March 6, 2015

Devil in the details: House abortion restriction bills hit deep nerves

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Two bills seeking limits on abortion are poised for debate in New Mexico’s House of Representatives. A look back at weeks of charged discussions on the issue indicates that under a superficial veneer of two opposing “sides” lies a spectrum of experiences and beliefs, all of which could all play into the ultimate fate of the proposals.

Representatives from the abortion opposition group Protest ABQ greeted Roundhouse visitors with signs and graphic imagery the morning of Jan. 22. (Photo credit: Margaret Wright)

Representatives from the abortion opposition group Protest ABQ greeted Roundhouse visitors with signs and graphic imagery the morning of Jan. 22. (Photo credit: Margaret Wright)

Anti-abortion legislation has been proposed session after session in Santa Fe since the passage of Roe v. Wade, but this year, the momentum feels markedly different.

After a new Republican majority took the helm in the House for the first time since the 1950s, anti-abortion activists vowed to hold lawmakers’ feet to the fire. Conservative legislators have expressed confidence they can squeeze votes they need from the Democratic-controlled Senate to send abortion restrictions to Gov. Susana Martinez’s desk for her signature.

THE FINE PRINT

This year represents the fourth attempt by House Majority Whip Alonzo Baldonado, R-Los Lunas, to advance a measure requiring parents and legal guardians of any minor-age female seeking an abortion be notified beforehand. Baldonado’s HB 391 contains what’s called a “judicial bypass option.”

It allows for a minor who wants an abortion—but doesn’t want her parents to be notified 48 hours beforehand—to go before a state district court judge who then decides if she’s “sufficiently mature and well enough informed to decide intelligently whether to have an abortion.”

Initially, the only exceptions written to HB 391’s rules said that if the minor has been raped or sexually abused by her parent/guardian or custodian—or if her life is in danger—a doctor could perform an abortion without providing notice or receiving permission from a judge. That was amended to also include an exception if her physical health was at risk. (In the House’s Judiciary Committee, Minority Leader Brian Egolf, D-Santa Fe, said he was “stunned” that it hadn’t originally been included as an exception.)

Meanwhile, Rep. Yvette Herrell, R-Alamogordo, has sponsored HB 390, titled the Late-Term Abortion Ban. It prohibits abortions on any pregnancy deemed by a doctor to be more advanced than 20 weeks gestation. Abortions after that point would be allowed only if a woman’s life or physical health is at risk, although in those cases, the physician also has to “take all reasonable steps to preserve the life and health of the fetus.”

Another exception to the 20-week ban says abortions after that point are allowed if a woman tells her doctor that her pregnancy was the result of rape, incest or sexual abuse.

Language in both bills specifies that hospitals, medical personnel and pharmacists can refuse to perform procedures or dispense medication that would result in the termination of a pregnancy if doing so conflicts with their “religious, personal or moral convictions.”

This so-called “right of refusal” could potentially provide the basis for denying women access to RU-486, a medication that induces non-surgical abortions for pregnancies up to eight weeks, or for denying emergency contraception like the morning-after pill, which prevents a fertilized embryo from implanting in the uterus.

RIDDLED WITH CONTROVERSY, RIFE WITH NUANCE

Steve Allen, director of public policy at the ACLU of New Mexico, said that while his organization considers freedom of religion to be “one of our most fundamental rights, that freedom does not give us the right to harm other people or to deny people access to the medical care they need.”

Provisions in both the House abortion bills, he said, are troublingly broad.

“Certainly, that language could be interpreted to allow, say, a pharmacist’s assistant to deny a woman access to emergency contraception or birth control because of the language that was included in the amending of the law around dispensing of medication,” Allen said. “That’s really alarming.”

Jonathan Gardner, executive director of the New Mexico Center for Family Policy, assisted with the final drafts of both HBs 390 and 391. He also appeared as Rep. Baldonado’s expert witness during committee hearings on the parental notification bill.

Attorney James E. Dory, who practices law with high-profile Republican political operative Mickey Barnett, testified as an expert witness for HB 391, the Late-Term Abortion Ban. Dory did not respond to phone calls requesting comment.

Gardner described his organization as “a group that is working to build a New Mexico where God is honored, life is cherished, religious liberty flourishes, and families thrive.” He also said the insertion of special exceptions and “right-of-refusal” language were key elements of the strategy underpinning both the Late-Term Abortion Ban and the Parental Notification of Abortion Act.

The wording in both bills that creates a religious, personal and moral conviction basis for refusing procedures or medication to terminate or interfere with pregnancy, said Gardner, “is intended to be broad so that it gives broad protections to individuals.”

However, he emphasized, “it applies at the individual level. You’re not as a medical care provider allowed to prevent the patient from going somewhere else to get the same treatment.”

The limited exception for a young woman’s death but not her health that Egolf had objected to in the original version of the parental notification bill had also been also purposeful, said Gardner. “You don’t put the young woman’s life above parental notification, but if you’ve got a young woman facing a health situation, then we want the parents involved.”

Supporters of both bills have referred to them as common sense changes that will “protect the human rights of unborn babies” and facilitate careful family decisionmaking over life-changing decisions.

Lauren Castillo, Rocky Mountain regional coordinator at Students for Life of America, said she backed the Late-Term Abortion Ban because its 20-week provision mirrored that of the controversial federal Pain-Capable Unborn Child Protection Act.

Castillo also said Baldonado’s parental notification bill was important because “really we need to be promoting healthy relationships between families and not undermining a parents’ position when their daughter is considering an abortion. I think they need to be a part of that position, especially when they’re a minor.”

Opponents of both the abortion restriction proposals in the House point to a range of concerns.

In hearings over Herrell’s HB 390, members of the public who testified, including dozens of medical professionals, referenced statistics that show the vast majority of abortions occur before 20 weeks. Several medical doctors said procedures after that point are nearly always performed either to preserve the woman’s health or because fatal or severe congenital abnormalities in the fetus often aren’t detected until after the 20-week point.

Regarding mandatory parental notification, opponents have said that despite good intentions, government isn’t capable of legislating healthy family communication, particularly for the most at-risk young people. Limited studies of the issue indicate a significant portion of minors faced with a pregnancy crisis don’t talk to their parents because they fear violence, abuse or being forced out of their home.

Yet even within New Mexico’s two camps that either oppose or support abortion restrictions, there’s a vast diversity of opinion and experience combined with intense individual emotional complexity. That’s also the case nationally. According to recent research conducted by the Public Religion Resource Institute, a 52 percent majority of Americans say abortion is wrong. Yet an even stronger (56 percent) majority say it should be legal in all or most cases.

Locally, those apparent contradictions play out in all kinds of ways. There are, for example, the heart-wrenching stories of Rowena Slusser and Rebecca Kiessling, who made appearances at the Roundhouse to plead with lawmakers to remove the exception in Rep. Herrell’s Late-Term Abortion Ban for survivors of rape, incest or sexual abuse.

Slusser said in an interview last week that she was conceived when her grandfather raped her mother, and she herself suffered a miscarriage after surviving family incest. She said she believes fetuses conceived in any circumstance deserve to be born.

Standing at her side was Kiessling, an attorney from Michigan who’d traveled through the night to pick up a woman from Colorado who also said she wanted to lobby legislators with Slusser.

Kiessling’s birth mother was raped and tried unsuccessfully to receive an abortion—which was illegal at the time—before she gave Kiessling up for adoption. Kiessling said that she’s alive because of the prohibitions in place before Roe v. Wade. She’s devoted herself to activism across the country, advocating against rape/incest exceptions in abortion legislation at both state and national levels.

“God used my story to change the heart of Gov. Rick Perry during his presidential campaign, and Newt Gingrich,” said Kiessling.

Slusser told the New Mexico Political Report that her testimony in HB 390’s first committee hearing caused consternation among others in the local anti-abortion movement. She said Rep. Rod Montoya, R-Farmington, approached her afterwards and urged her not to speak out against the bill.

“He said that they would come back and revisit the exceptions and amend it later,” said Slusser. “I said I would consider staying quiet, if he would email me proof of any late-term abortion ban that has an exception that has passed, and then been amended to remove the exception.” Montoya did not respond to multiple requests for comment for this article.

A NATION OF LAWS

Although abortion rights advocates have called Herrell’s Late-Term Abortion Ban extreme, Kiessling and Slusser said there are disagreements even among abortion opponents about the measure.

“This bill says [a woman] just has to assert that she was raped to trigger the exception,” said Kiessling. “Nationally, no one would support a bill like that. I don’t understand why pro-life organizations are supporting the bill here.”

Gardner with the New Mexico Center for Family Policy said the ban wouldn’t meet Constitutional standards without an exception for the life and health of women.

“And for HB 391,” said Gardner, referring to the parental notification bill, “the [exceptions] cover the bases to make sure you don’t leave a minor in a lurch. … The different exceptions and the waivers deal with a lot of objections that would be raised to the bill if they weren’t there.”

Allen Sánchez, executive director of the New Mexico Conference of Catholic Bishops’ Executive Director, echoed that sentiment. He told legislators in committee hearings that said while the long-term goal of the Catholic church is to eventually eliminate all abortions, New Mexico’s two House bills represent an important step forward.

Addressing members of the House Regulatory and Public Affairs Committee on Feb. 20, Sánchez said that precisely because exceptions for women’s life and health were built into the bills, legislators had a moral duty to approve them.

“You are called to vote for this,” he urged them.

For the Rev. Holly Beaumont, director of Interfaith Worker Justice New Mexico, the fact that these issues are being debated at all is a cause for trepidation. She described in a late Feburary interview how she was raised in a devout Methodist household, attending services every week for theological teachings that stressed inclusion and social equity.

“I was very, very shocked when I learned that people had negative experiences in the institutional church,” said Beaumont. “I was steeped in the progressive Protestant movement, and so I was inspired to go to seminary for that reason. That was my goal: To be able to make the moral, ethical and theological imperative for being a just, generous and compassionate society.”

The United States is a nation of laws, she continued, “and those laws protect the right of everyone to practice their own faith tradition. That is a core value of this democracy. What we are seeing is that certain faith groups are making the claim that under freedom of religion, they have a right to pick and choose which laws they will abide by and which they will not.”

Beaumont said attempts to limit access to abortion and contraceptive services raise the specter “that our democracy is being replaced with something else: a theocracy where one particular religion is going to be inserting its theology and its precepts, and the rest of us are going to be finding ourselves stripped of our rights as a result.”

Whether Beaumont’s fears will materialize in the form of successful legislation this session remains uncertain. The final signature needed from Gov. Susana Martinez (still rumored to be harboring national ambitions) is itself an open question, even among abortion opponents. And a week ago, Senate Democrats effectively killed an abortion restriction measure introduced in that chamber.