement and, you know, they avoided some of the things that others consider just harassing or unnecessary and really focused on the real issues.
NNAMDIOnto the telephones, we'll start with Kirk, in Richmond, Va. Kirk, you're on the air, go ahead please.
KIRKHey, I've been a medic for quite a few years and I think that there are many times when in an emergency we have much greater difficulty getting to people than inside of a doctor's office so I'm going to continue to question the motives of our legislation.
NNAMDIYou're talking about the whole notion of hallway width, Kirk?
KIRKYes, I am. Until you try to direct someone having a seizure out of the back bedroom of a single wide mobile home I think you should have great difficulty talking about ease of access.
NNAMDIThat has been one of the major sources of controversy has it not, Erik Ekholm?
EKHOLMWell, yes, it's one of many architectural requirements. A seven foot wide hallway, the room where the procedures performed has to be of a certain rather large size. The recovery room has to have a certain kind of bed and certain large size. What they did in Maryland was say instead of specifying, you know, this must be 14 by 18 feet and also it specifies how large, that there must be a separate janitor's closet and how large that must be. Instead of specifying things, let's look at the goal and the function.
EKHOLMIs there a good emergency plan? Is there a way to quickly evacuate a patient? You know, maybe the hallway is 5' wide but it works for this clinic and this physical setting. Maybe a recovery room that's more like easy chairs than hospital gurneys is fine. So I think, you know, the medical profession in Maryland is quite happy with that and the officials feel that they have protected safety.
NNAMDIKirk, thank you very much...
EKHOLMYou know, that's just one of several aspects.
NNAMDIKirk, thank you very much for your call. We got an email from Steven Wethersfield, Conn. who says, "Do the same rules apply to all clinics? What about the office where root canals are done? How about offices where other surgical procedures are performed? Do they all meet new hospital construction standards?"
EKHOLMWell, no. This was applied specifically to those providing abortions. But in many states these ambulatory surgery center standards that have been adopted in a number of stated apply to the sort of middle level of complexity where there often is general anesthesia, something like knee surgery -- arthroscopic knee surgery. You're still in and out the same day perhaps but you have general anesthesia and it involves incisions. And they apply those standards.
EKHOLMThings like root canals, they don't. And I guess part of the question is whether especially a first trimester abortion is more at the danger level of a root canal with limited anesthesia. Not the kind of full hospital surgical anesthesia. Or is it more like these other kinds of surgeries, which maybe do require more preparation and physical standards.
NNAMDIHere is Barbara in Cheverly, Md. Barbara, you're on the air. Go ahead, please.
BARBARAHi. I just wanted to say that the American Public Health Association recognized that Virginia was making the decisions about their ambulatory care clinics to shut down abortion providers. They absolutely refuse to grandfather in clinics that didn't meet the standard. They called it an emergency so that they would not have to wait any period of time to see whether clinics could conform.
BARBARAAnd based on that, the American Public Health Association, about two years ago before the standards were adopted, wrote to the governor and asked him not to implement these measures. I think Maryland's approach has been much more a recent one.
NNAMDIOkay. Thank you very much for your call, Barbara. Erik, the cases like the one you mentioned involving Dr. Steven Brigham and that of Dr. Carmet Goznell (sp?) in Pennsylvania, the doctor charged with murder in the late term abortions he was performing are often mentioned when it comes to reasons that these regulations are needed. How would the regulations being passed in many states have addressed a case like Dr. Goznell's?
EKHOLMWell, ironically they really wouldn't make much difference. Pennsylvania already had pretty strong standards. And to perform these later abortions like Dr. Goznell was, you had to meet certain requirements and standards. And they had inspection on the books but nobody inspected his facility for more than 15 years. So the problem there was a lack of enforcement. And, you know, I don't know -- if you're not going to enforce your laws then it doesn't matter what law you adopt. But he was already in violation when he was doing these things.
EKHOLMThe case of Dr. Brigham is interesting in that he sort of used -- he's used over the years a lot of private corporations that keep changing names and official owners. And here he was doing a procedure over two states, you know, getting around the New Jersey law that said he couldn't do this in New Jersey. And that's a tough one that I'm not sure that legislating, you know, the size of the room is going to affect that much. I mean, the real question is whether there's a record of poor safety and complications and deaths that would warrant a significant change?
EKHOLMAnd from my research, I mean, first trimester -- you know, first eight-weeks abortions, the death rate is like one in a million overall. In 2010 there were ten abortion-related deaths in the whole country out of 1.2 million abortions. That's, by most standards. a very good safety record. And it's not clear that many of the new rules -- you know, I'm sure some of them are helpful but the others, according to at least many medical associations that have looked at them, say these are not going to make much difference.
NNAMDITwenty states, is my understanding, they have almost no regulations. Here's Scott in Salisbury, Md. Scott, you're on the air. Go ahead, please.
SCOTTYes, sir. I just wanted to say I am prochoice. I am a conservative but one thing I thought was kind of ironic was most prochoice organizations tend to be on the left. And when the right -- or when the left doesn't like something they do the same thing. They try to regulate it out of existence, such as like, you know, fracking, Keystone pipeline, stuff like that. And I thought it was kind of ironic that now that the tables are turned on the prochoice, they don't like that action.
NNAMDII'm glad you brought that up because, Erik Ekholm, in June a Virginia center filed a challenge against the regulation. And interestingly enough the lawsuit addresses the process by which these regulations were passed.
EKHOLMYeah, I'm not a legal expert and I don't know how far that will take them. But they are basically charging that the process of developing these rules was politicized and not well informed by expert judgment as one reason why it should be stricken down. There's a bigger issue in many states. We've just seen it in Texas where they adopted surgery standards and several other things that will force clinics to close or spend millions of dollars in many cases. I'm sorry, I lost my train on that.
NNAMDIOh, you were talking about the procedure that's being challenged in Texas -- the process that's being challenged in Texas.
EKHOLMRight, right. The deeper constitutional issue is there is a right to an abortion but states may regulate it under Supreme Court guidelines. States may regulate abortion as long as it does not place a quote "undue burden" on that right. That it doesn't unnecessarily without reason prevent a woman up to the time of fetal viability from having an abortion. And some would argue that the ambulatory surgery center standards and other rules that are requiring that doctors have local admitting privileges, which is an issue in many states, are such an undue burden.
EKHOLMBecause they are not rooted in any research saying that they're vital or necessary or helpful to health. And all they do is reduce access to a legal right. Now whether that will stand up in court, I have no idea.
NNAMDIBut he will be following it and covering it, so we're likely to be talking with Erik Ekholm again. He is a national correspondent for the New York Times covering special issues including abortion. Erik, thank you for joining us.
EKHOLMThank you very much.
NNAMDIWe're going to take a short break. When we come back, upheaval in Egypt creates a diplomatic dilemma for the U.S. I'm Kojo Nnamdi.
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