Brent Blue has been practicing medicine in Jackson, Wyoming, for 38 years. At his family medicine and urgent care practice, he also provides abortions. As of July 1, each time he performs an abortion he must submit a report to the state including information about the patient’s age, race, county of residence, and previous pregnancies, including the patient’s number of past abortions, miscarriages, births, and number of children living or dead. It also requires details of the termination, including the type of procedure used, complications, and gestational age of the fetus—including fetal weight and length.
The new Wyoming statute strengthens an existing reporting law by threatening providers with disciplinary action if they fail to submit reports, mandating the collection of demographic information about patients, and stating that an annual abortion statistics report will be released to the public.
“There is no reporting for other medical procedures, other than reporting for infectious diseases to control outbreaks,” Blue told VICE. “This is nothing more than an attempt to infringe on women’s choice.”
Though Wyoming is known as a conservative state, it has historically been less aggressive in restricting abortion access than other states where both legislative chambers are controlled by Republicans. That tide has started to turn recently, starting in 2017 with the state’s enactment of its first abortion restrictions in nearly 30 years. “Wyoming has always prided itself on being a state where you don’t mess with your neighbor, and here they are invading their neighbor’s most private moments,” Blue said.
With this law, Wyoming joins a growing list of other states that mandate abortion reporting above and beyond what is necessary for public health purposes, creating requirements that experts say intimidate patients and providers, and could even be used to criminalize abortion.
These laws are becoming more common—and more burdensome
According to the Guttmacher Institute, 46 states mandate some form of abortion reporting. Sixteen of those states require providers to give some information about the person’s reason for seeking an abortion, and eight require providers to state the method of payment. The anti-abortion group Americans United for Life (AUL) highlights five states that passed abortion reporting laws this year in its 2019 state legislative session report. They note that Wyoming’s law was based in part on AUL’s Abortion Reporting Act model legislation.
There are valid reasons to collect statistics on abortion. Knowing the number of abortions can give health officials a better idea of the number of pregnancies in a given year—since not all pregnancies result in birth—and help them direct reproductive healthcare services appropriately. This is why the Centers for Disease Control and Prevention (CDC) began an abortion reporting program in 1969. However, CDC reporting is voluntary, and the CDC gets its data from states in which regulations and procedures for reporting vary. Therefore, the comprehensive authority on abortion statistics in the U.S. is the Guttmacher Institute, which reaches out directly to every known abortion-providing facility in the U.S. to gather information.
According to Elizabeth Nash, senior state issues manager at Guttmacher, there was an uptick in politically motivated abortion reporting laws starting in 2011. “That was the year after the 2010 election when so many state legislatures moved farther to the right. We were seeing a lot of bans on abortion at 20 weeks postfertilization, and these extra reporting requirements where it was clear that the kind of information being collected wasn’t about public health,” she said.
These requirements fall into two broad categories: forms that seek more information about providers and patients, and forms that require extensive reporting of complications. These often include complications not specifically related to the abortion procedure—like allergic reactions to anesthesia—or a subsequent diagnosis of breast cancer. Studies have found no link between abortion and breast cancer.
Onerous abortion reporting laws often fly under the radar. “No one balked at these laws when they went through, because reporting complications sounds reasonable. But if every doctor had to report [every medical procedure] to the state, there would be outrage. It would be considered a huge invasion of privacy,” said Gabrielle Goodrick, an abortion provider and board chair of NARAL Pro-Choice Arizona.
On January 1, 2019, an Arizona law strengthening the state’s previous reporting requirements took effect. Providers there are now required to gather information about patients’ age, race, marital status, education level, previous pregnancies, the gestational age of the fetus, and more. Patients must be asked their reason for the abortion, including whether the pregnancy was the result of sexual assault or incest, though they can decline to answer. Providers must report what type of procedure was done, what type of anesthesia was used, and the name and specialty of the provider who performed the abortion.
Any medical provider treating someone for what they judge to be complications of an abortion must also submit a report to the state—a redundant requirement, Goodrick said, because complications would already be picked up in medical coding as part of the visit.
“In places where the state is very antagonistic toward abortion providers, and the name of the doctor is on the forms, that is a form of intimidation,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health, which operates clinics in Texas, Indiana, Minnesota, Virginia, and Maryland. Each of these states except for Maryland has laws requiring providers to report abortion data.
Goodrick said she had to hire an extra staff member to keep up with the reporting in Arizona. “If you’re entering in 15 or more charts per day and it takes five to 10 minutes for each patient, that can easily add up to three hours a day. I can’t imagine a gastroenterologist’s office or even a surgical center spending that much time on paperwork,” she said.
Oklahoma has an even more extensive reporting form and a separate form for complications. Providers must report when and how the patient paid for the procedure—a mostly irrelevant question now that Oklahoma bans both public and private insurance coverage of abortion. It also has a special section pertaining to patients under 18: Oklahoma requires parental notification and consent before a minor can have an abortion, and the form requires information about that process or a judicial bypass, if one was obtained.
“We have a form in our patient information packet that includes all the statistical questions we have to ask. Patients often object to filling it out,” said Katie Knutter, the director of advocacy at Trust Women, which has clinics in Oklahoma and Kansas. Even if patients object, clinic staff has to inform them that the questions are required by state law and must be answered.
Oklahoma also requires that a copy of the patient’s sonogram be included with the report. It is a “huge invasion of privacy,” Knutter said, and it adds extra work for staff who have to redact patients’ names from each individual ultrasound image.
There have been some legal challenges to reporting requirements. Planned Parenthood of the Great Northwest and Hawaiian Islands filed suit against Idaho over a 2018 law. The lawsuit was later dismissed after the law’s language was tweaked slightly, and extensive reporting requirements are in effect. Last year, a judge temporarily blocked part of Indiana’s reporting law in a case brought by Planned Parenthood of Indiana and Kentucky, which is now awaiting trial.
Like other targeted regulation of abortion provider (TRAP) laws, extensive reporting requirements make it more difficult and expensive for abortion providers to operate and they single out abortion for excessive regulation despite the fact that it is exceedingly safe. “It’s not like there was some inciting incident where states decided they needed to step in to ensure patient safety,” said Goodrick. “Abortion is one of the safest medical procedures there is.”
How the data collected could be weaponized against abortion access
Nash said the intent could be more sinister. “Abortion reporting could be a roadmap to different kinds of restrictions, or even to criminalizing certain processes,” she said. The more information a state gathers about who is having abortions, who is providing them, and how they do it, the more information they have about what types of restrictions would most dramatically limit access.
For example, Mississippi requires abortion providers to be board-certified OB/GYNs, and a handful of other states have attempted to enact similar restrictions. Goodrick and most of the physicians who provide abortions at her practice in Arizona are family medicine doctors, and she worries that the state collecting information about their specialties could be a prelude to new restrictions.
In Whole Woman’s Health v. Hellerstedt, the 2016 Supreme Court case that struck down numerous abortion restrictions in Texas, public health evidence played an important role in showing that the restrictions were burdensome and had a negative impact on health, especially compared to the lack of evidence in favor of restrictions.
“These complication reporting laws could be about trying to build an evidence base showing that abortion is dangerous, when in fact we know it’s incredibly safe. It’s possible this reporting system could be leveraged to support a court case,” Nash said. However, she added, such an argument would still face obstacles given the overwhelming evidence in peer-reviewed medical journals that abortion is safe.
Nash also pointed out that, while state legislatures enact these rules, the information goes to state departments of health. “Public health workers generally do not have an interest in trying to out anybody,” she said. However, Jill Adams, the executive director of reproductive justice law organization If/When/How, said she is concerned that the information could still be used against providers and patients. Wyoming’s law, for example, says that information from abortion reports can be made available to an attorney general or district attorney in the event of a criminal investigation.
“It feels like a very thinly veiled attempt to collect information that could be used by an overzealous prosecutor hellbent on penalizing someone who’s performed an abortion,” Adams said. As states like Alabama seek to criminalize abortion providers, detailed abortion reports give states an idea of which providers they could target if new criminal sanctions are enacted.
Adams also noted that it is nearly impossible to distinguish between a miscarriage and a self-managed abortion. Strict reporting requirements could lead to sanctions for providers accused of failing to report self-managed abortions, and trouble for people seeking care after either a self-managed abortion or a miscarriage.
With several states publicly reporting detailed demographic information, anonymity does not necessarily guarantee privacy. Indiana, for example, reports how many residents in each county had abortions. Wyoming’s reporting form is revealing in its questions regarding race and ethnicity. One question reads, “RACE (American Indian, Black, White, etc),” with no further specifications. Latinx people, however—Wyoming’s largest minority group—are asked to specify their country of origin: “OF HISPANIC ORIGIN? (Specify No or Yes – if yes specify Cuban, Mexican, Puerto Rican, etc).” The Kansas form has a similar question.
“Marginalized communities, including communities of color, immigrants, young folk, and trans folk, face greater obstacles to high-quality, clinic-based care in the first place. Because of structural inequities, those people are also more likely to experience negative pregnancy outcomes, and they are forced into far more interactions with government agencies,” Adams said. “You overlay this newfound ability to collect demographic information, and especially in places where people of color constitute tiny minority percentages [and] it’s an end run around patient privacy rights.”
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