This is the the third and final installment of a diary regarding my families decision to terminate our third pregnancy. The first two installments can be found here and here This entry will discuss the laws pertaining to abortion in the Commonwealth of Kentucky, but it will also have my personal observations about these statutes.
Again I must thank a vast majority of the responders for their support, their own experiences, and their questions. I had not started this thinking that I would get such a huge outpouring, but both Mrs. Madman and myself appreciate it greatly. This is what I feel the detractors of Dkos (we know who they are) miss. Admittedly, its an issue they would disagree in supporting, but the love and support, even the disagreement(none of it hate filled)are worlds away from what is portrayed about us, even in mainstream media.
Before I start discussing the legal picture in Kentucky, in fact, I would like to address some concerns as to writing about such a personal issue. I can understand those concerns and respect them. This was a very personal choice that was made and certainly is not one I celebrate having to make. If anything in the tone of my writing lends that impression, I apologise. That being said, I do feel that the stigma that attaches to abortion is so ingrained in us that even those of us who are pro-choice may not fully appreciate the way these choices come about. It certainly was where I was and I admitted to such in the first entry. My philosophy is such that the only way to address that is through education, relating personal experience, and showing that certain sterotypes about those who seek to terminate a pregnancy are as invalid as any other stereotype. I know, the vast majority, as expressed in the comments, agree with that philosophy, but I certainly respect your feelings if you disagree.
Second, an interesting question was asked by seeker in the comments to Pt. II.
Can you discuss what you would have done if your choice were illegal?
I guess the best answer would be: It depends. If Roe v Wade were overturned, throwing it back to the states, Kentucky has a "trigger" law that would make abortion automatically a banned medical procedure. If our finances were adequate to travel to a nearby state, one that had legal abortion, we more than likely still would make that our choice. Now, if the federal government banned abortion entirely, we would have carried to term, then most likely have placed the child for adoption. However, the likelihood of Mrs. Madman being able to do that (knowing her) is in question, so we may even have kept the child.
Now, the legal picture here in the Commonwealth of Kentucky. I will be using two sources: Frontline's wonderful website for "The Last Abortion Clinic", these will be in blockquote and Kentucky Revised Statute's, or KRS, these I will summarize providing links to the actual statute. I should note that some of the comments I made regarding Kentucky and not legislating that a physician be the provider, I have just determined, were in error. There is in fact a statute KRS 311.723 that does in fact seem to imply that an abortion must be perfromed by a physician.
Mandatory waiting period/Informed Consent
Mandatory waiting period: Yes. A woman may not receive an abortion until 24 hours after a physician, physician's assistant, nurse or social worker has provided her with: information about the probable gestational age of the fetus; a description of the proposed abortion procedure, its risks and alternatives; and information about the risks of carrying her pregnancy to term.
Informed Consent/state-directed counseling: Yes. A woman seeking an abortion must receive in person, by mail, or over the telephone state-prepared information about abortion methods and risks; the legal responsibilities of the father; the medical assistance she may be entitled to if she carries the pregnancy to term; the private and public agencies providing counseling and alternatives to abortion; and images and descriptions of the probable anatomical and physical characteristics of a fetus at two-week gestational increments.
KRS 311.725 madates a 24 hour waiting period, however in a medical emergency this waiting period is waived and looking at the language of the statute, it is pretty much left up to the provider whether an emergency exists. No state-mandated form to fill out and file with the state, although the medical reasons must be entered into the medical record. The statute also puts it at the woman's discretion whether she wishes physical copies of the written material. While the description of the written materials is seems to be in line with other informed consent directives, it does require a description of estimated fetal development at the point in pregnancy when the abortion is to be provided.
I will say, in all honesty, that I do not find this particularly troublesome. Like any surgical procedure, it is in the physician and patients best interest to have informed consent, the fact that part of the informed consent process here includes risks associated with carrying the pregnancy to term, is also of benefit. My one issue however, is if providers are able to tell patients that estimated fetal age is just that, an estimate and can be thrown off considerably by any number of factors. And also depending on the benchmarks described in the literature, that some benchmarks for fetal development are opinions, not established medical fact. Also, should that waiting period also be waived if the provider feels that informed consent has been acheived and no waiting would alter the decision, or should the patient be able to waive the waiting period in writing?
Parental/spousal notification
Parental notification/consent for minors: Yes. One parent must provide consent before a woman under the age of 18 can obtain an abortion. However, the minor may obtain a judicial bypass if she can demonstrate that she is mature enough to make the decision for herself or that an abortion is in her best interests; or if an attending physician certifies that "a medical emergency exits that so complicates the pregnancy as to require immediate abortion."
KRS 311.732 defines minor as any person under the age of eighteen. It lays out the requirement that consent must be given by at least one parent, unless the child is an "emancipated minor". It does allow (by Federal mandate) for judicial bypass, anonymous proceedings, ruling to be made within 72 hours, with expedited appeals in the case of a denied bypass(truthfully, the statute states that this matter takes precedence over any other business), no fees due from a minor due to inability to pay. Seeking Judicial bypass/parental consent is once again waived in the event of a certified medical emergency.
Now, I have a couple of severe issues here. First there is something of a conflict between federal privacy law and this statute. HIPAA prevents a provider from disclosing a pregnancy diagnosis, or abortion records for anyone over the age of 16 w/o written consent.
Second, has to do with judicial bypass, though the expedited appeal does mollify me a little in this regard. Judges in Kentucky are elected and as such are subject to external pressures. This is one of the reasons I like the Supreme Court assignments for life. If this type of process is in place, I feel that bypass needs to be addressed at the federal level, where there is less external influences being brought to a judicial ruling (I did say less! Not lack of pressure! Bush is still able to appoint federal judges until 1/20/09) What it means practically is that the same child might be considered differently "mature" if they lived in New York, than if they lived in say Mississippi.
KRS 311.735 requires spousal notification prior to performing an abortion unless "it is not reasonably possible to notify the spouse" prior, then the spouse must be notified within 30 days, exception granted for in the process of divorce or medical emergency.
This I actually find more repellent than any so far. Now, would I prefer that my spouse act as she did in notifying me of the pregnancy and discussing our decision. Yes. Should the state force that communication? Absolutely not, particularly since there is nothing in the statute that says the spouse can actually do anything about it. The only reason this is in place is to invoke fear in the heart of a woman who is already in a situation where she may not ahve the best of communication with the spouse to start with.
Public funding/conscience protection
Public funding for abortion*: No.
Rights of conscience protection to healthcare providers: Yes. Hospitals and individual healthcare workers may refuse to participate in abortion procedures.
*Federal law mandates that federal and state Medicaid funds must be available for abortion in cases involving rape, incest and life endangerment to the mother.
KRS 311.715 prohibits public funds from being used for obtaining or performing an abortion. It also prohibits public facilities from performing IVF, if the procedure will result in the "intentional destruction of a human embryo."
KRS 311.80 prohibits publicly owned hospitals and healthcare facilities from performing abortions and grants rights to healthcare workers opposed to abortion.
This is a sticky wicket, to say the least. Federal law does supersede Kentucky law here, in regards to Medicare and Medicaid patients. However the restrictions placed on those patients (rape, incest, and life endangerment) and the added factor that a public hospital may only perform an abortion when rendering "medical care necessary to prevent her
physical death," in reality almost negates that exception. Should public funds be used to cover all abortions? I'll just say here that I am conflicted, but feel that any medical care should be accessible to all income levels, but may need to be closely monitored to avoid abuse,i.e. overuse of abortion as a contraceptive measure.
KRS 304.5-160 further prohibits private health insurance companies from covering abortion, unless a specific optional rider is attached that a seperate premium is paid for.
Now correct me if I'm wrong. Aren't liberals the ones usually getting accused of meddling with private enterprise? Hmmm. Anyway, the seperate rider coverage is simply misdirection. What this means is that, as an example, ABC Health corp must choose to offer the rider to purchasers, either of individual or commercial plans, then employers must then turn around and say "we'll pick up that rider and offer it to our employees" either paying part of the rider or offering it as fully employee funded. Then, and this is where it all falls down of course, the employee must choose to pick it up. Now, I may be horribly mistaken but since most abortions are unplanned for, I know for certain that almost no one would choose to pay seperately for abortion coverage.
There are a number of other statutes and Cabinet regulations that dictate licensing for abortion facilities, prohibit abortion after viability, etc.
What I find both encouraging and a little disheartening is that Kentucky is not the worst state, in regards these types of restriction.
The more I have looked at the issue, the more an adopted phrase from the NRA seems to be relevant. I don't know if NARAL or NAF use this yet, but they are more than welcome to appropriate it.
"If abortions are outlawed, only outlaws will provide abortions.
Thank you again.