The Display of Real-Time View Requirement forces technicians to perform an ultrasound on any woman seeking an abortion at least four hours before the abortion is to take place.
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A panel of the 4th Circuit Court of Appeals voted today to strike down a highly controversial North Carolina law requiring doctors and ultrasound technicians to perform an ultrasound, display the image of the sonogram, and specifically describe the fetus to any pregnant woman seeking an abortion, even if the woman actively “averts her eyes” and “refuses to hear.” The American Civil Liberties Union, the Center for Reproductive Rights, Planned Parenthood Federation of America, and others challenged the law, which was enjoined last year by a lower federal court.
Dahlia Lithwick writes about the courts and the law for Slate.
Today, in a unanimous decision authored by Judge J. Harvie Wilkinson III, a three-judge panel affirmed a lower court’s determination that the law is a compelled speech provision that violates the First Amendment rights of providers. The language in Judge Wilkinson’s opinion is striking in its solicitude for the uniquely vulnerable half-dressed woman on an examining table, forced to listen to information she does not want to hear. It also addresses head-on conflicting rulings from the 5th and 8th Circuits that have upheld such provisions.
Perhaps the most striking part of the opinion comes at the very end, where the court starkly contrasts the standard informed-consent conversation between a physician and her patient with the statute enacted in North Carolina:
Informed consent frequently consists of a fully-clothed conversation between the patient and physician, often in the physician’s office. It is driven by the “patient’s particular needs and circumstances” … so that the patient receives the information he or she wants in a setting that promotes an informed and thoughtful choice. This provision, however, finds the patient half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina. … Informed consent has not generally been thought to require a patient to view images from his or her own body much less in a setting in which personal judgment may be altered or impaired. Yet this provision requires that she do so or “avert her eyes.” Rather than engaging in a conversation calculated to inform, the physician must continue talking regardless of whether the patient is listening. … The information is provided irrespective of the needs or wants of the patient, in direct contravention of medical ethics and the principle of patient autonomy. Forcing this experience on a patient over her objections in this manner interferes with the decision of a patient not to receive information that could make an indescribably difficult decision even more traumatic and could “actually cause harm to the patient.” … And it is intended to convey not the risks and benefits of the medical procedure to the patient’s own health, but rather the full weight of the state’s moral condemnation.
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In July 2011, the North Carolina General Assembly passed the Woman’s Right to Know Act over then-Gov. Beverly Perdue’s veto. Doctors and abortion providers filed suit, asking that the act be enjoined. One provision of the law, the “Display of Real-Time View Requirement,” forces doctors or technicians to perform an ultrasound on any woman seeking an abortion at least four but not more than 72 hours before the abortion is to take place. They must show the sonogram so that the woman can see it and describe the fetus in detail, “including the presence, location, and dimensions of the unborn child within the uterus and the number of unborn children depicted.” The doctor must offer to let the woman hear the heartbeat. She can refuse. The opinion notes that the woman may “avert her eyes from the displayed images” and “refuse to hear the simultaneous explanation and medical description by presumably covering her eyes and ears.”
The requirement “is intended to convey … the full weight of the state’s moral condemnation.”
Judge J. Harvie Wilkinson III
Doctors who violate the act are liable for damages and may lose their licenses to practice in North Carolina. A lower federal court found that the Display of Real-Time View Requirement violated physicians’ First Amendment rights to free speech, and today the higher panel agreed.
Wilkinson noted that, “The requirement is quintessential compelled speech. It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion. The state freely admits that the purpose and anticipated effect of the Display of Real-Time View Requirement is to convince women seeking abortions to change their minds or reassess their decisions.” He added that, “this Display of Real-Time View Requirement explicitly promotes a pro-life message by demanding the provision of facts that all fall on one side of the abortion debate—and does so shortly before the time of decision when the intended recipient is most vulnerable.”
The panel then turned to the state’s claim that the ultrasound script is merely a regulation of the practice of medicine that need only satisfy the lowest level of judicial review, and the panel rejected the view that doctors have extremely limited speech protections: “This statutory provision interferes with the physician’s right to free speech beyond the extent permitted for reasonable regulation of the medical profession, while simultaneously threatening harm to the patient’s psychological health, interfering with the physician’s professional judgment, and compromising the doctor-patient relationship.”
Wilkinson noted that the Supreme Court has recognized a state interest in maintaining “the integrity and ethics of the medical profession,” which includes promoting a healthy doctor-patient relationship. He explained that informed consent laws are grounded in the principle of self-determination, such that each patient has the information she needs to meaningfully consent to medical procedures: “The physician’s role in this process is to inform and assist the patient without imposing his or her own personal will and values on the patient.” Wilkinson contrasted the informed consent provision upheld by the court in 1991 in Planned Parenthood v. Casey with the ultrasound provision passed by North Carolina in 2011. As he put it,
The most serious deviation from standard practice is requiring the physician to display an image and provide an explanation and medical description to a woman who has through ear and eye covering rendered herself temporarily deaf and blind. This is starkly compelled speech that impedes on the physician’s First Amendment rights with no counterbalancing promotion of state interests. The woman does not receive the information, so it cannot inform her decision. … And while having to choose between blindfolding and earmuffing herself or watching and listening to unwanted information may in some remote way influence a woman in favor of carrying the child to term, forced speech to unwilling or incapacitated listeners does not bear the constitutionally necessary connection to the protection of fetal life. Moreover, far from promoting the psychological health of women, this requirement risks the infliction of psychological harm on the woman who chooses not to receive this information. She must endure the embarrassing spectacle of averting her eyes and covering her ears while her physician—a person to whom she should be encouraged to listen—recites information to her. We can perceive no benefit to state interests from walling off patients and physicians in a manner antithetical to the very communication that lies at the heart of the informed consent process.
The panel concluded that the “state cannot commandeer the doctor-patient relationship to compel a physician to express its preference to the patient.” And that “transforming the physician into the mouthpiece of the state undermines the trust that is necessary for facilitating healthy doctor-patient relationships and, through them, successful treatment outcomes.” The decision reminded us that the “patient seeks in a physician a medical professional with the capacity for independent medical judgment that professional status implies. The rupture of trust comes with replacing what the doctor’s medical judgment would counsel in a communication with what the state wishes told. It subverts the patient’s expectations when the physician is compelled to deliver a state message bearing little connection to the search for professional services that led the patient to the doctor’s door.”
Top Comment
If abortion restrictions are for the health of the women, as all the legislatures passing them say, then why isn't childbirth, which is way more dangerous, equally restricted? More...
Finally, the court noted that the law doesn’t even include exceptions for a physician’s “therapeutic privilege” judgment about what is best for a patient, particularly “for women who have been victims of sexual assaults or whose fetuses are nonviable or have severe, life-threatening developmental abnormalities, having to watch a sonogram and listen to a description of the fetus could prove psychologically devastating.”
This is a careful, well-reasoned opinion about when an abortion regulation goes far beyond the bounds of ostensibly protecting maternal or fetal health and becomes a traumatic event in its own right; an important statement about what happens when the state inserts itself—in this case, quite literally—into an intimate discussion between a woman, her doctor, and her own body. That it was written by the judge who was shortlisted for John Roberts’ seat as Chief Justice of the Supreme Court makes it all the more remarkable and powerful.
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The Principle of Least Interest: He who cares least about a relationship, controls it.
Yeah. Lets not confuse the woman with facts about what she choosing to do.
Don't make it clear that it is a real baby that is about to be torn apart.
That's just plain silly to expect a woman to make a fully informed decision.
It's always better to just let her continue to believe the "it's a lump of parasitic cells" lie.
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A flock of flirting flamingos is pure, passionate, pink pandemonium-a frenetic flamingle-mangle-a discordant discotheque of delirious dancing, flamboyant feathers, and flamingo lingo.
I see nothing wrong with a visit--prior to the procedure-- that focuses on counseling. There are too many stories of woman who regret their choice afterwards.
But, a mandatory ultrasound crosses the line. Nope.
"Yeah. Lets not confuse the woman with facts about what she choosing to do.
Don't make it clear that it is a real baby that is about to be torn apart.
That's just plain silly to expect a woman to make a fully informed decision.
It's always better to just let her continue to believe the "it's a lump of parasitic cells" lie." - lilyofcourse
I'd be willing to bet real money that every woman that has ever had an abortion knew exactly what she was getting ready to have done.
A "fully informed" decision doesn't require an ultrasound. It requires two questions: "Are you pregnant?" and "Do you wish to terminate it?". If the answers to both are "yes", then the woman has made a fully informed decision.
As long as the fetus is getting 100% of it's requirements from it's host, it actually is a parasite, by definition (Google "define parasite" for many good definition links). So that's not actually a lie, it's just a truth you don't like.
Knowing there's a baby inside of you is surreal - for lack of a better word.
Seeing that baby on the ultrasound drives reality home.
Nothing wrong with requiring an ultrasound to show that there is a living, breathing HUMAN inside of the woman before she opts to murder said human. Requiring an ultrasound removes the ability to be deliberately ignorant that that "clump of cells" is a baby.
I have an ultrasound pic of my son at 10 weeks gestation. I couldn't yet feel him moving but could see him wiggling around on the ultrasound. I could easily make out his head, body, arms, and legs. I saw his heart beating. So very awesome.
"Yeah. Lets not confuse the woman with facts about what she choosing to do.
Don't make it clear that it is a real baby that is about to be torn apart.
That's just plain silly to expect a woman to make a fully informed decision.
It's always better to just let her continue to believe the "it's a lump of parasitic cells" lie." - lilyofcourse
I'd be willing to bet real money that every woman that has ever had an abortion knew exactly what she was getting ready to have done.
A "fully informed" decision doesn't require an ultrasound. It requires two questions: "Are you pregnant?" and "Do you wish to terminate it?". If the answers to both are "yes", then the woman has made a fully informed decision.
As long as the fetus is getting 100% of it's requirements from it's host, it actually is a parasite, by definition (Google "define parasite" for many good definition links). So that's not actually a lie, it's just a truth you don't like.
Knowing there's a baby inside of you is surreal - for lack of a better word.
Seeing that baby on the ultrasound drives reality home.
Nothing wrong with requiring an ultrasound to show that there is a living, breathing HUMAN inside of the woman before she opts to murder said human. Requiring an ultrasound removes the ability to be deliberately ignorant that that "clump of cells" is a baby.
I have an ultrasound pic of my son at 10 weeks gestation. I couldn't yet feel him moving but could see him wiggling around on the ultrasound. I could easily make out his head, body, arms, and legs. I saw his heart beating. So very awesome.
My Sil had a ultrsound about the same time and saw the baby moving. It is so sad to refer a little baby as a parasite. Parasites suck all nutrients and cause you to lose weight and cause you all I'll health. Carrying a baby doesn't do that. Except for the morning sickness due to hormones I was very healthy during my pregnancies.
"Yeah. Lets not confuse the woman with facts about what she choosing to do.
Don't make it clear that it is a real baby that is about to be torn apart.
That's just plain silly to expect a woman to make a fully informed decision.
It's always better to just let her continue to believe the "it's a lump of parasitic cells" lie." - lilyofcourse
I'd be willing to bet real money that every woman that has ever had an abortion knew exactly what she was getting ready to have done.
A "fully informed" decision doesn't require an ultrasound. It requires two questions: "Are you pregnant?" and "Do you wish to terminate it?". If the answers to both are "yes", then the woman has made a fully informed decision.
As long as the fetus is getting 100% of it's requirements from it's host, it actually is a parasite, by definition (Google "define parasite" for many good definition links). So that's not actually a lie, it's just a truth you don't like.
Thank you!
flan
Then my that definition, a 10 week old baby is a parasite. It requires 100% of it's requirements from someone else. Without an active host, it will die. Within a very short period of time.
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America guarantees equal opportunity, not equal outcome...
You know, facts are scary. So suck it up woman, put your big girl panties on and face the music. If you can't view an ultrasound of a living person, keep your damn legs closed.
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I drink coffee so I don't kill you.
I quilt so I don't kill you.
Do you see a theme?
Faith isn't something that keeps bad things from happening. Faith is what helps us get through bad things when they do happen.
Yeah. Lets not confuse the woman with facts about what she choosing to do.
Don't make it clear that it is a real baby that is about to be torn apart.
That's just plain silly to expect a woman to make a fully informed decision.
It's always better to just let her continue to believe the "it's a lump of parasitic cells" lie.
This is a religious viewpoint, the panel of judges have (and have to have) a legal viewpoint.
No. It is a humane view point. It is making sure a woman knows the extent of what she is doing.
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A flock of flirting flamingos is pure, passionate, pink pandemonium-a frenetic flamingle-mangle-a discordant discotheque of delirious dancing, flamboyant feathers, and flamingo lingo.
We can turn this into another pro vs choice thread.
OR
We can talk about this one thing that can help a woman make a fully informed decision.
How many women, who have never been pregnant and see it before, know what a 10 to 16 week fetus looks like in the womb?
Not very many I am willing to bet.
I am pretty sure they don't understand that at that point they have a brain and a heart.
It isn't the same as a cancer cell. It is a growing baby.
I think seeing that could help a woman make a better decision.
Perhaps it would mean more babies available to adopt. Maybe it would mean more women take their birth control more seriously.
This isn't about stopping an abortion.
I keep hearing "women can make their own choices and it is their body". I have never had any procedure that didn't go into great detail about what was about to happen. Complete with video and counseling.
I don't see why an abortion should be any different.
__________________
A flock of flirting flamingos is pure, passionate, pink pandemonium-a frenetic flamingle-mangle-a discordant discotheque of delirious dancing, flamboyant feathers, and flamingo lingo.
Knowing there's a baby inside of you is surreal - for lack of a better word.
Seeing that baby on the ultrasound drives reality home.
Nothing wrong with requiring an ultrasound to show that there is a living, breathing HUMAN inside of the woman before she opts to murder said human. Requiring an ultrasound removes the ability to be deliberately ignorant that that "clump of cells" is a baby.
I have an ultrasound pic of my son at 10 weeks gestation. I couldn't yet feel him moving but could see him wiggling around on the ultrasound. I could easily make out his head, body, arms, and legs. I saw his heart beating. So very awesome.
My Sil had a ultrsound about the same time and saw the baby moving. It is so sad to refer a little baby as a parasite. Parasites suck all nutrients and cause you to lose weight and cause you all I'll health. Carrying a baby doesn't do that. Except for the morning sickness due to hormones I was very healthy during my pregnancies.
Morning sickness? I wish. I had all day sickness throughout my first trimester and the second half of my third trimester. I won't lie. I did refer to my son as a parasite in utero in the beginning. I was so sick, I couldn't keep anything down so the little I did manage to eat, he took the nutrients. I lost weight until about halfway through the second trimester then stayed at the same weight until my son started packing on fat. I only gained 5 pounds above my pre-pregnancy weight.
He's still a parasite, btw I can't eat without little hands helping himself to food. But I use parasite in a loving way. It truly is a joy watching him learn and grow. It's also fun to see him try new foods.
How many women, who have never been pregnant and see it before, know what a 10 to 16 week fetus looks like in the womb?
I didn't. I had a vague idea of what happens and when during a pregnancy but did not know that at 10 weeks gestation a fetus looks like a baby. I thought the baby-resembling part came later. I was expecting to see a blob of some sort. I certainly didn't expect to see a miniature human on the ultrasound. Nor did I expect to see his tiny heart beating so clearly. I knew the heart already would be beating. I just didn't know that it would be so easily visible.
How many women, who have never been pregnant and see it before, know what a 10 to 16 week fetus looks like in the womb?
I didn't. I had a vague idea of what happens and when during a pregnancy but did not know that at 10 weeks gestation a fetus looks like a baby. I thought the baby-resembling part came later. I was expecting to see a blob of some sort. I certainly didn't expect to see a miniature human on the ultrasound. Nor did I expect to see his tiny heart beating so clearly. I knew the heart already would be beating. I just didn't know that it would be so easily visible.
And that is why it is important to make sure the woman knows exactly what she is doing.
__________________
A flock of flirting flamingos is pure, passionate, pink pandemonium-a frenetic flamingle-mangle-a discordant discotheque of delirious dancing, flamboyant feathers, and flamingo lingo.
How many women, who have never been pregnant and see it before, know what a 10 to 16 week fetus looks like in the womb?
I didn't. I had a vague idea of what happens and when during a pregnancy but did not know that at 10 weeks gestation a fetus looks like a baby. I thought the baby-resembling part came later. I was expecting to see a blob of some sort. I certainly didn't expect to see a miniature human on the ultrasound. Nor did I expect to see his tiny heart beating so clearly. I knew the heart already would be beating. I just didn't know that it would be so easily visible.
And that is why it is important to make sure the woman knows exactly what she is doing.
Ultrasound pictures are everywhere.
You'd have to be living under a rock not to know about fetal development.
How many women, who have never been pregnant and see it before, know what a 10 to 16 week fetus looks like in the womb?
I didn't. I had a vague idea of what happens and when during a pregnancy but did not know that at 10 weeks gestation a fetus looks like a baby. I thought the baby-resembling part came later. I was expecting to see a blob of some sort. I certainly didn't expect to see a miniature human on the ultrasound. Nor did I expect to see his tiny heart beating so clearly. I knew the heart already would be beating. I just didn't know that it would be so easily visible.
And that is why it is important to make sure the woman knows exactly what she is doing.
Ultrasound pictures are everywhere.
You'd have to be living under a rock not to know about fetal development.
flan
Oh, that's nice...
__________________
America guarantees equal opportunity, not equal outcome...
How many women, who have never been pregnant and see it before, know what a 10 to 16 week fetus looks like in the womb?
I didn't. I had a vague idea of what happens and when during a pregnancy but did not know that at 10 weeks gestation a fetus looks like a baby. I thought the baby-resembling part came later. I was expecting to see a blob of some sort. I certainly didn't expect to see a miniature human on the ultrasound. Nor did I expect to see his tiny heart beating so clearly. I knew the heart already would be beating. I just didn't know that it would be so easily visible.
And that is why it is important to make sure the woman knows exactly what she is doing.
Ultrasound pictures are everywhere.
You'd have to be living under a rock not to know about fetal development.
flan
Reading about it and actually SEEING it are two different things. I know quite well what my biology and child development books taught. I've seen live birth videos. However, those are just books and just videos. They're not real. Seeing MY baby alive, breathing, moving ... THAT is real.
How many women, who have never been pregnant and see it before, know what a 10 to 16 week fetus looks like in the womb?
I didn't. I had a vague idea of what happens and when during a pregnancy but did not know that at 10 weeks gestation a fetus looks like a baby. I thought the baby-resembling part came later. I was expecting to see a blob of some sort. I certainly didn't expect to see a miniature human on the ultrasound. Nor did I expect to see his tiny heart beating so clearly. I knew the heart already would be beating. I just didn't know that it would be so easily visible.
And that is why it is important to make sure the woman knows exactly what she is doing.
Knowing there's a baby inside of you is surreal - for lack of a better word.
Seeing that baby on the ultrasound drives reality home.
Nothing wrong with requiring an ultrasound to show that there is a living, breathing HUMAN inside of the woman before she opts to murder said human. Requiring an ultrasound removes the ability to be deliberately ignorant that that "clump of cells" is a baby.
I have an ultrasound pic of my son at 10 weeks gestation. I couldn't yet feel him moving but could see him wiggling around on the ultrasound. I could easily make out his head, body, arms, and legs. I saw his heart beating. So very awesome.
My Sil had a ultrsound about the same time and saw the baby moving. It is so sad to refer a little baby as a parasite. Parasites suck all nutrients and cause you to lose weight and cause you all I'll health. Carrying a baby doesn't do that. Except for the morning sickness due to hormones I was very healthy during my pregnancies.
Morning sickness? I wish. I had all day sickness throughout my first trimester and the second half of my third trimester. I won't lie. I did refer to my son as a parasite in utero in the beginning. I was so sick, I couldn't keep anything down so the little I did manage to eat, he took the nutrients. I lost weight until about halfway through the second trimester then stayed at the same weight until my son started packing on fat. I only gained 5 pounds above my pre-pregnancy weight.
He's still a parasite, btw I can't eat without little hands helping himself to food. But I use parasite in a loving way. It truly is a joy watching him learn and grow. It's also fun to see him try new foods.
Knowing there's a baby inside of you is surreal - for lack of a better word.
Seeing that baby on the ultrasound drives reality home.
Nothing wrong with requiring an ultrasound to show that there is a living, breathing HUMAN inside of the woman before she opts to murder said human. Requiring an ultrasound removes the ability to be deliberately ignorant that that "clump of cells" is a baby.
I have an ultrasound pic of my son at 10 weeks gestation. I couldn't yet feel him moving but could see him wiggling around on the ultrasound. I could easily make out his head, body, arms, and legs. I saw his heart beating. So very awesome.
My Sil had a ultrsound about the same time and saw the baby moving. It is so sad to refer a little baby as a parasite. Parasites suck all nutrients and cause you to lose weight and cause you all I'll health. Carrying a baby doesn't do that. Except for the morning sickness due to hormones I was very healthy during my pregnancies.
Morning sickness? I wish. I had all day sickness throughout my first trimester and the second half of my third trimester. I won't lie. I did refer to my son as a parasite in utero in the beginning. I was so sick, I couldn't keep anything down so the little I did manage to eat, he took the nutrients. I lost weight until about halfway through the second trimester then stayed at the same weight until my son started packing on fat. I only gained 5 pounds above my pre-pregnancy weight.
He's still a parasite, btw I can't eat without little hands helping himself to food. But I use parasite in a loving way. It truly is a joy watching him learn and grow. It's also fun to see him try new foods.
OK not open here for an abortion debate. Having an ultrasound at 4 week or 8 weeks is not going to show you a cute baby, it's a mass of cells if you can even see it. In a place where abortion is legal, this is a horrible waste of health care costs.
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Sometimes you're the windshield, and sometimes you're the bug.
Counseling, sure. An offer of a free ultrasound? Sure. A mandatory ultrasound, no freaking way.
Pretty much. Although I understand the "informed consent" of the argument - but I still think it's too much.
Me too.
I don't really identify with either side of the issue, although I guess I would technically be considered pro-choice. I believe abortion should be legal, and easily accessible, but I also believe that no one should ever do it. So, that is my perspective.
Counseling, sure. An offer of a free ultrasound? Sure. A mandatory ultrasound, no freaking way.
Pretty much. Although I understand the "informed consent" of the argument - but I still think it's too much.
Me too.
I don't really identify with either side of the issue, although I guess I would technically be considered pro-choice. I believe abortion should be legal, and easily accessible, but I also believe that no one should ever do it. So, that is my perspective.
And I have more problems with it being legal and then having ridiculous "special" rules so that result in too much government interference. Either it's legal or it's not. I'm very pro-life but anti-government interference. If it's going to be legal- stop making special rules about it - BOTH ways. Abortion clinics should be treated like any other medical facility - no special exemptions, and no special requirements. Make it just like any other medical procedure, subject to the same licensing requirements, etc. Make it actually between a woman and her doctor rather than a drive thru service.
If it's not legal -that would be great, and then special rules and interference would not apply. It would just be a crime, which the government DOES have the right to interfere with.
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LawyerLady
I can explain it to you, but I can't understand it for you.
"We can talk about this one thing that can help a woman make a fully informed decision." - lilyofcourse
You mean this one unnecessary thing, the complete waste of funds and time ultrasound, Correct? If she's pregnant, I'd be willing to bet she knows there's a fetus in there, unless she's been to Planetoid LV-426 (from the movie "Alien", where the first infestation occurred and people had aliens burst out of them), of course.
"Counseling, sure. An offer of a free ultrasound? Sure.
A mandatory ultrasound, no freaking way." - Dona Worry Be Happy
I agree with this. But, I see a problem in requiring them be offered for free. If they mandated "free" ones, the clinics would be forced to buy the ultrasound equipment and, at the very least, build the price of the equipment, the use of the equipment, and the operator's pay, into the charge for the abortions themselves, negating any "free" aspect of it.