New “Reproductive Health Act” Narrows the Definition of “Viability” and Makes Other Changes to Existing Law, Expanding Late-Term Abortions

OVERVIEW. The Reproductive Health Act, SB 25, HFA 1 (“RHA“) narrows the definition of “viability” of the unborn child, establishes an expansive definition of “health” of the mother, and makes other changes.  These changes make it much easier for abortion providers to perform late-term abortions without any meaningful restrictions or oversight.  In general, once an unborn baby reaches viability, an abortion can only be performed when the abortion is “necessary to protect the life or health of the mother.” Abortions on the pre-viable are not subject to any such standard.  As such, viability is an important milestone to establish some level of consideration for the life of the unborn.  An Executive Summary of key points are as follows.

• RHA narrows the definition of “viability.”  Under existing law, the term “viability” means “that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.” (Illinois Abortion Act of 1975 as amended) (720 ILCS 510/2(1)).
• RHA Section 1-10 replaces the term “viability” with “fetal viability” and amends the definition under existing law in four (4) key ways. 

1) RHA allows any health care professional (not just a physician) to make the judgment on viability.  This opens the door for physician’s assistants and advanced practice registered nurses to make these critical decisions.

2) RHA raises the standard and provides that there must be a substantial likelihood (not just a reasonable likelihood) of the sustained survival of the fetus outside the womb. 

3) RHA adds the qualifier that the fetus only has sustained viability outside the womb if the continued life would happen “without the application of extraordinary medical measures.”  Since the term “extraordinary medical measures” is not defined, and since non-physicians can make the judgment, the healthcare professional could make a wide range of biased decisions on the question of what is an extraordinary medical measure (e.g., perhaps considering measures such as phototherapy for jaundice, breathing support, or even an IV as qualifying).

4) RHA repeals a key clarification in existing law, namely that the unborn can attain sustained viability “with or without artificial support.”  In particular, under existing law, the mere fact that the unborn child would need artificial support (even extraordinary measures) would not disqualify the child as being viable. 

• RHA’s changes to “viability/fetal viability” narrows the definition materially and results in fewer unborn children that qualify as viable. Although it is difficult to quantify given the newness of the language, for illustration purposes, if the application of current law results in unborn children of 22 weeks of gestation to be deemed viable, RHA’s changes raises that standard to perhaps 28 weeks of gestation or higher.  This makes it easier for abortion providers to perform abortions on unborn children of 22 to 28 weeks of gestation without having to justify that the abortion is necessary to protect the life or health of the mother.
• RHA includes an expansive definition of “health.”  RHA Section 1-10 establishes an expansive definition of “health” to make it easier for an abortion provider to decide, even if the unborn child is viable, that the abortion is necessary for the “health” of the mother.  Current law does not define “health,” but RHA establishes an expansive definition of “health” that includes “all factors that are relevant to the patient’s health and well-being, including, but not limited to, physical, emotional, psychological, and familial health and age.”  In particular, the inclusion of the term “familial” would allow the nurse, physician-assistant, or physician making this critical decision on health to take into consideration factors beyond the mother’s health, such as the health or even squabbling of her siblings, parents, or other family members.       
• RHA repeals detailed certification and reporting obligations.  Under current law, the physician must certify in a signed writing the medical indicators that support the determination that a post-viability abortion is necessary for the life or health of the mother. (720 ILCS 510/5(2)).  This report, along with specified detailed information – including any complications, whether the abortion resulted in a live birth, and other information – must be reported to the Department of Health. (720 ILCS 510/10). If additional information becomes known after submission of the report (e.g., additional complications), the physician must update the report to the Department of Health within 10 days of becoming aware of the information.  (720 ILCS 510/10).
• RHA Section 1-25 greatly diminishes these certification and reporting requirements.  Neither the physician, nor any other health care professional, needs to certify in a signed writing as to the medical indicators or other reasons that supported their decision on the question of viability. RHA Section 1-25(b).  It appears there would be some version of reporting obligation that should use a specified Department of Health form, but the obligation does not attach to the physician or other health care professional, and instead is set in the passive voice (so it would be difficult to enforce), namely that a “report of each abortion performed by a healthcare professional shall be made to the Department on forms prescribed by it.”  RHA Section 1-25(b).  With this standard, the receptionist at the abortion clinic could prepare and submit reports. 
• Surprisingly, the RHA specifies that the Department of Health could not use the abortion provider’s report for any kind of follow-up inquiry or investigation, and instead would only be able to “use the reports for statistical purposes only.”  RHA would also specify that such “reports must be destroyed within 2 years after date of receipt.”  RHA Section 1-25(d).  Clearly, there is no desire to allow the Department of Health to do any actual enforcement or oversight to protect women’s health or safety, even in instances of complications or sub-standard care.
• RHA repeals penalties for non-compliance by physicians and health care professionals.  RHA also repeals a broad range of express penalties set forth in the Illinois Abortion Act of 1975.  For example, it is a Class 2 felony for a physician to perform an abortion on a viable unborn child without making a determination on the necessity of such procedure for the life or health of the mother.  (720 ILCS 510/5(1)).  RHA repeals these penalties for non-compliance, which further reinforces that there is no desire to establish a meaningful regulatory environment that protects the health of women and girls. 
• The RHA may even effectively challenge the Parental Notice of Abortion Law.     
• More ramifications will be listed as the RHA is applied in Illinois.

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Abortion advocates at the Guttmacher Institute and other pro-abortion institutions say they are “fighting back,” introducing more legislation to expand access to abortion than in any year in recent memory. But pro-life advocates say that public opinion, and the tide of history, is turning decisively against abortion-on-demand.

Elizabeth Nash, state issues manager at the Guttmacher Institute, announced that more pro-abortion legislation has been introduced this year than anytime in the last 20 years.

So far, 14 states have introduced 51 pieces of legislation to expand and strengthen women’s access to abortion, she said, up from 32 bills in six states in 2013.

Amanda Allen of the Center for Reproductive Rights told Bloomberg News that 2014 is a “tipping point” in American legislative history.

But “there is a significant difference between bills introduced and those enacted,” Denise Burke, vice president of legal affairs at Americans United for Life, told LifeSiteNews. “Last year, for example, more than 350 bills related to abortion were introduced in state legislatures,” but only about 20 percent became law, most of them pro-life.

The Guttmacher Institute told LifeSiteNews.com that, while dozens of new abortion-expanding bills had been offered, “thus far this year none have been enacted.”

Source: LifeSiteNews.com

The Supreme Court this morning effectively killed an Arizona bill that would have denied Planned Parenthood any share of state Medicaid dollars, declining to hear an appeal from the state.

The law would have deemed abortionists not “qualified” to receive state tax dollars intended for family planning services.

Governor Jan Brewer signed the “Whole Woman’s Healthcare Funding Prioritization Act” (H.B. 2800) in May 2012. The Obama administration filed a lawsuit challenging the law that October, arguing that the terms of federal law supersede state law.

U.S. District Judge Neil Wake issued an injunction, eventually striking the law down on February 11, 2013.

The Ninth Circuit Court of Appeals, one of the most overturned appeals courts in the nation, unanimously upheld the ban last August.

The Supreme Court this morning refused to intervene, allowing the panel’s decision to stand.

Source: LifeSiteNews.com

Illinois State Rep. Tom Morrison of Palatine, whom ICE-PAC helped elect, recently introduced two important pieces of pro-life legislation:

• A requirement that women be required to wait 24 hours and be offered an image from their ultrasound before having an abortion (see the bill here)
• A requirement that any abortion clinic must have the operating physician present after the abortion until the patient goes home following the procedure, and that a physician performing abortions must have admitting privileges at a nearby hospital (see the bill here)

Read more details in the Daily Herald by clicking here.

Professor Michael J. New has written an excellent piece at the National Review Online about the progress pro-lifers made in calendar year 2013, particularly in state legislatures. Some highlights:

• A Texas bill was passed that banned abortions after 20 weeks gestation and mandated that abortion clinics meet the same standards as other surgical health-care facilities.
• Two other states banned abortion after 20 weeks of gestation.
• Four states limited abortion coverage in the health exchanges established under the Affordable Care Act.
• Eight states enacted bans on tele-med abortions.

Overall, according to the Guttmacher Institute, 70 state-level pro-life measures were enacted in 2103. This makes 2013 the second most productive year on record in terms of the number of pro-life laws that were passed. Overall, there were more pro-life laws enacted between 2011 and 2013 than in the entire previous decade.

Read the entire article here.

A survey of abortion clinics in the United States has concluded that a record number of 87 surgical abortion clinics closed in 2013.

The survey, conducted by pro-life organization Operation Rescue, found that the total number of surgical abortion clinics remaining in the United States is now 582, a twelve percent decrease in surgical abortion clinics in 2013 alone, and a 73 percent drop from a 1991 high of 2,176.

According to Operation Rescue, of the 87 clinics that discontinued surgical abortions, 81 are permanently closed, while six stopped performing surgical abortions but continued the sale of abortion-inducing drugs. The data does not include the eleven abortion clinics that were temporarily closed this year, but later reopened.

The number of clinics that only perform abortion via drugs remained fairly constant at 176, with six documented closures.

Texas is the state with the most closures of surgical abortion clinics – a total of eleven – following the passage of an abortion law earlier in the year. New abortion clinic safety regulations accounted for closures in Pennsylvania and Maryland as well.

Source: Breitbart.com

The House Tuesday passed a bill that would ban most abortions nationwide after 20 weeks. The most far-reaching abortion legislation in the House in a decade, it was passed 228-196, mostly along party lines.

Source: Politico.com

With Republicans supporting it and Democrats opposed, a House committee has passed a bill that would ban abortions nationwide at 20 weeks of pregnancy.

Much of the debate focused on amendments by Democrats who hoped to gut the bill and allow late-term abortions in cases of rape and incest, or to protect a woman’s health.

The committee passed the bill on a 20-12 vote and the measure now heads to the full House floor where it is expected to receive a debate and vote next week.

Source: LifeNews.com

A federal judge on Monday temporarily blocked Mississippi from revoking the license of the state’s only abortion clinic.

U.S. District Judge Daniel P. Jordan III extended an injunction he issued several months ago, which blocks the state from closing the clinic while it tries to fulfill a 2012 state law.

The law requires all OB-GYNs who do abortions at Jackson Women’s Health Organization to have privileges to admit patients to a local hospital.

Source: Politico.com