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Legal, But About to Be Regulated to Death: Abortion & Porn

Legal, But About to Be Regulated to Death: Abortion & Porn

(The following article has been revised and expanded from its original form.)

PORN VALLEY—Abortion is legal in the U.S. The Supreme Court said it; everybody knows it. And the fact that almost 500 new laws and regulations restricting abortion rights have been proposed in 49 states in the first three months of 2011 shouldn't make any difference, should it?

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Porn is legal in the U.S. The Supreme Court said it; everybody (except religious extremists) knows it. And the fact that you can't legally make porn in 48 of the 50 states (minus one city) shouldn't make any difference, should it?

Take Kansas, for instance. Under a new law signed by GOP Gov. Sam Brownback on May 16, all clinics in the state that provide abortions would have to abide by stringent new regulations in order to qualify for, and later renew, the new yearly licenses to be issued by the Kansas Department of Health and Environment. Among the new requirements, which were first sent to clinics on June 9, then revised and received by clinics on June 20 (with inspections to start two days later, on June 22), are that at least two people—at least one of them a woman—must be in the examination room during a pelvic exam or an abortion procedure, even if the "procedure" is merely giving the patient a pill such as RU-486 to take, since another new regulation requires that each of the two pills required for the abortion be taken at least 12 hours apart and in the personal presence of a physician—no Skyping allowed!

The new regs also require that surgeons operating at the clinic have admitting privileges at an accredited hospital located within 30 miles of the clinic; that clinics provide "at least one room with private space consisting of at least 80 square feet, designated for patient interviews, counseling and medical examinations"; a "recovery area consisting of at least 80 square feet per patient in the area"; "a storage are designated for janitorial supplies and equipment consisting of at least 50 square feet per procedure room"; dressing rooms for patients only, each including a toilet; dressing rooms for staff members only, each including a toilet; a bathroom next to the recovery area designated for patients only; a bathroom designated for public use only; "fixed or portable lighting units... in each examination, procedure, and recovery room or area, in addition to general lighting"; and emergency exits each made large enough to "accommodate a stretcher or a gurney"—all of which must be in place before July 1 in order for the clinics to keep operating. Assuming, however, that the clinics fail to make the necessary alterations by the deadline—remember: inspections started two days after the final regs were delivered to the clinics—the recertification required by the new law in order to admit patients would take 90 to 120 days ... or possibly forever, depending on how hard-ass the department's inspectors turn out to be. [Emphasis added]

All this is on top of the fact that earlier this year, Kansas passed a law banning abortions after 20 weeks gestation, and yet another prohibiting insurance companies from providing coverage for abortions in their general health plans.

At this writing, there are exactly three abortion providers in Kansas: two in Overland Park, one of which is run by Planned Parenthood (you remember: the organization House Republicans wanted to completely defund during the latest federal budget battles, and whose funds have been cut off or severely limited by several state legislatures), and one in Kansas City. Also at this writing, none of the clinics meet all the criteria set by the new regs, which means, according to an analysis performed by employees of the Rachel Maddow Show, that until they are recertified, there will be no abortions sevices available to women in the area stretching from Denver, Colorado, across the entire state of Kansas, and as far east as Columbia, Missouri.

Supposedly, the new laws were enacted in order to protect the lives of the women patients, and received additional momentum when Kansas abortion provider Herbert Hodes testified before the state's House Committee on Federal and State Affairs on March 9 that he was aware of "five deaths in the last five years" that stemmed from complications from legal abortion procedures.

Pretty much every anti-abortion group in the country jumped on that figure and used it to justify new abortion rights restrictions in more than a dozen states. What none of them bothered to report, however, is that on March 15, Hodes wrote a letter to the committee clarifying his testimony of the previous week.

"I am writing to follow-up on one question that was asked during my testimony," Hodes wrote. "I was asked how many deaths had occurred as a result of abortion in Kansas, and I did not know the answer to that question. I did offer an estimation, that perhaps five such deaths had occurred over the many years abortion has been provided in the State. I have researched this question and I now feel that in more than 30 years that abortion has been legal in Kansas, only two deaths have occurred. I wanted to make sure that I was clear about that issue."

So ... two deaths in 30 years in a state where, in 2008 alone, 10,620 abortions were performed—more recent figures are not available—is the excuse for an entire bureaucracy dedicated to preventing women from getting abortions in Kansas. And speaking of deaths, let's not forget one other abortion-related fatality: the cold-blooded murder of Dr. George Tiller.

And Kansas is hardly alone in its war on women's reproductive rights. Take South Dakota: A bill signed into law on March 22 requires women to wait 72 hours after contacting an abortion provider before the abortion can take place. During that time, she must visit a "pregnancy help center," the vast majority of which are run by religious extremists, who will "counsel" the woman that, for instance, abortion causes an increased risk of breast cancer, infertility and depression—all falsehoods—and generally try to talk her out of having the abortion.

Or how about Indiana? In addition to completely cutting off state funds to Planned Parenthood, House Bill 1210, which was signed by Gov. Mitch Daniels, requires any woman whose pregnancy has reached 22 weeks to carry that fetus to term, even if it resulted from rape or incest; requires that she be informed (falsely) that a 20-week-old fetus can feel pain; that she can have a free ultrasound of the fetus; and that there are "alternatives to abortion"; and she must be shown a photo or drawing of what a fetus looks like at the gestational age of the about-to-be-aborted fetus.

And then there's Florida, where Senate Bill 1414 prohibits health insurance policies, any portion of whose premiums are paid with state or federal funds, from offering abortion services, while House Bill 1127 requires that a woman seeking an abortion undergo an ultrasound examination and "review" the results and be shown the ultrasound image before being allowed to have her abortion.

There's plenty more, like Virginia's move to have all abortion clinics reclassified as hospitals, thus requiring additional personnel and remodeling much like Kansas, or Alabama's passing a law defining a "person" to "include all human beings from the moment of fertilization," thus paving the way for an abortion provider—and possibly the woman patient herself—to be charged with murder if he aborts the fetus.

Notice that none of those measure actually outlaws abortion—which, after all, is a right recognized by the U.S. Supreme Court—but some of them go a long way toward preventing a woman from exercising that right.

Which brings us to the current proposed "barrier protection" regulation of the adult entertainment industry by the California Division of Occupational Safety and Health (CalOSHA), which builds on a previously passed regulation which, until two years ago (with one exception), had never been enforced, even though the regulation had been on the books for nearly 20 years.

Of course, making an adult movie is legal in California under the state Supreme Court's 1988 decision in People v. Freeman—but as adult companies quickly discovered during two well-intentioned flirtations with "going condom-only" after the 1998 Marc Wallice incident, and again after the 2004 Darren James infection, heterosexual movies with condoms just don't sell. Therefore, were the companies required, under threat of fines ranging from $10,000 to $25,000 and higher, to make all of their movies with condoms, dental dams, rubber gloves and face shields in all sex scenes, most would quickly go out of business as their customers found plenty of "non-barrier" material that's more to their liking on the internet, imported from abroad, or made in "underground" facilities in California and elsewhere—all of which would result in exactly what CalOSHA and the health authorities claim to fear: greater incidence of STD and HIV infections of talent due to the secretive nature of "underground" or foreign movie-making.

Everyone agrees that there's no way to make the production of sexually explicit movies perfectly "safe." AIM, while it existed, concentrated on "harm reduction": identifying STDs in the talent population quickly and treating all who were infected, with retests required before they would be allowed to return to work. It wasn't perfect, but it worked well, as the meta-study by Dr. Lawrence S. Mayer showed, putting the lie to the "epidemic" claims of AIDS Healthcare Foundation and the LA Department of Public Health. The newly formed Adult Production Health and Safety Services (APHSS) hopes to do the same or better, and with greater medical privacy for performers.

So CalOSHA has two choices: Enact its new regulatory scheme and see performer health go quickly into the tank, or support and tweak the current industry-proposed system that will allow adult companies to continue to sell (as opposed to simply produce) their products and take increased steps to protect performers' health without requiring devices that can only turn off a consumer public that just wants to be turned on.






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Mark Kernes

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