West Virginia AG Continues Quest for Abortion Restrictions, Despite Lack of Evidence

Given the anticipated push for anti-choice laws in the state’s 2014 legislative session, it’s worth carefully examining Attorney General Patrick Morrisey’s claims about the regulation of abortion providers alongside what the evidence says—and doesn’t say—about the safety of abortion services in the Mountain State.

When West Virginia’s proudly anti-choice attorney general, Patrick Morrisey (above), announced in June that he was investigating abortion regulation in his state, reproductive rights advocates were alarmed. Morgan County USA / YouTube

See other pieces from Rewire‘s State of Abortion series here.

Review the database of state documents collected and analyzed by Rewire here.

Of the big political issues this year, the battle over reproductive rights has been one of the most bitter. A long list of conservative state legislatures have introduced or passed laws that are expected to lead to the closure of dozens of abortion clinics. These laws have been passed despite a lack of evidence to support them.

So when West Virginia’s proudly anti-choice attorney general, Patrick Morrisey, announced in June that he was investigating abortion regulation in his state, reproductive rights advocates were alarmed.

“We’re seeing very right-wing fundamentalists attempt to chip away at a woman’s ability to access abortion care,” said Margaret Chapman Pomponio, executive director of WV Free, a nonprofit organization that promotes reproductive rights and justice, and which has helped organize rallies against the investigation. “We know that their end goal is to outlaw all abortion.”

In June, Morrisey wrote to West Virginia’s two abortion clinics and asked for detailed information about the nature and volume of their services. That request stirred memories of what happened in Kansas between 2003 and 2007, when then Attorney General Phill Kline obtained patient records from abortion clinics as part of an anti-choice inquisition. Those confidential records wound up being made public.

Given the anticipated push for anti-choice laws in the state’s 2014 legislative session, it’s worth carefully examining Morrisey’s claims alongside what the evidence says—and doesn’t say—about the safety of abortion services in the Mountain State.

Like anti-choice activists around the country, Morrisey linked his investigation to the trial of rogue abortion provider Dr. Kermit B. Gosnell, who was convicted in May of murdering three babies and killing a patient at his West Philadelphia clinic.

Gosnell’s trial brought to light evidence that Pennsylvania health authorities had failed to oversee abortion clinics in that state. Despite complaints from patients and other abortion providers, no one from the health department inspected Gosnell’s clinic for 17 years. However, evidence from state attorneys general and health departments shows overwhelmingly that Gosnell was a rogue; there is no national pattern of similar crimes.

Nevertheless, referring to the failures of Pennsylvania’s authorities, Morrisey claimed that his investigation is necessary to “ensure that patients are safe” in his state.

“Abortion clinics in West Virginia are neither licensed nor regulated by the State,” he said in a statement announcing the inquiry. “Regardless of one’s position on abortion, the State needs to evaluate this basic fact.”

Technically, it is true that West Virginia does not regulate “abortion clinics,” but this does not mean the people who provide abortions in West Virginia are free from professional monitoring.

In fact, like all medical doctors in West Virginia, physicians who provide abortions are subject to the regulation and oversight of the West Virginia Board of Medicine, which sets standards for how medical procedures must be performed.

“Anyone who believes that a physician has engaged in conduct that would warrant possible disciplinary action with respect to the physician’s license to practice medicine may file a complaint with the Board,” wrote Robert C. Knittle, the medical board’s executive director, in a statement to Rewire.

“The Board investigates complaints of physician misconduct, and initiates disciplinary proceedings when probable cause exists to believe that disqualification or other restrictions upon a licensee are appropriate,” he wrote.

In other words, if a doctor falls short of acceptable standards when performing an abortion, she or he could face disciplinary action from the medical board.

According to the board’s website, as of August this year, it had taken 229 disciplinary proceedings since 2008. Not one of those related to abortion, according to Knittle.

While the doctors who perform abortions in West Virginia are indeed regulated, the state health department does not regulate the facilities where abortions are performed.

West Virginia belongs to a group of states that do not have a special administrative category of health facility called “abortion clinic,” according to a May letter from the West Virginia Department of Health and Human Resources to members of the House Committee on Energy and Commerce of the U.S. Congress. (Read the West Virginia response as part of Rewire’s State of Abortion series.)

Of course, there are clinics that offer abortions in these states—and they are known colloquially as “abortion clinics”—but there is no official government category of “abortion clinic.”

It’s a question of terminology that results in regulatory differences. For instance, the health department explained in its letter that West Virginia doesn’t require clinics to obtain specific licenses in order to provide abortions, and that there is “no state agency that specifically inspects clinics or facilities that perform abortion.”

As a result, the state health department doesn’t have information on how the two clinics that offer abortions are functioning, or about any other private doctors’ offices offering medical services.

This is what has led Morrisey and others to assert that abortion is unregulated in that state, and to imply that women are at risk of harm due to the lack of regulation.

Indeed, there have been some recent claims that women are frequently injured while receiving abortions at West Virginia’s clinics.

As first reported by the Charleston Gazette, Dr. Byron Calhoun, vice chair of the West Virginia University’s Department of Obstetrics and Gynecology, claims that he frequently treats women who have been left with injuries after receiving an abortion.

“We commonly (I personally probably at least weekly) see patients at Women’s and Children’s Hospital with complications from abortions at these centers in Charleston: so much for ‘safe and legal,’” Calhoun wrote in a letter to Attorney General Morrisey. “These patients are told to come to our hospital because the abortion clinic providers do not have hospital privileges to care for their patients, so we must treat them as emergency ‘drop-ins.’”

Calhoun did not reply to Rewire’s email requesting comment for this story, nor did he respond to our request for any evidence to substantiate his claims about treating injured women.

But a spokesperson for West Virginia University Healthcare distanced the institution and the interim dean of the university’s School of Medicine, from Calhoun’s assertions.

“The views expressed by Dr. Calhoun are solely those of the author in his private capacity and do not in any way represent the views of the West Virginia University Charleston Division, the WVU Physicians of Charleston, or CAMC Women and Children’s Hospital,” the spokesperson wrote in an email to Rewire. “These entities, which are academically or clinically associated with Dr. Calhoun, have neither approved nor endorsed his views.”

This is not the only time that Calhoun’s official claims have proven to be unfounded. The West Virginia Board of Examiners for Registered Professional Nurses recently threw out another complaint lodged by Calhoun, this time against a midwife who he claimed should have been referred for criminal prosecution in relation to the way she performed her services. In a statement, the midwife’s lawyer said Calhoun had made claims about his client that Calhoun knew, or should have known, were false.

These questions over the reliability of Calhoun’s statements are especially important, given the key role he has played in a high-profile medical malpractice case that was lodged in West Virginia this June.

The suit alleges that Dr. Rodney Lee Stephens, a doctor at one of West Virginia’s two abortion clinics, forced a patient to continue with her procedure after she had asked him to stop. The suit also alleges that Stephens failed to properly anesthetize the patient, Itai Gravely, and that he left parts of the fetus in her uterus. Calhoun provided a key piece of medical evidence, which enabled the case to proceed.

In announcing his inquiry, Attorney General Morrisey cited Gravely’s case as a catalyst for investigating the state’s abortion facilities.

“The merits of that lawsuit must still be resolved in court,” Morrisey said in a press release, “but it does raises [sic] serious questions about how such clinics in West Virginia are inspected and reviewed to ensure patients are safe.”

As has been reported elsewhere, Calhoun has strong and long-standing connections with anti-choice groups.

He is the national medical advisor for the National Institute of Family and Life Advocates, a Fredericksburg, Virginia, group whose goal is to “achieve an abortion-free America.” The group did not reply to messages seeking comment for this story.

Calhoun—whose specialty is caring for women with high-risk pregnancies, including cases of fetal anomalies—has also testified in support of anti-choice legislation at congressional hearings. In May 2012, he spoke in favor of the District of Columbia “Pain-Capable Unborn Child Protection Act,” a bill that would ban abortions for women who are more than 22 weeks pregnant, except in some cases when the woman’s life is at risk or where the pregnancy resulted from rape or incest and the crime was reported to police.

In that testimony, Calhoun said that the risk of mortality from giving birth versus undergoing an abortion is “essentially the same,” despite a 2012 study that shows a woman is 14 times more likely to die during childbirth than as a result of a legal induced abortion.

The doubts raised over Calhoun’s claims to the attorney general, as well as his links to anti-choice groups, have led “pro-life” advocates to question whether the evidence Calhoun provided in the lawsuit can be viewed as objective, and whether his evidence should be relied on when considering new laws that could limit access to reproductive health care.

Many pro-choice advocates agree that regular inspections are a valuable tool in upholding the standards of care to which women and girls are entitled when seeking reproductive health services.

However, when seen in the broader context of this year’s assault by anti-choice legislators on reproductive rights, women’s rights groups say the West Virginia inquiry is a smoke screen for a political and ideological agenda.

“There’s zero evidence to suggest that an over-regulation of women’s health providers is necessary,” said Chapman Pomponio of WV Free.

“If this were about women’s health, we’d be behind it. The fact is this is about rolling back women’s health and rights, and we’ve seen what’s happened in Texas, North Carolina, and Ohio,” she said. “We’re saying the buck stops here.”