This is a transcript of one of the videos leaked from the National Abortion Federation convention. These videos were recorded in secret by David Daleiden
The National Abortion Federation filed suit to keep all the videos taped at their conference away from the public, but an individual unaffiliated with the Center for Medical Progress leaked them.
I have composed this transcript after listening to the video. It may not be accurate in every detail. When I have been in doubt, I have inserted a question mark. There may be errors in this even though I did my best to be accurate. It was hard to distinguish which speaker said what, so I just did the best I could to estimate.
A1: First speaker/abortion provider Lisa Harris
A2: Second speaker/abortion provider
Q: Audience member asking questions (one of four)
[starts in the middle]
On reporting child abuse …
A1: … and the theories about that, and Casey [The Supreme Court Case Planned Parenthood vs. Casey] departed from medical practice and converted doctors into state actors, and let me briefly link back to Lisa’s talk, these regulations that we all are so familiar in working with fighting with now, challenge the moral agency of physicians. Because they turn physicians into agents of the state. We’re familiar with this with very vulnerable populations, such as making physicians mandatory reporters for child abuse, but it puts them in that same role as a state actor, saying what the state wants them to say or doing what the state wants them to do. It’s a conscription of physicians to perform state actions. In my opinion, if the state wants these things, they should print state flyers and appoint state employees to do these things, rather than force the physicians to do it on the state’s behalf.
But for the purposes of my talk, on the significance of Casey is that it allows the state to define the good and weigh in on it which is why the line drops in my slide. So my point is, the recent trend in what is sometimes called women protective abortion regulations collectively represent a reversal of 40 years of progress in bioethics toward respect for patients’ moral agency in all other areas of medicine. So that was conceptual. Let’s speak empirically.
On abortion regret….
I am part of a study that I want to just very briefly share the results with you and the reason, these results are not going to surprise anyone here, but part of the reason I want to share them, is I want to share my ambivalence about this kind of work, and ask for your feedback in the Q and A as to how to write the results up.
My colleague Lori— , a Northwestern provider who’s sorry she couldn’t be here at this meeting, but who says hello – she interviewed 30 women at Northwestern who were there for termination of fetal abnormalities in the 2nd trimester. And when asked to explain their decision to abort, we later did coding of these interviews, a hundred percent of them used reasoning that the coders recognized as reasoning used in, um, moral reasoning methods commonly accepted in the field of medical ethics. Right? So they didn’t use that exact language, but when you code for it, 100% are using medical ethics reasoning, in to, deciding, making their abortion decisions. Now, the conclusion of the study, and here’s just how it,… The conclusion is, big surprise, abortion patients are moral agents. Woo hoo. [Laughter] But they reason differently than the government, and others, [?] the moral status of the fetus appear to be less central to their decision-making process than the political conversation may suggest. So my concern is, this is super weird research. That’s like me saying my research hypothesis is that women aren’t witches. [Exclamation, Laughter] And they’re not! I don’t think I should get applause for that. Um, so but we’re drafting this and our conclusion, talking about the findings suggests we have to reframe political efforts, attempts, to undermine the moral agency of women, but I’m worried about this idea about special proof that abortion patients really are moral reasoners. I don’t want to set that bar, well, they had anomalies, what about the ordinary abortions? So, but yet in the current climate maybe that’s useful to have that data. So I really, genuinely welcome your thoughts about that.
… Pregnant women are different from other patients because they have a fetus inside them but however, like many of you might agree, Casey’s insulting because the existence of the fetus doesn’t change that fact, that women are moral decision-makers. All right? So let me switch gears here and return to those ethical arguments.
I referenced that group of what we call women protective laws, but today I’m gonna analyze how the example of abortion regret erodes patients’ moral agency. And I’m choosing regret for multiple reasons. One is that I think it underlies the academic defense, at least against, the open defense against regulations like forced informed consent, such as abortion ultrasound viewing, and mandatory waiting periods. I think some of us see the underlying motivation of these laws as harassment, burdens that are intended to block abortions, but the basic academic defense of them, is the goal of informed decision. Which is ultimately meant to respect autonomy and prevent regrets, so you see that bioethics triumph, sort of then being subverted for this women protective idea.… And that’s one of the reasons the concept of regret, I do think, feels powerful. I’m also using it because it was cited by the Supreme Court by Justice Kennedy in Carhart in 2007, and so it’s a good one to be able to rebut. And it’s also becoming a slogan or theme in demonstrations in signs, and I’ve seen lots of billboards in the Midwest that say mainly that women regret their abortions. Raise your hand if you’ve seen these signs or heard this argument, about regret. Okay, so we’ve all heard of it.
So let’s situate this point. What is rarely acknowledged in the conversation or the argument or the yelling about abortion regret is how the risk of regret pervades the rest of medicine. Without perfect knowledge of the future, the possibility that a well-informed patient might later regret their choice to have back surgery, kidney transplants, vasectomy, can never be eliminated. And so I argue that framing the risk of regret as an adverse effect of abortion raises very difficult questions for the rest of medicine. If the possibility of abortion regret justifies waiting periods, forced views of sonograms, etc. why doesn’t medical ethics, and maybe even the constitutional guarantee of equal protection, require similar measures to protect patients from regret in all areas of medicine?
The 1st step in answering these questions is to think carefully about the concept of regret. I think step one is categorizing it. I have offered 2 categories and this part of this work is published, and if you can’t find it on pub med I’m happy to email it to you, let me know.
The 1st category is situational regret. This is someone who says, you know I, this is a patient who chooses knee replacement instead of joint pain but regrets all those choices he made on the football field that led to this knee injury, right? This is a patient who consents to painful chemotherapy but regrets that she ever smoked and got this cancer in the 1st place, right? If they could travel back in time to change the behaviors that got them to this moment, maybe they would, but they wouldn’t change this medical decision today. Right? Given the facts, given where they are.
And In the abortion context, poverty, the demands of school, a boyfriend’s refusal to coparent, or severe fetal anomaly are examples of factors that might inspire situational regret. Patients might regret that that they became pregnant, regret that they’re in this moment, but they don’t regret the abortion itself. It may link a medical procedure to feelings of sorrow, loss, disappointment, or dissatisfaction, but this says nothing about the physicians or with the procedure itself.
And the fact that most abortion decisions are driven by complex emotional factors or social factors, maybe there’s an increase in situational regret compared to other medical procedures, I don’t have data on that. It’s possible, but I don’t think that says anything particular about abortion itself. Because situational regret is beyond the scope of medicine. All right?
The type of regret that haunts physicians, troubles policymakers, and tests modern understandings of patient autonomy is decisional regret. I think that’s the one we need to focus on. All right? And that is that, knowing what I know now, I would go back in time and make another decision. Let’s focus on that. There was an interesting essay in the New England Journal last year in which 2 physicians reflected on decisional regret in the ICU, a patient who says, had a long complicated recovery, and says knowing what I know now, I would have never agreed to have this ventricular assist device. Right? And, so that’s something that’s difficult to think about.
Sociologist Katrina K— interviewed abortion patients who reported emotional difficulty around their abortion, and when I read that article only one of the 18 reactions she documents fits the category of decisional regret. Okay? One patient who says, if I could go back and change it I wouldn’t have had that abortion. No matter if the father was there or not, no matter if I was going to be a single mom struggling, I would not have had the abortion. I think I would be much more happier. All right? So any physician, or bioethicist or policymaker would feel, um, would feel sympathy for patients like that, abortion patients, whichever, that cardiac patient who later look back and say, knowing what I know now, I wish I hadn’t done that. Right? That’s a sympathetic pose.
But the question is, what should we do with their distress. And I think a helpful lens for understanding the consequences of decisional regret is a concept called the dignity of risk. This is a concept articulated in the 1970s in the disability rights movement to challenge clinicians’ impulse to withhold options for people with disabilities unless good outcomes were guaranteed. It’s shorthand for the fact there’s no opportunity for success without a right to failure. Acknowledging the dignity of risk doesn’t mean patients, physicians should stop trying to help patients, it just means when patients internalize the locus of control for their choices and actions, informed decisions they later regret are viewed as an opportunity for growth, a time where patients can redefine or strengthen life goals, devise new strategies for achieving them and develop resilience.
The dignity of risk reminds us that overprotection is harmful too. And to circle back from where I started from, American patients’ status as autonomous decision-makers in bioethical ethics, that was fought for so hard, is grounded on that premise, that adults can make choices and throw the dice and see what would happen. I think that what we have to remember is that the truth of informed consent for all procedures, is that all of our best decisions are really best guesses. I think this will be best for me, but only time will tell. Right? And so I trust that the abortion patient who was called Brandy, the cardiac patient, are being totally honest when they say I would like to, if I could go back I’d do it differently, it is also the case that we can only compare the facts of the life we chose with a hypothetical version of that alternate path. We don’t even have that information, so, there’s the grass is always greener concept, it’s just very hard to know.
It’s also the case with decisional regret that we seem to understand in the rest of our life, with life altering decisions like marriage, or job change that there’s this best guess possible concept. You know, we’ll see how it works out but in medicine, we expect a different level of clairvoyance. The physician told me the information, I should’ve known, I wish I would’ve known, it should’ve turned out differently. But yeah, imagine, using those analogies, that I had a terrible divorce, that I really regretted marriage. If my sister seemed to be making a similar marital choice based on similar reasons, I think it would be totally reasonable for me to sit down with her and say, “I regretted my marriage. I want to talk to you about how you might regret yours.” I think it would be unreasonable for me to stand outside of a church with a sign that says “I regret my marriage.” [Uproarious laughter, lasting for several seconds]
… Say don’t do it, we have resources to help you stay single! [More laughter and applause] Our circumstance is not generalized to hers.
Other people may have a different experience, they may embrace it, they may regret it, it is their lives to live, and ours to support them. I also think there’s something terribly unfair about looking back at our former selves, situations that seemed perplexing or overwhelming in our youth, often seem clearer in hindsight when we have the benefit of maturity or new knowledge that comes with time passing. And we teleport our current selves, back to our 20-year-old selves and say, it was so obvious, I should’ve known x, I ought to have done y, and I think individually that’s very unfair because you couldn’t have done that, but we sort of forget the distress of an earlier time, but I also think this happens on a legislative level. Legislators in their 50s 60s and 70s have a hard time putting themselves back in the shoes of people in their 20s. Yet 50% of abortions are performed on people who are under 24, and if you raise the number to 29 it’s 75%. So of course we think of abortion issues as issues of gender discrimination, but I’d like to propose that we consider them issues of age discrimination as well. [assent] An older generation not able to remember what it’s like to be young.
It’s virtuous to want the best for patients. And it’s painful for any physician to learn that something they did at the patient’s request, with the intention of helping them, was later experienced as harm. But the principle of bioethics encourages us to remember: physicians are instruments of change but patients are agents of change. The patient has to live with the consequence. That’s the justification for patient autonomy and it’s also its cost.
Justice Kennedy made this statement in Carhart and I want to say I don’t disagree with that. It’s the high base rate that makes his conclusion unacceptionable.[mispronunciation?} We can’t expect uniformly positive reactions from a procedure. Approximately 30% of American women ask a physician to do it sometime in their lifetime. This will be true of knee surgery as well. I don’t think it makes it abortion any different for me.
Every patient assumes some risk of physical or psychological harm when they ask a physician to alter their body. And some, hopefully few, you will work very hard to make it few, but always some will regret their decision.
So, Casey, as the law currently stands, we don’t have a legal argument that says you can’t pass, it turns out or we’re losing that legal argument, certain regulations. But we still have the ethical argument that those are unethical state regulations. And so the image I want to leave you with is the Trojan horse.[laughter] All right? States can make these laws and [inaudible] physicians and advocates should argue, of course, as we are that they shouldn’t. I think that these trends in women protective abortion regulations, they undermine patient moral agency and they, states can adopt them, but they shouldn’t. Because they represent a regressive return to rejected paradigms of paternalism, and that’s what’s inside that horse. All right? The horse is this informed consent claim, but we all know that there are arguments about fetal value and the diminishing respect for the moral agency of women inside them, and we need call that out, and get it out of the square [?]. Thank you very much.
Q and A
On aborted remains
Q: hi, my name is Emily –. I work at Blue Mountain clinic in Missoula Montana. I have a question, and this kind of goes back to the dichotomy between conscience and abortion providers – in seeing that abortion providers are inherently illegitimate, so that illegitimacy paradox.
I often see, and I see this mostly on social media, I get in these arguments with people where they have the fetal imagery posted, and I respond saying, this is not a realistic representation of what fetal tissue looks like this is an extremely late procedure, which is a really small percentage, but because I’m coming from the perspective of an abortion counselor, an abortion worker, it’s like I’m automatically delegitimized. Even though we’re the experts, you know, it’s like, I literally know that’s not a 9 week gestation product of conception. because I’ve seen it. I see it every week. So how do we combat that? How do we, like, just essentially stand up and say, we are the experts on this, and you all just don’t know what you’re talking about.
A1: So I actually, and I don’t intend this as a criticism, but I actually have a different response when someone portrays those images. And I say, yeah, that some weeks actually looks like what I would expect you may have some of your facts wrong, at 9 weeks it doesn’t look like this, at 22 weeks it does look like this – but yeah, actually, that’s my week some day, some weeks, and that’s what it looks like. And I actually think, and I’ve been pretty vocal about it, so I’ll say it here, you know that, it’s been a failure of Pro – ignoring the fetus is a luxury of activists and advocates. [Laughter] if you are in there every day with women, and if you’re provider, you can’t ignore the fetus, right, because the fetus is your marker of how well, how good a job you did. Right? If you don’t account for all the parts and you don’t look carefully, you may be setting someone up for infection or hemorrhage, or whatever – the fetus matters clinically to us. Not to mention that women know what’s in there. You know about two thirds, over 60% of women are already mothers and the remainder don’t want to be mothers. They’re not stupid. They know what’s in there. So the idea, I actually think that we should be less about denying the reality of those images. More about acknowledging, that yeah, that’s kind of true. So given that we actually see the fetus the same way and given that we might actually both agree that there’s violence in here, ask me why I come to work every day. Let’s just give them all, the violence, it’s a person, killing – let’s just give them all that. And then, the more compelling question is, so why is this the most important thing I can do with my life. let’s talk about that. And – so that’s my answer to that. I don’t think it needs to be about correcting facts, I think it can be, needs to be about moving the conversation to a different place.
On Conscience Clauses…
Q: I have a dilemma, which is, I was talking to a group of people after, who were doing a Q and A after “After Tiller”, and somebody said well what do you think about conscientious refusal. And I found myself saying, I don’t think people should go into OB/GYN if they’re going to refuse to do one of the most common procedures that OB/GYN do. And I’m not comfortable with my grounding for saying that, I think it but I’m not sure I can justify it. so I was asking your advice on this dilemma.
A1: that’s okay, that’s something I’m struggling with also Susan, and the analogy I’m struggling with is like having a Jehovah witness run a blood bank. [Laughter] it’s just not the right job for you. I’m not trying to- But then you say okay but a blood bank is run by a lot people, is there an administrative role that would make that person be comfortable. And so I struggle with that because OB/GYN’s a broad field there are many people who do lots of different things in it and it’s not because, you know whatever. But, but I do think there’s a more, there is an argument there, but I don’t know if it’s a winner.
A2: So I’m not sure I actually agree, because in all areas of my life I’ve come to realize that the best, that, diversity and inclusion, which really means we’re talking about race or ethnicity, but that those are key things to having good solutions to any kind of issue. And I don’t like to exclude anybody from anything. I do think that, and I mentioned this yesterday in the comment periods, so forgive my sort of repetitiveness. I think that as we shift our thinking from reproductive rights, abortion rights, to reproductive justice, there are a lot of rights that women and families are owed, through childhood, and through pregnancy, and through birthing, and through menopause, as we shift to be more inclusive and not just focus on abortion, there are a lot of areas of overlap, where your vision of a reproductively just world might look just like mine, right? Because we’ve done poverty elimination and we have racial justice, and we environmental justice, and we have great public education, and we have good parenting leave policies, we have all these things. So I actually think that you could be in OB/GYN who doesn’t believe that abortion is part of a reproductively just world and still overlap with 95% of a reproductively just world with mine. Now, I do think there have to be constraints on that, that if you are going to be the only person in a rural area or you’re the go to person, you have to have to set up allowances for that. But I don’t know that I would just exclude. I feel so strongly that people need to exclude [inaudible] I would rather broaden our idea of what reproductive justice means and find our areas of intersection and create some infrastructure when people disagree around abortion and there need to be referrals and [inaudible]
Q: thank you so much for this panel, like the bomb. [Laughter] and I – I if I didn’t define my work as stigma eradication in the short run, you know, I’d be a lot more stressed out. But I think in the long run, if you have these conversations, I think you know, this is the meat and potatoes of everything, Kate it’s so good to see you, ever since your talk a while ago, I constantly try to explain acts of omission, commission and dignity to various people I work with and I don’t do such a great job at it but I’m getting better. So – 2 things. One I wanted to say, I think a grand rounds tour in red state medical departments would be phenomenal for you guys to consider. I think I’ve interacted this last year with so many physicians who, by acts of omission, have chosen not to stand up for us, yet who refer their patients to us. [Sounds of agreement] and now that we’re gone, right? I mean there’s 2500 OB/GYN’s in Texas who signed on against HB 2, but now we don’t have any doctors performing abortions. Right? And the clinics are closing. So I think you’re onto something, of course, really phenomenal, but I think it would be really interesting to have this sort of ethics conversation as CME, you know accredits the hospitals and in the very hospitals that either did privilege people or denied privileges or whatever, and so whatever we could do to help that happen. The 2nd place I think it would be really interesting, for example would be at the University of Texas at Austin, that’s building a medical school and they’re in a big struggle with housing it in the Catholic hospital, [assent] and it’s in a capital city that supposed to be progressive. Right? And so this conversation I can see a symposium academically that would involve cultural historians, American studies people, medical studies people, ethicists, and some way that we can get those conversations to happen before those decisions are made behind closed doors, and they don’t affect anybody. I don’t know if you’ve done this or would be interested, or would anybody in the room be willing to help with this?
A1: we haven’t but I would predict we would be open to it if other people would set it up. We might show up. I will say part of my project, and I know my [inaudible] is like publishing in literature that’s broader than just OB/GYN or abortion so I published my regret essay in JAMA, and then I buckled up and thought okay here we go, because JAMA hadn’t published an abortion piece since Carhart, and then it had been 10 years since that, so they don’t want, if they pretend it doesn’t exist. And in Carhart was like a super – apologetic editorial, it was like we’ve got to talk about this. And so, um, I was ready for this vitriolic response, and I got only one negative response, and I got, probably, 15 emails from physicians in, not necessarily in OB/GYN or abortion provision, saying this was super useful. Surgeons, you know, neurologists. So that was shocking to me and encouraging.
A2: I especially think Lisa, your distinction between conscience and stigma, and how it shows up in that privileging conversation is brilliant. If any of you have ideas for disseminating, and ideas that may be useful, be in touch.
I had kind of wanted to say something about Lisa’s point on stigma and conscience, and I can see another way to get, I guess get this out there, I’ve definitely talked to people in residency programs where there’s some type of panel, if you’re going to consciously object to abortion you just have to go talk to the people on the panel, 2 or 3 doctors, and explain why you object, and why you won’t participate in abortion training, and I just think it would be a very interesting thing to kind of turn that discussion into a real articulation. Is this, would you consider this discomfort to fall under stigma, for the reasons they articulate you know conscience for the reasons–. And get them, get more residency programs doing that and articulating and disentangling all of that for the people that would just be a nice thing to go through.
Q: hi, I’m Linda –. I have a, I’ve been noticing this that’s happening sort of at a regulatory level, in the federal government, that’s happening to us and other health centers, those who work in [inaudible] any place that really is subjected to any federal funding or any federal regulation. It’s these patient centered medical home things that we’re supposed to be creating that we actually get visited on… We get all these regulatory bodies that come and look at what we’re doing. And what they’re looking to see is whether or not we have patient portals and whether or not we’re doing a shared decision-making with our patients, and we’re supposed to be documenting our shared decision we’re supposed to and we’re supposed to be documenting our patients’ access to their whole medical record, if they want to read it all, And I think need to totally need to start owning this language and co-opting it, because if we’re going to be patient centered and if we’re going to do shared decision-making than that means you let women decide when they are ready to parent and their not ready to parent. And if we’re not gonna do that, if we’re gonna deny that to this one subset of our patients, and that seems to be what is going against what is now promoted as the way to practice medicine. so, um, I really don’t know how we can sort of own those words but it seems like they’re completely perfect with what we do.
A2: the way we can own them is you just made this terrific suggestion, everyone in this room can pick it up, I think this – the principle of just taking an existing paradigm and, when what you do fits it, saying I’m not trying to change anything. Is very powerful.
A1: and it even feels more powerful than sort of malpractice, for bad [inaudible] . This is a JCAHO thing. You know, we turn a lot over to JCAHO if we don’t like it, and so if you can’t demonstrate shared decision-making where women got a say in what happens to their pregnant bodies, that’s a JCAHO violation. Wow, that would be very incredible.
Q: Hi I’m Maria – from Mexico, congratulations. Your presentations were wonderful, we need you in Latin America. I have a question. [this part is very difficult to make out but she seems to be asking about the state of conscientious objection in Latin America and the US}
A1: Well, that’s very interesting to me….I’m going to answer quickly and then one last question. My sense of the times I’ve spent in Mexico or other parts of Latin America is that conscientious, issues of conscience are issues for providers more than for people who oppose abortion. That there are more conversations about, well, I’ll do medical abortions but not surgical or I’ll do surgical but just to 12 weeks, so I think that there, there are some issues about conscience that need more exploration, about what that means. But um, I guess I don’t understand the nuances of that prohibition of conscientious objection well enough, and I know that there’s a lot of contestation about whether that deserves a place in the law or not, whether the solution to that issue is in the law or is elsewhere. I guess I, I do recognize conscience. You know, for my argument to work, that conscience is part of provision, there has to be a recognition of conscientious refusals as well, but that doesn’t mean you can’t qualify it by saying that it’s just direct. You can refuse to participate directly, but you do have a moral obligation to help somebody get the care that they need. I think the other piece that might be useful is that our idea of what’s morally at stake in refusal is way too narrow. Right? So it’s not just the moral integrity of a provider that’s at stake in whether they perform an abortion or not, everything that happens to the woman after that, has moral consequences. Right, whether an early abortion turns to a later one, or whether a safe abortion turns into an unsafe clandestine one, or whether she has a child that she doesn’t want to raise or have the resources to raise. Those are all moral issues as well, so I think we need to expand our idea of what’s morally relevant and that may help in, in the conscientious refusal if you widen that then maybe will give some more clarity. I need to think more about it.
Q: I’ll be brief. 1st of all, I enjoyedthe presentation so much, it reminded me of many conversations I’ve had with patients except that it sounded much more intelligent [?} than what I as was saying. So I wanted to just briefly invite a tangent to issues of viability, because in many states of the country abortion is legal, with many many restrictions up until “viability,” at which point, all of a sudden, many people develop a strong discomfort. Well, but she’s so late in the pregnancy, it’s already viable, why doesn’t she just have it and, one thing I think a lot of us have been trying to give that argument into that we are forcing her to continue to be pregnant for however many weeks and I’ve spoken to referring OB/GYNs and they’re trying to sort out their feelings, is this a conscientious objection that I’m wanting, am I ok, am I comfortable with this? And saying well, perhaps she is 28 weeks. If she says, doctor, induce me, I don’t want to be pregnant anymore, It’s effecting me physically, it’s effecting me emotionally, that absolutely no doctor would ever, unless it is “life of the mother” would ever even consider inducing a preterm delivery. And so I would be really interested in hearing if you’ve both explored that in a more intelligent way to talk about that.
A1: I think, no.
Q: why not?
A1: I think about viability a lot and the significance or insignificance of that line, but I haven’t really thought about it in relation to conscience except in the same sense for the same reasons that some women say you know, I’m 6 weeks pregnant my conscience won’t allow me to have a termination even though that really could be great for me, but I just can’t do it. The same conscience in operation in the other direction if a woman says I’m 28 weeks, and I still don’t think that the moral status of this fetus should trump me, to me that’s the same exercise in patient moral agency. So that’s how I would frame that, but I haven’t thought about it beyond that.