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In my previous post, I introduced the current climate of women’s health in Texas, and began to explain some of the consequences that will eventually be realized. HB 2/SB 5 is extremely detrimental to women’s autonomy, and is an affront to healthcare ethical principles. While I am aware that there are always at least two sides to every debate, I feel it prudent to explain the process that, ideally, should occur before the passing of any new legislation. Therefore, today’s post will discuss the fundamentals of policy debate and rhetoric. This is a vast topic, so I will attempt to hit the high points and correlate them to the topic at hand.
Fundamentals of Policy Analysis
Comprehensive understanding of the societal implications of a policy requires a basic knowledge of the intricacies of debate logic. There exists a defined method of determining flaws in the status quo, and for proposing policies to solve them. Much of the reasoning behind this argumentative structure is founded upon a desire to ensure beneficial legislation, and is highly correlated with utilitarian ethics (Harpine 2009). Once this process is completed, or sometimes concurrently, the rhetors present said policy to the masses in an attempt to sway public opinion. This is the art of persuasion. Now, certainly it seems that those who speak truth should be able to speak straightforwardly and not require the use of rhetorical tools. However, the presence of a public audience necessitates structure. Generally, the audience of a public speech consists of ordinary people who may not be able to follow an exact proof based on the principles of a science. Therefore, even those who speak with veracity must utilize the rhetorical process. In a way, this process functions as the informed consent of the public policy world. An audience without a solid understanding of the facts can easily be distracted by factors that do not pertain to the subject at all; sometimes they are receptive to flattery or just try to increase their own advantage (Aristotle 2006). This can be exacerbated in an area if the constitution, the laws, and the rhetorical climate are already lacking. This is a contributing factor to what has happened in Texas, and makes this examination especially important.
The Prima Facie Case – Establishing Grounds for Change
The prima facie case is an affirmative case construction strategy that emphasizes the actual or anticipated existence of an ill or problem. It is five-fold, and contains the following “stock issues”: need, inherency, solvency/feasibility, sustainability, and unintended consequences (Rybacki & Rybacki 1991). These issues are progressive and ordered. If at any point along this argumentative continuum a stock issue cannot be logically explained, the policy may be considered flawed or unnecessary. Meaning, if need cannot be proven, the case is flawed. If need and inherency can be proven but solvency cannot, the case is flawed. Sound and ethical policy must address the first four stock issues without demonstrating a potential for overwhelming unintended consequences. There is no valid case for change without this; it is the very backbone of policy proposals (Jasinski 2001). It is prudent to keep in mind that not every needs case presented to the public has a logical, or even factual, basis. It is equally important to note that when fundamentally flawed policy passes, it is likely that the associated rhetoric has focused very heavily on need without much supporting data. People are more likely to support this kind of argument if their thinking is governed by fear, dogmatism, or authoritarian ideals.
Need. In the case of HB 2, proponents and supporters have cited the need as protection of maternal health and fetal life (namely, after 20 weeks gestation). The bill specifies that the provisions contained within are primarily to protect the health and safety of a patient of an abortion facility. Logically, this suggests a clear and present danger exists, and that the current standard of care is suboptimal. Traditionally, efficacy of care is measured partially by patient outcomes, statistics related to sequela/mortality, and reported patient satisfaction (Lloyd, Jenkinson, Hadi, Gibbons, & Fitzpatrick 2014). Given the assertions of this legislation, a high incidence of morbidity and mortality would need to be present to establish a societal need. Yet, data collected by the Centers for Disease Control and Prevention (CDC) does not corroborate this. 765,651 abortions were performed in the United States in 2010; eight deaths were associated with these procedures. This is an incidence rate of less than 0.01%, and includes any incidence of mortality subsequent to an abortion procedure, regardless of direct causality (Pazol, Creanga, Burley, Hayes, & Jamieson 2010).
On the matter of the protection of fetal life, specifically the prevention of fetal pain past 20 weeks, the statistics of abortions by week must be examined. In 2010, most (65.9%) abortions were performed before eight weeks gestation, and 91.9% were performed before 13 weeks gestation. Few abortions (6.9%) were performed at 14–20 weeks gestation, and even fewer (1.2%) were performed after 21 weeks gestation. From 2001 to 2010, the percentage of all abortions performed before eight weeks gestation increased 10%, whereas the percentage performed after 13 weeks decreased 10%. Moreover, among abortions performed before 13 weeks gestation, the distribution shifted toward earlier gestational ages, with the percentage of abortions performed before 6 weeks gestation increasing 36% (Pazol et. al 2010). In summary, the incidence of mortality associated with abortion procedures is less than 0.01%, while abortions past 20 weeks occurred at a rate of 1.2%. Strictly mathematically speaking, this is statistically insignificant. Additionally, distributions show that positive trends were already occurring on their own. These facts directly contraindicate a need for intervention. The two premises of HB 2 are not supported by data, and render this policy argumentatively unsound.
Inherency. Generally, once need has been established, supporting testimony for the inherency of the problem must follow. This means that the ill is a fundamental part of the status quo, and is not a fleeting consequence of something else or a coincidence that may resolve over time. The problem must be proven to be a direct result of the human condition or current social structure (Jasinski 2001). Once this foundation is in place, the stock issues of solvency, feasibility, and sustainability can be examined. However, in the case of HB 2, inherency is irrelevant because the stated need cannot be substantiated. You cannot propose to solve a problem that simply does not exist, nor can you analyze how feasible its solution is. The rest of the rhetorical process is hereby truncated; the assertions of this argument end here. With the proposal portion of this policy invalidated, it is apparent that this legislation is unsound. Unsound legislation easily begets unethical legislation, but the unintended consequences of this particular instance must be considered to fully understand why.
Unintended Consequences. The repercussions of HB 2 on the state of reproductive health are unarguably harmful. While the full provisions of the bill do not go into effect until September of this year, there has already been a profound effect on women’s access to care. Heretofore, there were 44 family planning clinics in the state of Texas. At the time of this writing, there are 24. In September, only six are expected to remain open (Fernandez & Holt 2014). The requirements imposed upon them require extensive and expensive renovations, and the majority of clinics simply do not have the funds to undertake such a task. Moreover, the majority of the clinics shutting down coincide with lower-income portions of the state. If abortions were the primary services offered by these clinics, this issue might not be so clear-cut.
However, that is far from being the case. Verified by annual reporting data, abortion services account for approximately 3% of Planned Parenthood’s activities. To put that in perspective, cancer screening and prevention are reported at 16%, while STD testing and contraception account for 70%, the overwhelming majority. The remaining services vary, but are largely related to education and pregnancy prevention programs (Klein 2012). Additionally, an estimated 75 percent of clinic clientele have incomes below 150 percent of the poverty line, while the clinics that escape the financial culling are in relatively wealthier metropolitan areas. The remaining majority of the state, where the per-capita income is lower, will be left without viable reproductive care options (Hall & Diehm, 2013).
Public Health Implications. The irony of this precarious situation is that patient education and access to contraception are the two factors most strongly correlated with a decrease in the incidence of abortion. Studies have found that abortion incidence is inversely associated with the level of contraceptive use, specifically, especially where fertility rates are holding steady. (Sedgh, Singh, Shah, Ahman, Henshaw, & Bankole 2012). This transcends the boundaries of the United States, and is a part of a global trend (Deschner & Cohen 2003). The conundrum here is that the same method of thought that seeks to criminalize abortion is often averse to the idea of widespread coverage for contraception. It is hardly a coincidence that some of the lowest abortion rates in the world are in socially liberal countries, where abortion is not only legal, but provided as a standard service by national health care systems (Deschner & Cohen 2003). Further studies have shown that the proportion of women living under liberal abortion laws is inversely associated with the abortion rate in the correlating sub-regions of the world (Sedgh, et. al 2012).
Unsurprisingly, there is also a positive correlation between an unmet need for contraception and abortion levels. This unmet need for modern contraception is lower in sub-regions dominated by liberal abortion laws than in those dominated by restrictive laws (Sedgh, et. al 2012), and this might help explain the observed inverse association between liberal laws and abortion incidence. Essentially, the state of Texas has passed a policy that is destined to set up a self-perpetuating cycle of defeat. Decreased access to services will increase the need for abortions. Since these will be sparsely legally available, women will seek them illegally. When this public health concern once again becomes too harrowing to ignore, another Roe vs. Wade will come about, albeit by a different name. This cycle will repeat indefinitely until something changes. Advancing the public health and progressing toward the common good should be on the forefront of policymakers’ minds as well as ethicists’. Mindless and futile repetition is the antithesis of progress. In the words of Albert Einstein, “no problem can be solved with the same level of consciousness that created it.”
Aristotle, Trans. Kennedy, G. (2006). On Rhetoric: A Theory of Civic Discourse. New York, NY: Oxford University Press. Reprint.
Deschner, A., & Cohen, S. (2003). Contraception Use is Key to Reducing Abortion Worldwide. The Guttmacher Report on Public Policy, 6(4), 7-10.
Fernandez, M., & Holt, L. (2014). Abortion Law Pushes Clinics To Close Doors. (Cover story). New York Times, A1-A13.
Hall, K., & Diehm, J. (2013). Texas Abortion Bill Targets Low Income, Rural Women. Huffington Post. Web. Retrieved from http://www.huffingtonpost.com
Harpine, W. (2009). Universalism in Policy Debate: Utilitarianism, Stock Issues, and the Rhetorical Audience. Speaker and Gavel, 46, 15-24.
Jasinski, J. (2001). Sourcebook on Rhetoric: Key Concepts in Contemporary Rhetorical Studies. Thousand Oaks, CA: Sage Publications, Inc.
Klein, E. (2012). About the Planned Parenthood Chart. The Washington Post. Web. Retrieved from http://www.washingtonpost.com/blogs
Klein, E. (2012). What Planned Parenthood Actually Does, in One Chart. The Washington Post. Web. Retrieved from http://www.washingtonpost.com/blogs
Lloyd, H., Jenkinson, C., Hadi, M., Gibbons, E., & Fitzpatrick, R. (2014). Patient reports of the outcomes of treatment: a structured review of approaches. Health & Quality Of Life Outcomes, 12(1), 1-18.
Pazol, K., Creanga, A. A., Burley, K. D., Hayes, B., & Jamieson, D. J. (2013). Abortion Surveillance – United States, 2010. MMWR Surveillance Summaries, 62(8), 1-44.
Rybacki, K., & Rybacki, D. (1991). Advocacy and Opposition: An Introduction to Argumentation (2nd ed). Englewood Cliffs, NJ: Prentice Hall Publishing.
Sedgh, G., Singh, S., Shah, I., Ahman, E., Henshaw, S., & Bankole, A. (2012). Induced Abortion: Incidence and Trends Worldwide from 1995 to 2008. The Lancet, 379(11), 625-632.
It’s Sunday afternoon in a sleepy town in the Rio Grande Valley. By all accounts, it is a day like any other day. Quiet and somewhat removed from today’s advancing world, this place is the essence of anachronistic. Humid memories linger in the air and hopes of a better life line the weed-cracked sidewalks and narrow unpaved roads. Unused train tracks sit forgotten, overtaken by grass and brush. Dented signs, rusted by harsh years, stand on the corners forever offering direction. A dilapidated and empty corridor of houses tilts to stare at the ground as a teenage-painted water tower bows before the sky in the distance. Fresh yet dusty-faced children, invigorated by the freedom of the weekend, play a game of tag next to a field. Only a solitary fly appreciates their presence. A single engine plane flies over this nearly invisible spot of the world. As its relaxing buzz floats away, the machinery passes over a small house at the end of the street. Outwardly, there are no signs that anything is amiss here. If only reality were as simple as a game of tag.
Inside the house, a petite Hispanic woman lies supine and blood-soaked on the floor of her living room. As she glances around, perception skewed by position, she is filled with regret. A sudden realization that she might die flashes into her brain like a searing lightning strike. The sound of a clock echoes in her skull, an audible reminder that our time on earth is perilously finite. She has called an ambulance, but cannot shake the feeling of impending doom. Her heart pounds with the ritual, rhythmic dance of the second hand. As she listens to her time tick away, she recounts the events of the past 36 hours. It’s Saturday morning. The woman, driven by fear and desperation, has found herself at a flea market with a very specific goal in mind. She is not there for home furnishings, produce, or crafts. She watches families bustle about in slow motion around her. A child’s laughter in the distance becomes a mocking song. As she turns her intended purchase over and over in her trembling hands, she wonders if she can really go through with this. It has to be dangerous. What if it doesn’t work? Surely there must be an easier way. Then she remembers her fiancé, his mercurial anger, and his escalating threats. A bolt of fear shoots through her, and she knows in that moment that she has no choice. She pays the elderly vendor. Her money is heavy in her hands, and she does not know if she can lift them. A knowing look of sadness passes between the two women alongside this seemingly innocuous exchange of goods.
She has just purchased twenty-four tablets of Mifepristone. When she arrives home, she will take all of them. Mifepristone, also known as RU-486 and a component of the “abortion pill”, is an anti-progesterone agent that also possesses anti-glucocorticoid properties (Vallerand, Sanoski, & Deglin 2013). Physiologically, this drug induces endometrial bleeding and, if taken in excess, has the potential to alter levels of hormones essential for regulation of metabolism. This unfortunate woman is now suffering excessive bleeding and vital dysregulation. What will happen to her? In this situation, it is difficult to know. Perhaps she will be transported to a medical facility in a timely manner and receive necessary blood transfusions. Then, if she is lucky, she will only have the emotional scars from this traumatic event to contend with. Perhaps a more sinister possibility: that her time runs faster than the paramedics. This will be her last memory.
As morbid as this conceptualization might seem, it is nowhere close to far-fetched. It is, however distressing, one of the less horrifying accounts of what women will resort to in the absence of sufficient access to reproductive services. These kinds of desperate acts were fairly commonplace at one point in America’s history, and were a driving force behind the monumental Roe vs. Wade decision. The court’s opinion, authored by Justice Harry Blackmun, invalidated a Texas statute that made administering an abortion a felony in most cases. In his statement, Blackmun asserted that the detriment the State would impose upon the pregnant woman by denying this choice was altogether apparent (Roe, 1973). In the years prior to Roe vs. Wade, illegal and potentially unsafe abortions were a dire public health problem (Calderone 1958). Research compiled by the Guttmacher Institute, a non-profit organization concerned with advancing reproductive and public health, supports this. In 1930, abortion was listed as the cause of death in nearly 2,700 cases. This accounted for a staggering 17% of all maternal deaths that year. This mortality rate declined slowly over time, likely as a result of advancement in antibiotic therapy, but the percentage of deaths remained largely unchanged. In 1965, 18% of maternal deaths were attributed to consequences resulting from illegal abortions (Valenti 2013). These are only reported numbers; it is likely that the actual number is much higher.
While this is a part of America’s past, recent legislation passed in Texas threatens to again make this flawed and dangerous status quo a frightening reality. The culmination of a progressive assault on reproductive health, HB 2 bans all abortions after 20 weeks, even in the case of rape or incest. Abortion clinics must now meet the same standards as ambulatory surgery centers. The physicians performing these procedures must have admitting privileges at a hospital within 30 miles of the clinic (Sweany 2014). All over the state, clinics unable to meet these stringent and arguably punitive requirements have begun to close. Despite vehement protest, the status quo in Texas closely resembles the sociopolitical culture before Roe. This will only intensify as time passes (Feldt 2013). Women in this state, particularly the young and the poor, are now faced with the very real consequences of society’s failure to learn from its mistakes.
The woman’s story referenced herein may have been fictionalized in the name of anonymity, but its roots lie in poignant truth. The fact that a box of flea-market abortifacients has been someone’s reality is altogether unacceptable. If the past is any indication, this is only one example of the horrific consequences that will come to pass as a result of this legislation. It is debatable whether this is a result of malignant ignorance or willful marginalization, but that question deserves its own thesis and will not be examined here. For the sake of succinct and fair argumentation, a candid dissection of the rhetorical and ethical implications of the status quo will focus solely on the legislation as it is presented. At this time, such an examination is of critical importance, and will expose this bill for what it is: a poorly constructed policy that infringes on women’s autonomy, causes undue harm, and sets the stage for far-reaching societal stagnation.
Stay tuned. My next post will dissect the rhetoric of the bill, and why it is flawed. You cannot argue with academics and data.
Calderone, M. (1958). Abortion in the United States. New York, NY: P. B. Hoeber.
Feldt, G. (2013). Crow after Roe: How Separate but Equal has Become the New Standard in Women’s Health and how we Can Change That. Brooklyn, NY: IG Publishing, Inc.
Roe v. Wade 410 U.S. 959. (1973). Retrieved from LexisNexis Academic. Web.
Sweany, B. D. (2014). A Long and Bitter Fight. Texas Monthly, 42(3), 24-28.
Vallerand, A., Sanoski, C., & Deglin, J. (2013). Davis’s Drug Guide for Nurses. 13th ed. Philadelphia, PA: F. A. Davis Company.
Valenti, J. (2013). Abortion and Magical Thinking. Nation, 296(26/27), 10.
We all begin our journey on this earth as a blank canvas: a clean slate void of corruption, fear, or opinion. With a palette comprised of circumstance and choice, our lives and thoughts are painted as we age. Vibrant colors and crisp lines replace white space and blurred edges. Ideally, knowledge supersedes uncertainty; with the passage of time, the genre of our worldview is revealed to us. The term worldview will be used herein to refer to a system of beliefs that are interconnected, much like the pieces of a jigsaw puzzle (DeWitt 2010). When something in our external environment happens that does not coalesce with our value system—especially if the specific belief in question is central to our worldview—we have a few options, namely: remain in a state of uncomfortable cognitive dissonance, or take action to change the offending external event. In the United States, and certainly in the socially conservative state of Texas, it is unlikely that few issues cause as much dissonance or call to action as the matter of abortion.
For over thirty years, catalyzed by the controversial Roe v. Wade decision, the abortion debate has grown exponentially (Annas 2010). Pro-life collaborations rise up against clinics, physicians, and organizations that support abortion. These groups, empowered by their worldviews, act with certainty of residing on the absolute moral high ground. And yet, even in the historically conservative south, there remains a strong vein of support for the pro-choice movement. One of the core beliefs of these groups may be summarized in this way: “the right to an abortion may be a matter of standing law, but its legal underpinnings are being hacked away at an alarming rate, so that many women in this country, particularly the young and the poor, are having to resort to desperate measures we never thought we would see again… In many ways, we are back to where we were then, with a two-tiered system: women who have the means to travel to get a safe abortion could do so, and the others suffered illegal, unsafe abortions or unplanned pregnancies (Feldt 2013).” The recent passage of controversial abortion legislation in the state of Texas has made this speculation on unintended consequences a tangible possibility. Texas HB 2 (previously SB 5) stipulates, among other things, that abortion should be banned after twenty weeks gestation and that centers performing them meet the same requirements as ambulatory surgical centers. Proponents of this legislation have cited protection of fetal life and protection of maternal health as the motivation for the change that will inevitably result from this law. On the surface, these seem to be respectable claims. However, a thorough deconstruction of the stock issues and rhetoric here will expose this bill for what it is: infeasible, ripe with a plethora of negative consequences, and a very thinly veiled endorsement of paternalism.
The literature is very clear on the bioethical connotations of paternalism. This insidious concept can best be described as the limitation of the autonomy of another exclusively on the grounds of benefit to the person in question (Tong 2007). Respect for patient autonomy is broadly understood as recognition that patients have the authority to make decisions about their own health care, and is pervasive in bioethics literature (Sherwin 1998). On a more intimate level, it can even be said to underlie the basis of human dignity (Gaylin 1994). While a pragmatic approach to bioethics suggests removing autonomy from the forefront of the gold standard of care (Childress & Fletcher 1994), abortion is one arena where the implications of overriding autonomy are far-reaching and dangerous. The reasoning was succinctly explained by beloved Justice Harry A. Blackmun regarding his stance on Roe v. Wade: “Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision… whether to end her pregnancy (Flavin 2009).” Legislative interjection in this arena not only carries negative connotations for the state of women’s health; it carries negative connotations for the state of women’s rights (Orentlicher 2011). In a dynamic and ever-evolving society, we must be aware of the dangers of enlightened paternalism: dogmatic habits that do not adequately account for the changing environment and culture and misunderstand the place of intelligence and community in medical encounters (McGee 1999). To this end, even the most pragmatic interpretation of bioethical literature does not excuse the actions of the Texas legislature. Whatever the justification, talk of protecting women from harm caused by their own decisions is a marked recapitulation of paternalistic stereotypes, and in direct conflict with modern egalitarian ideals (Suk 2010).
A thorough investigation of case construction, stock issues, and bioethical principles is likely to support this unpleasant truth: the actions of the Texas Legislature are wholly unethical. To some degree, politics has no place in the exam room. The doctor-patient relationship is a sacred one, and lawmakers affecting the inner workings of clinics makes about as much sense as doctors sitting on the bench to issue judgments and penalties. All educated individuals have a scope of practice: a skeleton system of acquired knowledge and vales. This is fleshed out over the years with experience and blossoms into expertise, much as a canvas transforms into a painting. The sprawling masterpieces that adorn the Sistine Chapel were certainly not painted in a day, or even a week. How can it possibly make sense that merely days of debate and a limited understanding of fundamental principles of bioethics are deemed sufficient to make such important decisions regarding women’s rights? Passionate ideology and moral empowerment do not a good decision make. The same principle that governs distributive justice can be slightly altered and employed here: from each according to expertise, to each according to need. In such a strange and volatile time in our world, it seems prudent that lawmakers stay within their jurisdiction: they belong in our courtrooms, not our clinics.
Annas, G. (2010). Worst Case Bioethics: Death, Disaster, and Public Health. New York, NY: Oxford University Press.
Childress, J. & Fletcher, J. Respect for Autonomy. The Hastings Center Report, 55-56.
Dewitt, R. (2010). Worldviews: an Introduction to the History and Philosophy of Science. 2nd ed. Malden, MA: Blackwell Publishing, LTD.
Feldt, G. (2013). Crow after Roe: How Separate but Equal has Become the New Standard in Women’s Health and how We Can Change That. Brooklyn, NY: IG Publishing, Inc.
Flavin, J. (2009). Our Bodies, Our Crimes: The Policing of Women’s Reproduction in America. New York, NY: New York University Press.
Gaylin, W. (1994). Knowing Good and Doing Good. The Hastings Center Report, 193-198.
McGee, G. (1999). Pragmatic Bioethics. Nashville, TN: Vanderbilt University Press.
Orentlicher, D. (2011). Policy and Politics: The Legislative Process is Not Fit for the Abortion Debate. The Hastings Center Report, 41(4), 13-14.
Sherwin, S. (1998), The Politics of Women’s Health: Exploring Agency and Autonomy. Philidelphia, PA: Temple University Press.
Suk, J. (2010). The Trajectory of Trauma: Bodies and Minds of Abortion Discourse. Colombia Law Review, Vol. 110, No. 5, 1193-1252.
Tong, R. (2007). New Perspectives in Healthcare Ethics: An Interdisciplinary and Crosscultural Approach. Upper Saddle River, NJ: Pearson Education, Inc.