When the U.S. Supreme Court decided in 1992 that states could regulate a woman’s right to choose abortion, it introduced a constitutional virus that has taken some 20 years to fully take hold.
The case, Planned Parenthood v. Casey, introduced the notion of the so-called balancing test in cases concerning a woman’s right to choose abortion. The court, while maintaining the constitutional protection of a right to choose abortion that it had established in Roe v. Wade in 1973, said for the first time that this right was to be balanced against another, seemingly competing legal interest: the state’s interest in protecting maternal and fetal health.
And so was born the notion that states can regulate the right to choose abortion, so long as those regulations do not pass the nebulous line of creating an “undue burden” on a woman’s right to choose.
Relying on the “undue burden” doctrine, federal courts in the last 20 years have upheld everything from forced waiting periods and ultrasounds to “informed consent” provisions.
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For example, in 2012, when Mississippi Gov. Phil Bryant signed the state’s admitting privileges law, which had been introduced under the guise of “patient safety,” he proclaimed it a “historic” moment.
“Today you see the first step in a movement I believe to do what we campaigned on to say we’re going to try and end abortion in Mississippi,” Bryant told reporters.
, when the U.S. Court of Appeals for the Fifth Circuit upheld the portion of a Texas law that requires abortion providers to obtain hospital admitting privileges or face civil fines, it pushed further the limits of that “undue burden” doctrine, which has in 2014 become the anti-choice community’s most potent weapon.
The reason the “undue burden” doctrine is so dangerous for choice, is because of its corollary: so-called targeted regulation of abortion providers (TRAP) laws, which impose a bewildering array of medically unnecessary and prohibitively expensive requirements on abortion providers, all in the name of protecting women and fetuses. The real aim, of course, is to make abortion unavailable, even if it remains theoretically legal.
An analysis by Rewire shows that courts increasingly find in favor of the interests of the state, over the interests of the pregnant person generally, even when the evidence strongly disputes lawmakers’ claims that TRAP laws are important tools in protecting patient safety.
TRAP laws, in other words, are now being used in many states to undermine any meaningful constitutional right to choose abortion—a de facto defeat of Roe v. Wade, without the need for the Supreme Court to explicitly say so.
There are three main categories of TRAP laws. The first requires abortions facilities to meet special licensing requirements, and subjects clinics to procedures like “surprise inspections.” The second kind requires all abortion clinics to meet the same architectural and regulatory standards as ambulatory surgical centers, regardless if the clinic performs only medical abortions, like a battle embroiling North Carolina recently. And the third type, like the law recently upheld by the Fifth Circuit, requires doctors who perform abortions in the state to enter into special agreements with local hospitals, in the form of transfer arrangements or admitting privileges.
According to the Guttmacher Institute, fewer than 0.3 percent of abortion patients in the United States experience any complication that would require hospitalization. By way of comparison, the risk of dying from a legal abortion in the first trimester is no more than four in a million, whereas the risk of death from childbirth is about 14 times higher than that from abortion.
Additionally, these restrictions are designed to add expenses to providers, to either price them out of business or make the cost of obtaining an abortion too expensive for women to bear.
And TRAP laws are not confined to states like Texas and North Carolina. Rewire’s analysis of state laws shows that 24 states now require facilities that provide abortions to meet standards intended for ambulatory surgical centers, with 13 states specifying the size of the room in which those abortions are performed. At least 13 states go further, specifying the width of the corridors in abortion facilities. Ten states require abortion facilities to be located within a set distance from an area hospital, the new analysis shows. So far, 22 states require either an abortion facility or an individual provider to have a relationship with a hospital.
Since Casey, courts have floundered at finding a limit to what constitutes an “undue burden.” But so far, with the exception of the Fifth Circuit, laws requiring hospital admitting privileges requirements have mostly failed. In Kansas, a law that resembled the Texas law at the center of the Fifth Circuit’s recent ruling remains blocked. In North Dakota, the only abortion clinic in the state recently settled its lawsuit challenging that state’s admitting privileges requirement once its providers were finally granted privileges.
Meanwhile, one federal court is currently reviewing Mississippi’s admitting privileges law, while another ordered a trial in the legal challenge to Alabama’s admitting privileges law.
Should anti-choice lawmakers succeed in defending those laws, Mississippi’s only abortion clinic will be forced to close, while Alabama’s three most populous cities will be left without any abortion clinics.
The Fifth Circuit’s decision makes it more likely that the Roberts Court will step in to answer just how far is too far to have to travel for abortion care. Is 500 miles too far? What about out-of-state? Is there a limit to the expense and inconvenience to which a state can subject someone who needs to terminate a pregnancy? And if the stated purpose of the law is to protect women’s health, what if it does the opposite?
The problem, of course, is that this is in its nature a subjective inquiry, to be performed by a Supreme Court with a solidly anti-choice majority. It’s also an increasingly irrelevant inquiry since it ignores the impact of all the other restrictions a woman must navigate to terminate a pregnancy or a provider must navigate to perform abortions.
Put another way, how many “undue burdens” on accessing abortion must exist before we consider the protections of Roe to be effectively overturned? If we’re not there already, we’re getting close.
The conservative Fifth Circuit believes the law places only a minimum obligation on the state to support its abortion restrictions with actual evidence. A less conservative Seventh Circuit has initially disagreed, finding in Planned Parenthood of Wisconsin v. Van Hollen that the state must have at least some connection between its purported interest in women’s health and passing onerous TRAP restrictions that the medical community insists do the opposite.
Those cases, while coming to different conclusions, are on different procedural footing. The decision by the Fifth Circuit reversed the district court after a three-day trial, whereas the Seventh Circuit decision was in review of a grant of a preliminary injunction—a temporary order blocking the law while a trial on the merits proceeds. The trial in the Wisconsin challenge is currently set for later this spring. Should that law go into effect, at least two Wisconsin clinics would be forced to close, including one in Milwaukee.
The “geography of abortion access” is increasingly a zone of concentrated coastal and urban access and nothing else. If we understand the right to choose abortion to be a federally protected right, then this should not be our reality. It should not matter whether you live in Massachusetts or Mississippi: There should be a baseline of access that is guaranteed.
But because of Casey, we’ve largely removed abortion rights conversation out of the context of federal rights and into the power of the state. The result has been to sideline the role of pregnant women even further than the Roe decision did by intertwining the rights of a pregnant woman with those of her doctor. We don’t have to look any further than Texas’ Rio Grande Valley and the rights’ efforts to increase that access desert to see the unmistakable tragedy that results.