Abortion Providers Challenge Oklahoma Law Forcing Them to Lie to Patients (Updated)

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Analysis Law and Policy

Abortion Providers Challenge Oklahoma Law Forcing Them to Lie to Patients (Updated)

Imani Gandy

As the plaintiffs explain in their complaint, the "abortion reversal" law demands that physicians provide state-mandated ideology that is at odds with universally recognized standards of medical care.

UPDATE, October 24, 2019, 8:55 a.m.: An Oklahoma judge on Wednesday temporarily blocked the state’s “abortion reversal” law from taking effect.

A state court in Oklahoma will hear arguments Wednesday in a case challenging SB 614, an “abortion reversal” law. The Tulsa Women’s Reproductive Clinic filed a lawsuit in September asking the court to block the law, which it alleges forces physicians to lie and tell pregnant patients that it is possible to reverse medication abortion or else face felony charges and civil liability.

No court has considered a similar abortion reversal law and allowed it to take effect. This Oklahoma state court shouldn’t either.

Although it is intended to provide “abortion reversal” information under the guise of informed consent, the law actually perverts the medical concept of informed consent because it requires doctors to parrot anti-abortion ideology that is not rooted in science or fact. There can be no informed consent when patients are receiving information from their providers that is based on a lie—information providers would not repeat if not for the state mandating that they do so.

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Specifically, the law forces physicians to provide information regarding “abortion reversal” on three separate occasions.

First, the law requires providers post signage in patient waiting and consultation rooms with state-mandated language about “abortion reversal.” Second, the Oklahoma law requires abortion providers to inform medication abortion patients 72 hours before their appointment to receive the medication that “it may be possible to reverse the intended effects of a medication abortion that uses mifepristone if the woman changes her mind but that time is of the essence.” (A patient undergoing a medication abortion takes an initial dose of mifepristone, and then 24 to 48 hours later takes a dose of misoprostol to end the pregnancy at home.) The law provides an exception for medical emergencies.

And finally, after the patient has taken the mifepristone, the law requires that a provider again inform the patient about medication abortion reversal, this time by handing patients written instructions for how to reverse the medication, containing language mandated by the state, though there’s not enough scientific evidence supporting such a claim.

At each stage of this so-called informed consent process, abortion providers are required to refer patients to a hotline and website run by Abortion Pill Reversal. This program was founded by George Delgado, a California-based family practitioner who, alongside Dr. Mary Davenport, developed the experimental “abortion reversal” practice based on junk science. The hotline and website connects patients to members of the Abortion Pill Rescue Network, a group of professional health-care providers who claim to be able to assist pregnant people who want to reverse their abortion through Delgado’s practice, which is not rooted in science or fact.

The practice involves taking a high dosage of progesterone instead of the misoprostol that the medication abortion protocol requires patients to take 24 to 48 hours after the dose of mifepristone. There is no credible evidence that progesterone can reverse the effects of mifepristone. Claims otherwise are based on a single report written by Delgado and Davenport. It’s important to note that both doctors oppose abortion.

A 2017 Rewire.News investigation found—and as the plaintiffs note in their court documents—the report, published in 2012, relies on anecdotes from only seven women. It attempts to extrapolate from that tiny sample that abortion reversal works. What’s worse is that Delgado and Davenport conducted the study without using a control group—one of the key requirements for any scientific study to be valid—and also conducted it without any ethics oversight review.

The American College of Obstetricians and Gynecologists has expressly rejected Delgado’s research as “not based in science” and also unequivocally opposed SB 614.

As the plaintiffs explain in their complaint, the law demands that physicians violate ethical practices and provide state-mandated ideological messages that are at odds with universally recognized standards of medical care. “SB 614 compels Physicians unwillingly and against their best medical judgment, to convey orally to their patients content-based and viewpoint-based government mandated messages and affirmatively direct their patients to government-created materials and referral information, with which Plaintiffs and the overwhelming consensus of the medical profession vehemently disagree,” according to the plaintiffs.

“The Act also compels Physicians, against their best medical judgment, to endorse controversial and ideological views in their own voice and advertise to their patients an experimental practice that violates the standard of care,” the plaintiffs say.

Medical professionals are not alone in their apprehension over the law; state representatives have also raised concerns, but as the court documents show, they were dismissed. One of the bill’s co-sponsors, Rep. Mark Lepak (R-Claremore) brushed off concerns raised by one of his colleagues, Rep. Cyndi Munson (D-Oklahoma City), who said that “physicians have shared with me that they feel that they will be mandated to lie to their patients.” Rep. Merleyn Bell (D-Norman) urged the Oklahoma legislature to convene a panel of experts to study whether medication abortions can actually be reversed, but her suggestion was likewise brushed off, according to court documents.

Forcing doctors to parrot junk science about abortion reversal to their patients is a clear violation of the First Amendment. The Oklahoma Supreme Court, according to the plaintiffs, has consistently ruled that Oklahoma Constitution’s free speech protections are coextensive with, or greater than, the protections guaranteed by the federal constitution. And in National Institute of Family and Life Advocates (NIFLA) v. Becerra—a U.S. Supreme Court case that struck down a California law that required anti-choice facilities, commonly referred to as “crisis pregnancy centers,” to notify its customers that the state offers publicly funded family planning services and that the people working at the unlicensed clinics are not actually doctors—the Court made it clear that free speech principles apply to physicians. “Speech isn’t unprotected merely because it is uttered by professionals,” Justice Clarence Thomas wrote for the majority opinion.

The plaintiffs also point out that a federal court recently blocked a North Dakota law similar to SB 614, ruling that the law violated physicians’ First Amendment rights and that “a law which mandates that physicians become mouthpieces for a false, misleading, and controversial ‘abortion reversal’ message would not survive any level of constitutional scrutiny.”

In addition, the plaintiffs note that the law at issue in this case goes further than the law at issue in NIFLA. In NIFLA, clinics were required only to post signage and distribute written material. SB 614, on the other hand, forces physicians to direct their patients to the Abortion Pill Reversal website and hotline orally, through conspicuously posted signage, and through written instructions, which physicians must provide to patients after they have taken mifepristone. The plaintiffs argue that the law makes physicians complicit in promoting the scientifically unproven practice of abortion reversal through progesterone treatments and to advertise the services of an organization—the Abortion Pill Reversal Network—that plaintiffs believe to be engaged in unprofessional and unethical practices that may harm their patients.

And perhaps most importantly, the government-mandated message contradicts a critical message that physicians convey to their patients seeking an abortion: that they must be certain about terminating their pregnancy before they begin the process. Considering that anti-choice activists frequently express concern that vulnerable, hapless women are being coerced into obtaining abortions that they do not want, imposing laws that force physicians to create a risk that a patient will seek an abortion before they are certain about their decision seems incongruous.

But clearly the anti-choice movement is not motivated by being honest and truthful to patients. Why else would they immediately take issue with California asking fake clinics to inform their clients that they are unlicensed, while seeing nothing wrong with forcing doctors to lie to their patients about abortion reversal?

Whether there is even a demand for abortion reversal is unclear. What is clear is that Oklahoma legislators behind this law are trying to control physicians’ voices to promote the state’s anti-abortion ideology. Whether the court lets them remains to be seen.