Spreading Ignorance

The Legislature first passed an "informed-consent-to-abortion" law in 2003. It included publication of the "Woman's Right to Know" pamphlet – supposedly to inform women about fetal development and the hazards of abortion. Among the asserted hazards is that induced abortion may lead to increased risk of breast cancer. "While there are studies that have found an increased risk of developing breast cancer after an induced abortion, some studies have found no overall risk," reads the state-produced pamphlet. "There is agreement that this issue needs further study."

That claim was, and remains, false – and women's health advocates have repeatedly tried to have the error removed from what is supposed to be a medically factual pamphlet. It may be that the time to excise the misinformation has come – at least that's what would happen if West University Place GOP Rep. Sarah Davis, a breast cancer survivor, can persuade her colleagues to support House Bill 2945. Last week, in the House State Affairs Committee, when Rep. René Oliveira, D-Brownsville, asked why the language was included in the WRTK pamphlet, Davis did not mince words: "I think it was based more on ideology than science," she said.

The country's major health care and cancer experts agree that there is no link between induced abortion and breast cancer, Davis said. Dr. Lisa Hollier, a resource witness on behalf of the Texas chapter of the American College of Obstetricians and Gynecologists, called the information that Texas provides to women seeking abortion "inaccurate"; HB 2945 is also supported by the Texas Medical Association and Texas Hospital Association.

Nevertheless, New Braunfels Dr. Beverly Nuckols testified against the bill on behalf of the Texas Alliance for Life, arguing first that a major peer-reviewed study had proven a link (the "Danish Melbye study," which actually concludes the opposite), then shifted to arguing that carrying a baby to term reduces cancer risk. "Are you prescribing pregnancy to [avoid] breast cancer?" Houston Rep. Jessica Farrar asked. No, Nuckols said, but added, "I'm happy to tell women who had their first child before 20" that that may lower their risk of contracting the disease.

Other opposition witnesses argued that even medically inaccurate information is somehow helpful. Davis responded that when the state "so invades the doctor-patient relationship such that we're going to prescribe what a doctor says to a patient, then we have the duty to make sure it's based" on the best science available. "I ask that we return to reality in 2013."

HB 2945 was left pending.

Meanwhile, HB 2364 by Rep. Jodie Laub­en­berg, R-Parker, would ban all abortions after 20 weeks gestation, on the grounds that at that stage, the fetus can "feel pain." Abortions are currently banned in Texas after 28 weeks, and at 20 weeks, a woman and her doctor may first learn that a fetus has a terminal condition – as Austinite Carole Metcalf testified to State Affairs had happened to her. "A very personal, very private, and very painful" choice would be further constricted, Metcalf said. These "decisions are hard enough without the extra limitations."

Nonetheless, Laubenberg and others testified in support of the measure on the presumption that a 20-week fetus can feel pain, creating a "compelling state interest," even before a fetus is viable outside the womb. The bill "deals with a very sensitive and sometimes emotional issue, the life issue," Laubenberg told the committee. "Scientific evidence suggests preborn children are able to feel pain," necessitating the ban, which she said would place no undue burden on a woman's reproductive rights.

A vaguely sourced website called Doctors on Fetal Pain lists purported evidence; witnesses supporting the bill recited talking points that appeared to come straight from the website. In fact, it isn't at all clear that there is "substantial medical evidence" of fetal pain, as Laubenberg's bill claims. When asked by Rep. Farrar about a 2005 review of the current science in the Journal of the American Medical Associa­tion questioning the notion, Laubenberg seemed to doubt whether JAMA is a reliable source, arguing she would "gladly" place "my studies against your studies."

Laubenberg, Gov. Rick Perry, and other supporters consider the notion that a fetus feels pain at 20 weeks a foregone conclusion. Certainly a fetus develops sensory receptors early in development; the question remains whether the existence of those receptors means that the fetus can register pain. The JAMA review reflects that it isn't until well into the third trimester that nerves are sufficiently developed to register pain. A 2010 report by the Royal College of Obstetricians and Gynaecologists in the UK concluded that prior to 24 weeks, a fetus cannot feel pain.

Witnesses opposed to the bill argued that many serious congenital anomalies aren't even detectible prior to 20 weeks, and a ban would eliminate any ability to decide how to proceed in those cases. Moreover, of the 77,592 abortions performed in Texas in 2010, just 420 occurred after 20 weeks (nationally, the percentage is just over 1%) – and those abortions are typically related to serious medical issues. Responded Laub­en­berg: "One abortion is as many to me as 1,000."

ACLU of Texas Legal and Policy Director Rebecca Robertson noted that Texas already bans abortions after 28 weeks, a constitutional ban that protects the life and health of the mother and contains exception for fetal abnormalities. Laubenberg's bill offers no such exceptions – and because it would ban abortion before viability, the measure would likely be found unconstitutional. Since 2010, 10 states have passed such legislation; Idaho's ban was struck down by a federal judge in March, and court challenges are pending to 20-week bans by Georgia and Arizona.

Laubenberg's bill was also left pending in committee.

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For additional reporting on these bills, see our NewsDesk blog.