Arizona HB 2036 is bad for women anyway.

A week ago, Arizona HB 2036 passed the state Senate and headed to the House. The bill centers around the belief that a fetus feels pain at 20 weeks and thus bans abortion after 20 weeks of gestation (with an exception for the life of the mother). Much has been made of the fact that the bill specifies gestational age “as calculated from the first day of the last menstrual period of the pregnant woman.” This dates the pregnancy as up to two weeks before the actual conception, which has led some to believe that the bill actually bans abortion after 18 weeks.

This isn’t the case. Calculating gestational age from the first day of the last menstrual period is standard practice among obstetricians, even when gestational age is established via ultrasound. OB/GYN Dr. Jen Gunter offers a thorough, informed overview.

Pregnancy has ALWAYS been calculated from the 1rst day of the last menstrual period. Always, always, always. When we do an ultrasound, we still use that convention. Perhaps it seems odd to non-obstetrical folks, however, since the last day of the period can be inaccurate (do you use flow? spotting? one spot of blood?), as can date of ejaculation (what if you have sex 3 days in a row?), and date of ovulation (how would you know that?), and the fact that fertilization takes 24-48 hours, the 1rst date of the last menstrual period is the only accurate date. Every other state law uses the last menstrual period (as does every obstetrical textbook) because that is the way we calculate gestational age.

The bill specifies that “the physician is responsible for estimating the gestational age of the fetus based on ultrasound and examination and obstetric standards in keeping with established standards of care,” which, as mentioned above, incorporate the date of LMP. So HB 2036 isn’t actually limiting abortions after 18 weeks; the 20 weeks in the bill is the same 20 weeks as ever.

This doesn’t mean that HB 2036 isn’t a bad thing. It is a bad, bad thing, and we’re right to be up in arms about it. We just need to make sure we’re up in arms about the right parts of it. Focusing on gestational age draws focus from so many legitimate reasons this bill is so very bad for women.

Here’s why HB2036 is bad for women:

1. It places a restriction on a woman’s right to have an abortion, taking the decision away from a woman and her doctor and putting it into the hands of complete strangers in government. I mean, that’s the big one, really.

2. It’s based on bad science. Twenty weeks is offered as the time at which a fetus begins to feel pain, and that’s not the case. Neurological wiring simply isn’t sufficiently developed at that point. The American College of Obstetrics and Gynecologists says there is

no legitimate scientific information that supports the statement that a fetus feels pain.

3. It violates Roe v. Wade, which protects a woman’s right to choose up to the point of fetal viability.

4. It requires an ultrasound, and while it doesn’t specify whether that ultrasound be transabdominal or transvaginal, it takes that decision away from the medical professional who’s actually standing in the room with the woman.

5. It requires a 24-hour waiting period (except in case of emergency endangering a woman’s life or threatening “irreversible impairment of a major bodily function”).

6. Twenty weeks into a pregnancy is also 20 weeks left in the pregnancy. A woman who has to delay needed medical treatment–for instance, chemotherapy–for those five months could end up severely ill or dead.

7. Dr. Gunter notes that 20 weeks is pretty much the minimum for being able to diagnose many fetal abnormalities, leaving a woman frantic to find services in Arizona or forced to leave the state for an abortion.

8. The factors taken into account during the drafting of this bill, listed as “findings and purposes” under Section 9, include the risk of psychological complications after abortion. The American Psychological Association has established that this is pretty much not the case, and that most psychological complications post-abortion are more related to pre-abortion mental health than they are to the abortion itself. Doctors also are instructed to offer patients information about putting a baby up for adoption, but are not instructed to offer information about the mental health risks thereof.

9. Those findings also note the higher medical risk of abortion as pregnancy progresses, up to one death per 11,000 abortions after 21 weeks. They omit the fact that the maternal mortality rate in the U.S. is 24 maternal deaths per 100,000 live births, or 2.64 per 11,000.

10. The bill places a restriction on a woman’s right to have an abortion, taking the decision away from a woman and her doctor and putting it into the hands of complete strangers in government.

HB 2036 is infuriating enough with all the facts straight. HB 2036 isn’t bad because it makes a woman pregnant before she’s pregnant–it’s bad because of everything else.

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25 Responses to Arizona HB 2036 is bad for women anyway.

  1. Jordan S says:

    4 – what about the woman’s right to decide if she wants an ultrasound?

    8- Going to take a blind leap and say that being forced to continue with an unwanted pregnancy is probably more mentally taxing than having an abortion. Furthermore, one event isn’t going to impact everyone the same way. Plenty of people go through abortions and come out just fine (or better), mentally and physically.

    I don’t understand 6 and 9, could you please clarify?

  2. jemand says:

    Wow, so the first day of the period for most women is more easily discernible than the last day?

    I’m sorry, this is kind of off the topic of the post, but it flies in the face of my experience ever since menarche, I’ve had about the same number of days of single spot, or light spotting, as my period begins as when it ends.

    I’ve never tried to get pregnant so I never really considered it, but, I dunno, it’s weird to me that this is considered the height of accuracy, in 2012. Plus the fact that, like, I don’t even always *remember* which day it started on even if it were clearcut. I usually just blatantly guess, could be up to a week or more off, when doctors prompt me for I dunno, pap smears or whatever.

  3. Puggins says:

    I’ve notice these fetal pain bills cropping up, and it seems obvious to me that they absolutely violate Roe. Is this really about fetal pain, or is this about taking Roe head-on and going for a 5-4 overturn?

  4. Becky says:

    Jemand – that’s interesting, my periods always start off heavy and taper off. Anyway, if you don’t remember when your last period started or you have irregular periods, they can use an ultrasound to determine the age of the embryo/fetus. But in that case they add 2 weeks to incorporate the last menstrual period convention. So for example, when I had my dating ultrasound (because I couldn’t remember the first day of my last period and anyway mine are irregular), they found it had been 6 weeks since I conceived, which meant I was 8 weeks pregnant. So it’s not so much that it’s the height of accuracy, as that it’s the medical convention, and I would imagine that changing it would be confusing.

    Caperton – thanks for clearing this up, it was embarrassing to watch our side getting this wrong. And as you point out, there are a lot of more accurate reasons to oppose it.

  5. Tori says:

    Jordan S. —

    6) While the bill does make exceptions for the life of the mother, it doesn’t make exceptions for the mother’s health, necessarily. As an actual example, I’m chronically anemic — sometimes moderately so, but sometimes severely so, and it’s straddled the life-threatening line more than once before. Severe/life-threatening anemia can have some immediate impacts, but it can also have some longer term impacts. Pregnancy can sometimes be a contributing cause for anemia. So — if I was 21 weeks pregnant and experiencing life-threatening anemia, I could still legally terminate the pregnancy. However, if I was 21 weeks pregnant and just barely above that life-threatening determination — which might include symptoms like passing out, tachycardia, and increased risk for heart attack — it’s questionable, according to this bill, whether I would be legally permitted to seek an abortion in that circumstance and/or whether a doctor who agreed to perform one would be risking legal consequences of their own. And, of course, I’d potentially need to life with that (again, including all potential health consequences) for another ~19 weeks. Basically, there’s a lot of room for a very narrow interpretation of what the “life of mother” exception means that may well still significantly jeopardize health.

    9) While later term abortions are associated with greater maternal death than are earlier term abortions, both are actually statistically less risky than carrying a pregnancy to term. It’s a bit of false concern trolling, essentially. “Oh, we are concerned with the risk of X, so we will instead require Y, which is actually more risky.”

  6. Jordan S says:

    Thank you for your insight, Tori.

    Puggins: Yep. They definitely violate Roe v. Wade.
    It seems like they’re doing their best to forget about Roe v. Wade. Of course they give it a name like “fetal pain” to try to get an emotional response, instead of a logical one. Because logically (and morally), there isn’t any reason to pass this bill.

  7. KAJ says:

    They’re not trying to forget about Roe. They’re trying to (a) see how far they can push the envelope without pro-choice advocates taking the gamble of challenging it all the way up and (b) overturn Roe.

  8. tholbrook says:

    Great post! I’m not sure argument #3 is as clear-cut as you seem to contend. Cases since Roe have eroded this requirement. As I understand it, Gonzales v. Carhart is the controlling precedent with regard to the specific issue of fetal viability, not Roe, and Gonzales upheld an anti-abortion law that applied both pre- and post-viability. As you rightly point out, there is a lot wrong with this bill, but I think it could very well survive that particular constitutional challenge…

  9. Julie says:

    So… I’m confused. If a woman has irregular periods, does the bill’s definition of gestational age trump the gestational age determined by an ultrasound? In my case, I ovulated later than the calculation assumes (I know because I used an ovulation predictor kit), and my fetus is one week younger than her “official” gestational age. If I were seeking an abortion, that one week could be huge.

  10. Tori says:

    Julie, as I understand it, “the physician is responsible for estimating the gestational age of the fetus based on the ultrasound examination and obstetric standards” means that the physician is the final determiner of gestational age. This should mean that if a physician learns something (via ultrasound, via patient report, etc.) that would put gestational age as something different than what calculating from LMP would suggest, the physician still retains the authority to make that call.

  11. Julie says:

    Ah, thanks. Not sure how I missed that.

  12. preying mantis says:

    While later term abortions are associated with greater maternal death than are earlier term abortions

    On top of them both being well below maternal mortality rates, I figure that’s probably because most women aren’t going for later-term abortions for the hell of it–they’re having a later term abortion because something’s gone very wrong. You have a significant rate of pre-existing serious-ass health issues coupled with a something that’s rather a big thing for an out-patient procedure, so it seems kind of a no-brainer that you’re going to have a higher rate of complications than with a much more likely to be elective, much less invasive version. It’s something like getting all frowny-faced at the serious-complication rate of heart bypasses versus first-time stent recipients and deciding that means people can’t have bypasses.

  13. GumbyAnne says:

    I work for an abortion provider (that does procedures over 20 weeks, for what it’s worth) and I can confirm that how we now define weeks gestation is consistent with how it is defined in the bill. The bill is terrible in a multitude of ways, but how it defines gestational age isn’t one of them.

    The convention for defining the length of a pregnancy starting from the beginning of the menstrual cycle is sort of strange to most people at first, but it makes sense for a number of reasons. The one that I would urge all feminists to consider is this:

    Dating pregnancy back to the start of the menstrual cycle (correctly) reflects that pregnancy is, first and foremost, a process of a woman’s body and not something that is caused by sperm magic. Yes, the presence of sperm is necessary for pregnancy, but the uterine enviromnent has to be right for conception to happen, and that is a function of the woman’s menstrual cycle. The matter that is in the uterus at the time of conception will continue to be there for the remainder of the pregnancy and contunues to be important throughout the process. Just because it isn’t part of the fetus, doesn’t meant it isn’t part of the pregnancy. The arrival of sperm is not the absolute ground zero of gestation.

    The fact that even many feminists think of it that way is a great example of patriarchy being so pervasive in our cultural understanding of pregnancy that we will defend it just because no different thought has ever occurred to us. I completely understand why people initially have questions about the period as the start of pregnancy model, but I also believe that it is something every reproductive rights advocate should appreciate the value of.

  14. Avida Quesada says:

    Idead bad news,
    I hope it goes down in court. Most countries are even more restrictive even some of the E.U like Greece (12 weeks).

    There is so much that needs to be done.



  15. Phil says:

    We are all having intelligent conversations on this bill as if it is a sincere attempt at something. It isn’t. This is just the social conservative right wing of this country who rebranded themselves and attached themselves like a cancer to the Tea Party so that they could get elected at start relitigating the past 40 years of women’s reproductive rights. No one is PROMOTING abortion. What people are fighting for is A WOMAN’S RIGHT TO CHOOSE. And all these bills are designed to do is to slowly chip away at that right. They pass this, wait for the stink to disappear, then start again and chip away again. These social conservatives are a cancer to society and must be removed from office as soon as possible. You cannot educate or rationalize with these people because for them their “beliefs” trump fact or science.

  16. Geoarch says:

    I sure do wish the fact that my lovely home state of Georgia snuck one of these bills in under the radar at the very close of the legislative session last week could be noted alongside this appalling piece of legal trash out of Arizona. One of the lawmakers misogynistic assholes at the capitol compared pregnant women to farm animals.

    My point is that these fanatics are making a national push using states as their laboratories for these laws.

  17. Anna says:

    Any Arizonans reading this? Please contact your legislators to kill this bill. There is a nifty button you can press that will automatically send an email to them — you just have to fill in your name and address. It only takes a minute: click here

  18. Tori says:

    Anna — Been and done. And phoned. And phoned.

    (Given that I’m fortunate enough to live in a district whose representatives are pro-choice, I sometimes use my generous cell phone minutes to call other representatives as well.)

  19. Anna says:

    Thanks! My local representatives are pro-choice as well, and I’m so glad they’re fighting for reason at the Capitol. But it’s good to remind the other legislators that we’re watching them — after all, we might have the opportunity to vote for them if they run for statewide seats. I even wrote thank-you notes to the Republicans who voted against HB2625 last week.

  20. William says:

    So…whats the viability of just flat out lying about when your last menstrual cycle was in order to buy time?

  21. EG says:

    I suppose it’s possible, but it could mess with the care you get, because one of the factors that goes into deciding what type of abortion is best is how far along you are.

  22. Mary says:

    William, at certain early stages of pregnancy the age of the embryo/fetus can be established to within several days on ultrasound: this is because organ formation and changes in gross characteristics of the body and so on follows a really well established timing. Moreover, until later in pregnancy embryos/fetuses are all within a very small length-range for their age.

    By 20 weeks the age range has apparently blown out to about 10 days either side, so you might get 2 weeks, however, this may depend on having had no prior more accurate ultrasounds or your abortion provider not having access to them. If you’ve had prenatal care, this may mean seeking out a whole new provider who doesn’t have your records, and then lying to them about your pregnancy history, both of which could be bad for your care. So, definitely a barrier to abortion access.

    Source: which I realise is not academic literature!

  23. Pingback: Anger Over Arizona’s Abortion Bill Misplaced | Escaping the Garden

  24. Angelique says:

    So is anyone bringing a legal challenge to this bill?

  25. dulce says:

    What if someone takes birth control? Would they still treat it as the same situation?

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