The January 4 meeting of the Kentucky Senate Committee on Veterans, Military Affairs and Public Safety was brief. The group had convened, on just the second day of the 30-day session, to consider Senate Bill 5, a measure that had been labeled an “emergency.” Specifically, the bill would ban abortion after 20 weeks gestation, under the mistaken assumption that 20 weeks is the point at which a fetus feels pain, making abortion a cruel and unusual punishment. Among those who spoke against the measure during the 35-minute meeting was a young, pregnant woman who with her husband was facing the sad reality that their wanted pregnancy might have to be aborted because of a life-threatening fetal abnormality that wasn’t detected until after the first trimester. All the tests needed for a prognosis could very well take her pregnancy up to or beyond the 20-week limit — if the law were to pass, that could either force her to abort early or continue to carry a non-viable fetus. A board-certified ob-gyn who also testified noted that both the American Medical Association and the Kentucky Medical Association oppose legislative interference into the doctor-patient relationship – and this bill does just that. The committee asked no questions.

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Republican Sen. Brandon Smith, the sponsor of the bill — known as the Pain-Capable Unborn Child Protection Act — told the committee he felt bad for the couple. He couldn’t remember their names, but said he could understand their pain, vaguely referencing some past personal experience that didn’t work out. Nonetheless, he said, the bill was necessary because medical science tells us that at 20 weeks a fetus can feel pain, and thus can feel what it’s like to be aborted. “We have got little ones out there that are going through some of the most awful painful experiences that you can have,” he said. “That we would even be fighting over it, amazing.” The measure quickly passed out of the 14-man committee with little dissent, sailed through the rest of the General Assembly — controlled by Republicans for the first time in nearly 100 years — and was signed into law on January 9 by Gov. Matt Bevin. Because it was designated an emergency measure, the law went into effect immediately. Kentucky is the 19th state to enact a 20-week fetal-pain abortion ban, a restriction that is a favorite among opponents of reproductive autonomy who would like to see abortion banned altogether. But there are two problems with the law. First, banning abortion outright before a fetus is viable outside the womb — generally understood to be at about 24 weeks — is illegal. Second, the idea that a fetus feels pain at 20 weeks contradicts the prevailing science relied upon by doctors, which is that the ability to feel pain doesn’t develop until closer to 30 weeks. In short, the Kentucky ban and others like it are based on junk science. Illegitimate State Interests Forty-four years ago, on January 22, 1973, the U.S. Supreme Court delivered its landmark ruling in Roe v. Wade, a Texas case that solidified a woman’s legal right to abortion before the fetus is viable outside the womb. While Roe may be settled law, the court has also noted that certain restrictions on abortion access may be constitutional, when the state has some legitimate interest to protect, and when the restrictions don’t place an undue burden on women seeking care. That proviso has allowed for some chipping away at the edges of Roe as lawmakers have placed an increasing number of onerous and unnecessary restrictions on access in the name of a state interest, but often by invoking questionable science or logic in order to justify them. Lawmakers “always point to some reason why these are needed — whether it’s junk science from a medical perspective [or] psychological junk science — that women aren’t capable of making these decisions, or aren’t well informed,” said Sarah Wheat, chief external affairs officer for Planned Parenthood of Greater Texas. “It’s the basis for every single one of these anti-abortion restrictions.” Since 2011 alone the Center for Reproductive Rights has tracked 2,100 bills seeking to restrict access to reproductive health care. More than 300 of those have become law. That junk science has infected the criminal justice system is now a well-accepted fact, thanks in part to the 2009 release by the National Academies of Science of a groundbreaking report that raised serious questions about the scientific validity and reliability of even the most venerated forensic practices, including fingerprint analysis. Less well understood, however, is how deeply junk science has infected reproductive rights law. For several decades, foes of reproductive autonomy have sought to curtail access to abortion with a series of restrictions that are often sold as a way to protect a woman’s health and safety — but that just as often rely on a questionable foundation. That is what happened in Texas in 2013 with the passage of an omnibus abortion bill mandating that the state’s abortion clinics transform themselves into costly, hospital-like facilities and that all abortion doctors have admitting privileges at a hospital within 30 miles of each clinic where they practice. The restrictions were necessary, the state argued, to protect the health and safety of women seeking care. But the state did not offer any proof that the provisions would improve anything — nor that there was anything in particular that actually needed improving. In a June 27, 2016, ruling on those provisions in a case known as Whole Woman’s Health v. Hellerstedt, the Supreme Court confronted head-on the problem of junk science in the context of abortion access. In striking down the Texas restrictions, the court found that the abortion providers who had challenged the laws brought to the table hard evidence that great harm would result from the measures — evidence that was not rebutted by the state. In Whole Woman’s Health, “the court said, facts matter; evidence matters,” said Sarah Lipton-Lubet, vice president for reproductive health programs at the National Partnership for Women and Families (NPWF). “And that should not be a radical notion, but with the onslaught of these bogus abortion restrictions that we’ve seen intensifying over the last several years it really was groundbreaking to state it that plainly.” In the aftermath of the Whole Woman’s Health ruling, every court that encountered restrictions similar to those in Texas blocked them. But there is no indication that states will stop trying to pass such restrictions. Texas is currently trying to mandate burial of all fetal tissue, under the guise of improving health and safety, for example, while Kentucky rushed through its fetal pain measure, to name just two of the most recent examples. While it’s unclear whether either of those measures will withstand court scrutiny, it is worth noting that each restriction falls firmly within the framework of junk science that has so infected women’s reproductive rights over the last few decades. Indeed, most of the measures considered or passed by lawmakers fit within notable categories or share similarly flawed conceits.

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No Regrets Among the most longstanding myths related to abortion is that most women feel deep regret afterward and that abortion inflicts longstanding psychological damage. “This idea that there is some psychological harm that happens after a patient gets an abortion … was kind of the first wave of junk science seeping into abortion policies,” said Amanda Allen, senior legislative counsel for the Center on Reproductive Rights. Anti-abortion activists have pushed this notion since at least the 1980s, and a coterie of sympathetic doctors and academics have produced works that purport to back up the claim. The narrative has become so pervasive that lawmakers in numerous states have adopted the line without any good science to back it up. In an effort to prove the link, abortion foes in 1987 convinced President Ronald Reagan to have U.S. Surgeon General C. Everett Koop — a noted abortion opponent — study the health risks related to the procedure. After more than a year Koop had not turned in his report; he said there wasn’t enough good evidence to cite. Although the myth of mental harm has repeatedly been scrutinized, including by the American Psychological Association, the idea that better research needs to be done has persisted. The same cannot be said today. The results of a groundbreaking study conducted by the Advancing New Standards in Reproductive Health research group at the University of California–San Francisco found no evidence that abortion causes mental health problems in women. Known as the Turnaway Study, researchers followed nearly 1,000 women — for 5 years, across 21 states — who fell into one of two groups: those who obtained an abortion, and those who sought abortion but were initially turned away for care and had to go elsewhere or who had to carry their pregnancies to term. “We found no evidence that women who have abortions risk developing depression, anxiety, low self-esteem or less life satisfaction as a result of the abortion, either immediately following, or for up to five years after the abortion,” ANSIRH reported. “However, women who were denied an abortion had more anxiety, lower self-esteem, and less life satisfaction immediately after being turned away.” Ultimately, those symptoms decreased and the wellbeing of both groups equalized. “This is an incredibly powerful study,” Dr. Roger Rochat, a former director of reproductive health at the Centers for Disease Control and Prevention told The New York Times. “States will continue to pass laws that restrict access to abortion services and they will do it in part based on mental health effects of abortion. But the evidence of this study says that just isn’t true.”

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Your Right to Know Flowing from the contention that abortion is bad for a woman’s mental health came a wave of state laws requiring women to be counseled prior to undergoing the procedure, something a woman who would undertake such a supposedly risky psychological prospect would surely need. Twenty-nine states now have laws on the books requiring abortion providers to supply patients with state-authored counseling materials, according to a NPWF report on questionable abortion restrictions titled “Bad Medicine.” The mandated materials cover a range of topics, from fetal development to pregnancy risks, and most contain serious misinformation. Take, for example, Texas’ Woman’s Right to Know pamphlet, which suggests not only that a fetus feels pain at 20 weeks and that abortion can be psychologically damaging, but also asserts that there is likely a link between abortion and breast cancer — a notion that has been thoroughly debunked by the National Cancer Institute and the American Cancer Society. Texas is not alone in supplying women with this kind of erroneous information. In total, counseling materials in 12 states include information about fetal pain, nine emphasize negative psychological effects of abortion, and five include the nonexistent link between abortion and breast cancer. Even more disturbing, perhaps, is that 26 states include medically inaccurate information about embryological or fetal development in their counseling materials, according to the Informed Consent Project at Rutgers University. Considering only medical statements regarding first trimester development, the rates of inaccuracy vary wildly – from 17 percent in Alabama’s materials to a whopping 68 percent in Michigan’s materials. “To date, federal appellate courts have upheld challenges to informed consent laws in the states. Yet these affirmations have been based on assumptions of the medical accuracy of the information provided to women,” the Project’s researchers wrote in a 2016 article in Duke University’s Journal of Health Politics, Policy and Law. “Our study suggests that this is not the case.”

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