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Fetal Tissue Examination and Disposal Laws

Numerous states have laws that require a physician or pathologist to examine the fetal tissue after an abortion and that arguably apply to medical abortion on their face. In Alabama, for example, abortion facilities regulated by the state must submit tissue "removed" during an abortion to a pathologist for examination.^110,111 Alabama law defines "abortion" in this context as "any medical proce-dure, or any other act, device, instrument, procedure, medicine, prescription or substance administered to or prescribed for a woman who is known to be pregnant, which is intended to terminate her pregnancy without a live birth."¹¹²

It is open to interpretation whether a fetal tissue examination law like Alabama's, which requires examination of tissue "removed" during an abortion, applies to a physician that performs a medical abortion. Where fetal tissue examination laws contain such ambiguous language, abortion providers and their attorneys may be able to seek favorable interpretations from the state's attorney general, prosecutors, or licensing authorities. Even in states like North Carolina,¹¹³ where the tissue examination law appears to apply to any abortion, providers may be able to persuade the state to issue an official statement or regulation that the law will not be enforced in the medical abortion context, where it makes little sense. In addition, the blind application of fetal tissue examination laws to medical abortion may be successfully challenged as an unreasonable and unconsti tutional burden on women's right to abortion because it would restrict access to medical abortion without any legitimate justification.

In the absence of a controlling legal interpretation limiting a state tissue examination law, medical abortion providers must comply with that law or risk penalties or prosecution. Compliance may be achieved by having the patient collect and bring to the physician the products of conception expelled or by having the patient remain in the physician's office until she has expelled the products of conception.

Some states also have laws regulating the disposal of fetal tissue extracted during an abortion. These laws do not generally appear to pose problems for providers of medical abortion. California¹¹⁴ and Vermont,¹¹⁵ for example, both have disposal laws that would permit the physician to simply instruct the woman to flush the products of conception down the toilet. In North Dakota, however, a physician who performs an abortion must ensure that the fetal tissue is disposed of by incineration, burial, or cremation.¹¹⁶ This would clearly pose difficulties if the woman passes the tissue at home. As with tissue examination laws, to the extent that fetal disposal laws are irrational and burdensome in the medical abortion context, providers and their attorneys may be able to challenge the constitutionality of the laws or seek favorable interpretations from state officials.

Parental Involvement Laws

Thirty-one states (Alabama,¹¹⁷ Arkansas,¹¹⁸ Delaware,¹¹⁹ Georgia,¹²⁰ Idaho,¹²¹ Indiana,¹²² Iowa^123,124 Kansas,^125,126,127 Kentucky,¹²⁸ Louisiana,¹²⁹ Maine,¹³⁰ Maryland,¹³¹ Massachusetts,¹³² Michigan,¹³³ Minnesota,^134,135 Mississippi,¹³⁶ Missouri,¹³⁷ Nebraska,¹³⁸ North Corolina,¹³⁹ North Dakota,¹⁴⁰ Ohio,^{141,142,143,144} Pennsylvania,¹⁴⁵ Rhode Island,¹⁴⁶ South Carolina,^{147,148,149,150} South Dakota,^{151,152,153,154,155,156} Tennessee, ¹⁵⁷ Utah,¹⁵⁸ Virginia, ^159,160 West Virginia,¹⁶¹ Wisconsin,^162,163,164 and Wyoming ^165,166 ) enforce laws that require parental consent or notice before an abortion may be performed on a minor. Such laws generally either require the consent or the notification of one or both parents prior to performance of the minor's abortion. Some of these laws permit the notice to be given to another adult family member. These laws apply to medical abortion just as they do to surgical abortion. Most of these states have alternative judicial bypass procedures whereby a minor can obtain court authorization for an abortion if she does not want to notify or obtain the consent of her parent or other adult family mem-ber. Some states' parental notice laws, like Minnesota's, require that the notice be followed by a waiting period before the abortion can be performed.^134,135 As explained more fully below, in those states, the waiting period must occur before the first medication in the medical abortion regimen is administered.

Legal challenges to parental involvement laws are unlikely to succeed in most states because these laws have already been upheld under the federal constitution. Such challenges might be successful in states with strong privacy protection under the state constitution or in states where particularly adverse affects to patient health or well-being can be proven. Where such challenges are possible, they are likely to succeed with respect to all abortion rather than just medical abortion.

Waiting Periods/Informed Consent Laws

Thirteen states (Idaho,¹⁶⁷ Indiana,^23,168,169 Kansas,^170,171 Louisiana,¹⁷² Mississippi,^173,174 Nebraska,^175,176 North Dakota,^177,178,179 Ohio,¹⁸⁰ Pennsylvania,^181,182 South Carolina,¹⁴⁷ South Dakota,^155,184 Utah,^185,186 and Wisconsin ¹⁶²) enforce laws that require physicians to provide abortion patients of any age with state-scripted information and then wait some specified period of time before the patient can consent to the abortion. The information that must be provided under these laws generally includes descriptions of the abortion procedure, the characteristics of the fetus at different stages of pregnancy, alternatives to abortion, and possible medical assistance and child support available to the woman. In some, but not all, states, parts or all of the state-prescribed information can be provided by someone delegated by the physician or can be mailed or otherwise made available to the patient ahead of time. Waiting period laws apply to medical abortion just as they do to surgical abortion. Due to the broad definitions of abortion under these laws, the waiting period must ordinarily occur prior to providing the patient with the first dose of mifepri-stone or methotrexate. Nebraska, for example, requires a provider to inform the patient of certain facts 24 hours before the abortion.^175,176

Because "abortion" is defined as "the use or prescription of any instrument, medicine, drug, or other substance or device intentionally to terminate the pregnancy of a woman,"¹⁸⁷ the patient would have to be apprised of the information a full 24 hours prior to the dispensing of mifepristone or methotrexate. In states such as Wisconsin, where the state-mandated information must be given in person, an additional visit will be added to the double visit already likely to be required by medical abortion protocols. Abortion providers should note that some state materials exclude medical abortion from their descriptions of abortion methods, thus potentially giving medical abortion patients the false impression that the method is illegitimate.¹⁸⁸

As with parental involvement laws, legal challenges to informed consent/ waiting period laws are unlikely to be successful because such laws have been upheld under the federal constitution. Successful challenges might be made in states with strong state constitutions or where the adverse effects of the laws can be strongly demonstrated.

Conclusion

Although early medical abortion holds out the hope of improving access to abortion services in the United States, it will, unless courts or legislatures decide otherwise, be regulated in much the same way as first-trimester surgical abortion. This means that health care providers planning to offer medical abortion must prepare to comply with, challenge, or change the array of laws specifically targeting abortion, many of which serve only to hinder women's access to quality reproductive health care.

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