Last June, Ohio Republicans quietly slipped a handful of abortion restrictions into the state’s budget, alongside provisions to invest in Ohio’s highway system and a new funding model for the state’s colleges and universities. Eight states, including Ohio, already require clinics that perform or induce abortion to have a “transfer agreement” with a local hospital so that patients can be transported quickly to a more sophisticated medical center in case of an emergency. The budget, which Republican Governor John Kasich signed into law with the abortion provisions intact, included an innovative new rule, making Ohio the first state to prohibit abortion clinics from entering into transfer agreements with public hospitals.
Four months later, the new rule is already bearing fruit for its anti-choice architects. Ohio had 14 abortion providers at the beginning of the year; soon, it could be down to seven. Toledo’s two abortion clinics had their licenses revoked because they lacked a transfer agreement with a private hospital. One closed and began referring its patients to a clinic in Michigan; the other is seeking a reprieve from the state. Clinics in Cleveland and Akron closed earlier this year for issues unrelated to the transfer agreement (one failed a safety exam; the other ran afoul of the state’s late-term abortion law), but three more Ohio abortion providers have asked the Department of Health to let them remain open. If the department’s director, a political appointee, refuses to budge, the 2.1 million residents of Cincinnati—Ohio’s most populous metropolitan area—could soon lack an abortion provider.
Commonly known as targeted regulations of abortion provider (TRAP) laws, restrictions like those placed on abortion providers in Ohio gained steam in 2010, when Republicans swept state legislatures across the country. A law that requires doctors performing abortions to secure admitting privileges with a nearby hospital could force one-third of Texas’s abortion clinics to close. In North Carolina, a regulation requiring abortion clinics to conform to the same building standards as ambulatory surgical clinics—facilities with sticter building codes designed for more sophisticated outpatient procedures than abortion—could spell ruin for almost all of the state’s providers. Anti-choice lawmakers argue that the laws will bolster clinic safety, but doctors, including the American College of Obstetricians and Gynecologists, and pro-choice advocates say these laws are unnecessary, a trumped-up excuse to drive abortion providers out of business.
The TRAP laws, at least in theory, promise to succeed where earlier abortion restrictions did not. Beginning in the 1980s, abortion foes in the states focused on convincing patients not to have an abortion. There are dozens of laws on the books requiring ultrasounds, counseling, and waiting periods before abortion procedures, all designed to convince women that abortion is wrong—or at least, not worth the risk or expense. But after blanketing the country with restrictions designed to deter women from terminating their pregnancies, the abortion rate has barely budged. The shift in strategy—from patient to provider—shows just how ineffectual the woman-centered approach turned out to be. It's a simple economic formula: If you can’t curb the demand for abortion, cut off the supply.
The new restrictions on providers occupy a legal gray area, to put it mildly. In the years immediately following the legalization of abortion under Roe v. Wade in 1973, a handful of states began to impose medically unnecessary restrictions on abortion providers, like requiring first-trimester procedures—some of the lowest-risk medical procedures around—to be performed in hospitals. Many of these laws were stuck down by federal courts. Even today, it’s hard to argue that shuttering many of the nation’s abortion clinics for medically dubious reasons is rooted in genuine concern for women’s health and safety, rather than an anti-choice ideological agenda.
Laws that limit women’s ability to access abortion are another story. In 1992, the Supreme Court gave a thumbs-up to a growing wave of patient-focused abortion restrictions with its decision in Planned Parenthood v. Casey. Casey dealt with some of the earliest versions of the rules that are in common practice today—24-hour waiting periods between a woman’s initial consultation and the abortion procedure and parental permission for minors seeking an abortion. In their ruling, the justices specified that states could pass laws to protect the health of the mother as long as the restrictions did not constitute an “undue burden” on the woman.
The ruling created a giant loophole for state legislators who wanted to limit abortion in the name of women’s health. Casey threw out some of the most egregious regulations—women did not, the justices ruled, have to inform their husbands before terminating a pregnancy—but a wide range of measures that would, anti-choice advocates hoped, make women think twice about their decision were on the table. The question of Medicaid funding for abortion was mostly settled in the late 1970s, when Congress passed the Hyde Amendment, a provision that banned the use of federal money for abortion, so there were already financial limitations on the procedure. States began to require that doctors perform medically unnecessary and expensive ultrasounds on women before their abortion procedure—and, in many cases, offer to show the image or require women to listen to the fetal heartbeat. Others commanded doctors to give women inaccurate information about links between abortion, breast cancer, and infertility, or tell their patients that personhood begins at conception. Women were often required to wait for 24 or 48 hours between an initial consultation and the abortion procedure, necessitating multiple trips to the clinic. Parental involvement in a minor’s decision to have an abortion became de rigueur.
The primary logic behind these laws was that women did not grasp the devastating ramifications of the choice to terminate a pregnancy. Of course, the laws influenced women in other ways, mainly by making abortion more costly. But the strategy was psychological as well as financial. “For folks who are really against abortion, it’s incomprehensible that a woman would be willfully killing her baby,” says Tracy Weitz, an associate professor of obstetrics and gynecology at the University of California-San Francisco. “There’s got to be another reason. They’re either being coerced by providers, or they don’t really understand what they’re pregnant with. The idea is that if women heard the heartbeat or saw that it had fingers or toes, that it looked like a baby, they would change their mind.”
By the time the Tea Party’s 2010 surge catapulted a new wave of zealous, anti-choice Republican legislators into state governments, this patchwork of restrictions on women had become the norm in large swathes of the country, protected by the legal framework set out in Casey. But abortion rates had remained steady, despite the passage of dozens of state-level restrictions. The ultrasound laws, in particular, were a bust. Dan Grossman, vice president for research at Ibis Reproductive Health, a nonprofit research organization that prioritizes access to safe abortion, conducted research on a mandatory ultrasound law in Texas and found that it had little effect on women’s decisions. “Most women come in very confident about their decision to have the abortion,” Grossman says. “It’s a hassle to have to go through the ultrasound and have it described in detail, but it doesn’t change women’s minds.” The influx of GOP politicians made resurrecting TRAP laws an increasingly viable option, especially given the conservative makeup of the Supreme Court. Many anti-choice advocates were deliberately testing the boundaries of Roe v. Wade, hoping that the high court would be receptive to further restrictions—or even rethink Roe entirely. The nebulous “undue burden” standard remains, but it’s hard to know how the justices, especially Anthony Kennedy, the perpetual swing vote, will interpret it.
Beginning in 2011, states began to pass a cascade of laws that targeted abortion providers rather than patients. Most states already mandated that physicians were the only medical professionals who could perform abortions. Some states, like Iowa, that had few doctors performing abortions and a large rural population, began to use telemedicine for abortion in the late 2000s, prescribing medication abortion—pills to induce a first-trimester abortion—via a video hookup. In response to this innovation, 14 states passed laws requiring that doctors providing abortion pills be physically present during the procedure, effectively prohibiting the use of telemedicine for abortion. Other states limited medication abortion by requiring doctors to adhere to the FDA protocol, an outdated regimen for prescribing abortion pills. Still others began placing medically unnecessary regulations—like Ohio’s transfer agreements and Texas’s admitting privileges—on abortion clinics, forcing providers who couldn’t conform to the onerous rules to close their doors.
The question now is whether the new restrictions will pass the “undue burden” test. Last week, pro-choice groups filed an emergency motion asking the high court to prevent Texas from enforcing the admitting privileges law. Ohio’s law is also wending its way through the courts, albeit on different grounds. The ACLU of Ohio is suing the state for including abortion restrictions in the budget, arguing that the restrictions had nothing to do with the state’s finances, thus violating a clause of the Ohio constitution that limits legislation to a single subject.
Abortion supporters are justifiably anxious about the Supreme Court’s response. A ruling that favors the provider-focused regulations would give significant ammunition to the remainder of Republican-controlled states who are looking to restrict abortion. Even more disturbingly, state boards of health—comprised of political appointees—could start imposing regulations, bypassing the legislative process entirely. The result, according to some pro-choice advocates and researchers, would be devastating. Grossman says that if one-third of Texas’s clinics do close, the remaining providers will be overrun with patients, and may be forced to turn women away.
Theodore Joyce, a professor of economics and finance at the City University of New York who focuses on health policy, says the outcome of a Supreme Court ruling upholding the TRAP laws would be a return to the days before Roe v. Wade, when abortion was only available in urban areas and Democratic-controlled states. In a paper published in 2011 in the New England Journal of Medicine, Joyce explained that women in the middle of the country would be hardest-hit.
But he predicts that even then, the abortion rates would remain largely unaffected. If women can’t get a medication abortion in a clinic, they’ll buy the pills on the Internet. If the closest second-trimester abortion provider is 150 miles away, they’ll find a way to get there. “Yes, abortion services will become regional,” he says. “But most women will travel as far as they need to go to have an abortion. There will be underground networks, there will be support systems. Restrictions will affect the poor and young women the most. But conservatives are kidding themselves if they think these new restrictions are going to end abortion.”
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