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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.