An increasing number of states are finding a newly emboldened and insidious way to further constrain abortion access specifically directed at abortion providers and clinics throughout the country – via regulatory fiat. The “targeted regulation of abortion providers” or TRAP laws are being enacted to impose renewed burdensome and costly regulatory requirements on abortion providers across the country. The Center for Reproductive Rights explains that TRAP laws “…single out the medical practices of doctors who provide abortions, and impose on them requirements that are different and more burdensome than those imposed on other medical practices.” TRAP laws generally cover “…health facility licensing schemes, ambulatory surgical center requirements, and hospitalization requirements.”
According to the Guttmacher Institute twenty states have introduced TRAP laws this year alone, with Arkansas, Utah, Virginia, and Kansas actually enacting such laws this year. And now Pennsylvania is on the verge of becoming the next state to enact TRAP laws that will increase abortion costs for poor women and force financially constrained clinics to close their doors. South Carolina enacted some of the most seminal TRAP laws regulating clinics back in 1996. TRAP laws and the subsequent regulations focused on abortion providers are designed specifically to shut down clinics and make abortions increasingly unaffordable under the guise of safeguarding women’s health and safety from unscrupulous providers.
Last week, the Washington Post reported that anti-abortion activists are now lobbying Virginia’s State Board of Health to model their regulations after South Carolina’s abortion clinic regulations. South Carolina’s regulations were enacted in 1996 and faced a federal court challenge from “[t]wo abortion clinics and an abortion provider…claiming they placed an undue burden on women’s decisions to seek abortions and were unfair because they singled out abortion providers over other medical professionals.” Ultimately, the 4th Circuit of the U.S. Court of Appeals found the regulations to be constitutional. The Court ruled that the regulations served a “…valid state interest…[did]…not strike at the abortion right itself and required only modest increases in the cost of abortions.”
In February, Virginia enacted legislation requiring the state’s twenty-one abortion clinics to be regulated in the same manner as hospitals. Democratic legislators and pro-choice advocates “…said it effectively would restrict a woman's access to abortion services by forcing the state's twenty-one clinics to meet standards set by the Board of Health regulating hospitals — standards currently not required of other physician's practices performing similarly invasive medical procedures.” In fact, these regulations may eventually force seventeen of the twenty-one clinics to close.
Kansas Governor Sam Brownback (R) also recently signed a law requiring “…annual, unannounced inspections of abortion clinics…[and]…new health and safety rules specifically for them…” Pro-choice advocates now also fear that Kansas’s three abortion clinics may be forced to close as result of these new rules. In fact, one Kansas abortion provider said “…it will be forced to spend $10,000 immediately on a new exit mandated by the law.” The law also “…directs the Kansas Department of Health and Environment to write standards for exits, lighting, bathrooms, and equipment.” Clinics violating these new rules could be fined or shut down altogether. Peter Brownlie, president and chief executive officer of Planned Parenthood of Kansas and Mid-Missouri, said, “[t]he only effect is to make the services more expensive and more difficult to obtain, or more difficult to provide…”
South Carolina’s regulations similarly subject abortion providers to periodic inspections. However, the transparent desire to frustrate abortion providers out of business became clear when South Carolina regulations arbitrarily established regulations for “…the laundering of linens and the outside appearance, including cutting of the grass.” Ultimately, only three clinics survived the regulatory assault out of the fourteen abortion clinics in South Carolina at the time the regulations were imposed. The overwhelming reason why these regulatory constraints are shutting down clinics in these states is because the regulations mandate structural changes to the buildings that most clinics simply cannot afford to implement. NARAL Pro-Choice Virginia executive director Tarina Keene explained, “[i]t wasn’t that the services that they offered were lacking in any way…It was because they could not afford to retrofit their doctors’ offices to meet those extremely high, extremely expensive structural requirements.” She warned, “[t]hey’re basically trying to overturn Roe by regulating it out of existence…”
Meanwhile, in Pennsylvania, under the guise of trying to prevent the tragic circumstances surrounding the abominable conditions at an abortion clinic “…operated by D. Kermit Gosnell, where a grand jury reported filthy and unsafe conditions,” Democrats in the state house failed to stop a bill that “…would place new and onerous requirements on abortion clinics.” Last month, the Pennsylvania House of Representatives approved legislation requiring abortion clinics “…to maintain the same standards as other freestanding ambulatory surgical centers.”
Then on Tuesday, the Pennsylvania state Senate passed a bill imposing strict standards on abortion clinics “…that would increase inspection, space, staffing, and other requirements for the 20 clinics operating throughout the state.” The ACLU of Pennsylvania warned that “…the bill would ‘cut off access to health care’ by driving clinics out of business’…”
Recently, the Patriot-News editorial board criticized this legislation saying that lawmakers are “…using the pretense of the Gosnell case to push an anti-abortion agenda. The result would be that the legal right of a woman to get an abortion in Pennsylvania will likely be severely hindered, especially for the poor.” The editorial board explained that, among other consequences, the legislation “…could increase the cost of an abortion by as much as $1,000.” Additionally, the same standards that “…now apply to ambulatory surgical center would be the new standard for abortion clinics…This will make abortion clinics spend hundreds of thousands of dollars to make structural changes to their facilities and alter their staffing.”
The atrocities discovered at Dr. Kermit Gosnell’s Philadelphia abortion clinic are being used by anti-choice lawmakers around the country as the pretext for imposing severe new restrictions on abortion clinics intended to shutter these clinics permanently. The Gosnell clinic tragedy should not be politicized and exploited to justify an anti-abortion agenda that will only further endanger the lives of the very women that anti-choice politicians claim they only wish to protect.
Pennsylvania State House Representative Dan Frankel (D) wrote an op-ed in the Pittsburgh Post-Gazette similarly criticizing the legislation. He explained that the “…the real problem with the bill…[is]…Instead of helping us pursue criminals, it would drive women into criminal clinics. Poor women chose to see Mr. Gosnell because he was cheap. If we force the best providers to raise their prices, we will create demand for more Gosnells.”
The horrors that occurred at the Gosnell clinic were detailed by the Philadelphia District Attorney’s grand jury report released on January 19th. The grand jury report indicated “…that at least two women died as a result of botched late-term abortions, that babies were born alive and then killed by having their spinal cords snipped by scissors, and that untrained personnel had performed medical procedures, sometimes with unsterilized tools that spread venereal disease from patient to patient.”
Unsurprisingly, the women that ended up being victimized by Gosnell and his staff were poor women and women from immigrant communities. In January, Ms. Magazine blog detailed the conditions within the clinic commenting that Gosnell “preyed” on women; and that Gosnell’s predatory ways “…thrive[d] ‘because the women in question were poor and of color, because the victims were infants without identities, and because the subject was the political football of abortion’.” Ms. Magazine predicted back in January that Gosnell would inevitably be used by anti-abortion forces to increase restrictions on abortion access by depicting “…Gosnell’s practice as the norm…[and] his clients as misguided women who wouldn’t have had abortions if they knew what it was. They will attempt to bully the Pennsylvania legislature to pass more restrictions on abortion providers.” Predictably, that has indeed happened in Pennsylvania and other states will surely follow in those same footsteps emboldened not only by the Gosnell case but also by the fact that South Carolina’s onerous regulations have withstood constitutional challenge and survived the “undue burden” standard first enunciated by the U.S. Supreme Court in 1992 in Planned Parenthood v. Casey.
The Patriot-News editorial board emphatically reminded lawmakers that regulatory constraints in Pennsylvania would “…almost certainly mean that women who can’t afford the increased cost of a legal abortion will seek the procedure in clinics that are not regulated and inspected. If legislators want proof, they need only look at the testimony of a woman who spoke during a recent state Senate committee hearing who said she went to Gosnell’s clinic because she couldn’t afford to have an abortion at a Planned Parenthood clinic.”
Increasing the economic costs of abortion access imposes unreasonable and burdensome hurdles on low-income women; and sadly as state legislatures continue their assault on abortion rights by enacting ever increasing barriers to abortion access, the most vulnerable women throughout the nation end up paying the ultimate price. Indeed, when anti-choice political zealots “…force poor women who want to terminate unwanted pregnancies to wait until they can raise enough money to pay for a legal procedure, we force their abortions later in the pregnancy. And we force them into the hands of disreputable clinics…This is what happens when we marginalize women’s health.”
Whether we are measuring the discriminatory impact of the Hyde Amendment, or mandatory ultrasounds driving up abortion costs, or the ever increasing waiting periods that force women to risk not only their livelihoods but their health and safety by delaying abortion services, these restrictions on access inevitably and disproportionately affect the most vulnerable and politically powerless women throughout the country. Notably, “[m]andatory delays of hours or days increase medical risks by inhibiting earlier, safer abortions. Delays may force women to make several trips to a clinic, creating a time burden as well as a potential financial burden.” Most significantly, these barriers “…serve no medical purpose and are a ruse to decrease the accessibility of abortion.” And now we can add paternalistic and arbitrary TRAP laws, masquerading as reasonable safety regulations, to the growing list of ways in which anti-choice politicians deny women their fundamental constitutional rights.
Moreover, the fact that poor women specifically bear this undue burden reminds us that with each passing piece of legislation abortion becomes progressively isolated from the basic definition of reproductive health care. And despite anti-choice rhetoric to the contrary, these restrictions do not deter women from seeking out abortion services; they only serve to further endanger the health and safety of the women who can least afford to be confronted with fewer and fewer alternatives for exercising their fundamental reproductive rights.
In the final analysis, when anti-choice politicians invariably defend creating an environment that makes abortion less accessible and less safe, the ultimate goal of banning all abortions unmasks their unapologetic belief that in the ongoing war on women, women’s bodies are nothing more than collateral damage.