Update: Late Friday afternoon, a federal judge blocked enforcement of Kansas's new regulations of abortion clinics, allowing all clinics to remain open until the case is resolved.
In April, the Idaho Legislature passed a bill with a strange provision attached: It provided money to defend the law in court. The fetal-pain law, which prohibited abortions after 20 weeks of pregnancy with no exception for rape or incest, was blatantly illegal, and the legislature knew it would be challenged. The point of the bill was to pick a fight.
Since January, newly elected Republican majorities across the country have enacted 49 laws meant to chip away at abortion rights. But the strategy that's worked best is not Idaho's, where the ban affects a small number of abortions and is likely to be struck down in court. Instead, access to abortion is at greater risk in states that use regulations to squeeze clinics out of business. Known as "TRAP" (Targeted Regulation of Abortion Providers) laws, such legislation is aimed at stopping abortion with a thousand regulatory paper cuts. Nowhere have TRAP laws been more successful than in Kansas. Starting today, anti-abortion lawmakers have succeeded in shutting down two abortion clinics, leaving only one open in the entire state.
In a 36-page set of rules drawn up on June 17, Kansas mandated, among other requirements, that procedure rooms be at least 150 square feet in size; that there be 50 square feet of janitorial storage space per procedure room; and that toilet rooms be adjacent to recovery rooms. Forty-four states have some form of TRAP laws on their books. But as Center for Reproductive Rights president Nancy Northrup put it, "Kansas is a whole new level of absurdity."
What makes these laws so insidious, Northrup says, is that they fly under the radar by posing as health and safety regulations. In reality, they have nothing to do with health or safety, and everything to do with making it impossible to provide reproductive services. As former Centers for Disease Control and Prevention official David Grimes told Mother Jones, "Having published on every hemorrhaged abortion death in the United States, I can assure you that not a single one was caused by a door width."
Under Kansas's new law, the Kansas Department of Health and Environment created a set of regulations and issued licenses only to clinics that met them. Yesterday afternoon, it appeared all three of the state's abortion clinics had been denied licenses, but yesterday evening, the department granted a license to a Planned Parenthood clinic in Overland Park, now the sole provider in the state.
On Tuesday, the Center for Women's Health in Overland Park challenged the regulations in court, arguing they were a violation of the clinic's constitutional rights as well as their patients' right to care. Over the next weeks and months, the legal case against Kansas could either head off the worst TRAP laws or provide a model for other states to use overregulation to shut down any abortion provider a hostile legislature decides to target.
While the Kansas law is being challenged on several constitutional grounds, the most compelling is that it violates the "undue burden" criteria established in Planned Parenthood v. Casey because it would make it extremely difficult for a woman in the state to receive an abortion. However, these laws have so far proved difficult to challenge in court and seem to stand or fall on a case-by-case basis. Northrup draws optimism from two cases out of Missouri and Arizona in which the Center for Reproductive Rights was able to mitigate the effects of such laws for their clients. But these legal victories came as out-of-court settlements, not court opinions.
Elsewhere, the courts have given the go-ahead to other laws that severely limit abortion access. South Carolina was one of the first states to try the clinic-regulation strategy, which it did in 1995. Abortion clinics in the state must adhere to a 27-page set of regulations, which range from width requirements of doorways to rules about landscaping outside the clinics.
A case challenging the South Carolina rules made it to the United States Court of Appeals for the Fourth Circuit, where the law was upheld. In 2001, the Supreme Court declined to take the case, letting the Fourth Circuit's endorsement stand. Before the law, South Carolina had 14 abortion clinics; now the state has three. Since then, South Carolina has become a model for other states looking to use TRAP laws to outlaw abortion. One state where abortion opponents are pushing South Carolina's rulebook is Virginia, which asked its health board to draw up a set of abortion-clinic regulations, and a draft of the new regulations will be ready by September 15. If abortion opponents get their way, the rules may look a lot like South Carolina's. Tarina Keene, executive director of NARAL Pro-Choice Virginia, expects those new regulations to go into effect by January 1, 2012. Any number of the 13 other states with Republican legislatures and governors could follow.
In April, Slate's Dahlia Lithwick wrote that abortion advocates were shy about challenging this year's rash of anti-choice laws for fear that, given the conservative slant of the judiciary, they would end up eventually overturning Roe v. Wade. The fact that they are willing to challenge the Kansas law, where their arguments are compelling but precedent is not on their side, puts this theory in doubt. Because regulation of medical clinics is allowed, TRAP laws have been able to severely limit abortion access often without crossing the legal boundaries set in Roe and Casey.
The one clinic left in Kansas still faces an uphill battle against the state's pro-life government. In May, the state budget eliminated over $300,000 in Title X family-planning funds to Planned Parenthood. The organization has also challenged the elimination of Title X funds in court and a hearing is scheduled for next week. A spokesperson says it's too early speculate whether the loss of money means the clinic will close.
Kansas, where late-term abortion provider George Tiller was murdered two years ago, has a reputation for hounding clinics with protests and violence. But in 2011, the anti-abortion state government seems poised to succeed in doing what abortion foes have dreamed of for decades: making Kansas the first totally abortion-free state.
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