Bill to decriminalize abortion, change informed consent laws draws passionate testimony in hearing

Megan Messerly
Megan Messerly
Health CareLegislature

Nearly three decades after Nevada voters codified the right to abortion in state law, the issue took center stage at the Legislature on Monday with a hearing on a bill that proponents said would repeal antiquated laws but opponents argued would leave women vulnerable.

Advocates on both sides of the issue packed a tiny hearing room and spilled over into two overflow rooms on Monday afternoon as Democratic state Sen. Yvanna Cancela presented to the Senate Health and Human Services Committee a bill, SB179, that would remove criminal penalties related to abortion and change the state’s informed consent law. Cancela pitched the bill as an effort to remove statutes that could be used to prosecute women who receive an abortion and ensure patients receive medically relevant information, but opponents expressed concerns that the bill goes too far in its changes and could hurt women.

The proposed changes come as supporters of abortion rights have raised concerns that a newly-conservative U.S. Supreme Court will take action to overturn the 1973 landmark Roe v. Wade decision, which ruled that women have the right to receive an abortion.

Two-thirds of Nevadans agreed with the nation’s highest court and codified those protections into state law in the 1990 election, meaning any changes to them must be sent back to a vote of the people. But supporters of abortion rights in Nevada, like their counterparts across the country, are honing in on the laws within the Legislature’s purview in the event of action on the federal level.

“In Nevada, unlike in most states, should Roe v. Wade be overturned by the Supreme Court those protections will remain in statute,” Cancela said. “That means that we have to ensure as a state that abortion procedures are medical procedures with the utmost medical protections surrounding them and that there should be nowhere in statute where abortion procedures are criminalized. That’s what this bill aims to address.”

One portion of the two-pronged bill, nicknamed the “Trust Nevada Women Act,” proposes repealing criminal penalties on abortions performed outside the scope of Nevada’s abortion statute, including self-induced abortions. Under current law, anyone who performs such an abortion is guilty of a category B felony punishable by a minimum one-year and maximum 10-year prison sentence and a fine of up to $10,000 under state law.

A poll commissioned in February by NARAL, the abortion rights organization backing the legislation, found that more than eight in 10 Nevadans believe abortion should be legal, while another two-thirds say they would support legislation to remove criminal penalties on abortion.

The bill also would remove penalties for anyone who sells drugs to produce a miscarriage and repeals a statute relating to whether someone has to testify against themselves in an abortion-related prosecution.

Cancela said the changes would prevent prosecutors from using state law to go after women and send abortion “test cases” to the U.S. Supreme Court.

“By removing this from [law], we remove the ability for this language to be used against a woman as a result of a miscarriage and to be penalized for a very personal decision,” Cancela said. “Unfortunately, what has happened across the country is language like this has been stretched by prosecutors when women are in situations like a miscarriage in order to have test cases that can make their way to the Supreme Court dealing with abortion rights, and we want to make sure that that language is not available in Nevada statute.”

Although opponents of abortion rights have said that they don’t support criminal penalties on women who receive an abortion, several people expressed concern during the hearing that the legislation would limit the ability to prosecute someone who slips a woman an abortion pill.

“I’m not concerned about the woman. Quite honestly I agree with Senator Cancela,” said Melissa Clement, president of Nevada Right to Life. “But I am worried because by eliminating that, we are not protecting women, because that’s one less thing in the event of a boyfriend who poisons his girlfriend.”

But Cancela and other supporters of the legislation argued that such an action would be punishable under the state’s fetal homicide laws or as an assault.

“We do have the whole criminal statutes in our state and putting drugs in people’s food or drinks is an assault and it would still be illegal whether or not we remove these antiquated criminalization statutes,” said Planned Parenthood lobbyist Elisa Cafferata.

The legislation additionally proposes to change the state’s abortion informed consent law, which currently requires doctors to explain the emotional implications of the procedure. Supporters argue that such information isn’t medically relevant and, in the event that there is a mental health concern related to the procedure, the doctor will explain it to the patient pursuant to their medical code of ethics and in accordance with the patient’s bill of rights in Nevada law.

Instead, the bill proposes that doctors explain the details of the procedure along with “the discomforts and risks that may accompany or follow the procedure.”

“Doctors are in no way prevented from giving that information today. The difference is today doctors have to give emotional repercussions as part of the discussion before the procedure. Emotional is not a medical term of art, is not a mental health term of art,” Cancela said. “So what the bill allows is for doctors to follow the standard of care without prescribing a term that isn’t encapsulated in mental health practice.”

Catherine O’Mara, executive director of the Nevada State Medical Association, said that the legislation wouldn’t prevent doctors from discussing with patients the emotional implications of the procedure, something that would be part of the traditional standard of care a physician provides.

“Physicians are going to use this law as the baseline and then they’re going to provide the standard of care on top of it and the standard of care does include talking to the patients about emotions,” O’Mara said. “So where we would oppose any kind of legislation that would restrict a physician from having accurate conversations with our patients, we don’t see this bill as prohibiting anything that a physician can talk to their patients about.”

But Dr. Keith Shonnard, a radiologist who volunteers with a crisis pregnancy center in Carson City, argued that women need to be fully informed about both the physical and emotional implications of having an abortion so they don’t later regret their decision.

“Based on my experience, I feel very strongly that the informed consent provisions that are currently in the law or in the proposed legislation should include the most comprehensive informed consent legislation, I think, including the physical and emotional implications,” Shonner said.

Republican state Sen. Scott Hammond raised additional concerns about the portion of the bill that would remove a requirement that a physician inquire about a woman’s marital status as part of the informed consent procedure.

“We always want to make sure that they have the opportunity to claim their fatherly right,” Hammond said. “If you put in there that you’re taking out the marital status, how does this impact legal proceedings where somebody else, i.e. the father, has a legal right to the child.”

But Cancela argued that the disclosure of a woman’s marital status is not medically relevant information and therefore shouldn’t be discussed with a doctor.

“It is not the doctor’s duty to inform a partner of the woman’s decision to begin with. So whether or not the doctor knew the woman to be married, would not change what you’re getting at, which is whether the man who impregnated the woman knows whether or not she’s pregnant,” Cancela said. “That conversation should be had between the two individuals who got together to conceive.”

Hammond also raised concerns that the bill deletes a requirement that the doctor obtain written informed consent from a patient, though Cancela clarified that the change is just to capture the different ways doctors may obtain that consent, including electronically.

Opponents of the legislation additionally criticized a portion of the legislation that removes a requirement that a woman’s informed consent be given “freely and without coercion.” They argued that it could lead to a boyfriend or even a sex trafficker pressuring a woman into receiving an abortion when she doesn’t want one.

“I agree with the senator that there should be no external pressures for a deeply personal decision,” said Erin Phillips, president of the nonprofit Power 2 Parent. “But essentially what this does is allow a lot of coercion and other external pressures on a woman. We should trust Nevada women and I believe she should have to make this decision for herself and not under coercion and I believe a doctor should have to verify that.”

Abortion opponents lauded Cancela for removing a portion of her bill that had initially proposed to strip away the state’s parental notification law, which was found found unconstitutional in a 1991 decision by the 9th U.S. Circuit, from statute. Cancela’s proposed amendment also leaves in place provisions of the existing informed consent law that allow a doctor to tell a patient that she is pregnant and how far along in the pregnancy she is and leaves untouched a statute criminalizing the concealment of the birth of a dead child.

But they said the changes didn’t go quite far enough to earn their support on Monday.

“I would like to thank Senator Cancela for her amendment to SB179,” Clement said. “It improves a very bad bill — unfortunately, not enough for Nevada Right to Life to support it.”

Lawmakers took no immediate action on the bill on Monday.


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