Life Dynamics Incorporated, 1996
Revise The Standards For Informed Consent
Reduce The Incidence Of Abortion Malpractice
Reduce The Time Between Abortion Injury And Medical Treatment
Make It Easier For Abortion-Injured Women To Recover Damages
Increase Malpractice Insurance Requirements
Protect Abortion-Injured Women Through Expanded Third Party Liability
Reform The System Of Identifying and Reporting Injuries And Deaths
Restructure State Medical Licensing Boards
Strengthen Basic Consumer Protection Legislation
A Contract with AMERICAN WOMEN
Since the United States Supreme Court legalized abortion on January 22, 1973, over thirty million of them have been performed. One argument used by those who defend this practice is that abortion should be legal in order to protect the health and safety of American women.
Unfortunately, many women discover too late that abortions are often far more legal than they are safe. In January of 1996, Life Dynamics published Mark Crutcher's book, Lime 5, which documents abuses routinely occurring at abortion clinics, including permanent injury, maiming, incapacitation, sexual assault, rape, and death.
Of course, some of these problems occur as a result of the natural risks associated with any type of surgery. However, most are an indirect result of the raw political power of the "Pro-Choice" movement. For over 20 years, abortion proponents have been extremely effective in
insulating abortionists from the usual checks and balances applied to other forms of medicine. Practices which are so far beneath the minimum standard of care that they would never be tolerated in any other health care environment are "business-as-usual" in abortion clinics.
Furthermore, when a woman who is injured or killed during an abortion seeks compensation through a malpractice action, the barriers she (or her survivors) encounter in the judicial system are often overwhelming.
Primarily, these are the issues which the nine initiatives outlined in this document are intended to address. As a pro-life organization, we naturally look forward to the day when every human life will be protected from the moment of conception until natural death. However, until that time comes, our nation has a moral obligation to see that women who have abortions are protected against the criminal acts, anti-social behavior, and inferior medical practices of abortion providers.
Of course, we fully anticipate that the most radical advocates of unrestricted abortion will argue that these proposals are too harsh and go beyond what is required of other physicians. This is not true, but even if it were, a legitimate argument can be made that abortionists should be held to a higher standard of care than other physicians, not a lower one as is currently the case. After all, the overwhelming majority of their patients come to them young and in perfect health. In fact, it has often been observed that a woman is never more healthy than when she is pregnant.
It is indefensible that a physician who makes an honest mistake while performing a delicate and complicated procedure intended to save the life of an injured or desperately ill patient, should be held more accountable than one who injures or kills a strong, young and perfectly healthy woman, while performing non-medically indicated surgery which the abortion industry claims is simple and virtually risk-free.
1. REVISE THE STANDARDS FOR INFORMED CONSENT
Any woman who seeks an abortion has a right to be completely and accurately informed about the risks she faces. If an abortion is likely to aggravate her physical, psychological, or social problems, the abortionist should either refuse to perform the procedure, or at least fully inform her of these risks. One widely-published abortionist has even concurred that an abortion should not be performed until the patient's preexisting medical or psychological conditions have been treated. (1)
Unfortunately, that is not what is happening. Today, there are abortionists who openly admit--even flaunt---the fact that they provide no decision-based counseling whatsoever. Wisconsin abortionist Elizabeth Karlin recently confessed that, "I---we---are not doing pregnancy options counseling because people have made their choice when they come in . . . women know exactly what they want." (2)
In another example, New Jersey abortion clinic counselor Marilyn Bennett said, "If a woman comes in and clearly states that she wants to have this termination, I don't ask her, as though I think she is a moron, "Have you thought about this?" (3)
The result of such irresponsible behavior is that every year thousands of women suffer devastating emotional injury from abortions they wished they had never had. Without legislative intervention this situation will not improve. We should establish in law that it is the abortionist's responsibility to screen women for emotional and psychological factors which might contra-indicate abortion.
Regarding physical injury, there must be new guidelines requiring that women be informed about all the risks relative to the actual circumstances under which their abortion will be performed. For example, studies show that abortion injuries are far more likely to occur when the procedure is performed by a resident rather than a practicing physician. (4) If a woman is told that a particular injury only occurs once in every 100 abortions, but there is evidence that residents inflict this injury once in every 50 abortions, she has been lied to if the clinic is having a resident perform her abortion. (This problem is especially relevant today, since the abortion industry is working overtime to pass legislation which would allow non-physicians to do abortions.)
Often, the informed consent given to a woman does not match the circumstances of her abortion because counselors quote risk factors for all abortions, instead of for the abortion she is actually having. Since virtually every risk factor increases dramatically with gestational age, statistics which relate to all abortions are deceptive when given to a woman who is having a second or third trimester procedure.
To lower the risk of coercion, there should be legislation prohibiting abortion clinics from either taking payment from a client, or giving her relaxant drugs, before she signs the consent form. Likewise, the abortionist should be required to meet with the woman privately before performing the procedure, and abortion clinics should be prohibited from counseling women in a group setting.
Finally, each state should mandate that all informed consent documents inform the woman that she has the right to seek compensation if injured. This legislation should also prohibit abortionists from asking their patients to sign statements saying they will not sue if injured.
(1)Warren M. Hern, Abortion Practice, Boulder, CO: Apenglo, 1990
(2) ABC News, Nightline, 2/20/95
(3) CBS News, Eye On America, 12/1/93
(4) The Lancet, 5/28/83
2. REDUCE THE INCIDENCE OF ABORTION MALPRACTICE
Obviously, the most desirable way to deal with abortion injuries is to prevent them. The problem is that, like any surgical procedure, abortion has inherent risks so there will always be a certain number of women who are injured regardless of the quality of care. However, it can be made considerably safer than it is today.
First, at Life Dynamics our experience indicates that as many as one third of all abortion complications and deaths are related to anesthesia. The main problem is that general anesthesia is often administered by unqualified people in an environment that is unequipped to manage complications. There is a pressing need for legislation mandating that general anesthesia only be administered by licensed anesthesiologists, and that appropriate monitoring and emergency equipment---and people trained in its use---be on site.
Another common cause of injury and death is ectopic (tubal) pregnancies, which have increased dramatically since the legalization of abortion. Our experience indicates that many of these women are actually the victims of botched abortions. When a woman has an abortion, the abortionist is supposed to perform an examination of the material removed to make certain that the abortion was complete. If fetal remains are left in her uterus, the woman is exposed to a potentially deadly infection. Often, when no "products of conception" are found, there is the possibility of an ectopic pregnancy which could rupture and cause her death.
Many abortion clinics routinely dispose of abortion waste without a pathology report, and even when one is done the results are often ignored. Moreover, many clinics are so careless in their record-keeping that they are unable to contact a woman whose pathology report indicates a potential problem. This could at least partially explain the alarming rise in ectopic pregnancy deaths over the last twenty years.
Legislation should require a pathology report after every abortion. It should also require that abortion clinics obtain the information to contact their patients should the need arise. Since negligence in this area could result in a woman's death, there should be criminal penalties for any clinic employee who fails to comply.
We also need legislation establishing minimum uniform standards for anyone who performs abortions or counsels women about them. This should be accompanied by a licensing procedure to insure that abortion providers and clinic employees understand and are capable of meeting these standards. Part of this legislation would include a provision for revocation of this license as well as a requirement that all such licensing information be public record. Another requirement should be that all abortion clinic employees and agents be routinely tested for drug abuse and prevented from working in an abortion clinic if they fail. States must also be required to share licensing information with other states.
Next, there should be a requirement that abortion facilities meet the same medical standards as other ambulatory surgical clinics. Additionally, there should be demands that the government enforce the existing OSHA guidelines regarding blood-borne pathogens.
Finally, as documented in Lime 5, there is indisputable evidence that some women are raped or sexually assaulted while having abortions. How frequently this occurs, or why it occurs, is debatable. However, there can be little argument that a significant decrease could be expected if legislation was passed requiring that a female clinic employee be present anytime an abortionist is counseling a woman or performing an abortion.
3. REDUCE THE TIME BETWEEN ABORTION INJURY AND MEDICAL TREATMENT
In any injury, a critical factor for recovery of the patient is the speed at which emergency care is obtained. Regrettably, an abortionist who has injured a woman will sometimes send her to a hospital many miles away, thus increasing her chances for a bad outcome. The usual motivation for this is that the abortionist is affiliated with a closer facility and does not want it to be aware of the incident, especially if he has previously sent several other abortion-injured women there. In other cases, he has an associate at the distant hospital (usually another abortionist) who will cover his tracks in case of a lawsuit
Additionally, abortionists will often transfer an injured woman to the hospital in a private car in order to avoid the publicity associated with an ambulance arriving at their clinics. This is especially true when protesters are present as witnesses.
Legislation should be passed preventing abortion clinics from transporting injured women by any means other than an ambulance. They should also be required to maintain an advance transfer agreement with the nearest emergency hospital and send all injured women to that facility.
Additionally, states should require that "circuit-riders" (abortionists who come in from out of state) maintain an on-call agreement with a physician who is a permanent resident of the area. All patients should be given this name as they are dismissed from the clinic. Without this, a woman may have no one to call if six hours after her abortion she experiences complications. No other physician would even dream of leaving his patients in such a situation, and abortionists should not be allowed to either.
4. MAKE IT EASIER FOR ABORTION-INJURED WOMEN TO RECOVER DAMAGES
Today, abortion-injured women find the deck stacked against them when they seek compensation from the civil court system. A few reasonable reforms could alleviate this.
First, it is common for abortion providers to require that their patents sign a statement saying they will not hold the facility liable for injuries that occur during an abortion. Of course, these statements are not worth the paper they are written on, but the women signing them may not know that and erroneously believe they have surrendered their right to redress. If this misconception causes abortion-injured women to not seek compensation, it could be reasonably argued that they have not only been victims of malpractice, but also of fraud. This calls for legislation preventing abortionists from asking their patients to sign such an agreement
Second, there should be a uniform standard of care with which abortionists most comply and which will be used in all malpractice proceedings as the guideline for determining when malpractice has occurred. There should also be a minimum civil penalty in all cases where there is a finding of abortion malpractice.
Third, abortion-injured women should be allowed to sue their abortionist anonymously or with the use of a pseudonym. Some women who are seriously injured during an abortion will not seek justice, simply because there is someone whom they do not want to find out about the pregnancy or the abortion.
Currently, a request for plaintiff anonymity is granted or denied at the discretion of the judge hearing the case. If he is politically pro-choice, he may decide that the best way to get rid of the case is to make the complainant publicly admit she has had an abortion. If for no other reason, the anonymity decision must be the woman's and not the judge's.
Fourth, there should be legislation lowering the burden of proof that women must meet in order to recover damages from an abortionist. Under the current system, she must normally show that she was injured because the abortionist violated the standard of medical care typical in elective abortions. This seems reasonable except that the abortion industry has been so successful at fighting regulations on abortion that violating the minimum standard of care has become virtually impossible.
Fifth, there needs to be an extended amount of time for women to sue after an abortion injury. Most states have "statute-of-limitations" provisions which prevent plaintiffs from seeking compensation after a certain amount of time has passed. Normally, the limit is one or two years and is a reasonable check against frivolous litigation.
However, in the case of abortion, injuries often do not manifest themselves for many years. For example, a 15-year-old girl might be left sterile from a botched abortion, but not find out about it until she tries to get pregnant at age 25. If her state's statute-of-limitations stipulates that she cannot sue more than seven years after the injury occurred or two years after the injury is discovered (whichever comes first), she is powerless to receive compensation.
Sixth, there should be legislation making it easier for women to obtain their medical records from abortion clinics, and mandatory criminal penalties for the alteration, destruction or forgery of these documents.
Seventh, hospitals and other medical institutions should be prevented from barring or punishing doctors who testify on behalf of plaintiffs in medical malpractice litigation. Some medical institutions actually have official policies allowing their doctors to be expert witnesses for the defense side of a medical malpractice trial, but not the plaintiff side. If the goal of the medical establishment is to provide the best medical care possible, it should welcome the opportunity to deal with bad practitioners instead of shielding them.
Eighth, there should be legislation preventing defense attorneys in malpractice cases from introducing the injured woman's personal history into trial.
Often called the "Slut Defense," this is the shabby but effective practice of "trying" the abortion-malpractice victim for her past behavior. Once common in rape trials, the victim's medical, gynecological, criminal and sexual history--regardless how irrelevant--is introduced into the trial in a shameless attempt to disqualify her as a person deserving compensation. Most states now prohibit this practice in criminal trials, but not in civil litigation. Defense attorneys currently use this tactic in virtually every case in which a woman seeks compensation from an abortionist who has injured her.
Finally, American women deserve legislation that would make it easier for them to bring a civil action for psychological injury. As it stands, it is virtually impossible for a woman to recover damages for an emotional injury unless she has an accompanying physical injury. Additionally, since emotional injuries from abortion often do not become obvious for several years, there should be extensions in the statute-of-limitations for women who are diagnosed with abortion-induced post-traumatic-stress disorder.
5. INCREASE MALPRACTICE INSURANCE REQUIREMENTS
When an abortion-injured woman seeks compensation in court, it is not uncommon for her to discover that she will receive nothing even if a jury rules in her favor. Abortionists often hide their personal assets and either carry no malpractice insurance or carry so little that it is insufficient to cover her injuries. Thus she cannot recover damages even if a jury determines that she is entitled to them.
This can be corrected by legislation requiring abortionists to have either medical malpractice insurance or proof of financial responsibility. Most states will not let someone drive a car without demonstrating financial responsibility. Why would these same states let someone perform a potentially life-threatening surgery without it? States should not only be concerned about people injuring women with cars, but with medical instruments as well.
In the absence of such legislation, there should be a requirement that all abortionists who do not have malpractice insurance, or proof of financial responsibility, inform their patients of this fact--both verbally and in writing--prior to performing their abortions.
Furthermore, abortionists who refuse to purchase insurance should be required to make available a "single event" insurance policy which the client could purchase at her option and expense. This would be similar to airports which offer single trip insurance to passengers about to board a plane. At least with this arrangement, the woman could choose for herself whether she wanted to take her chances. Under the present system, the abortionist makes the choice for her.
6. PROTECT ABORTION-INJURED WOMEN THROUGH EXPANDED THIRD PARTY LIABILITY
Most reliable information suggests that at least one other person or organization probably played some role in a woman's decision to seek an abortion. It seems only fair that since she did not get into this situation alone, she should not have to face all the risks alone.
In the case of minors, there should be legislation that makes the person who performs an abortion on an underage girl without her parent's knowledge liable for the cost of any subsequent medical treatment she might require because of the abortion. It should extend beyond the person who does the abortion and include the person who causes the abortion to be done. For example, if a public school employee, family planning counselor, or another physician refers a minor to an abortionist who injures her, that person should be held liable.
If these individuals are comfortable usurping the parents' role during the decision making process, they must also assume the parents' financial responsibility when something goes wrong. It is outrageous that we hold parents financially responsible for something that is done to their minor daughters, while at the same time telling them they do not have a right to know about it beforehand. Additionally, if the parents do not have the financial means to pay for this medical care, it becomes a burden on the taxpayer.
Furthermore, regardless of a woman's age, if a third party (individual, insurance company, or government entity) pays for her abortion, that party should be liable for complications. Among other things, this would force irresponsible males who use abortion as an easy way out, to share in at least one of the dangers faced by the women they impregnate.
Finally, we should seek legislation which addresses the fact that every unmarried minor girl considering an abortion may have been the victim of criminal sexual abuse. She could only have become pregnant as the result of (a) a relationship with another minor, (b) a consenting relationship with an adult, (c) forcible rape or (d) incest.
With three of the four being illegal, it would seem that every medical professional encountering an unmarried and pregnant minor has a moral and legal obligation to inquire how she became pregnant. Most states already have legislation requiring that any person who knows--or in some cases just suspects--that a minor is being sexually abused must report it to law enforcement authorities. If our society is serious about protecting children from sexual abuse, we must strengthen these laws and enforce them among abortionists and abortion counselors. Obviously, no one in our society is in a better position to know about such activity, or assist those who are its victims.
7. REFORM THE SYSTEM OF IDENTIFYING AND REPORTING INJURIES AND DEATHS
At Life Dynamics, our experience has been that it is impossible to accurately gage the safety of abortion, despite widely used statistics. The information gathered is spotty, and even accurate data tends to get "cleaned-up" by an overtly pro-abortion agency within the federal government called The Centers for Disease Control (CDC).
Of course, a top to bottom overhaul of the CDC is called for immediately. Legislation should prohibit CDC employees from having ties to the abortion industry, or known political prejudices on legalized abortion. It must also feature strict enforcement guidelines with criminal penalties for failure to comply.
Then, federal legislation should be passed which creates a universal standard for reporting of injuries and deaths due to abortion, including a requirement that every state report its figures to the revamped CDC. Additionally, all ectopic pregnancy deaths and injuries should be investigated in order to determine if the woman has had a recent abortion.
In order to obtain complete and accurate information, legislation is also needed to prevent abortionists and insurance companies from seeking confidentiality as part of an agreement to settle a case. (This legislation should be written in a way that does not prevent the woman from obtaining a confidentiality agreement--but only if she initiates it.)
Finally, there should be federal funding for a politically neutral scientific study to determine the degree to which abortion can, or cannot, be a trigger for Post-Traumatic-Stress-Disorder (PTSD). Far too many women report severe emotional problems following abortion for this to be ignored.
8. RESTRUCTURE STATE MEDICAL LICENSING BOARDS
In many if not most states, the medical licensing board is uninterested in disciplining bad doctors. More often than not, these boards are run by physicians for physicians. A few relatively simple procedural changes could transform these boards into the oversite committees they were originally intended to be.
State medical licensing boards should (a) include a majority of non- members, (b) be required to publicize their proceedings, including the results of all investigations, (c) be prohibited from purging physician records as long as the physician is alive, (d) be required to report any disciplinary actions they take against a doctor to the National Physician Databank, (e) establish a universal standard for completing medical records, (f) be required to automatically revoke the license of any physician or nurse who attempts to prevent a patient from getting her medical records, and (g) be required to automatically revoke the license of any physician or nurse who is involved in the alteration of medical records if such alteration is done to cover up mistakes made in the treatment of a patient
There should also be legislation passed requiring insurance companies to inform the state medical board when they pay a claim for abortion malpractice or restrict/terminate the policy of an abortionist. This legislation should include a requirement that abortionists report all out-of-court settlements they make with injured women. Another feature of this legislation should require civil courts to report all awards for abortion malpractice to the state medical licensing board which would then be required to investigate for possible disciplinary action.
Finally, all information contained in the National Physician Databank should become public record.
9. STRENGTHEN BASIC CONSUMER PROTECTION LEGISLATION
Women seeking abortion should be afforded the same consumer protection that is common in other areas of the law. One step toward insuring that they receive the kind of counseling they need is to prohibit organizations which refer women for abortions from taking commissions or kick-backs from the abortionists to whom they refer.
Another legislative initiative would be to require that all abortion-related counseling be done by people who are not directly connected to any abortionist or abortion clinic. There is an obvious conflict of interest when a woman is counseled about an abortion decision by someone who is employed by an organization which profits from abortion. This legislation could be patterned after laws which prohibit people who conduct vision exams from being employed by companies that sell eyeglasses.
In the absence of this legislation, we should pass a bill that prohibits abortion facility counselors from being paid on commission. Counseling women in crisis pregnancy situations should never be done by someone with a financial interest in her decision.
Other protective legislation could include a requirement that pregnancies be proven viable before an abortion is performed. Why should a woman pay three or four hundred dollars for an abortion to end a pregnancy that is going to naturally miscarry the next day? This would also reduce the number of abortions performed on women who are not pregnant
Additionally, women should be given data that compares their abortionist's malpractice and criminal history against that of the other abortionists in her state. If a woman is going to place her life in the hands of an abortionist who has the worst record in the state, she has a right to know it beforehand. She also has the right to know the abortionist's real name and whether he is a "circuit-rider" or a permanent resident of the state.
Finally, legislation must be passed which requires state agencies to enforce all regulatory legislation once it is passed. Passing protective legislation will be a hollow victory if the agency charged with enforcing it is run by someone with an abortion-on-demand political agenda.
Today, young American women are being maimed and killed by something they are told is virtually risk-free. The question is whether the nine initiatives outlined here would completely solve that problem.
Of course, the answer is no. As long as abortions occur--legally or illegally--women are going to be hurt by them. The implementation of these proposals would only insure that abortion becomes safer than it is now.
That is the very least we owe the women of our nation, and is the sole purpose of A Contract With American Women.
Additional Copies Of A Contract With American Women can be ordered from Life Dynamics Incorporated, Post Office Box 2226 Denton, Texas 76202 (940) 380-8800 FAX (940) 380-8700.