August 16, 2013
West Virginia Office of the Attorney General
West Virginia State Capitol Building 1, Room 26-E
Charleston, West Virginia 25305
Re: Invitation of Attorney General to Comment on West Virginia Laws and Regulations Pertaining to Abortion
To Whom It May Concern:
The Charlotte Lozier Institute (CLI) is a non-profit pro-life and bioethics research and policy organization. As such, CLI supports the protection of all human life from conception and appreciates the opportunity to comment on West Virginia law pertaining to abortion, abortion regulation, and women’s health. CLI strongly supports policies which will protect the health and lives of women and unborn children. To that end, CLI advocates gestational limitations on abortion and government regulation, rather than private accreditation, of abortion clinics at the same level as other facilities that provide outpatient surgical care.
Point 1: West Virginia law should limit abortion by gestational age.
During the past several years, Americans as a whole have shifted toward support for greater protections of unborn life. Nationwide polls show support for greater restrictions on abortion, particularly after twenty weeks gestation. Moreover, several state legislatures have enacted laws limiting abortion given their legitimate interest in fetal life under Planned Parenthood v. Casey. Most recently, both state and federal legislators have voted to ban abortions after twenty weeks due to the possibility of fetal pain and the impact of late-term procedures on the mental and physical well-being of women.
West Virginia is one of only eleven states that do not limit abortion at any point during the pregnancy. Of its neighboring states, only Ohio also lacks such a ban. Virginia prohibits abortions in the third trimester. Pennsylvania prohibits abortions after twenty-four weeks. In Kentucky, abortions may only be performed during the first trimester. (Each of these laws incorporates typical exceptions, such as for maternal health.) Many Americans support gestational limitations on abortion, and West Virginia law should reflect this trend.
West Virginia law should reflect the will of voters within the constitutionally required guidelines and in light of developing science and knowledge about the development of the unborn. CLI supports the protection of unborn human life from the earliest gestational age allowed under the law. As the vast majority of women receiving abortions in West Virginia receive them within the first thirteen weeks, any restriction after that point will not significantly impact most women seeking abortions in the state. CLI recommends that West Virginia recognize the increasing concern for unborn human life by protecting it during the second trimester from at least twenty weeks.
Point 2: The government must regulate abortion clinics to ensure that health and safety standards are met.
Although private associations offer useful information about the appropriate standards for facilities and care, accreditation through such an association is insufficient. Joining such an association and being accredited by it are completely voluntary acts. Most people expect that facilities where patients undergo medical procedures of this type are held to regulated standards. If a facility does not highlight its accreditation status, potential patients may have no idea that there are processes of accreditation. Since private associations set their own criteria, there is no guarantee that any one association’s criteria encompass all appropriate standards. For example, one association’s criteria may focus on standards of care, but not have requirements for the physical structure of the facility. Accreditation creates a strong impression of high standards without sufficient detail or definition of what those standards are to the ordinary person. Facilities that fail to meet an association’s standards can simply avoid mentioning it.
Private associations represent themselves, not the public interest. If a facility seeking accreditation fails to meet the association’s standards, they may reject the application. However, that is not a guarantee that the inspector will report serious health violations. A Philadelphia grand jury recently found that a National Abortion Federation inspector properly refused to grant accreditation to recently convicted Dr. Kermit Gosnell’s clinic. However, while noting clear health violations, she did not report her findings to the state health department. While the Gosnell case may improve association reporting, there is no way to be sure that it will.
Most importantly, accreditation through a private association is not itself a guarantee of good medical care. The Women’s Health Center of West Virginia is an accredited member of the National Abortion Federation. However, Itai Gravely, a patient at the clinic, is now suing both the clinic and the doctor, Rodney Lee Stephens, for leaving fetal remains inside her uterus that she had to have removed later at a hospital. Ms. Gravely had tried to leave without an abortion after being refused additional anesthetic for pain.
Private associations may provide useful information for proper standards of care, but to rely solely on their accreditation process clearly will not protect women’s health. Patients may rely on accreditation without fully understanding the limitations of what it represents, or may be completely ignorant of a facility’s failure to apply for or receive accreditation. Private associations seek to maintain standards among associated facilities, but have no obligations regarding facilities that are not members. In light of recent events, it is clear that accreditation alone does not sufficiently protect patients’ rights or ensure standards of care.
Private associations such as the National Abortion Federation and the Planned Parenthood Federation of America can offer guidance to the government regarding standards of care. Accreditation and inspection, however, remain first and foremost public healt responsibilities, and to become and remain efficacious they must not be self-interested and they must be routine, rigorous and unannounced. West Virginia women should be able to rely on the state to protect their health and to be especially diligent with respect to an industry rife with substandard practices.
Point 3: As providers of surgical services, abortion facilities should be held to the same standards as ambulatory surgical centers.
Governmental regulation of medical facilities and procedures should improve the safety of those facilities and procedures. Abortions should be regulated at the same level as comparable procedures. While methods of abortion differ according to fetal gestational age, each involves the expulsion or removal of the embryo or fetus from the mother’s body. This may be achieved via medication or by the doctor with surgical instruments. Additionally, if there is concern that fetal tissue has not been completely expelled following a first-trimester medical abortion, doctors may need to surgically remove the child. Although low, there is always a risk of excessive bleeding. Abortion, therefore, should be considered a procedure on par with other outpatient surgical procedures and facilities for it subject to the same regulations.
While medical standards are of paramount importance, the facilities themselves can help or hinder medical care. The Gosnell grand jury reported that, while other treatment delays by facility personnel likely cost Karnamaya Mongar her life, when emergency responders arrived they struggled to reach her due to narrow hallways and other structural problems that made getting the gurney to her and out of the facility very difficult. Similar circumstances may have delayed care for other women needing emergency services as well. These cases may be a minority, but the consequences of something going wrong may be severe or even fatal. As such, the law must ensure that nothing delays emergency care; the extra costs of complying with these standards pales in comparison to the cost to women whose treatment following complications is delayed or nonexistent.
For these reasons, CLI urges West Virginia to enact laws and enforce policies reflecting the increasing support for limiting abortions during the second trimester of pregnancy and to actively regulate and monitor abortion clinics according to the same standards as other outpatient surgical facilities for the protection of women’s health.
On behalf of:
Charles A. Donovan, Sr.
 Emily Swanson & Mark Blumenthal, “Abortion Poll Finds Support for 20-Week Ban,” Huffington Post, July 11, 2013 (http://www.huffingtonpost.com/2013/07/11/abortion-poll_n_3575551.html).
 See Betsy Johnson, Charlotte Lozier Institute, Fact Sheet: Momentum for Late-Term Abortion Limits, available at http://lozier.adeo.tv/momentum-for-late-term-abortion-limits/.
 Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833, 846 (1992) (“And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”).
 Juliet Eilperin, “House votes to van abortion after 20 weeks,” Washington Post, June 18, 2013 (http://articles.washingtonpost.com/2013-06-18/politics/40046470_1_abortion-unborn-child-protection-act-20-weeks); Erik Eckholm, “Theory on Pain is Driving Rules for Abortions,” New York Times, Aug. 1, 2013 (http://www.nytimes.com/2013/08/02/us/theory-on-pain-is-driving-rules-for-abortions.html?pagewanted=all&_r=0).
 Johnson, supra n. 2, Fact Sheet: Momentum for Late-Term Abortion Limits.
 Guttmacher Institute, State Policies in Brief as of August 1, 2013 at 2, available at http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf.
 In re: Misc. No. 0009901-2008, Report of the Grand Jury 98 (Jan. 14, 2011), available at http://www.phila.gov/districtattorney/pdfs/grandjurywomensmedical.pdf (hereinafter Gosnell Grand Jury Report).
 National Abortion Federation, Providers by State: West Virginia, http://www.prochoice.org/Pregnant/find/WestVirginia.html.
 Candace Nelson & Dave Boucher, “Woman files lawsuit in ‘botched abortion,’ Charleston Daily Mail (June 10, 2013), http://www.dailymail.com/News/Kanawha/201306100041.
 Gosnell Grand Jury Report at 77, 128-29.
 See photos from Jill Stanek, “Two botched abortions; no gurney access”, JillStanek.com (Jan. 21, 2013), http://www.jillstanek.com/2012/01/two-botched-abortions-no-gurney-access/.