February 26, 2006

Tricksy Callers

Right to life activists are claiming that clinics encourage pedopiles, and put up audio to "prove" it. Unfortunately, taping a receptionist telling a caller that her birth control is "strictly confidential" doesn't prove anything except that Planned Parenthood is obeying the law. It also proves that the Right to Life organization is wasting taxpayer dollars and the legislature's time in order to pursue a change pushed by out of state interest groups and that only affects a fraction of young women seeking abortion in the state.

The right to life people say that Planned Parenthood is encouraging sexual predators by protecting patient confidentiality. In fact, they are obeying HIPAA.

The acronym HIPAA stands for the Health Insurance Portability and Accountability Act of 1996. HIPAA is the law that brought us health care reform by allowing employees to maintain insurance coverage between jobs, prohibiting denial of coverage for preexisting conditions, and creating medical savings accounts. HIPAA also increased funding for fraud and abuse enforcement. Finally, HIPAA set forth new rules for 1) processing electronic transactions such as billing and eligibility verification, 2) protecting the security of health information, and 3) ensuring the privacy of health information.

Under HIPAA, health care providers must not notify the parents without the consent of the minor.

The health information of minors will be treated like any other health information except for the following special rules:

* As provided in West Virginia law, both parents of a child will have equal access to the child�s records, except as limited by court order or other West Virginia law. The parent objecting to a release of records to the other parent has the duty to provide us with a court order prohibiting the release.

* As provided in West Virginia law, records of the diagnosis, treatment or counseling of a minor for drug or alcohol abuse or addiction will not be released to parents or guardians without the consent of the minor.

* As provided in West Virginia law, records of the diagnosis, testing or treatment of a minor for a sexually transmitted disease will not be released to parents or guardians without the consent of the minor.

* As provided in West Virginia law, records involving the use of birth control by a minor, or of prenatal care rendered to a minor, will not be released to parents or guardians without the consent of the minor.

So why is a Texas organization calling clinics around the country, and trying to use the taped phone conversations as "proof"?

The state House of delegates will not take up the parental notification abortion bill. Supporters of the bill held a closed door meeting yesterday with house leadership and today the leadership said it would not take up the bill, but would consider it if it comes from the state senate.

Monongalia County state senator Mike Oliverio supports the bill and says so do a lot of other senators.

Marion County state senator Roman Prezioso introduced the bill and it will have to be passed by Wednesday, which is the deadline for bills to pass out of their house of origin.

The bill would eliminate what supporters say is a loophole in the current parental notification law that allows pregnant girls in certain situations to bypass their parents permission for an abortion through a physician's waiver. It would instead require a judicial waiver.

The most recent information available shows there were 19 physician waivers in West Virginia in the last year.

The proposed bill:

H. B. 2112


(By Delegates Blair and Sumner)
[Introduced January 11, 2006; referred to the
Committee on Health and Human Resources then the Judiciary.]



A BILL to amend and reenact §16-2F-3 of the code of West Virginia, 1931, as amended, relating to requiring a physician to receive written consent from at least one parent or legal guardian before an abortion is performed on an unemancipated minor; and providing a criminal penalty for failure to comply.

Be it enacted by the Legislature of West Virginia:
That §16-2F-3 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 2F. PARENTAL CONSENT AND NOTIFICATION OF ABORTIONS PERFORMED ON UNEMANCIPATED MINORS.

§16-2F-3. Parental consent and notification of at least one parent or guardian for abortions performed on unemancipated minors; waiver; notice to minor of right of petition to circuit court; minor to be referred for counseling; penalty

(a) No physician may perform an abortion upon an unemancipated minor unless such the physician has written consent from at least one of the parents or legal guardians, and has given or caused to be given at least twenty-four hours actual notice to one of the parents or to the legal guardian of the pregnant minor of his intention to perform the abortion, or, if the parent or guardian cannot be found and notified after a reasonable effort to do so, without first having given at least forty-eight hours constructive notice computed from the time of mailing to the parent or to the legal guardian of the minor: Provided, That prior to giving the notification required by this section, the physician shall advise the unemancipated minor of the right of petition to the circuit court for waiver of consent and notification: Provided, however, That any such consent and notification may be waived by a duly acknowledged writing signed by a parent or the guardian of the minor.
(b) Upon notification being given to any parent or to the legal guardian of such a pregnant minor, the physician shall refer such the pregnant minor to a counselor or caseworker of any church or school or of the department of human services or of any other comparable agency for the purpose of arranging or accompanying such the pregnant minor in consultation with her parents. Such The counselor shall thereafter be authorized to monitor the circumstances and the continued relationship of and between such minor and her parents.
(c) Parental consent and notification required by subsection (a) of this section may be waived by a physician, other than the physician who is to perform the abortion, if such other physician finds that the minor is mature enough to make the abortion decision independently or that consent and notification would not be in the minor's best interest: Provided, That such other physician shall not be associated professionally or financially with the physician proposing to perform the abortion.
(d) Any physician that fails to receive written consent from at least one parent or legal guardian, or fails to provide notification to at least one parent or legal guardian as required by this section, before performing an abortion on an unemancipated minor, except in cases where these requirements are properly waived pursuant to this section, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars.

NOTE: The purpose of this bill is to require a physician to receive written consent from at least one parent or legal guardian before an abortion is performed on an unemancipated minor; and provides for a penalty.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

And, by the way, West Virginia denies (PDF) clergy penitent privilege.

In West Virginia, health care workers, clergy and others must report abuse if the abuse meets the following:

Standard:


Reasonable cause to suspect

When believe

Have observed

Now, how does one suspect, believe, observe, or report abuse from an anonymous phone call? How does one observe, believe, or have reasonable cause to suspect child abuse with no name, no ID, and in which the caller might be lying through her teeth, which was in fact the case?

That's right, getting the caller to come to a health care provider, who, if abuse is reasonably suspected, believed, or observed, will then make a report. If the caller does bring in the boyfriend (the scenario in the taped call) then the health care worker has a better chance to observe, and collect information about whether abuse has occurred, and what the ages of the involved actually are.

Is the best way to find out if a young woman has been abused to demand that an anonymous caller report her fiance as a statuatory rapist? It sounds more like a fast track to a hang up. The right to life group's argument that because a receptionist did not immediately tell the caller to report abuse, Planned Parenthood is encouraging pedophiles is unfounded. Just as I can speculate about the receptionist wanting to get the client in so that the health care workers could make a report, the group that made the calls speculates that the clinic would have encouraged pedophilia. Of course, given that the clinic can't discourage or report pedophilia with actually seeing the patient is not something the calling group will admit. They simply have no idea, based on one fake phone call, what the clinic does in cases of suspected abuse. There is nothing, however, that anyone can do to report abuse without more knowledge. I would include in that knowledge, the knowledge of whether the caller is even in the same state or if she is a real patient who is actually pregnant.

The group making the calls is based in Texas, and has been linked to the intrusive efforts of the Kansas Attorney General to subpoena the medical records of women who have sought abortions. Of course, Kansas allows girls as young as 12 to be married with parental consent.

In WV, the age of marriage is 18, but "(e) Younger parties may obtain license in case of pregnancy or birth of child."

And, in (PDF) West Virginia:

Depending on the state, defendants may be exempt from prosecution if they are married to the victim. In some states, marriage is a defense to all of the crimes listed (e.g., Alaska, District of Columbia, West Virginia); other states exclude some of the more aggravated offenses from this exemption (e.g., Arkansas, Louisiana, Mississippi).15 In a few states, the criminal statutes identify age limits for the marriage exemptions.16 Individual state summaries note those crimes that include spousal exemptions.17

So, the caller can get a waiver of age of consent and parental consent to marry if she is pregnant, and if she gets married, then the marriage is an exemption to all crimes:

2. Definition of Offenses States’ laws addressing sexual activity involving minors are usually included in the section of the criminal code devoted to sexual offenses. Each state summary (Section III) includes a table detailing all of the offenses in the statute that deal with statutory rape.

As noted above, most states do not have laws that specifically use the term “statutory rape;” only five include the offense of statutory rape.12 More often, state statutes include a variety of offenses addressing voluntary sexual activity involving minors. In New Jersey, for example, sexual activities involving minors is addressed in three offenses: criminal sexual contact, sexual assault, and aggravated sexual assault. The ages of the victim and the defendant as well as the nature of the sexual activity dictate under which offense the conduct falls.

In some cases, provisions addressing statutory rape are embedded in rape or sexual assault laws that typically apply to violent offenses. For example, New Hampshire defines “felonious sexual assault” as voluntary sexual penetration with someone who is at least 13 years of age and under 16 years of age, as well as acts involving the use of physical force irrespective of the age of either party. Other states have separate offenses specifically concerned with sexual crimes involving a minor. For example, Alaska’s statute includes four offenses that deal specifically with the sexual abuse of a minor.

State statutes also use a variety of terms when referring to sexual acts (e.g., sexual intercourse, sexual penetration, sexual contact, indecent contact), and the definitions of these terms are not always consistent across states. The descriptions of the offenses within each state summary use the specific terms from the statutes and the summaries include footnoted definitions of these terms whenever the statutes provide them.

Understanding the different terms used in a state statute is especially important in those states where an individual may be able to legally consent to one type of sexual activity but not another. For example, Alabama’s laws regarding the legality of sexual activities with individuals who are under 16 years of age and more than 12 years of age differ depending on the nature of the activities. In cases involving sexual intercourse, defendants over 16 years of age who are at least 2 years older than the victim are guilty of rape in the second degree. However, sexual contact is only illegal in cases where the defendant is at least 19 years of age.

More often though, all of the acts will be illegal (with the same age requirements), but the severity of the punishment will differ based on the type of sexual activity. In Kentucky for example, sexual activities with children under 12 years of age are illegal regardless of the age of the defendant. If the activities amount to sexual contact, the defendant is guilty of first degree sexual abuse (a Class D felony); if they amount to sexual intercourse, the defendant is guilty of first degree rape (a Class A felony).

This means that the caller - if she were real and actually pregnant - could use the pregnancy to get a waiver to marry her 22 year old fiance, the (imaginary, of course) one that the Right to Life group is claiming is a pedophile for impregnating her. And, if she is married, then she is exempt from the parental notification required to get an abortion in the state. A Planned Parenthood receptionist promising confidentiality about birth control is no more encouraging of the abuse of young women by older men than WV state law, which provides loopholes to further tie the young woman to the man. Then again, for the Right to Life group, it seems like what happens to the young woman's life is far less important than what happens to the pregnancy.

So what does all this tell us? Navigating the requirements of the law - both HIPAA and child abuse reporting - in the case of a young woman seeking birth control or abortion is complicated. In the already difficult circumstances of trying to get reproductive health care in an underserved state, young women face a huge burden. We also know that a right-to-life organization in Texas is targeting Planned Parenthood clinics WV and elsewhere, making calls and pretending to be pregnant teens. Then the organization claims the phone conversation is actually the same as actions on the part of the clinic, and that because a receptionist stressed confidentiality and urged the caller to come in for an appointment, that this means the clinic is encouraging pedophiles rather than reporting them. It's a specious argument, based on extremely selective interpretations. It clearly illustrates the patent mendacity of the campaign.

Instead of What's the Matter with Kansas, how about what the matter with Texas? I find it curious that the right to life people are so outraged that someone on the phone might not give a definitive answer. After all, they are hardly paragons of truth themselves.

In addition, the focus on making changes to this particular law is revealing. It changes notification to consent, and seeks to remove the medical exemption - as opposed to a judicial exemption - from parental involvement. Last year 19 of 122 young women who had abortions received medical waivers for parental consent, and one received a judge's waiver. Nineteen. I'm curious about why this is such a crucial problem to be solved. What about the rest of the one hundred and twenty two who became pregnant and got abortions with their parents' involvement? Why not focus on getting birth control to the populations to avoid the 80% of unplanned teen pregnancies? Or prenatal care to the remaining ten percent who miscarried?

And what about those who had abortion with their parents' consent? This shows that the vast majority of the cases of young women seeking abortions in West Virginia do not need this change to the law, because they already involved their families in the decision. Why focus on the nineteen young women who sought waivers? Not to mention the absurdity of how it is that a group in Texas has more right to affect the lives of young women in West Virginia than the women's own health care providers, clergy or counselors?

After digging through the law and the facts about young women seeking abortion and birth control, as well as reading the regulations about underage marriage (I couldn't find a statistic about the number who get the pregnancy exemption for underage marriage) and sexual abuse in West Virginia, it's evident that the proposed change to the law does very little but mask an overreaching agenda in which out of state interest groups engage in the manipulation of people and information.

It's astounding the lengths that these people will go to in order to maintain control over nineteen uteruses. Then again, if they can get control over those nineteen, next they'll be after the uteruses of the 2000 adult women who get abortions every year in West Virginia. And everyone else's too.

Posted by binky at February 26, 2006 04:53 PM | TrackBack | Posted to Reproductive Autonomy | West Virginia


Comments

UPDATE: Link dump on related posts:

PZ Myers reflects on a life of male privilege, and walks a mile in a young woman's shoes.

Amanda thinks about frames and morality.

Jill reminds us that South Dakotans probably won't like the abortion ban, not least because it will waste their tax dollars, hence the "anonymous" donor." Pudentilla speculates that Steve Kirby's $1 million promise isn't exactly legal.

Scott Lemieux does a South Dakota aftermath round up.

And last but not least, the inimitable Norbizness.

Posted by: binky at February 26, 2006 08:03 PM | PERMALINK
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