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Access Denied?

Even in pro-choice Vermont, "safe and legal" isn't always enough


Published April 27, 2005 at 4:00 a.m.

17 weeks after Heather was raped by a man known to her and many other people in her small, rural community, the 11-year-old Vermont girl learned that she was carrying her attacker's child. Heather (not her real name) had had no prior sexual experience and didn't even know she was pregnant; her mother had to tell her. But since they live in one of the most ardently pro-choice states in the country, her mother assumed it wouldn't be difficult to terminate the pregnancy. Vermont is one of only a handful of states that puts no legal restrictions on when a woman can get an abortion.

In fact, since Heather and her mother are low-income Vermonters and receive public assistance, Medicaid could have paid for the procedure. Unlike most states, which are subject to the Hyde Amendment -- the 1976 federal law that prohibits the use of federal funds to pay for an abortion -- Vermont will cover the cost of a medically indicated abortion for low-income women who qualify under the Vermont Health Access Plan. And no one questioned the need for Heather's abortion; a pregnancy at her age could have been deadly.

The problem was, the family couldn't find anyone in the state to do it. Planned Parenthood of Northern New England, which is by far the state's largest abortion provider, has four clinics in Vermont. Only three provide surgical abortions and just one, the clinic in Burlington, can perform the procedure past 12 weeks of gestation. But for medical reasons, even that facility will not perform a surgical abortion past 16 weeks.

As if the trauma of her rape and pregnancy weren't enough, Heather was refused an abortion by three different hospitals in the state. (To protect her identity and location, the girl's legal advocate declined to identify which ones.) Finally, she was taken to Massachusetts General Hospital in Boston. But due to medical complications, the surgery required that she stay overnight, which cost the family more than $2000. And since the procedure wasn't performed in Vermont, state Medicaid funds wouldn't pay for it. The family had no other health insurance.

Such are the harsh realities of abortion access in the Green Mountain State. Polls have consistently shown that most Vermonters support the right of a woman to obtain a safe and legal abortion, and the Legislature has repeatedly adopted resolutions affirming a woman's right to privacy and reproductive freedom. Vermont's 1947 law that made it a crime for a person to assist a woman to terminate her pregnancy was struck down in 1972. The Vermont Supreme Court ruled that the law was "hypocritical" and unenforceable, since it recognized a woman's right to get an abortion but didn't allow her to exercise that right.

Thirty-three years later, however, the practical realities of abortion access in the state can be just as restrictive as a legal ban. Currently, 43 percent of Vermont counties have no abortion provider, according to the National Abortion and Reproductive Rights Action League (NARAL). And as the cost of all medical care continues to skyrocket, and transportation remains a problem in large sections of the state, a woman's ability to end a pregnancy in Vermont is often determined by dollars and cents. In short, abortion access has once again become a class issue -- as it was in the years before Roe v. Wade -- and reproductive-health advocates now warn that increasing numbers of low-income women are not getting the services they need.

Wynona Ward is an attorney and founder of Have Justice-Will Travel, a nonprofit organization that provides legal and social services to women and children who are the victims of domestic violence. Based in Chelsea, Vermont, Have Justice- Will Travel was founded in 1998 to provide legal aid to Vermonters who couldn't afford an attorney. But as the group evolved, its role expanded to include a range of social services, such as arranging transportation to and from court for women seeking to secure protective orders, food and housing assistance to remove women and children from abusive homes, and medical referrals for reproductive-health services such as emergency contraception or -- as in Heather's case -- abortions.

Heather's situation wasn't unusual for Have Justice-Will Travel, according to Ward. The girl's mother couldn't afford to travel to Boston or stay overnight in a motel, so Ward arranged for Vermont Crime Victim Services to help defray the cost. In fact, Ward says that she sees plenty of low-income women who become pregnant due to rape or incest. What surprised her, she says, is how few options are available to someone in Heather's predicament.

"I think that Vermonters feel that they can just walk into a hospital or a doctor's office and say, 'I need an abortion,' and just get one, no matter what age they are or what medical complications they might have," says Ward. "Frankly, that's what I always thought."

With 14 community hospitals scattered throughout the state, many Vermonters assume that emergency reproductive services are available right around the corner. But the numbers tell a different story. In 2002 (the last year for which the Vermont Department of Health has statistics available), 1635 abortions were performed in Vermont. Of those, only 14 took place in hospitals -- an average of one per hospital per year. The vast majority of abortions (1403) were done in clinics. Another 218 were performed in doctors' offices.

But as noted earlier, the only place in Vermont where a woman can receive an elective abortion past 12 weeks is at the Planned Parenthood clinic in Burlington. Fletcher Allen Health Care, the state's largest hospital, has a policy dating back to 1972 that it will not perform any elective abortions at all. The hospital does, however, provide Planned Parenthood with an anesthesiologist on the days when abortions are available there -- which is just two days each month.

"It's all about timing," notes Jessica Oski, public affairs director for Planned Parenthood of Northern New England. "So if a woman's car breaks down and she's a day late, that's it." Likewise, if a woman cannot find daycare for her children or get time off from her job, a 24-hour delay can mean the difference between paying several hundred dollars for an in-state abortion, or several thousand for one out of state.

It should be emphasized that in 2002, first-trimester abortions -- that is, those done within the first 13 weeks of pregnancy -- accounted for more than 94 percent of all the abortions performed in Vermont. But for women whose decision to get an abortion is delayed due, say, to medical complications, financial limitations or mental-health issues, the options in Vermont can dwindle rapidly.

Cost isn't the only barrier to access, even in Burlington. For example, no health-care providers in the state will perform an elective surgical abortion on a woman who is abusing heroin, cocaine, methamphetamine or other stimulant drugs, because of the high risk of cardiac complications.

Emergency contraception such as RU-486 is one option available to many women, particularly rape victims. It's standard protocol in Vermont hospitals to offer emergency contraception to victims of sexual assault -- assuming they're recognized as assault victims or admit to having been raped. (Many do not, experts say, and some physicians don't look for it.) According to Vermont's reproductive-health advocates, there are no reliable statistics on who provides emergency contraception or how often. Nationally, six states have laws ensuring that sexual-assault survivors are given information about emergency contraception and access to it. Vermont isn't one of them.

Barriers to abortion in Vermont don't just affect low-income women or the victims of rape, incest or domestic violence. Nancy and Dan (not their real names) are an upper-middle-class couple living in a beautiful home overlooking Lake Champlain. In most respects, their circumstances couldn't be more different than Heather's. The couple is married and well educated, and has good health insurance coverage and the means to travel anywhere in the country for medical care.

In the summer of 2000, Nancy learned that she was pregnant with identical twins. The couple already had a 2-year-old daughter and very much wanted her to have a sibling. But 16 weeks into the pregnancy, Nancy's obstetrician at Fletcher Allen told her there was a complication. The fetuses suffered from a rare condition known as twin-to-twin transfusion syndrome. Basically, the arteries of one fetus were crossed with the veins of the other. The condition is usually fatal to the fetuses. Those that do survive invariably suffer severe medical problems and don't live very long.

Initially, Nancy and Dan sought medical consultation from research hospitals around the country, which were doing cutting-edge research to save fetuses like theirs. But it soon became clear that these procedures were still very much at the experimental stage. And the severity of Nancy's case made it highly probable that at least one fetus would die and the other would be born with severe birth defects.

The couple had already discussed what they would do if faced with such a predicament. As Dan notes, "If you make a decision to bring a severely challenged child into the world, it's going to be defining not only the parents' lives. It's going to redefine the sibling's life, too."

Nancy's doctor told her there was a good chance she would miscarry one or both fetuses naturally, but that was an undesirable option for her. The couple was afraid that if the fetuses lived until 24 weeks, they might be born prematurely and be kept alive by extraneous means and with no quality of life. "It was a dangerous, dangerous game, with profound implications in everybody's lives," Dan recalls.

After weighing all their options, the couple made the difficult decision to terminate the pregnancy at 17 weeks. But it was soon apparent that their obstetrician wasn't comfortable with their decision and handed off their case to the department of maternal fetal medicine at Fletcher Allen. Nancy and Dan, who had already researched which procedures were appropriate under the circumstances, asked for a surgical procedure known as dilation and evacuation, which typically takes less than an hour.

However, the medical staff at Fletcher Allen told them that a surgical termination wasn't an option, and recommended that they induce labor instead. If that was their only choice, Dan recalls, the couple at least wanted to bring about "fetal demise in utero," which they considered the most humane outcome. Again, hospital staff advised against that procedure. According to Dan, they were told the staff was "not comfortable" doing it.

Twenty-two hours after being given labor-inducing drugs, Nancy delivered both fetuses. One lived for half an hour, the other for more than two hours. Both died in their parents' arms. Afterwards, Dan and Nancy say, the nurses repeatedly asked them if they wanted to "clean up the babies, dress them and take their photographs." The couple found that suggestion disrespectful, even ghoulish.

Four years later, and after having another healthy child, Nancy is finally able to discuss her ordeal publicly. (The couple asked to remain anonymous out of fear of retribution from anti-abortion extremists.) In the interim, they learned that nationally, the vast majority of pregnancy terminations at 17 weeks are performed surgically, using the procedure they had asked for. They say they've also learned that certain medical professionals on the Fletcher Allen staff are fundamentally opposed to abortions. And they've heard from others who have had similar experiences. The couple now believes that medical decisions in their case were driven more by ideology than medical circumstance.

"If they had said to us, 'We're not comfortable doing this procedure. Go to New York or Boston or Montréal,' we would have done it," Nancy says. "But they lied to us and said it was unsafe for me."

"We had the means to go elsewhere and they knew that," adds Dan. "I feel like we were manipulated."

Fletcher Allen doesn't have a written policy that it provides to the public about when it will perform abortions and under what circumstances. Vermont's reproductive-rights advocates find this disturbing, especially since the hospital's director of medical ethics, Dr. Robert Orr, has been a frequent speaker at right-to-life rallies and is an outspoken opponent to stem-cell research and physician-assisted suicide.

Dr. Ira Bernstein is vice chair for Obstetrics at Fletcher Allen's Department of Obstetrics and Gynecology, as well as director of maternal fetal medicine. Bernstein explains that the hospital has "a fair amount of flexibility" about when it will terminate a pregnancy. He says Fletcher Allen staff will perform "medically indicated" abortions -- i.e., when the pregnancy puts the mother's health at risk -- or when a fetal or genetic abnormality is identified, such as spina bifida, Down Syndrome or anencephaly.

Fletcher Allen will perform medically indicated abortions up to 22 weeks, according to Bernstein, and occasionally provides them beyond 22 weeks, but only after consulting with the hospital's ethics committee. He confirms that most terminations after 16 weeks are done by induced labor, as was the case with Nancy and Dan. "We have people in OB/GYN who clearly feel strongly about elective terminations and some forms of medically indicated fetal terminations," Bernstein says. But he insists that all medical decisions at Fletcher Allen are made on a case-by-case basis and based on the medical facts of the case. He denies that medical decisions are driven by ideology or influenced by religious organizations, as some critics have charged.

When asked if the hospital will perform abortions in cases of rape or incest, Bernstein says that, again, those decisions are made on a case-by-case basis. As for 11-year-old Heather, Bernstein says that he has heard rumors about her case, but that Fletcher Allen was not one of the hospitals that refused her service. "If we had that kind of case come to us, we'd probably do it here," he says. "But I've been here since 1987, and no one has ever approached me with that question . . . If an 11-year-old came in pregnant, we would work to make that termination happen."

It's worth noting that Fletcher Allen's policy on abortions isn't that different from those at other hospitals in Vermont. For example, Northwest Medical Center in St. Albans has no written policy about abortions, either, and Rutland Regional Medical Center has a policy but doesn't make it available to the public. According to a spokesperson at Rutland Regional, abortions there are "a very rare occurrence" anyway; she says the last elective procedure they did was about 10 years ago.

Similarly, Dartmouth-Hitchcock Medical Center in New Hampshire, which serves many southern Vermonters, has no written policy on abortion, though it does perform elective terminations up to 12 weeks. However, like several other hospitals queried, it does not advertise that service, largely out of fear of protests or violence against their staff, a hospital spokesperson admitted. The spokesperson also noted that the Lebanon hospital performs very few elective procedures.

Not surprisingly, every hospital that responded to Seven Days' query indicated that the primary reason it either doesn't do abortions at all, or performs very few of them, is because a Planned Parenthood clinic is nearby. In effect, Vermont's hospitals have decided that the potential for demonstrations, negative publicity and/or threats of violence against patients or staff simply isn't worth the risk.

Vermont's judicial track record on abortion and the current political makeup of the Legislature remain solidly pro-choice. Even the most skeptical pro-choice advocates in Vermont say that if the Supreme Court were to overturn Roe v. Wade tomorrow, Vermont law would remain unchanged. Likewise, most don't expect that neighboring states New York, Maine or New Hampshire would criminalize abortion, either, though they might enact more restrictions.

Nevertheless, pro-choice advocates say that cost and geography will continue to be major access barriers for women. "I think most Vermonters do not realize that [having] legal abortions is not enough," says Rachel Frida Siegel, a board member of Vermont Access to Reproductive Freedom (VARF). "Roe v. Wade does not mean that everyone is covered and everyone is safe."

VARF is a nonprofit, all-volunteer organization that provides funding to Vermont women who cannot afford to pay for abortions on their own. Like Planned Parenthood's Laura Fund, VARF works with low-income women who could not otherwise afford an abortion. In its first two years, VARF has already given out more than $30,000 to about 100 women whose annual income averaged less than $10,000. About 35 percent of those women had to leave the state for an abortion.

"When we started, there was a really big question mark in a lot of people's minds about whether Vermont, which has really good policies compared to most states and has coverage from Planned Parenthood, really needed another abortion fund," Siegel recalls. "And the answer is, absolutely yes. There are probably still women falling through the cracks."