Under a new law, doctors performing drug-induced abortions could be charged if women don’t return to them for follow-up care
The debate over a Republican-sponsored measure that requires new medical protocols in abortions has spawned confusion -- and its own debate -- over liability for doctors. The law, signed by Gov. Scott Walker in April, added penalties if physicians perform medication-induced abortions without an in-person exam before the procedure -- a move aimed at blocking the potential use of so-called "webcam abortions" in Wisconsin. Medication-induced abortions are limited to the first nine weeks of pregnancy. The law also required that doctors tell patients they "must return" for a post-abortion follow-up appointment at the same facility within 12 to 18 days instead of, for example, seeing their primary care doctor where they live. Critics, such as Planned Parenthood of Wisconsin, say this places an undue burden on women, especially in rural areas. Indeed, in the wake of the law, Planned Parenthood of Wisconsin said April 20, 2012 it would stop providing medication-induced abortions, citing legal uncertainty for doctors. The bill’s passage also drew a strong reaction from the Wisconsin Medical Society, which said the law intruded on the patient-doctor relationship. In an April 19 interview with the Wisconsin State Journal, the society’s new physician-president, Tosha Wetterneck of Madison, spoke about the mandate that women return to the same facility for follow-up care. The story paraphrased Wetterneck’s remark this way: "If she refuses, or prefers to see her personal physician, the patient would face no penalty but the doctor could be charged, Wetterneck said." The remark prompting a reproductive rights group, RH Reality Check, to say that doctors could face a Class I felony and up to 42 months in jail if the patient does not return for the recommended visit. Its Web posting cited Wetterneck’s comment. Meanwhile, state Sen. Mary Lazich, R-New Berlin, author of the original bill, denounced critics’ descriptions of it as "grossly misstated," and the claim about criminal charges when patients no-show as "patently false." So, who’s right? Can doctors be charged if a patient fails to do something? While debate rages on about the broad impact of the law -- critics say it limits access to the procedure, proponents say it protects women from substandard care -- we found wide agreement on this narrow question. The consensus: Doctors could face a fine of up to $10,000 if they don’t advise women to return in 12 to 18 days -- but not criminal liability. And the forfeiture only applies if the doctor fails to inform -- it’s not dependent on what a patient does later. We heard that from Lazich and Wisconsin Right to Life, but also the nonpartisan Wisconsin Legislative Council, a state government agency that analyzed the bill -- and even the Medical Society itself. They all said that even though the bill says patients have to be told they "must return," there is no accountability built into the law for either the woman or the physician if the woman does not come back. So why was Wetterneck of the Medical Society quoted as saying doctors could be charged? Medical Society lobbyist Mark Grapentine told us Wetterneck is not a lawyer and likely thought "charged" was an appropriate description even for forfeitures. He said she and the Medical Society understood the lack of criminal penalties for the no-return scenario, while strongly objecting to felony liability for other aspects of drug abortion protocols. We think the term "charged" would be heard by most listeners as a reference to criminal liability -- as evidenced by the reaction from RH Reality Check. Perhaps confusion on the issue was inevitable. The law does create a criminal felony penalty for failing to follow certain procedures related to a medication-induced abortion. Just not the protocol on the post-abortion follow-up. Specifically, Act 217 requires that the same doctor who prescribes the drugs do the pre-procedure exam and be physically present when the drug is given. Bill authors say those rules were aimed to block use of Web cameras to consult with women about the drugs, as is done in some states to make abortions more possible in rural areas. By law, at least 24 hours must pass between the patient’s voluntary consent and an abortion. The potential criminal penalty on that point, for the person who provides the drugs, is up to 42 months imprisonment and a $10,000 fine. Our conclusion The president of the Medical Society said a new abortion law means doctors could be charged if patients don’t return for a follow-up appointment after a drug-induced abortion. On that specific portion of the law, no criminal liability was inserted, and doctors’ duty is limited to orally informing the patient she must return. There is a new criminal penalty for failing to personally supervise such abortions, but Wetterneck clearly was referring to the follow-up care section of the bill. We rate her statement False. (You can comment on this item on the Milwaukee Journal Sentinel's web site)
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