In testimony before the state House Committee on Public Health, Welfare and Labor, obstetrician/gynecologist Dr. Janet Cathey sought to explain to legislators why a bill ostensibly drawn up to prevent fetal pain would, besides requiring women to carry babies sure to die at birth to term, subject the fetus and infant to more pain. She described what happens when, in one example, the amniotic fluid that nourishes and protects a fetus leaks out: The uterus begins to constrict, so that the arms and legs of the fetus become contracted, and the lungs, deprived of fluid, fail to develop properly. If the fetus does not die in utero and is carried to term, it will suffocate after birth.
Yet the "Pain-Capable Unborn Child Protection Act," by Rep. Andy Mayberry (R-Hensley), which would prohibit abortion after 20 weeks with no exceptions for fetal anomalies, rape, incest or mental health and which is based on iffy science rejected by the American College of Obstetricians and Gynecologists that the embryo at 20 weeks feels pain, was passed by the House on Monday with 75 yeas, 20 nays and 5 not voting. Why?
Conway Republican Sen. Jason Rapert's bill that would prevent abortion after six weeks, when a probe inserted into a woman's vagina can detect a heartbeat, and prosecute doctors who performed abortions after the heart-beat cut-off with a Class D felony, passed the Senate 28-6.
(The House health committee on Tuesday voted to table Rapert's heartbeat bill on a motion by chairman Rep. John Burris. Later on Tuesday, Rapert said he would amend the bill to require a test only when an abdominal ultrasound could be used, which is typically 10 to 12 weeks.)
Given that Rapert's and Mayberry's bills are unconstitutional, since the U.S. Supreme Court's Roe v. Wade decision has said that the ability of the fetus to live outside the mother — generally considered to be 23 or 24 weeks — is the standard under which an abortion may be prevented, and that they will cost the state many tax dollars for the court fight the state ACLU promises, why?
The full House passed on Monday a bill by Rep. Butch Wilkins (D-Bono) that would prohibit policies offered under a health insurance exchange from covering non-elective abortions. (No insurance policies cover elective abortion.) The federal health care law that allowed the insurance exchanges already prohibits federal dollars from being spent on abortion, thanks to an amendment by Nebraska Sen. Ben Nelson. Women who are part of the exchange would be able to buy insurance that would cover abortion, but the portion of the cost that would apply to a medically-necessary abortion would be figured independently to insure only the buyer's money, and not federal dollars, is being spent. Should Wilkins' bill become law, women who are insured through the exchange won't be able, with their own money, to insure themselves against potentially enormous hospital bills that could result from procedures necessary to preserve their lives. Is that what legislators intended?
Another bill, by Sen. Justin Harris (R-West Fork), would define a fetus as a child under the state's Child Maltreatment Act and require all health care professionals who suspect a pregnant mother has been abusing alcohol or drugs to turn her in to the child abuse hotline. If they didn't, they could be charged with a felony. It has been passed over a couple of times by the House health committee, so maybe the bill, which could keep a pregnant woman with substance abuse problems from seeking prenatal care or confiding in her physician, will die a quiet death.
Why is the war on women's rights — which nationally figured into the defeat of a couple of Republican congressional candidates — being waged so successfully in Arkansas?
Testimony before House and Senate committees suggests several possible reasons why Arkansas's legislators are embracing bad law.
1. They want to codify in state law their interpretation of God's law. Lawmakers and those who have testified for their bills often invoke God's name and what they believe to be His will. Julie Mayberry, testifying for her husband's bill, said it was God's plan that her child be born with spina bifida. Mayberry, after the hearing, told a reporter that if a woman chose to have an abortion despite counseling and being told that she was "going against God's word," she was immoral.
The logical extension of this line of thought is that if all abortion is made illegal, and women die as a result of back alley abortions — once the number one killer of women of child-bearing age — that the Arkansas legislature seems to have forgotten, that, too, is God's will.
In arguing his bill before the House, Mayberry said to legislators "who consider yourself Christian" to remember the Book of Deuteronomy, 30:19, in which Moses exhorts rebelling Israelites to follow God's law and so "choose life."
2. Misogyny. All of the anti-abortion bills deny the right of a woman to control her own body, and so are by definition anti-woman. They are also insulting, indifferent and dangerous.
"These bills reflect utter disregard for women's life, health and well-being," ACLU of Arkansas director Rita Sklar said. "That is why it is such an emotional issue — because they attack the legitimacy of women as people, as equal human beings."
Rapert's bill would require all women seeking an early-term abortion to have a probe inserted into the vagina, the only way to detect a fetal heartbeat at six weeks. The probe isn't the main problem. The main problem is the fact that the bill would prohibit a woman who has missed only one menstrual period (if at all) and may not even suspect that she could be pregnant from obtaining a legal abortion. But the invasive vaginal probe — an unnecessary procedure in legal abortion — is undeniably symbolic of what the legislature is doing to women's rights.
Mayberry's bill not only makes no exception for rape or incest it breaks new unconstitutional ground by specifically excluding emotional and psychological health or a diagnosis that a woman will commit suicide if the pregnancy were to continue.
Rep. Greg Leding (D-Fayetteville) asked Mayberry why he did not include exceptions for rape or incest: "Can you envision a child of 12 or 13 who has been raped and afraid to come forward until after 20 weeks ..." "I don't care to envision that," Mayberry said.
There were a couple of instances of legislators being rude to women witnesses. Sen. Missy Irvin (R-Mountain View) asked a nurse practitioner, Lori Williams, who was testifying against Rapert's bill if, when a woman miscarried, whether doctors tested for fetal anomalies. Dissatisfied with Williams' answer (no) to what seemed like a strange question, Irvin, a doctor's wife, was dismissive, suggesting the witness wasn't qualified to answer. In a hearing on Wilkins' proposed insurance restriction, Victoria Leigh, a lawyer who plans to join the exchange and who was testifying against the bill as a consumer, could not understand a poorly worded question put to her by Mayberry and asked, "I don't understand. Am I missing something?" "I think you're probably missing quite a bit, but that's OK," Mayberry responded, prompting Democratic Rep. Frederick Love to object and ask that legislators treat the witnesses with respect.
Julie Mayberry entreated the House committee to pass her husband's bill with this pronouncement: "A no vote on this bill says to me you value one person's life over another." A yes vote would do the same.
3. They believe women are neither smart nor moral enough to make their own health care decisions. Despite Cathey's testimony that Mayberry's bill would require women to endure the anguish of carrying to term fetuses with fatal defects, ob/gyn Dr. Richard Wyatt of the evangelical Cornerstone Clinic testified that it was good for "ladies" to do so. He told the committee that one of his patients whose fetus had such severe spina bifida that it had no brain wanted to have an abortion, but that he talked her out of it: "With a little gentle counseling and guidance she elected to maintain her pregnancy." The baby lived "11 hours and 13 minutes and she cherished every minute," he said. Asked by Love if he would always counsel such women to deliver, Wyatt said, "It's best for she and certainly best for her baby."
In a phone call Tuesday, Wyatt said a fetus whose amniotic sac has burst and is being contracted by the uterine muscle — as Cathey described — doesn't feel pain. He said he was answering for Mayberry.
Mayberry, who characterized his bill as addressing a "moral dilemma," was also patronizing. Women who choose to have an abortion after 20 weeks "would benefit from a lot of counseling, from someone sitting down and putting their arms around them and saying 'I love you and I love that child' and hoping that person would make the right decision." He said there were "instances where she might not be educated as to what life is and when it begins."
Mayberry would educate women with information provided by Dr. Emedio Novembre, an osteopath anesthesiologist who is a member of the Christian Medical and Dental Association, that the fetus has receptors needed to feel pain at 20 weeks. Novembre cites the research of Dr. Sunny Anand, formerly affiliated with the University of Arkansas for Medical Sciences. Novembre did not mention that Anand, now a professor of pediatrics, anesthesiology, anatomy and neurobiology at the University of Tennessee Health Science Center, has said that, in some circumstances, he is pro-choice.
4. Politics. In 2011, with Democrats in the majority, 10 of 11 anti-abortion bills were defeated. Seven of them died in the House health committee. The committee's chair, Rep. Linda Tyler, ran for the Senate last year and lost to Rapert.
Now, with Republicans in the majority, legislators who have taken a pro-choice stand in the past are caving in to the new Republican majority. The reasons they give to abortion rights supporters for throwing women under the bus is that they need to save up their chits for bigger issues, like Medicaid expansion. Others say they are pro-choice, but if they want to be re-elected to vote right on other progressive legislation, they've got to vote against their inclinations.
The insurance exchange bill filed by Wilkins could ruin women financially, Sklar said, because they'll have to pay out-of-pocket hospital and doctor charges that will run into the tens of thousands of dollars.
"The sad thing about the exchange bill is that it will affect the most expensive abortions, performed on very sick women, women with babies with lethal fetal anomalies or the victims of rape or incest who've been afraid to come forward — children mostly." The numbers will be small, but they exist.
Wilkins introduced the insurance bill in the 2011 legislative session as well (it failed then), but he has been seen as someone who can be relied on to support exclusions for rape and incest. It was hoped he could persuade Mayberry to accept such exclusions as an amendment to his fetal pain bill, but in questioning by Wilkins, Mayberry was adamant that he would not accept such an amendment.
A few legislators have dared to speak against the bills. Democratic Sen. Linda Chesterfield spoke out in a Senate hearing on Rapert's bill, saying "I don't want to go back to when women used kerosene and clothes hangers because they didn't have a choice," and Sen. Stephanie Flowers, in an exchange paralleling Leding's with Mayberry, asked Rapert if he could imagine how women would feel if they were required to have a vaginal probe. "No" was Rapert's answer. In an interview, the Times' Max Brantley remarked on the invasiveness of the procedure. Rapert told him sex was invasive.
Leding gave an impassioned plea on the House floor Monday, saying, "It is easier to sit in this room and push a button far removed from the hospital" to decide a woman's fate than to stand between her and her doctor.
"This is not about elective procedures. So I will vote no today, not out of political ideology or lack of compassion or faith. I regard all life as precious but understand that life is complicated. ... I for one believe that agonizing decision should be left to the mother and father with their doctor and their God."UPDATE Sen. Rapert said Tuesday (Feb. 5) that he would amend his bill to require only an external ultrasound for the bill. That would effectively push the date at which a woman could not get an abortion to 10 weeks gestation, which is still 15 weeks short of viability and thus still unconstitutional.