Iowa Wants To Enshrine "Abortion Regret" In The Law

Can abortion cause emotional anguish? Absolutely. But is that the responsibility of the doctor performing the procedure?

Feb 24, 2014 at 5:00pm | Leave a comment

Anti-choice groups in the US are getting increasingly smart about using legislation to accomplish their devious aims, and we're seeing a prime example in Iowa. A new bill proposes specifically allowing patients to sue for up to ten years after an abortion for "pain and suffering" -- even if they have signed informed consent documentation and the procedure caused no medical injury. Disguised as a way to extend legal freedoms for patients, it's actually a sneaky backdoor way to limit access to abortion. 

Abortion regret is a complex issue. I'm not going to deny that it happens -- for a variety of reasons, some patients deeply regret getting abortions. Some regret it after the fact, others are pressured into getting abortions or feel trapped between a rock and a hard place and go into the procedure knowing they're going to feel badly about it later. Some people may not experience regret for years afterwards, when the ramifications of an earlier abortion come home to roost. 

That's why services like Exhale provide opportunities for patients to talk after abortion, to work through the complex emotions they may be feeling. And it's why some people seek more formal counseling sessions to work through their experiences after an abortion. I fully support patient access to these services, because people experiencing emotional distress should be able to get the help they need to address it. 

What's happening in Iowa, though, is more sinister. 

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Photo: ProgressOhio.

HF 2098 was cosponsored by Republican (of course) Greg Hartsill and company, and it provides a formal legal mechanism for "establishing a civil cause of action for physical injury or emotional distress resulting from an abortion."

The bill allows patients to do so for up to ten years. 

Here's the thing. There's already a mechanism in the law for tort claims related to physical injury caused by medical malpractice. There's a lot to be said about medical malpractice reform in the US and the suit-happy culture this country cultivates, but the short version is that if a patient incurs a physical injury as a result of an abortion, that patient already has a mechanism for bringing suit.

Let's say, for example, that horrible complications during an abortion render a patient infertile -- if this was the result of malpractice, the patient can claim a potentially very large settlement. 

While medical malpractice is in urgent need of reform (especially in OB/GYN, where it's particularly thorny), patients need to have the right to seek redress for serious injuries caused by negligence, carelessness, and mistakes made in the course of practicing medicine. Including mistakes made while performing abortions -- fortunately, abortion has an extremely low complication rate. First trimester abortion (the most common) carries a complication rate of less than 0.05%.

That's going to change as abortion becomes less and less accessible. It's hard for care providers to get training, and it's hard for them to practice safely. In a crunched landscape, abortion becomes much more unsafe -- especially in regions where patients are effectively being forced to turn to illegal abortions to get care because, thanks to legislative pressure, it's impossible to get a legal abortion

Can abortion cause emotional anguish? Absolutely, but is that the responsibility of the doctor? If a patient has been screened for informed consent and free will -- to confirm that the patient isn't being compelled to get an abortion by another person, has been counseled about available options, and is making the best possible choice even if it is emotionally difficult -- the doctor's responsibility is to perform the procedure safely and provide appropriate aftercare instructions and followup care as needed. 

Which is precisely what abortion providers do. Should a physician be held accountable later if an informed patient experiences regret? 

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Photo: ProgressOhio.

In Iowa, access to abortion could change radically if this bill passes, as the number of practitioners willing to expose themselves to the risk of lawsuits related to abortions is going to be relatively small. All medical practitioners, especially in OB/GYN, operate with the threat of malpractice suits over their heads, and many doctors weigh that risk carefully when agreeing to perform procedures or work with specific patients. 

This bill would extend that risk even further with a ten year window of opportunity, requiring doctors to maintain impeccable records on the care provided and creating potentially huge legal snarls. Furthermore, any doctor performing an abortion would have to consider whether the patient might regret it later and come back demanding a potentially ruinous financial payout. Every potential lawsuit is a costly event that requires time and money to defend, and malpractice insurance rates will rise in response to the increased risk, making it harder to practice. 

Fortunately, Democrats control the legislature and the bill is unlikely to pass. This time, at any rate. But it will no doubt serve as a model for other states interested in finding new and creative ways to choke out abortion providers without necessarily banning abortion outright, and I suspect we will be seeing new iterations of this bill across several regions of the US.

The fight for abortion rights is taking place more and more within committees and subcommittees in state legislatures, and it's only thanks to sharp-eyed activists and organizations like NARAL that we're able to keep track of how and where states are moving in on abortion access. As this bill demonstrates, even in states where Democrats are theoretically in charge, harmful legislation creeps out of the woodwork. While it might not have a realistic chance of passing, it is an ominous sign of trouble to come, and of how determined Republicans are when it comes to chipping away at reproductive rights.