Termination of privacy and termination of insurance choice?

Last month an Oklahoma County Court Judge ruled to dissolve a restraining order that has been filed against the state on the grounds that House Bill 1595 – a bill to prohibit abortions based on sex-selection, and to enforce a reporting procedure to track abortion statistics – is unconstitutional on the assertion that it violates the Oklahoma Constitution’s “Single Subject Rule.” If the restraining order had been overturned by the judge before debate on the constitutionality of the bill argued in court, the bill would have become law on Nov. 1 – before Dec. 4 proceedings even began.  With the Stupak Amendment, severely limiting a woman’s choice of insurance provider, now tacked on to the Affordable Health Care for America Act … there will be a double-whammy to pro-choice Americans and pro-choice Oklahomans if either – or both – pass.

Already the issue in Oklahoma has been receiving national attention because of what many pro-choice advocates, doctors, and those with privacy concerns consider an unnecessary and potentially dangerous collection of publicly accessible data about patients.

What may have been a little-known bill to Oklahoma residents now could affect doctor-patient confidentiality, narrowly increase the chances a patient could be identified, and – according to the American College of Obstetrics and Gynecology’s Oklahoma Branch Vice Chair – could increase the likelihood of dangerous “back-alley” abortions.

In February, Oklahoma House Bill 1595 passed overwhelmingly – 93-4 in the House and 35-9 in the Senate. It was signed into law by Gov. Brad Henry on May 15. The bill was introduced as a measure to prohibit women from having an abortion “based on the sex of the child.”  A lawsuit is now pending against the legislation challenging its constitutionality. Jennifer Mondino, staff attorney at the Center for Reproductive Rights, is representing and teaming up with former state representative Wanda Jo Stapleton, Shawnee, and Oklahoma resident Lora Joyce Davis who have opposed HB 1595 and succeeded in postponing its becoming law from Nov. 1 to Dec. 4 when the court will hear arguments that it violates the Oklahoma Constitution’s single-subject rule.

Constitutionality of the legislation aside, many have expressed concerns that a patient’s privacy could be severely violated, and a doctor’s freedom to treat his or her patient without fear of retribution or prosecution could be impeded tremendously. An extensive ten-page form that will be required to be completed by the patient prior to the procedure, then filed by the doctor with the Oklahoma State Department of Health will be placed online, available for public examination. The law also will allow other doctors, spouses (estranged or otherwise), parents, siblings, or guardians to file suit against a doctor if he is suspected of performing the procedure without completing the questionnaire. The patient herself may not even be consulted before a suit goes forward.

Dr. Eli Reshef, vice chair of the Oklahoma branch of the American College of Obstetrics and Gynecology, and medical director of the Bennett Fertility Institute at Integris Baptist Hospital in Oklahoma City, says that while the legislation may be a political move, the implications of it are far from political – and potentially dangerous.”What they don’t realize,” said Reshef, “is that people who want an abortion will get it.”Even if that relegates abortions to the back alley, again, he said.

While it may seem far-fetched, and “unlikely” that in an attempt to maintain personal privacy a woman would risk her health, “It could and probably will” happen, said Reshef.  “In the zeal to limit abortions we may compromise our individual freedoms” and the new law may “eat at the cases for necessary, or justified, abortions” because the process of collecting data may be considered too intrusive to the patient.

The bill includes a mandate to physicians to report complications they may suspect are the result of an abortion. “We don’t legislate complications reporting on any other (medical) procedure,” he said. So, the reservations opponents have of the legislation are realistic, and their concerns about privacy are well-founded in his opinion. He said that while most OBGYNs in Oklahoma may not be bothered by the legislation, the risk to privacy is palpable.  Currently, there only are three counties in Oklahoma that perform the procedure – Cleveland, Oklahoma and Tulsa.

There also is a question as to whether HB 1595 would affect those seeking fertility treatment, and as a result of in vitro fertilization have more than one embryo to contend with. If a doctor advises, in the event of conception of “multiples,” a reduction – or “selective termination” – for the health of the mother, would, in fact, also be considered an abortion.  At this time, however, Reshef says that is not at issue. He says doctors in the state of Oklahoma do not implant more than two embryos at one time, and do not deal in what he calls “reproductive gymnastics” that other states might. He says in those rare cases where selective termination is advised by a doctor, those patients are sent out of state to facilities that specialize in the cases.

Rep. Don Armes, R – Faxon, voted “yes” on this bill. When asked whether women having an abortion based on the sex of the child was statistically a concern in Oklahoma, he said “I don’t know if it is or not.”  Armes said he is “solidly pro-life” and whether privacy issues could be breached, or whether there already is an existing database to report statistics on abortion, he expressed his view that the “details in the bill” were not an issue for him when casting his vote.  “Specifics like that are not important to me,” he said. “While some may argue there may be plausible reasons (to have an abortion) I am pro-life across the board.”

Contained in HB 1595 is a questionnaire that Rep. Joe Dorman, D – Rush Springs, who also voted “yes” on the bill, said is modeled after the conservative, non-profit organization American Legislative Exchange Council’s legislation on the topic. The first ten questions, save one, already are included in a statistical, searchable database on the Oklahoma State Department of Health Web site.

HB 1595 is recommending more questions be included. For example: Date of abortion; reason for seeking abortion (i.e. interferes in the education of mother; mother has other children; mother is unemployed; husband or partner is unemployed, etc.); method of payment (private insurance, public health plan, Medicaid, private pay, sum of fee collected, etc.), and whether ultrasound equipment was used.Earlier this year, legislation requiring an ultrasound be given prior to an abortion, and the description (and sex if apparent) of the fetus given to the woman in detail, was overturned based on the constitutionality of the bill.

The same argument is being used against HB 1595 today. If it is not overturned, there is little doubt that issues of privacy will be raised in subsequent suits.Oklahoma is by and large a pro-life state, and so are its legislators, so it comes as no surprise that the bill would not be met with much debate.

On the senate floor in April, though, Sen. Debbe Leftwich, D – Oklahoma City, pointed out that already there is an existing database providing statistical data on abortions by county, age, procedure, etc. When brought to the attention of co-author Senator Todd Lamb (R, Northwest Oklahoma City) he said he wasn’t aware there was one, and had not seen it. Leftwich brings up an argument that is making the rounds in the pro-choice community, and is being brought to the attention of doctors who now will be required – if the legislation is not struck down – to complete a more than 37 question form each time they perform the outpatient procedure beginning Nov. 1.

“(The legislation) is intended to limit or eliminate abortions altogether,” said Reshef. “It’s not only conspiratorial, but true,” he said.  Reshef says the number of abortions have decreased over the years, and the Guttmacher Institute, a non-profit organization which works to advance reproductive health as defined by the World Health Organization, this year has determined that laws mandating counseling have little impact on abortion rates as it is. While this legislation does not mandate counseling, and an ultrasound mandate is no longer in existence, those against the bill say it adds unnecessary burden to both doctor and patient.  The legislation would require that if a doctor suspects a patient has had an abortion, or suspects that complications he is treating are due to complications from an abortion, he or she will be required to report that suspicion under the law, or face misdemeanor charges and revocation of their medical license.  “(There are) really severe penalties for noncompliance,” said Mondino.

“Who better to police themselves than doctors,” said Representative TW Shannon, R – Lawton. “(We’re doing) everything we can to protect the woman (in this bill),” he said.  Shannon says the risk to the patients’ privacy, and hypothetical situations where the patient could be tracked down using the Department of Health database are “so far fetched” that the “value and remoteness” of the scenario is outweighed by the intent of the bill.  “A government that strongly values life is fundamentally important,” Shannon said. He said that in the quest for life, liberty, and the pursuit of happiness, this legislation “is a prudent step in that regard.” Asked about the already existing database, Shannon said he trusts that the courts will sort out the details of privacy, but stands behind the spirit of the additional collection of data. As a father he said it’s important for him to know what health statistics are out there, such as in the cases and ages reported with H1N1, and this database will contribute to statistical information gathering he feels is needed to limit the number of abortions in the state.

Co-author of HB 1595 Rep. Ann Coody, R – Lawton, says it was not the intention of the House to include more than one measure in the bill. “Everything in the bill has abortion as its subject,” she said. Coody says that in the past, abortion providers were not required to comply with data collection, but this legislation she says would require compliance. The new method of data collection, Coody said, has repealed the requirement of county of residence and has been modified to exclude that piece of information. And, it is true that in 63 Oklahoma Statute 2001 Section 7-738 changes have been made to include the following provision: “Form shall be substantially similar to, but need not be in the specific format of (the form).”

“The old information was based on piecemeal legislation through the years,” she said. “Even though it requires more information, the new law is sensitive to, and respectful of anonymity.” Coody said a “reduction” of embryos after fertility treatment would, in fact, be considered abortion and a report would be required to be filed in a timely fashion. As to the reasons behind the drafting of the legislation, she said it’s to collect information that would “address the underlying problems” of abortions.

Speaking to those who, under Section 2 of the bill, would be authorized to file suit against a doctor, Coody says it’s subject specific. “This would be a civil remedy and would provide an injunction to prohibit the abortion provider from performing abortions for sex selection in the future,” she said.It is unclear whether sex-selective abortion has ever been a problem in the state, or whether any studies have been done on the topic at all in Oklahoma. Studies on the phenomenon have been limited to Asia – in particular China – and a study of a 2000 US Census conducted by The National Academy of Sciences discovered a trend of male infants born to Chinese, Korean, and Asian Indian Americans was the only study found at the time of this article, and was only the scientific interpretation of census collection data. Moreover, the Guttenmacher Institute determined in 2004 that: “Approximately 80 percent of all abortions involve embryos at a gestational age of 10 weeks or less,” At ten weeks it would many more weeks before the gender of a fetus could be determined – approximately 20 weeks.

Dorman asserts when drafting and debating legislation, lawmakers make an effort to include everything possible. “A lot of times there’s overkill,” he said, in an attempt to include as much information as possible  – and, he said it is subject to change. “It’s the beauty of having three branches of government,” he said. The question now is, “how will the executive branch handle it?” Dorman says in an attempt to “keep policies uniform” the recommendation of the American Legislative Exchange was kept intact, and included in HB 1595.

As to the multiple provisions those filing suit say are in the bill, Dorman agrees with Coody and said it was decided by the presiding officer at the time the bill was brought forth that the subject of the bill was abortion itself, and despite other measures included in the bill, he doesn’t see it as a violation of the Oklahoma Constitution’s single subject rule since the subject itself is abortion.

However, Mondino asserts that the courts are “really getting frustrated” about lawmakers’ attempt to work around the constitutional rule in abortion legislation.It is the eleventh hour on this legislation. It was set to become law on Nov. 1, and already the pending lawsuit has rescheduled it for Dec. 4.

Mondino says in order to postpone the enactment of the law, she and her clients filed a restraining order against the bill so that it would not become law before seeing the inside of a courtroom.

The financial impact of setting up the database is estimated at about $280,000, and a cost of about $250,000 per year to maintain the database. Doctors certainly also will have an increased expense in order to file and maintain the additional patient data required to comply with the state regulation. How much that will cost overall is anyone’s guess at this time. However, if typical, the consumer will be saddled with the increase. It is unclear is how the requirement of doctors to complete additional paperwork – whether they performed the procedure or not – will affect them long-term, and whether it will negatively impact abortion providers and those required to report potential complications from the procedure.

HOW THEY VOTED – Each lawmaker in representing Lawton-Fort Sill and its surrounding areas voted in favor of HB 1595. Contact your senator or representative if you have questions about this legislation. Their contact information can be found at http://www.okhouse.gov or http://www.oksenate.gov.

To learn more about HB 1595, or to read the bill visit http://www.sos.state.ok.us/documents/Legislation/52nd/2009/1R/HB/1595.pdf.

To search the database that already is online at the Oklahoma State Department of Health (Internet Explorer only), please visit http://www.health.state.ok.us/stats/itopstatistics.html.

SOME LEGISLATION FLIES UNDER THE RADAR:

Bringing sunshine to the legislative process has made a lot of news in recent months with the health insurance reform debate raging in the United States. The minority in both houses have argued that the majority has not brought enough information, and not given enough notice to the public prior to voting. Keeping that in mind, it is worth noting that while details of legislative debate is available to track online in both the Oklahoma House and Senate, no press release was issued to notify either the public or the press that the legislation would be brought to the floor for a vote. Since the bill had such a high approval rate in both houses, proponents say they felt it was not necessary to do so, and instead issued only a press release reporting that the bill had passed.

However, by mid-October and in that month alone, press releases on proposed legislation has been released by the Oklahoma House on the following topics:

Promotion of stronger DUI laws, Oct. 6

Proposal for Oklahoma to “opt-out”  of ” Obamacare” legislation Oct. 6

Call to suspend nursing home bonus and ratings systems Oct. 7

A plan for a resolution calling on states to defund ACORN Oct. 15

During the weeks leading up to the passage of HB 1595, more than 100 press releases on proposed legislation or discussion of proposed legislation were released. But no press release was issued on the abortion bill until after its passage.


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1 Comment

  1. […] Okay, so this isn’t actually fun: the Health Care Rationing Commission. “Experts,” you know. And there goes privacy. […]


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