Statistical Reporting of Abortions: Unwanted-Pregnancy Preventative or Undue Burden?

The tension between a state’s interest in preserving human life and a woman’s right to obtain a pre-viability abortion without undue burden from the state is at the heart of current constitutional standards concerning abortion. see Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 u.s. 833 (1992) (defining an undue burden as "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."). HB 1595, or the Statistical Reporting of Abortions Act (.pdf), is the latest state law that highlights the tension between these conflicting interests. the Oklahoma law, which goes into effect November 1, requires medical professionals to post on a public website personal information collected from women who receive abortion services. Abortion recipients must answer more than 30 questions concerning topics such as age, race, location of the abortion, marital status, previous pregnancies, and education levels. Doctors could lose their medical licenses for failure to comply with the law.

Oklahoma’s abortion laws are already extremely strict, and only three doctors in the entire state offer abortions. Opponents of the law fear that the posted information could identify abortion recipients – especially those who live in one of Oklahoma’s many small communities – and could effectively prevent some women from receiving a legal medical service for fear of the public humiliation and shame that would accompany identification.

“We are talking about human life, and to add two pages of forms to the already multiple pages you are filling out for the medical profession, for an innocent child, is not much to ask.” -- Okla. State Sen. Todd Lamb

Proponents of the bill, however, claim that the law legally advances the interest of the state in the preservation of human life as it would provide the state with important statistics that can be used to reduce the number of unwanted pregnancies and abortions in the state. Sen. Todd Lamb, a Republican sponsor of the bill, told ABCNews.com, “To say these [questions] are onerous, we are talking about human life, and to ask some questions and add two pages of forms to the already multiple pages you are filling out for the medical profession, for an innocent child, that's not much to ask.” Rep. Dan Sullivan, the Republican author of the bill, also dismissed the possibility of accidental identification since there are so few abortion providers in the state and the questionnaire only requires the location of the abortion, not the woman’s hometown. Said Sullivan, “If a woman from rural Oklahoma (county) goes to Tulsa (county) and has an abortion, her abortion stats are lumped together with all the other women who went to Tulsa to seek an abortion. There's no way a person can be singled out or identified the way it would be listed.”

The collection of abortion data by health departments is not new; however, the information has typically only been used by health department personnel to compile statistics and has not been available to the public in its raw form. While Lamb and Sullivan are probably right that these questions can garner valuable data on unwanted pregnancies, it is unclear how the posting of the raw data on a public website is necessary to procure such a result. Aggregated data that is stripped of the possibility of accidental identification could certainly be made public so as to inform individual citizens as to the trends in overall populations that suffer from unwanted pregnancies. Proponents of the law might also argue that each individual questionnaire is equally important as overall trends as it provides a snapshot of converging factors that may lead to unwanted pregnancies; however, the possibility of identification that accompanies the posting of each questionnaire could very likely outweigh the probative value of its public disclosure.

The law is already being challenged, though not under the Casey standard. Rather, opponents are challenging the law on the grounds that it addresses more than one topic, which is prohibited under Oklahoma's state constitution. SB 1878, an Oklahoma law that required women to receive ultrasounds an hour prior to an abortion, was struck down on the same grounds last month.

Editor’s note: According to the Associated Press, an Oklahoma judge has issued a temporary restraining order that will block enforcement of the law.