One of the nation’s cruelest anti-abortion laws is starting to gain ground

“These tactics are not designed to help a woman make a health care decision.”

Two obscure abortion proposals are currently advancing in Oklahoma and Alabama that would target women during some of the most emotionally painful moments in their lives. Both bills seek to prohibit women from having an abortion based on fatal fetal abnormalities unless their doctor provides them with “alternate options” first — essentially, information about perinatal hospice centers that can care for the infants in the first few weeks or months of their lives, before they succumb to their fatal medical conditions.

To understand the potentially devastating impact of that legislation, it’s important to understand a little bit more of the context around these tragic pregnancies.

Perinatal hospice centers are an important resource for parents who are faced with a devastating diagnosis that reveals their pregnancy is doomed. Some of the people who discover that their unborn child will die shortly after birth believe it is important to spend as much time with them as possible, and perinatal care is available to support them in that choice. These centers help give grieving parents a space to grapple with the process of saying goodbye.

On the other hand, some women and their partners decide that it is too emotionally painful to continue the pregnancy, or want to spare their unborn child future suffering outside of the womb. Those people make the extremely difficult choice to terminate a wanted pregnancy because they decide it’s the most compassionate option for their family.

These are decisions about the best end-of-life care that a family can provide.

Writing in Slate earlier this month, Phoebe Day Danziger recounted her own decision to have a later abortion after discovering the son she was carrying had serious abnormalities that would prevent him from surviving very long. She explained that these decisions aren’t really about “life” in the traditional way that term is used in debates over abortion rights. In reality, they’re decisions about the best end-of-life care that a family can provide for a child who they will not have the chance to raise. “In our case, abortion was a parenting decision — the most important and powerful one I have yet to make,” Day Danziger noted.


So, with that in mind, consider how the proposed legislation in Oklahoma and Alabama will factor into this equation. State lawmakers are ultimately suggesting that the women who have made the heartbreaking choice to end a pregnancy to spare their child more pain — the women who are already grieving that loss — should hear more information about perinatal hospice care.

These women aren’t naive or careless when they show up for their abortion appointment. Like Day Danziger, they’ve surely already agonized over their choice. State-sanctioned language about carrying the pregnancy to term would simply insinuate they’re making the wrong decision, potentially putting them under even more emotional strain.

“Not to diminish the importance of perinatal hospice care at all, but it just seems like in this situation, this information is not particularly useful,” Elizabeth Nash, the states issue manager for the Guttmacher Institute, told ThinkProgress in an interview. “It revisits painful issues that have already been decided. A woman has already ridden the roller coaster — she got a diagnosis, talked it over with her doctor, and made her decision… It doesn’t make sense to re-open these wounds.”

“It doesn’t make sense to re-open these wounds.”

Nonetheless, this unnecessary and potentially harmful requirement is already law in at least three states. In 2006, Minnesota was the first to enact a law requiring women to receive information about perinatal hospice centers. Then Kansas followed in its footsteps in 2009. Arizona passed its own version in 2012. Those three states already had broad “informed consent” laws on the books requiring doctors to give women biased information about the risks of abortion. The provisions specifically applying to fatal fetal abnormalities were enacted separately, on top of the existing laws, just as they’re now moving through the legislatures in Oklahoma and Alabama.


“These laws take informed consent and stretch it to the very boundaries. It’s not really informed consent anymore at this point; it’s trying to sway women from having an abortion. It turns it into a shaming process,” Nash noted.

But none of these laws has ever been challenged in court; in the aftermath of Planned Parenthood v. Casey, which weakened abortion rights and allowed states to begin imposing more restrictions on the procedure, it’s difficult to mount a legal challenge against informed consent requirements.

In fact, these policies tend to have other consequences that stretch beyond receiving biased information. Alabama’s proposed law would require a woman to wait 48 hours after receiving the information about perinatal care before proceeding with the abortion. The state has an existing 24-hour abortion waiting period, so that means women who are making the difficult decision to end their wanted pregnancy will need to prolong the process even longer. Oklahoma’s version reinforces the state’s current 24-hour waiting period.

“These tactics are not designed to help a woman make a health care decision.”

“These tactics are not designed to help a woman make a health care decision,” Nora Spencer, the vice president of external affairs for Planned Parenthood of the Southeast, told ThinkProgress. “Women know what they need for their bodies — they wrestle with that with their doctors, their faith, their families. They don’t need politicians to tell them what to do with a complicated pregnancy. These maneuvers are ultimately trying to chip away at Roe v. Wade.”

Why is this issue popping up again this year? It’s all thanks to Americans United for Life (AUL), an anti-choice organization that typically shops around draft legislation for state-level abortion restrictions. AUL produced a legislative guide for the 2014 session to encourage more lawmakers to introduce “perinatal hospice information” bills.


“To date, only three states — Arizona, Kansas, Minnesota — provide such information. In response, AUL has developed the ‘Perinatal Hospice Information Act,’ model language that can be incorporated into states’ existing informed consent laws to address this urgent need,” the group explains in its new guide.

“We’re very much hoping it doesn’t pass,” Spencer said in reference to Oklahoma’s proposed bill. “These women were already very much hoping to carry to term, and this is just one more hoop they have to jump through in order to continue with a very difficult decision.”