“In Massachusetts, Scott Brown pushed for a law to force women considering abortion–forced them—to look at color photographs of developing fetuses.”

–voiceover of new television ad by Sen. Jeanne Shaheen (D-N.H.)

“What Jeanne Shaheen is doing is despicable. Her lies and scare tactics are, quite frankly, disappointing. …This bill that she’s referring to, that by the way was filed over nine years ago and was never even voted on, and shown in her ad, did not force women to do anything. I would never force women to do anything. I would never support a bill that would do such a thing. The goal of this bill was to give adoption a chance, simply as an alternative.”

–Scott Brown (R), news conference, Oct. 8, 2014

This is a fight over a single word—“force.”  For many years, Brown was regarded as a conservative or moderate “pro-choice” vote—someone who said he supported the right to abortion but also backed enough restrictions that he would win the backing of pro-life groups if he was in a race against a more stalwart abortion-rights Democrat.

Brown has been hopping mad over this ad, even cutting his own ad denouncing what he called “a smear campaign.” His campaign has called for the ad to be pulled.

The Shaheen ad carefully does not actually say that Brown is against abortion, but some might argue that it certainly leaves that impression. Given the complexity of this issue, we are going to fact check both the key phrase in the ad and Brown’s claim that the goal of the bill was promoting adoptions.

The Facts

Brown backed this bill in 2003 while a member of the Massachusetts House of Representatives and then in 2005 as a member of the state Senate. Neither bill progressed very far in Massachusetts, though such “Women’s Right to Know” laws have been enacted in 22 other states, according to the National Right to Life Committee.

Such laws emerged in the wake of the Supreme Court’s decision in Planned Parenthood vs. Casey (1992), which preserved the right to abortion but also allowed states to require 24-hour waiting periods and informed consent requirements, among other restrictions. (In 1981, a U.S. Court of Appeals had nullified such requirements in Massachusetts, and the bill backed by Brown said in its preamble that it was intended to restore the requirements in the wake of the Casey decision.)

Typically these laws require the production of pamphlets, replete with photos of a fetus at biweekly stages of development, as well as the signing of a form indicating the woman has received the material. Here’s an example of the Arizona literature, the Louisiana brochure, and the Kansas informed consent form. Often the laws also require a 24-hour period between receiving the material and the abortion, giving a woman time to reflect on her decision.

However, a 2009 literature review by the Guttmacher Institute, which supports abortion rights, found that such waiting periods and required counseling sessions had no measurable impact on the rate of abortions.

The Massachusetts law backed by Brown had many of the characteristics of these types of laws. Whether the language results in “forcing” women depends on a Talmudic dissection of the language.  Here are the key phrases related to this ad:

  • The referring physician, the physician performing the abortion, or either physician’s agent must provide in a manner enabling the pregnant woman to receive at least twenty-four hours before the time an abortion is scheduled to be performed a printed pamphlet, the internet address to a state-sponsored website, or toll free number for an audio recording, all of which are created and maintained by the commissioner of public health.
  • [The pamphlet etc. must include] a description of the probable anatomical and physiological characteristics of the unborn child at two week gestational increments from fertilization to full term, including color photographs or if a representative photograph is not available, realistic drawings of the developing unborn child at two week increments, and including written information about brain and heart function and the presence of external members and internal organs at each stage of development.
  • Prior to the scheduled abortion and before the woman provides her written consent to the abortion, the referring physician or the physician performing the abortion must orally inform the woman of [the information in the pamphlet]
  • [The doctor] shall orally inform the woman that alternatives to abortion are available, ask the woman if she has seen the information, including the list of abortion alternative agencies, provided in the pamphlet, website or recorded telephone message described in this section, give the woman a copy of the pamphlet if she requests one at this time, and provide the woman with an opportunity to contact abortion alternative agencies at this time should she so desire.
  • If she decides to obtain the abortion, the woman shall sign a consent form. The form shall indicate that she has been offered the information described in this section and does provide her informed consent to the abortion. . The physician performing the abortion shall maintain the signed consent form in the physician’s files and destroy it seven years after the date upon which the abortion is performed.

That’s a lot of verbiage but in essence, the woman is given the material with pictures 24 hours before an abortion. Then the doctor goes over the material again, asking whether she has seen it. Then the woman must sign the consent form, acknowledging that she has been offered the material.

Brown is staking his objection to “force” on the grounds that the law never said the woman had to read the material, only that she had to acknowledge receiving it. But how practical is that in the real world? A woman is given a brochure 24 hours before the procedure. Then she hears it all again from the doctor, who asks whether she has seen the information. She technically is not required to answer “yes,” but how many women in this situation are going to answer: “Not your business, doctor. I have a right to remain silent.”

Meanwhile, here’s how the news media in Massachusetts reported on the bill at the time:

“Women seeking an abortion would be required to undergo additional counseling and receive photographs of fetuses at least 24 hours before their procedure under controversial legislation heard yesterday at the State House.” (Boston Globe, Oct. 24, 2003)

“If passed, the bill would require abortion practitioners to inform women of the vitality and development of the unborn child, including photographs. They would also need to inform women considering abortion of the risks, commonly associated physical, psychological, and emotional problems, and provide a list of abortion alternatives.” (LifeNews, Oct. 24, 2003)

“Brown also co-sponsored the so-called ‘Women’s Right to Know Bill,’ which would require doctors at reproductive clinics to inform patients in graphic detail about the risks associated with abortions and would require women to observe a 24-hour “reflection period” before the procedure can be performed.” (Milford Daily News, March 2, 2005)

During the 2003 debate in the Massachusetts House, Planned Parenthood opposed the bill, saying it “borders on harassment.” One Planned Parenthood official even used the f-word: “I think it’s insulting to women to force them to go through these steps.”

This brings us to Brown’s claim that this was only an “adoption” bill. There’s very little in the contemporaneous news reporting that describes it as an adoption bill; instead, both advocates and opponents highlighted the fact that the pamphlet would outline the supposed physical, psychological, and emotional problems associated with abortion—and that it would include graphic photographs. The point of the bill was the pamphlet, as highlighted in Shaneen’s ad.

(We could find no statements by Brown about the bill in the 2003-2005 period, and the Brown campaign could not supply any either.)

The Pinocchio Test

Shaneen ad

On highly technical grounds, we are giving the ad a single Pinocchio, which means that it is mostly correct. The word “force” is going a step too far, given that technically the proposed law did not require a woman to confirm that she read the material. As a practical matter, the way the law is structured most women would probably believe that they are required to read the material and look at the photographs. News reporting at the time used the word “require,” and that would have been a better word for the ad.

One Pinocchio

Brown statement

In the case of Brown, he doth protest too much. The purpose of this bill was to increase roadblocks to women seeking an abortion. The drafters clearly wanted women to view the photographs and reflect on the information in the pamphlet, in order to engender doubts. To argue otherwise is historical revisionism. Brown thus earns Two Pinocchios.

Two Pinocchios

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