Diane talks with Mary McCord, Legal Director at the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center.
Two years ago, Texas passed a law requiring all clinics that offer abortions to meet the same standards as hospital surgical centers. On Tuesday, a federal court upheld the Texas law, saying it did not place an “undue burden” on women seeking abortions. And in Wisconsin this week, a bill that would ban all abortions after 20 weeks passed the state senate. Fourteen states now have a similar ban on the books. Supporters of these laws say they are needed to protect the health and safety of women. But critics say they are unconstitutional and simply make it harder for women to obtain abortions. Diane and guests discuss new state laws restricting abortion and how courts are responding.
- Erik Eckholm National correspondent, The New York Times.
- Wendy Davis Former state senator, Texas district 10.
- Elizabeth Nash Senior State Issues Associate, The Guttmacher Institute
- Mary Lazich Republican state senator, Wisconsin's 28th district
Map: Abortion Laws
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. On Tuesday, a federal court upheld the Texas law that requires all clinics that offer abortions to meet hospital surgical standards. The law leaves Texas with fewer than 10 such clinics across the entire state. In Wisconsin, this week, the Senate passed a bill banning abortions after 20 weeks. Governor Scott Walker said he'll sign the bill.
MS. DIANE REHMJoining me to talk about new state laws restricting abortion and what it means for women living in those states, Elizabeth Nash of the Guttmacher Institute and from the NPR bureau in New York City, Erik Eckholm of The New York Times. I invite your questions, comments. Join us by phone at 800-433-8850. Send an email to email@example.com. Follow us on Facebook or send us a tweet. Elizabeth, Erik, thank you for joining us.
MS. ELIZABETH NASHThank you having us.
MR. ERIK ECKHOLMIt's a pleasure.
REHMErik, I'll start with you. Tell us about the appeals court decision on Tuesday, the Texas law they upheld.
ECKHOLMWell, this is not a -- probably the most conservative appeals court in the country so it was not a total surprise, but the Texas law, which was passed in 2013, you may remember Wendy Davis, the state senator in pink tennis shoes trying to prevent its passage. But there were two measures, especially, that really have threatened to cut out most of the abortion clinics in the state. One of them was a requirement that the doctors have admitting privileges at local hospitals, which, for many of the clinics, has proved impossible for both logistical and political reasons.
ECKHOLMAnd secondly, it requires that abortions be done at institutions that meet the standards of ambulatory surgery centers. And this is very expensive and has a lot of building regulations and staffing. And if that does take effect within the next few weeks, as will happen unless there's a new successful court appeal, then the total number of clinics in the state will go down from something like 41 before that law passed to 8 to 10 next month. And this is a state the size of France.
REHMTell me, Erik, about the exception in the case applying to the one doctor working in McAllen, Texas.
ECKHOLMYes. Well, McAllen, Texas, is down in the southern Rio Grande Valley and there's one clinic in operation for a huge area there. And the court did recognize -- the argument has been made that this is just too much of a burden on the right to abortion. And they said, well, in this one case, it really is. Women would have to drive something like 230 miles each way to reach a clinic and so they both said that it could be exempted from the surgery center standard and that strangely they named a doctor that said he can perform procedures there.
REHMHow likely is this case to go all the way to the Supreme Court, Erik?
ECKHOLMIt's hard to judge. A lot of legal experts really hope it will because this sort of standard of what's too much under, you know, rather -- what many consider rather (word?) grounds to impose these regulations that are actually forcing clinics to shut down. Does that really bear out the right to an abortion, as the court has said before? On the other hand, the Supreme Court has been very reluctant to get involved in the abortion issue in recent years.
ECKHOLMThere have been only something like three cases in last 23 years they've taken. So but in this case, the effects are so drastic that the pro-choice groups are taking the unusual step of really hoping and pushing for its rapid acceptance by the Supreme Court. So we'll find out soon.
REHMErik Eckholm, he's national correspondent for The New York Times. Turning to you, Elizabeth Nash, Erik said that this means you go from having as many as 42 clinics just a few years ago down to perhaps 7 or 8. So where does this leave women in Texas?
NASHWell, it leaves women with dramatically reduced access to services because certainly the eight clinics that may remain open are not able to support all of the need for abortion services that the 40-some clinics were able to support and the clinics that will remain open are located in cities. So areas that are more rural or suburban do not have access. This is how come we are seeing the increased travel distance issue. And so what we have seen -- because in 2011, we did have over 40 clinics open in Texas and then, in 2013, after some of this law went into effect, we saw the clinic numbers drop to 17 clinics and now, we're expecting the numbers again to drop again to 7 or 8.
NASHThe issue here is also that women are starting to leave the state to access abortion services elsewhere in state around Texas.
REHMSo a woman in El Paso, for example?
NASHYes. She may be going to New Mexico. She may be going to Colorado. She may be going to Kansas. So she may be traveling very far. And what we have also seen is that there's a divide among women. Women who have more money and have better paying jobs can often take the time off of work to access service, but the women who are poor and in jobs where they can't take time off are at a deficit.
REHMWhat about other states, Elizabeth? Are they enacting similar laws?
NASHYes. We're seeing -- in a way, you can see Texas as emblematic of what's happening across the country. Certainly, not every state has gone as far as Texas, but we are seeing similar restrictions on abortion being added to the state laws in places like Kansas and Oklahoma, Arizona, for example.
REHMElizabeth Nash, she's senior state issues associates for the Guttmacher Institute. If you'd like to join us, 800-433-8850. Erik Eckholm, another state that made news this week was Wisconsin. Tell us about what just passed the Wisconsin Senate.
ECKHOLMWell, this -- what they passed was a ban on nearly all abortions at about 20 weeks after conception and this is based on a theory that the fetus can feel pain at that point, which has been developed and promoted by the anti-abortion movement and -- but which most medical experts say is just not true. And similar bans have -- one exists in Texas. It's part of this law that was not challenged in this court case and Elizabeth can say the exact number, but I think 11 or 12 states have such bans.
ECKHOLMAnd in theory, if you look at the law, these are in violation of the Supreme Court dictates from the past, which said that you have a right to an abortion until the fetus is viable outside of the womb and that's more like an average of around 22 weeks after conception. But for various reasons, they haven't been very much challenged yet. I should add that very few abortions are...
REHMSo more and more states are passing these 20 week restrictions, Elizabeth.
NASHRight. So we saw the first one enacted in 2010 and since then, we've seen another 13 or so states adopt restrictions. A couple of them are blocked by courts, but Erik's right. Right now, there are 11 that are in effect and they are limiting access for women who need services after that point in pregnancy and they are, on their face, in conflict with what the Supreme Court has said in previous court cases.
REHMGoing back to what Texas just passed, what does that mean to bring a clinic to the state of what a hospital might be able to offer in terms of services, in terms of availability? Erik, explain that a little more.
ECKHOLMWell, there are a whole host of regulations and building code things about how wide hallways must be, whether you have an extra room of what size for cleaning supplies, exactly what kind of (word?) and air conditioning system you have, how many parking spaces there are. Then, there are certain medical equipment and the number of nurses that must be on-hand and these are designed for centers that do real surgery, that knock people out and need certain safety procedures, especially for first trimester abortions.
ECKHOLMMost medical experts say this is just irrelevant and, you know, a lot of these clinics barely scrape by economically anyway and they just can't invest, you know, a few million dollars in new buildings.
REHMSo that means that since they cannot meet those kinds of standards, the abortion service that they provide can simply not be done in those clinics.
ECKHOLMYes. They will have to close down all abortion services and -- already, I mean, the reason that eight or so of such centers exist is that under preexisting law in Texas, later term abortions had to be done at such centers. And that's not so controversial. But, you know, well over 90 percent of all abortions are in the first, like, 12 or 14 weeks and it's not necessary.
REHMErik Eckholm of The New York Times, Elizabeth Nash of the Guttmacher Institute. After a short break, we'll come back and hear from the Wisconsin state senator who introduced the bill and we'll hear from her later in the show. Short break, right back.
REHMWelcome back. Joining us now from Washington, D.C., former Texas State Senator Wendy Davis. She represented the 10th District and filibustered the bill that later became law for 13 hours straight. That bill has just been upheld by the Fifth Circuit. Welcome back to "The Diane Rehm Show." Wendy Davis, good to have you.
MS. WENDY DAVISThank you, Diane. I'm delighted to join you.
REHMThank you. Tell me your reaction when you heard the decision on Tuesday by the Fifth Circuit.
DAVISI wish I could say that I was surprised. But this has been a very conservative circuit court for a long period of time. In spite of my lack of surprise though, I am deeply disappointed because what the Fifth Circuit has done, essentially, is to condone, to sanction politicians who are erecting barriers to women's constitutionally protected access to abortion services under false pretenses. And those false pretenses being, of course, the idea that somehow, without any evidence to support the claim, women will somehow be safer with these restrictions in place.
REHMHow about the admitting privileges requirement? What's wrong with requiring this of doctors who perform abortions?
DAVISYou know, there's no rational relationship between a doctor who has admitting privileges in the hospital and somehow the idea that that doctor will more safely perform abortion services to women. And it's a particularly pernicious requirement because it imposes a standard that's almost impossible to meet. Many hospitals, most hospitals in Texas and it's likely the case in other states as well, are religiously affiliated. Most of them do not grant admitting privileges to abortion-care providers. And it really doesn't make sense that an abortion-care provider would even seek those privileges because they do not practice in a hospital setting.
DAVISIt's extremely rare for a women who has had an abortion to have to have any sort of follow-up procedure in a hospital setting. And when she does, there are, of course, competent doctors on hand to assure that that occurs. This requirement was put in place for one reason and one reason only and it was the understanding that it would be a barrier that would be impossible to meet and it would force the closures of almost all of the clinics in Texas. And that's, of course, what has happened.
REHMSo what do you see happening as a result of the closing of these clinics, unless there is a stay?
DAVISWell, I know that the plaintiffs are going to seek a stay in this case. And I'm hopeful because the Supreme Court has already granted a stay on this particular bill previously, or on this law previously. I'm hopeful that they will do it again, while this appeal is underway. But what Elizabeth said is exactly true. Women of means will continue to have access to their constitutionally assured rights to terminate a pregnancy. But women who do not have means in Texas -- and we're looking at about almost a million women who will now live over 150 miles from an abortion clinic -- they will no longer have the kind of access that they once had.
DAVISAnd when you look at the cumulative impact of prior laws that have passed, it creates an almost insurmountable barrier for those women. Women in Texas now have to have a sonogram 24 hours prior to an abortion procedure. And what that means, of course, is a two-day period of time must be spent for a woman to exercise this right. The travel cost, the overnight cost, the time away from work and from children is something that will create the kind of barrier that I fear will have women turning to less safe means to exercise a termination of a pregnancy.
REHMSo the question remains, how long will the 45 or 46 clinics stay open while the ruling is being appealed?
DAVISRight now there are only 18 clinics left open because of the initial impacts of the laws that were put into place while all of this is on appeal. There was some ability for some of those requirements to be put into place. So we have only 18 clinics now where we...
DAVIS...formally had 41. And it looks like we'll have eight or nine after this decision is put in place, if the Supreme Court does not provide a stay.
REHMSo do you believe that the Supreme Court will take the case?
DAVISI certainly hope so. And I think they will. What's very interesting about this Fifth Circuit opinion is that it was a per curiam opinion. The judges there didn't even put their name on a very controversial matter of interpretation of the law. And I think that and I hope that the Supreme Court Justices will take note of the fact that they've truly twisted prior Supreme Court decisions on this issue in order to uphold this law. And they've done it, as I said before, under false pretenses. I don't think there's any evidence -- in fact, I know there's not -- that this somehow creates a safer situation for women.
DAVISAnd in fact, when this bill was being laid out in the Texas senate, I repeatedly asked the author of the bill and others who were supportive of the bill to provide valid information that demonstrated that somehow there was a problem that needed to be solved and that would be solved, making women safer by putting these conditions in place. And there was simply nothing that they could point to that demonstrated that.
REHMFormer Texas State Senator Wendy Davis. She represented the 10th District. She filibustered the bill that later became law. And, Wendy Davis, I want to thank you so much for joining us.
DAVISThank you, Diane.
REHMAnd joining us now from her office in New Berlin, Wis., is Republican State Senator Mary Lazich, who represents Wisconsin's 28th District. Welcome to "The Diane Rehm Show," Senator Lazich.
SEN. MARY LAZICHThank you, Diane. And good morning.
REHMGood morning. A bill you introduced that would ban abortions after 20 weeks just passed the Wisconsin Senate. Tell us why you offered that bill.
LAZICHWhat the bill does, Diane, is it prohibits abortions at 20 weeks. And the reason that we chose 20 weeks post-fertilization, is that is where the science and the literature and the medical experts -- fetal pain experts, anesthesiologists, physicians, researchers -- establish that the baby feels pain at 20 weeks. So we prohibit at 20 weeks because we don't want to inflict pain on children. We don't want to inflict pain on anyone. But particularly we don't want to inflict pain on children. And keep in mind, these are late-term babies. These are not the early.
LAZICHEarly on, the media picked it up as prohibiting rape and incest abortions. And that's not what this about -- this is about. This bill does not ban rape and incest abortions. Those abortions are early on, within a few days, within a few weeks, at least in the first trimester, the earlier...
LAZICH...early times. So these are late. These are more on par with partial-birth abortion and post-viability abortions. These are late term and it's established that they feel pain. And some of the research shows that they have more intense pain because the pain receptors are developed but the pain inhibitors are not as developed. So they may have even more excruciating pain. So that's the reason for the bill.
REHMEarlier in the program, you may have heard Erik Eckholm of The New York Times point out that, as far as the predominant medical research, it indicates that viability and pain are not felt until 22 weeks. But you dispute that.
LAZICHOh, it's not that I dispute it. It's the research and the literature. Now, in all the vetting process that has gone on in Wisconsin, we had a lot of expert testimony, a lot of material delivered to us. All of those that study the pain research collectively, some believe it's much earlier, and they document their rationale, their methodology, some of the studies out there. But collectively they all agree that at -- it's at least by 20 weeks. Now, in those that testified or submitted written testimony opposing the bill, and those even from the medical community, they cite one piece of information and it's a Journal of American Medical Association article. And I believe it was 2005.
LAZICHBut that article was a survey of other articles. And that one said that pain was at, I believe, 29, 30 weeks, but later than the 20. Only one piece of research that was submitted -- maybe there are some out there people haven't given me -- but only one piece and that piece was refuted by a world-renowned specialist -- world-renowned, world-respected -- that looked at it and said the methodology they used was faulty so that that is not valid. Now that's only one. And like I say, I'm very open, no one -- and I've said this for a couple weeks now -- and no one has brought other data forward.
LAZICHBut overwhelmingly, the other data is out there. I can cite you numerous, numerous studies and...
REHMAll right. Now...
REHMI gather that similar bans in Georgia, Idaho and Arizona that is limiting abortion at 20 weeks have been blocked by the courts. And some legal experts are saying that your bill, even if it does become law, won't hold up in court. How do you respond to that?
LAZICHIt's very difficult to say what's going to happen in the courts...
LAZICH...you know, what day and what judges and who you're going to get and all that kind of thing. But really importantly, what I looked at was when the U.S. Supreme Court ruled -- way back the '70s, they did Roe v. Wade. Then in '94 they did Casey. And when they did Casey, they broke it down. They talked about pre- and post-viability and that the state has a very legitimate interest in regulating the post-viability. And in the pre-viability, the state also has a legitimate interest. If there is a compelling state interest in prohibiting pre-viability, you know, that's acceptable. And in this case, when all of the literature and all of the science has arrived at 20 weeks, we clearly have a compelling state interest.
LAZICHThat is written by -- U.S. Supreme Court Justice Kennedy has some very good writings out there about it that seem to give a very clear direction. And, in addition, the -- that Supreme Court ruling as well as Justice Kennedy, other things that he has said and wrote, send a very clear direction that the court is interest in the well-being of the mother and the child, and the state has a compelling interest in preventing pain, as he described the late-term abortion, what they were doing in, of course, partial birth. I don't think anyone is clamoring to have that come back. And that was a method that was used. And that's prohibited in all of (word?)
REHMAll right. So you mentioned, earlier, rape and incest. Does your bill have exceptions for rape and incest or when the mother's life is in danger?
LAZICHIt -- the bill includes a medical exception. So the medical exception allows the physician to use reasonable medical judgment to save the life of a mother. And, again, we had a number of expert testimonies and a number of experts cited that work in crisis pregnancy, work in fetal pain, have been doing it for years and years, 25-years-plus experience, and they testified -- some were testimony I saw before Congress and then some testimony that came to us -- that they said, in crisis pregnancies, and they went through the list of them, the things that go on -- toxemia is cited often -- and they said in all the years they've been practicing, they have never, ever, ever had to take the life of a mother to save a baby.
REHMAll right. And...
LAZICHThey said they, unfortunately, had to deliver babies that died, that didn't make it. But they never, ever, ever were put in that...
LAZICH...in that position. So in terms of that being a valid argument, it just really, really is not a solid valid argument.
REHMAnd you're listening to "The Diane Rehm Show." What about the rape and incest question?
LAZICHRape and incest, again, rape and incest happens early in pregnancy. That's generally within a few days, certainly within a few weeks or months.
REHMBut how about if someone doesn't know she is pregnant?
LAZICHOkay. And the other thing that was brought up would be the handicapped children, Down's Syndrome, hydrocephalic, these very severe things. What the science shows is at 20 weeks they feel pain. So we don't discriminate and say, well, if -- you know, just because it's a handicapped child, it's okay to abort it. What we say is, at 20 weeks, it feels pain. And there's a compelling state interest in...
REHMWhat about rape and incest?
LAZICHRape and incest, as I said, they generally are early. However, if, at five months -- I mean, you're talking five months, six months, seven months, when you're talking beyond 20 weeks -- if someone comes forth and says, oh, I was raped. Well, that child feels pain. And we don't discriminate, inflict pain on someone, because the mother says, oh, well, it was rape, and you're five months along. Five and -- remember, too, this is five-and-a-half months, if you figure the LMP, last menstrual period -- you're looking at a five-and-a-half month pregnancy. So we don't say, oh, okay. Well this one can have an abortion and we can inflict pain on it, but not this one.
REHMAll right. And...
LAZICHWe say, at that point, it's established there's pain. And we're not going to inflict pain.
REHMAnd you perhaps heard former Texas State Senator Wendy Davis and other critics, who said that what you're trying to do is make abortion effectively illegal in Wisconsin. How do you respond to that?
LAZICHWell, I'm clearly not a fan of abortion. That's obvious. That's very, very clear. And in terms of this, when we have factual medical information that there is pain at 20 weeks, I clearly believe that the courts -- the Supreme Court should look at that and make a determination on it. I firmly believe that if we knew today what -- back when they do Roe v. Wade -- if today's technology and information were available, I tend to think there would be a very different outcome. Because, as you know, abortions are dropping across the country.
LAZICHCivilized society does not believe that it's appropriate. The civilized society and the courts have ruled it's a cruel, inhuman thing to do. You don't -- the partial birth method is banned. And that was done early in pregnancy as well as late. And they just decided that barbaric measure is not what a civilized society does.
LAZICHAnd, again, with post-viability...
LAZICH...and now, again, this is five and a half months of pregnancy.
REHMAll right. Wisconsin Republican State Senator Mary Lazich. She represents Wisconsin's 28th District. Thank you for joining us.
REHMAnd welcome back as we talk about new state laws affecting abortion and affecting viability, affecting how far women must travel, affecting how many clinics are available to provide abortions. We're going to open the phones now. Here in the studio is Elizabeth Nash. She is with the Guttmacher Institute. On the line with us, from New York City, is Erik Eckholm of the New York Times. You've heard from both Republican Senator Mary Lazich and Democratic former Texas state Senator Wendy Davis.
REHMAnd now it's time to hear from you. Let's go first to Terry in Boostertown, Tennessee. You're on the air.
TERRYThank you, Diane. I think the people that are actually affected should speak more about abortion instead of people that want to dictate. And if a man has caused, promoted, paid for an abortion, he should have to preface each statement with that information. And instead of just dictating, provide real, considerate options with no abuse of the child after it's born.
REHMAll right. Thanks for that call. Let's go now to, let's see, I'm trying to get this phone to work. Let's go to Gabby in Virginia Beach, Virginia. You're on the air.
GABBYHi Diane. Thanks for having me.
GABBYI just am very concerned for Texas women, because of the cost it's going to have on this state and them. Texas, at the source, Texas is not required to deliver sexual education that's medically accurate. Nor are they required to cover contraception. And it's, I mean, that's really where it starts.
REHMNow, hold on a minute. Let me understand precisely what you are saying and whether you're backing up your statement with facts.
GABBYI'm saying that in order to, you know, get this at the source, I believe education is the key.
GABBYIt's not, you know, after the fact when it's too late.
REHMBut why are you saying that Texas does not provide education?
GABBYI recently have done a little bit of personal research on abortion and I was informed that Texas is not required to give medically accurate sexual education to their students.
REHMElizabeth Nash, can you comment?
NASHYes. Now, Gabby is right. The sex education provided in the state of Texas is not required to be medically accurate and is not required…
REHMWhat does that mean?
NASH...oh, so what that means is that you -- when we have medically accurate requirements for sex education, it means that you have to use evidence based information for sex ed. It means that you have to provide the truth, that you can't say things like condoms don't work. And when we have a medically accurate...
REHMWe know that in many cases, condoms do not work.
NASH...well, we know that condoms are an effective method of family planning, we know that they work when you use properly. In fact, they have an over 90 percent effectiveness rate. But you can't just simply make the statement that condoms do not work, which is made.
REHMErik, do you want to jump in here?
ECKHOLMWell, I think this is over my head.
REHMOkay. All right, and so what you're saying, Elizabeth, is that perhaps Texas education process regarding sexual behavior is not as full as it needs to be.
NASHExactly. It doesn't provide all of the information that young people need in order to make healthy decisions around sexuality. And I believe the other statement that Gabby was talking about was access to contraceptives. And really, what she's talking about is trying to reduce unintended pregnancy. How do you do that?
REHMAll right. Here's an email from Mike in Florida, who says, what I do not understand is why Planned Parenthood clinics need to be closed if only three percent of abortion services, sorry, of three percent of services are abortion related. Seems to me if 97 percent of Planned Parenthood's business is services other than abortion, the clinics could still stay open by simply not performing abortions until the laws get changed. What about that, Erik?
ECKHOLMWell, in fact, when we say closing down abortion clinics, we mean stopping abortion services. And in fact, where there is such a -- you know, place that is providing a range of medical and health services, they do tend to remain open. So, I think there's a bit of misunderstanding in the terminology there.
REHMAll right. And here's an email from Angela in Virginia, who asks, aren't most early abortions now medical? Taking a pill rather than a surgical abortion. Wouldn't that reduce the likelihood of needing a hospital admission? So, no hospital privileges.
NASHSo, what we know is that about a quarter of abortions are performed using medication. So, we call them medication abortions. So, that's about a quarter. That is a very large percent of all abortions. But what was interesting about the Texas law was that the Texas law includes those providers that only do medication abortion. They have to meet these ambulatory surgical care center standards. So, yes, while taking medication would seem to be not -- would be incongruous with having surgery center standards, that's not how the Texas legislator saw it.
REHMAll right. Let's go to Sandy in Easton, Texas. You're on the air.
SANDYThank you for taking my call.
SANDYYou have a great program.
SANDYAnd I thought maybe there was just a different way to approach this, and I was wondering if any groups were trying to raise funds to either help these clinics meet the standards that they've had passed by the new legislation.
REHMAll right. Elizabeth.
NASHYes. There is some work being done around raising funds for clinics to remodel. But one of the real issues here is that oftentimes, clinics rent their spaces and they are not allowed to make these changes. So, in fact, they have to move and build new facilities, which can cost well over a million dollars. And that type of money is very difficult to raise.
REHMAll right. To John in Indianapolis. You're on the air.
JOHNHi Diane. Thanks for taking my call.
JOHNAnd thanks for facilitating good civilized discussion around topics like this for us. I'm an obstetrician in Indianapolis, and I wanted to make a comment on your most recent guest's description of the bill that she's sponsored. She initially said 20 weeks post fertilization and then she went on later to talk about the pain that fetuses, babies feel at 22 weeks. Most dating we do is by menstrual dating, until, by definition, a 20 week baby that is post dated by post fertilization dating is 22 weeks by menstrual period.
JOHNThis may seem like a technicality, but overall, I think it really undermines, sort of underscores, I guess, the importance of having this conversation be between a patient and her doctor. And the slippery slope that we sort of find ourselves on when legislation gets in the mix. And I'd like to hear your guest comment on that.
NASHCertainly. In fact, it's an excellent point to make that these conversations have to be between a woman and her physician, so that she can make the best decision that is best for herself. And specific to her situation, that she gets the information that's related to her. And not just general information that doesn't apply.
REHMInteresting email from Evelyn in Maryland, who asks a little bit about the history. And I'm going to go to you, Erik Eckholm. She says, when abortion was first made legal, a woman could get an abortion in a hospital. My own OBGYN doctor performed them at New York University Hospital. When and why did this option disappear? Erik.
ECKHOLMI don't know exactly when, and I would say it hasn't disappeared. But by and large, hospitals, I think partly because of the political controversies, have preferred not to be involved in abortion, and maybe sometimes, their same doctors might, on the side, also work at a clinic that specializes in abortions. But for later, later term abortions, in the second trimester, quite often, those are done in hospitals.
REHMAnd what has Congress said, so far, about the 20 week abortion ban?
ECKHOLMWell, the House of Representatives has twice passed such a law, such a bill. But it hasn't come up in the Senate yet. But with Republican control of the Senate, it seems possible, at some point. It's obviously not been a priority of the current leadership, though they have said they would promote this. It's a very popular cause with conservatives, but the President, President Obama, has said that he would veto it if it does pass. And I would just add that the descriptions of the science before, I think, were not very accurate.
ECKHOLMIf you talk to, you know, 10 leading pediatric neuroscientists in the country, I don't think you'd find a single one who would say that the neurological development at 20 weeks, or even a few weeks after that were anywhere near to the point where there's what we would call pain. You know, you can, any living thing, you poke it with a needle, there's a reflexive reaction, but that's not the same as the perception of pain. And there's been a cottage industry of a few on the margin scientists and anti-abortion groups promoting these ideas.
ECKHOLMAnd producing voluminous literature, but that's not the same as science, I would say.
REHMAnd let's go back to the statement that abortion is actually declining nationwide. Elizabeth, is that true? And is the medical option, perhaps, what is bringing down the number of abortions nationwide?
NASHWell, we've been seeing a decline, generally, since 1982. So, this is not a new phenomenon. We have also been seeing a decline in pregnancy, which would make sense, that if you're seeing a decline in pregnancy, you would also be seeing a decline in abortions. And what we know from some of the most recent years, the 2008-2011 period, is that there is some evidence that people were delaying child bearing during the recession. Right? If you think you're losing your job, then perhaps you're thinking, maybe, not right now. You know, we don't want to have a child just yet.
NASHAnd the other issue was that there's a renewed interest in long acting method like the IUD, that are highly effective. And that may also be playing a role.
REHMAnd you're listening to The Diane Rehm Show. So, if abortion is declining nationwide, how come states are passing these laws in such high numbers?
NASHWell, what we've seen is that since the 2010 elections, when many state legislatures and governors shifted to the much more conservative stances, we've seen restrict the number of abortion restrictions increase. And they've really increased dramatically. So, between 2011 and now, we've seen over 260 abortion restrictions become law.
REHMAnd the -- an op-ed in the New York Times this morning, Erik, mentions Idaho as another state with tougher restrictions on abortion.
ECKHOLMYes, well, I -- it's to and a few dozen of the more conservative states, you've just had every year go after bill. Everything from longer waiting periods to making it tougher for juveniles to get an abortion. The 20 week bans. But Texas does, where we started, does sort of take the cake in that they've done nearly all these things at once.
REHMAll these things at once. And Elizabeth, how do you see this playing out in Texas and Wisconsin? Do you see it going to the Supreme Court?
NASHCertainly, I see that we cannot let the legal case stand where it is in Texas. It needs to be fully resolved. So, you would expect a challenge to the Supreme Court. But I would say that with all of these restrictions that we've seen become law, what we're seeing is a difference between what access looks like in places like in the New England areas and the West Coast. And what access looks like in the south and the rest of the country.
REHMElizabeth Nash. She is with the Guttmacher Institute. And Erik Eckholm. He's National Correspondent for the New York Times. Thank you both so much.
NASHThank you for having me.
ECKHOLMThank you, Diane.
REHMAnd before we end this hour, I want to make a correction. On yesterday's show, I raised the issue of dual citizenship with Senator and Presidential candidate Bernie Sanders. This is an issue that's come up over the years in American politics. One of our listeners suggested via Facebook that I ask Senator Sanders about internet speculation that he has dual citizenship with Israel. But instead of asking it as a question, I stated it as fact. And that was wrong. He does not have dual citizenship.
REHMSenator Sanders immediately corrected me. I should have explained to him and to you why I felt this was a relevant question and something he might like to address. I do apologize to Senator Sanders and to you for having made an erroneous statement. However, I am glad to play a role in putting this rumor to rest. I want to thank you all for listening. I'm Diane Rehm.
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