As Wisconsin Suspends Medical Abortions, One Doctor Explains How The Bill Puts Doctors At Risk

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Analysis Abortion

As Wisconsin Suspends Medical Abortions, One Doctor Explains How The Bill Puts Doctors At Risk

Robin Marty

No doctor wants to be charged as a felon, and with Act 217 in effect, it's almost impossible to avoid that risk.

The unprecedented decision of Planned Parenthood of Wisconsin to suspend performing medical abortions as a result of a new bill legislating administration of RU-486 under regulations with no basis in medicine or science left many in the state stunned.

However, Dr. Fredrik Broekhuizen, a Wisconsin Medical Director and Boardmember of Physicians for Reproductive Health and Choice sees the move as a logical result of a piece of law so purposefully vague that no medical professionals would be likely to feel safe providing medical abortions. I spoke with Dr. Broekhuizen via phone to learn what doctors in the state are saying about the new protocol.

Dr. Broekhuizen said that the new restrictions aren’t just a matter of concern for those who are deeply involved with reproductive rights, but has become a rallying point for many in the medical profession concerned about legislators dictating medical care.  The Wisconsin Medical Society actually opposed the bill and urged Governor Walker to veto it, ending a longstanding tradition of staying above the fray when it comes to policies involving abortion.

“This is the first time I’ve seen the Wisconsin Medical Society take a position on abortion law. Legislators are prescribing how physicians and patients interact,” said Dr. Broekhuizen, explaining the Society’s opposition to the law. “[Act 217] isn’t based on any evidence-based medicine or FDA guidelines. They used to let doctors practice medicine.”

Roe is gone. The chaos is just beginning.

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Dr. Broekhuizen said that the RU-486 mandate “interferes with the logical flow of patient care.” Previously, one medical practitioner could meet with a patient, discuss the procedure and answer questions, perform a dating scan, and then a patient would sign forms, the conclusion of which would initiate the 24-hour mandatory waiting period, after which she would return to receive the abortion from a different doctor.

Instead, she must now meet with the same doctor at every point in the procedure, including the “counseling” session to ensure she is not being “coerced” into her decision.  She will then be given the drugs to induce an abortion, first taking the drug Mifepristone in the presence of the doctor, and then taking Misoprostol 24 hours later.

It’s this new set of rules that concern physicians who note the vague wording of the law. The drugs are not mentioned by name, but rather as “abortion-inducing drugs.”  If “abortion-inducing” drugs could refer to the Misoprostol as well, would the doctor be charged with a felony when a woman follows the medically-approved instructions given to her by her provider?

Also a potential for charges? A new rule stating all women must be seen by the physician who provided the medication between 12 to 18 days after she has taken the pills.  For women who are traveling great distances, the follow up care has always been a matter of what is easiest for her — she can either see the doctor on staff, or she is encouraged to see her own personal family physician or OB-GYN. 

Now, that decision is made by the state legislature instead. If she does not follow up with her original doctor, it is the doctor who could be facing felony charges — three and a half years in jail, a $10,000 fine, or both.

According to Dr. Broekhuizen, doctors providing abortions are now in a bind.

“If we follow the FDA rules and follow protocol, we would violate this law.  And we have no ability to defend ourselves.”

By making failure to follow the new law a felony, Act 217 has made it nearly impossible for doctors to defend themselves legally without considerable expense. Although a doctor would be covered for potential malpractice under malpractice insurance, he or she would need to pay all court fees out of pocket if charged with a felony, as the insurance would not cover it.  “What we do would be ‘defensible,’ but we’d have to pay to defend it.”

Dr. Broekhuizen is nearly certain that the law is unenforceable, and too vague to not be enjoined.  But who as a doctor wants to put his or her career in jeopardy, as well as shoulder the entirety of the legal costs, just to test it out? It’s that unwillingness that anti-choice legislators are capitalizing on with their regulations, and it’s one that doctors and pro-choice advocates didn’t really expect to see. “We were a little naive,” he admitted.

By suspending medical abortions, Planned Parenthood of Wisconsin has taken a bill that was signed quietly, quickly, and right before a major holiday as an attempt to pass it mostly unnoticed, and turned it into a huge public policy debate over who should be creating medical protocol — the FDA or the state legislature. 

Calling Act 217 a set of “minimum safety standards” for patient care and ending the potential for “tele-med” abortions, anti-choice legislators likely assumed the bill would go into effect without fanfare, Dr. Broekhuizen surmised. Then later, an “overzealous prosecutor” could charge a doctor based off of one of the vague, legally-ambiguous points in the law, putting medical abortion availability for the entire state at risk.

But instead, Planned Parenthood of Wisconsin has acted first. Perhaps anti-choice politicians were a little naive, as well.