This week, the Supreme Court is set to hear arguments in a case
that will have wide-reaching consequences for reproductive freedom and abortion
rights in America. It’s the first time the Court has weighed those rights since
gaining a new conservative majority with the appointments of Justices Neil
Gorsuch and Brett Kavanaugh. And the stakes are high.
The case that the court will
hear, June Medical Services LLC v. Russo,
is being argued by the Center for Reproductive Rights (CCR), and it involves a
law in Louisiana known as a “TRAP” – Targeted Restriction on Abortion
Providers. The details of TRAP laws can be wonky and complicated, but what
they’re meant to do isn’t. TRAP laws are intended to circumvent Roe v. Wade, provide a back door for
lawmakers to curtail abortion access, and push reproductive health services out
of reach.
Essentially, these laws create burdensome and medically
unnecessary regulations for abortion clinics that are written with the goal of
forcing them to shut down.
If the Court rules against the plaintiff in the case — an
abortion clinic in Louisiana — it’s likely to be a green light for a wave of
these laws to be passed in politically conservative states. Many of those
states are already in court battles over TRAP laws they already have on the
books, and if they get the Supreme Court’s stamp of approval, legislators there
are likely to expand the strategic use of those laws, making it increasingly
difficult — if not impossible — to access an abortion there.
Anti-abortion lobbying groups
know that overturning Roe v. Wade
outright is unpopular. According to a 2019
poll, only 13 percent of Americans support overturning the Supreme Court’s
landmark 1973 decision that established legal abortion as a constitutional
right. And in 2019, the ACLU, along with its partners, successfully
blocked high-profile abortion bans in Alabama, Georgia, Ohio, Kentucky,
Missouri, Utah, and Arkansas.
TRAP laws take a sneakier path to
limiting abortion access. By imposing regulations that sound technical and
bureaucratic to a casual observer, they avoid the kind of widespread public
scrutiny that the flurry of bans passed in 2019 provoked. Typically cloaked in
the language of health care, the regulations they impose on abortion providers
are costly and, in many cases, impossible to comply with. They don’t make
anyone safer, either, which is why the American Medical Association and other
major health organizations oppose
them.
What they are meant to do is make it hard for abortion providers to
offer medical services, and particularly in the South and Midwest, that’s
exactly what they’ve done.
According to the Guttmacher
Institute, between 2011 and 2017, TRAP laws caused 50 clinics in the South and
33 in the Midwest to close. In four states — Arizona, Kentucky, Ohio, and Texas
— they led to half the available clinics shutting their doors. Kentucky and
Missouri now have only one abortion clinic left, and if the Supreme Court lets
Louisiana’s TRAP law stand, two of its remaining three will close.
Fewer clinics mean that people
who need abortion care are forced to travel longer distances and rack up higher
costs associated with transportation, time off work, and child care. Some will
be unable to access care as a result. It also makes them likelier to get an
abortion later in their pregnancy. Abortion is safe — more so than childbirth —
but the risks as well as the costs associated with it increase with unnecessary
delays.
TRAP laws took a hit in 2016 when
the Supreme
Court ruled that a Texas law, identical to the one being challenged in the Louisiana
case, was unconstitutional. In a 5-3 majority, the court reaffirmed in Whole Woman’s Health v. Hellerstadt
that states couldn’t impose an “undue burden” on people seeking an abortion.
But now, four years later, the
court looks different than it did in 2016. With an ascendant conservative
bench, the ability of states to impose TRAP laws suddenly seems much less
resolved than it did in the wake of Whole
Woman’s Health. June Medical Services
is the first test of how this new court will treat abortion restrictions. If it
breaks with its own recent precedent and gives Louisiana’s law a constitutional
seal of approval, conservative lawmakers could be free to use similar laws to
make it as hard as possible to get an abortion.
In advance of the hearing, here is
a primer on the four most common types of TRAP laws, and what they mean for clinics
in states where they’re passed.
Admitting Privileges
The Louisiana TRAP law at stake
in June Medical Services is virtually
identical to the one the Supreme Court struck down in 2016. It requires doctors
at abortion clinics in the state to have “admitting privileges” with a local
hospital.
Admitting privileges allow a
doctor to check someone into a hospital and then oversee their care. In order
for a doctor to get them, the hospital’s administrators need to sign off. At first
glance, this sounds simple enough. Why wouldn’t a hospital grant admitting
privileges to a qualified doctor, no matter what their practice?
In fact, the process of granting
admitting privileges to doctors that work in abortion clinics can be heavily
politicized. The hospital might be affiliated with the Catholic Church, or key
decisionmakers in its administration could be personally opposed to abortion
rights. Even those who are personally sympathetic to reproductive freedom might
face intense political pressure from inside or outside the hospital to deny
admitting privileges to doctors that perform abortions.
And in many cases, hospital rules
require doctors who are granted admitting privileges to live within a certain
distance of the hospital, even though many who work at abortion clinics choose
to live far away because of stigma and the threat of violence against them. Hospitals
also frequently have rules stipulating that doctors must admit a certain number
of patients every year in order to qualify for admitting privileges.
For those who work at abortion
clinics, the latter requirement can be disqualifying. Abortion is about as safe
as it gets – fewer
than 0.5 percent of abortion patients require hospitalization for a
major complication. Thus, clinic doctors who are denied admitting privileges
because they can’t meet the threshold of patients brought to the hospital every
year are effectively being penalized for doing their jobs well.
Most importantly, there’s really
no coherent argument in favor of requiring doctors who work at clinics to get
admitting privileges in the first place. In the very rare instance in which a
patient has a complication following an abortion that requires emergency attention,
hospitals with emergency rooms are legally required to treat them.
And when complications
necessitating hospitalization do happen, symptoms are often not apparent until
later, after the patient has returned home. In those cases, they will most
likely seek treatment at a hospital close to where they live — not the specific
hospital where the doctor from their abortion clinic has admitting privileges
anyway.
But patient care isn’t the
purpose of the Louisiana law, nor of similar laws in other states. Those laws
are meant to close clinics down by forcing doctors to comply with regulations
they can’t meet.
Written Transfer Agreements
A close relative of admitting
privilege requirements are TRAP laws that force clinics to have a “written
transfer agreement” with a local hospital. The difference is, admitting
privileges are granted on a case-by-case basis to individual doctors, whereas written
transfer agreements are signed between the hospital and the clinic itself.
Essentially, a written transfer
agreement is a contract. By signing one, a hospital agrees to treat anyone who
needs emergency care resulting from an abortion performed at a specific clinic.
Six
states have laws on the books that require clinics to have such agreements
with a nearby hospital. A seventh — Kentucky — had one until late 2018, when it
was struck
down in a lawsuit brought by the ACLU on behalf of the last clinic left in
the state. (An appeal in the case is pending.)
Just like admitting privilege requirements,
written transfer agreements address a problem that doesn’t exist. Federal law
already requires hospitals to admit anyone who needs emergency services. So, in
the exceedingly rare situation where someone needs to be transferred from a
clinic for emergency medical care related to an abortion, they’ll get that care
whether or not the clinic where they were treated had a written transfer
agreement with a local hospital or not.
Also, like admitting privileges
for doctors, the process of getting a written transfer agreement for a clinic
can be politically charged and difficult.
And even when they do get a
written transfer agreement, politicians can step in and use their muscle to
create new obstacles. Before Kentucky’s law was blocked, its last remaining clinic
had an agreement with the OB/GYN department of a nearby hospital. But former
Gov. Matt Bevin decided
that wasn’t good enough, and ordered the clinic to get a signature on the
transfer agreement from the CEO of the hospital.
This, of course, was because he
knew that he could pressure
that CEO not to sign such an agreement. If a federal judge hadn’t
intervened, Kentucky would be without any abortion clinics in the state.
In Ohio, the state Department of Health
is using its written transfer agreement requirement to try to shut down every
clinic it can. The only clinic in the Toledo area, for example, has repeatedly
struggled to obtain a written transfer agreement, bringing it to the edge
of closing more than once. State law bars public hospitals from signing
transfer agreements with abortion providers, and anti-abortion groups have successfully
pressured other hospitals into retracting theirs.
Some states with laws requiring
written transfer agreements may allow a waiver if clinics can show, for
example, that they have made back up arrangements with doctors who have
admitting privileges. But even then, lawmakers and state agencies can move the
goalposts to force clinics out of compliance. When one Ohio clinic asked for a
waiver from the state Department of Health and provided the names of two
doctors who had admitting privileges at a local hospital, it was told that, in
fact, it needed three. When the clinic provided a third, the department’s
response was: now
we require four.
Physical Plant Requirements
The most common TRAP laws require
abortion clinics to meet the same requirements of an Ambulatory Surgical Center
(ASC). ASCs are health care facilities where surgical procedures that typically
don’t require an overnight stay are performed.
Because these facilities perform
invasive surgical procedures, states require that they be set up and equipped
for emergencies and meet a high standard of sterility. The rules that cover
ASCs are strict, often specifying how wide their hallways are, the number of
bathrooms they must include, and what size the rooms where patients are treated
must be.
Like other types of TRAP laws, physical
plant requirements are designed to sound like common sense to a casual observer.
Why wouldn’t an abortion clinic have to meet the same standards that facilities
performing surgical procedures do?
The answer is: Abortion is a far safer
procedure than those performed at most ASCs, in part because abortion does not
involve any incision. Moreover, increasingly abortions are induced by the use
of medication alone. And as pointed out above, fewer than 0.5 percent of people
who have an abortion need to be hospitalized for complications.
Laws that require abortion
clinics to be set up like ASCs are meant to force them to pay for costly
renovations that can rack up millions of dollars in construction bills. Many
clinics just can’t afford the price tag of compliance, and simply close down
instead.
Other physical plant requirements
have bordered on the absurd, like one passed in Virginia in 2011 that specified
how many parking
spots, sinks, and toilets clinics needed to have. (That law was later repealed
by Virginia’s state board of health.)
According to the Guttmacher
Institute, 17
states require abortion clinics to have structural standards that are similar
to ASCs.
Personnel and Staffing Requirements
Some states have requirements
that clinics providing abortion care hire staff with specific, unnecessary
qualifications, including laws that prevent doctors from performing an abortion
unless they are board-certified OB/GYNs. By needlessly narrowing which doctors
can perform an abortion, those laws serve only to make it harder and harder for
people to get an abortion.
In March 2019, Arkansas
legislators passed such a
measure. If it had gone into
effect, there would have been only one clinic left in the entire state where a
person could get an abortion. The ACLU and Planned Parenthood sued and successfully
blocked the law from going into effect, but the state has appealed.
These four types of TRAP laws
aren’t the only way that lawmakers are trying to restrict access to abortion,
but they’re a crucial part of their strategy to roll back the guarantee of Roe v. Wade. Depending on how the
Supreme Court rules in June Medical
Services, they could find themselves empowered to expand that strategy – if
so, some states might have no
abortion clinics left before we know it.
The consequences of a turn in that direction would be profound for people seeking to access abortion services. Fewer clinics mean that they will have to travel further distances, take more time off of work, find more childcare and face other enhanced obstacles, if they are able to get the care at all. The burdens will be especially severe for people who are struggling to make ends meet, and people of color.
TRAP laws aren’t intended to keep them safe — they’re meant to push reproductive health services out of their reach.