The Doctor Is Out

March/April Issue

The Doctor Is Out

Conservative governors are pushing abortion politics onto health boards—and threatening doctors’ independence on other medical issues.

On a Friday evening in June 2012, Jim Edmondson walked out of a meeting room in a sprawling government conference center north of Richmond, Virginia, and into a jostling scrum of reporters. “They were asking me questions with all these microphones in my face,” he says. “It was a shock to see so many media people.”

In Edmondson’s eight-year tenure as a consumer advocate on the Virginia Board of Health, he could count on one hand the number of times he’d looked up and seen even a single newspaper reporter in the room. State regulatory boards’ proceedings rarely catch the public’s eye, and the health board was no exception. The members approve most regulations unanimously; the most dramatic issue they’d handled during his time, Edmondson says, was a decision about where companies should be allowed to dump solid waste. Although the governor controls appointments to the board, Edmondson, a real-estate developer who had served on a Northern Virginia health regulatory panel for 15 years before his appointment to the state board, had no inkling of his colleagues’ political leanings. “We were regulating shellfish-packing plants,” he says. “Politics didn’t come into it.”

That was before the 2011 legislative session, when the Virginia General Assembly rammed through an 11th-hour amendment to a bill about nursing homes. The amendment subjected the state’s 21 abortion clinics, which by law could only perform first-trimester procedures, to the same health standards as hospitals—including wide corridors, sinks in every room, and customized awnings over the front door. The regulations, part of a national anti-choice strategy to shrink the number of abortion providers, were a victory for Virginia’s Republican governor, Bob McDonnell, who was being touted as a potential vice-presidential nominee. But the law didn’t spell out the details of the new guidelines. That task was delegated to the Board of Health.

Typically, whenever the state imposed new health-care guidelines, the board would “grandfather” existing facilities, allowing them to delay any necessary architectural changes until the next major renovation. “Our job was to work with hospitals or restaurants, or whatever it was, to keep them open,” Edmondson says. But Ken Cuccinelli, the Republican attorney general elected alongside McDonnell, told the board that because abortion providers had not previously been licensed or regulated by the Department of Health, a grandfather clause was inappropriate.

“The message was, ‘We’re going to make an exception only for these clinics,’” Edmondson says. Without the grandfather clause, abortion providers would face unfeasible renovation costs. Pro-choice groups estimated that 17 could close, leaving just four clinics to care for Virginia’s two million reproductive-age women.

Activists on both sides of the abortion debate began to deluge the health board’s quarterly meetings in Richmond. On that day in June, the low-ceilinged conference room was packed with doctors and protesters; posters with gruesome images of aborted fetuses bobbed next to signs imploring the board to “protect choice.” After Edmondson proposed an amendment to the regulations that would exempt the existing clinics, Anna Jeng, a public--health professor in her second year on the board, came close to tears as she admonished her other colleagues for wavering on the issue. “I told them, you can be conservative or liberal, but you have to be fair,” she says. Late in the day, the board voted 7-4 to grandfather the existing abortion clinics.

Almost immediately, a staff attorney from Cuccinelli’s office rose to chastise the board. “She basically said, ‘What you just did is not going to fly,’” Edmondson says. One of the board members who had supported the amendment, stricken with sudden qualms, tried—and failed—to call a revote. Later that month, Cuccinelli announced that not only would he refuse to certify the vote—a necessary step before the rules could go to the governor for final approval—his office would not defend individual board members who might be sued by anti-abortion activists over the amended regulations.

At its next meeting, the board changed course. Only Edmondson and Jeng voted to exempt the clinics. A year later, 2 of the state’s 21 clinics had shut down, saying the cost of renovation was too high. The remaining clinics have until this summer to comply.

By the time Edmondson’s term expired in June 2013, its composition had shifted dramatically. Three of McDonnell’s appointees were affiliated with anti-choice groups. In his final weeks as governor, this past fall, McDonnell declined to reappoint Jeng, although she was eligible for another term. In her place, he nominated a former blogger for Virginia’s conservative Family Foundation.

 

The drama over Virginia’s regulations was just one manifestation of the Tea Party backlash that launched conservative majorities into 26 state legislatures in 2010 and rekindled the abortion wars. Between 2011 and 2013, legislators in 30 states passed 205 restrictions on abortion, more than in the entire previous decade. The focus of the laws also began to shift, from measures designed to make women rethink their decision—mandatory waiting periods, counseling, ultrasounds—to policies crafted to drive abortion providers out of business with red tape and building codes.

Prior to 2010, most state health and medical boards were similar to Virginia’s—largely free of political and ideological squabbles. But like McDonnell, a batch of freshly elected Republican governors realized that the boards’ expansive purview and relative obscurity made them ideal for imposing restrictions on doctors and clinics without the hassle of going through the legislature. Medical boards can censure doctors and strip them of their licenses; public-health boards are responsible for imposing and enforcing building codes in medical facilities. With minimal fuss and little public attention, a board stacked with anti-choice nominees can target abortion in one of three ways: It can impose new building codes, ban a specific procedure, or discredit individual doctors by revoking their license.

Since 2011, the Republican governors of Virginia, Iowa, Kansas, and Ohio have appointed at least 12 doctors and consumer advocates with explicit ties to anti-choice organizations to health and medical boards. The total number of nominees with an anti-choice agenda is surely higher; it can be difficult to tell, until he or she is already on the board, whether a particular surgeon or pharmacist, for instance, opposes abortion rights.

The strategy has been extraordinarily effective, partly because pro-choice groups can’t fight back without explaining to their followers what the boards do and why they matter. “It’s hard enough to raise awareness about something happening in their state legislature,” says Elizabeth Nash, state issues manager for the Guttmacher Institute, a research organization that supports legal abortion. “Most people don’t even know these boards exist.”

So far, the mainstream medical community is keeping its distance from the issue, although having unabashedly political members on the boards that regulate the profession makes some doctors nervous. “Medical boards exist to ensure that patients get the best care,” says Angela Janis, a psychiatrist in Wisconsin who serves on the board of Physicians for Reproductive Health, a pro-choice group. “If their decisions aren’t based on facts and medical evidence, what’s to stop them from bringing personal ideology into my field?”

 

In the summer of 2008, Iowa’s Planned Parenthood, seeking to expand abortion access for rural women, began to use telemedicine. Instead of traveling to cities, women who opted for a telemedicine abortion would make an appointment at their local clinic and videoconference with a doctor in Des Moines about their decision. After talking to the patient and reviewing her test results, the doctor would remotely unlock a drawer in the satellite clinic containing two abortion pills. The woman would take the first pill in front of the doctor and the second at home, effectively inducing a miscarriage. Independent researchers evaluated the program in its first year and determined that not only was telemedicine abortion safe, patients preferred it to in-person treatment.

Telemedicine was one of the pro-choice movement’s first breakthroughs in years, and anti-abortion activists knew it. Beginning with Nebraska in 2010, 14 states preemptively banned the practice by requiring doctors
to perform an in-person exam before prescribing the pills. Telemedicine proved trickier to uproot in Iowa. Faced with a Democratic governor and legislative majority, the radical anti-abortion group Operation Rescue filed a complaint with the Iowa Board of Medicine in the spring of 2010, arguing that telemedicine abortion posed an unacceptable safety risk to Planned Parenthood’s patients.

Although health-board complaints usually originate with patients or doctors, Operation Rescue’s Cheryl Sullenger, who spent two years in prison in the early 1990s for attempting to blow up an abortion clinic, had been lodging complaints with boards across the Midwest for years. The goal was for regulators to revoke abortion doctors’ or clinics’ licenses, which they rarely did. The Iowa Board of Medicine was no different. After convening a subcommittee to examine Operation Rescue’s allegations, it closed the case without further investigation.

While the board was deliberating, though, Republican Terry Branstad was elected governor. On the stump, Branstad had condemned telemedicine abortion, calling it “misguided” and “dangerous.” Although he won in a landslide, the Democrats kept their state senate majority and refused to consider a ban.

The Board of Medicine, on the other hand, could be easily reshaped. After Democrats in the senate blocked the nomination of an activist affiliated with Operation Rescue, Branstad tapped Frank Bognanno, a priest. It was the end of the 2012 legislative session, and the Democrats gave in. “If the priest didn’t get confirmed, Branstad would have nominated someone else who opposed abortion,” says Tom Courtney, a Democratic state senator.

By the summer of 2013, the Board of Medicine was entirely composed of Branstad appointees. In August, it approved a petition coordinated by Operation Rescue that would require physicians to dispense abortion pills in person. In response to a lawsuit from Planned Parenthood, a state judge granted an emergency stay. The board’s decision will be reviewed in court later this year.

 

Doctors have always been targets for anti-abortion activists—in no state more than Kansas. In 2002, Operation Rescue moved its headquarters to Wichita to oust George Tiller, one of a handful of doctors left in the country who offered third-trimester abortion. Cheryl Sullenger began filing complaints with the Board of Healing Arts—Kansas’s medical-licensing board—demanding that it revoke Tiller’s license. The board opened several investigations of Tiller but never found him guilty of misconduct.

After an anti-abortion zealot murdered Tiller in 2009, anti-choice activists shifted their attention to one of his former colleagues, physician Ann Kristin Neuhaus. Under a 1998 Kansas law, Tiller could only perform late-term abortions if a second physician confirmed that the patient would suffer “substantial and irreversible harm” by continuing her pregnancy. Under the law (which has since been amended), psychological distress counted as “substantial harm.” Neuhaus owned a first--trimester abortion clinic in another part of the state and had worked as a consultant for Tiller, coming to his Wichita clinic once a week to conduct mental-health exams for third--trimester abortion patients. There were rape victims, women with cancer, and women with non-viable fetuses. She saw girls who hadn’t realized they were pregnant until they were seven months along. Neuhaus frequently diagnosed her patients with depression, anxiety, or acute stress.

Less than a year after Tiller’s death, the Board of Healing Arts, responding to one of Sullenger’s complaints, opened an investigation of Neuhaus. By then, in 2010, Neuhaus was pursuing a new career. After leaving Tiller’s clinic in 2006, she had returned to school to study public health and found a job as a research instructor at the University of Kansas. Now Sullenger was alleging that in 2003, Neuhaus had failed to adequately examine and document her talks with 11 underage girls who had sought third-trimester abortions at Tiller’s clinic. The records of her conversations with the girls were purposely sparse; Neuhaus says she tried to exclude all identifiable details lest the documents fall into the wrong hands. (Her fears were not unfounded: In 2006, Fox News’s Bill O’Reilly broadcast confidential details from Tiller’s archives on his show.) But she says the examinations were sound. “The youngest of the girls was ten,” she says. “It was a case of rape and incest. How could anyone argue there wasn’t going to be some kind of adverse psychological effect if she had that baby?”

Republican Sam Brownback, a virulent opponent of abortion, was elected governor in 2010. His first appointment to the Board of Healing Arts was Richard Macias, a lawyer for Operation Rescue. In 2012, the board revoked Neuhaus’s medical license. Its case rested heavily on the testimony of a forensic psychiatrist who flew in from Washington, D.C., and acknowledged that she knew little about Kansas’s standard of care.

In the aftermath of the decision, Neuhaus learned that she would be responsible for the cost of the proceedings—more than $90,000. She filed an appeal with a Kansas district court, but she is still waiting to hear whether the judge will overturn the board’s decision. “In my entire life I wouldn’t be able to pay that back,” she says. “I’d have to file for bankruptcy. I’d probably lose my house.”

Apart from the financial stakes, Neuhaus says she’d like to get her medical license back so that she can conduct more-advanced clinical trials in her research job, which focuses on health disparities in low-income communities. She won’t be returning to an abortion clinic. “Nobody in their right mind should go into that line of work anymore,” she says. “The American Medical Association, state medical societies—they’re too chickenshit to defend us. That’s the kind of support that it will take, or we’ll get to a point where there are no abortion providers left.”

 

In presidential elections, Ohio is the ultimate bellwether. At other times, it’s a place where some of the nation’s shrewdest anti-choice policies are created. Under Governor John Kasich, a Republican, that tradition has continued. In the fall of 2012, Kasich appointed Mike Gonidakis, the head of the anti-abortion group Ohio Right to Life, to a consumer position on the State Medical Board. The following year, Republican lawmakers added a budget amendment that required abortion providers to read a state-written script before offering an abortion and to tell their patients about the existence of a fetal heartbeat. If physicians didn’t follow the rules, they could be sued or subjected to professional discipline. The law invites disgruntled patients and their relatives to sue their doctors or file complaints with the medical board.

That made Ohio one of 17 states to pass laws requiring doctors to give women information that—according to the vast preponderance of medical evidence—is false. Five states mandate that doctors spell out a link between abortion and breast cancer. In 12 states, they must falsely inform patients about the ability of the fetus to feel pain. For doctors, it’s bad enough that politicians are ordering them to lie to their patients. Having anti-choice figures on the boards that regulate physicians ensures that if doctors violate the law, they could lose their license or their business.

Gonidakis says that in Ohio, at least, those concerns are unfounded. “I know the difference between serving on the medical board and serving with Ohio Right to Life,” he says. “My work isn’t ideological, and all the meetings are public. You can see exactly what I say and what I do. We license doctors and massage therapists and genetic counselors. It’s really not about abortion.”

Local pro-choice groups who track Gonidakis’s work agree that he has not overreached thus far. But Kasich has appointed at least two other anti-choice board members. And, increasingly, the anti-abortion agenda seeps into even seemingly unrelated matters. Last summer, when the State Medical Board of Ohio discussed the licensing of genetic counselors, a cardiovascular surgeon appointed by Kasich raised fears about prenatal testing for disorders. Was there a way, he wondered, to stop overzealous genetic counselors from pushing pregnant women with fetal anomalies toward abortion? “It was very odd,” says Shawn McCandless, a genetics professor who testified before the board. “The question implied that genetic counselors advocate for termination of pregnancy. That’s just not true. It’s also not pertinent to whether these counselors should be licensed by the state, yet we spent a lot of time discussing it.”

Family practitioners and gynecologists could be drawn into this web. For instance, anti-choice advocates continue to insist, despite overwhelming research to the contrary, that certain forms of long-acting birth control cause abortion. Will sanctions be imposed for doctors who fail to inform patients of this alleged threat? What about controversial reproductive technologies like in vitro fertilization and gestational surrogacy? They could become the next flash points.

Arthur Lavin, a pediatric doctor in Cleveland and a co-chair of the group Doctors for Health Care Solutions, says the encroachments of ideological health boards extend far beyond abortion—and threaten to make a “hash” out of medicine. “Why would we ever open up the door to allowing the politics of the day dictate to doctors what they should do with a patient in the room?” Lavin asks. “Now you’ve got to kowtow to whatever issue is red-hot today. What if tomorrow the hot issue is gastric bypass surgery?”

National health and medical organizations are nevertheless reluctant to wade into the fray. The American Medical Association declined to comment for this story about the rising numbers of anti-choice appointees. So did the Association of State and Territorial Health Officials, the American College of Obstetricians and Gynecologists, the Federation of State Medical Boards, and the American Public Health Association.

Carole Joffe, a medical sociologist at the University of California, San Francisco, says the medical establishment’s wariness isn’t surprising. “I’m assuming these organizations are choosing their battles carefully, knowing that any involvement with abortion will lead to controversy,” she says. “It’s unfortunate that they are not speaking up more forcefully because appointees to these boards are enormously consequential for both abortion provision in particular and the integrity of the medical profession as a whole.”

With Republicans occupying 29 governor’s mansions, anti-choice activists’ influence on health and medical boards won’t lessen anytime soon. Instead, they likely will be emboldened by Iowa, Virginia, and other states’ successes. Pro-choice groups will find it nearly impossible to turn the tide unless the mainstream medical community gets involved. That seems unlikely to happen without collateral damage to doctors who don’t perform abortions. “You can imagine a world in which boards with a majority of people with a political agenda would revoke the licenses of doctors who don’t agree with their politics,” Lavin says. “More than anyone, you count on your doctor to tell you the truth. Now, telling the truth could lose us our jobs.”

He was the poster boy for the movement to repeal “don’t ask, don’t tell.” Now what?

The decline of industrial unions and significant demographic changes portend challenging times for the region’s Democrats. 

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