by Carole Joffe, Summer 2018 Contexts
“Some will rob you with a six gun, some with a fountain pen.” This line from an old Woody Guthrie song is an apt description of the vulnerability of abortion providers in the United States. Clinics have long been subject to physical attacks: eleven individuals have been murdered by anti-abortion extremists, thousands more have been terrorized at their homes and offices, and numerous clinics have been vandalized, even destroyed by fire-bombings. More recently, a harsh new regulatory regime—Guthrie’s “pen”—comprising onerous restrictions passed by state legislatures and hostile inspections by health departments threaten the ability of providers to keep their facilities open and to sustain their vision of “woman-centered” care. As a longtime abortion clinic administrator told me, “Regulatory interference is the new frontier of the anti-abortion movement.”
Anti-abortion politicians have sought to regulate abortion ever since the Roe v Wade decision in 1973. More than 1,200 restrictions have been passed by state legislatures over the past 45 years. But after the 2010 midterm elections, which brought many state legislatures and governorships into total Republican control (a change reinscribed by the 2014 midterms), these restrictions have metastasized, and many are far more serious than earlier iterations. More than 400 restrictions have passed at the state-level since 2011. In January 2018, the Guttmacher Institute concluded that some 58% of American women live in states “either hostile or extremely hostile to abortion rights.”
Earlier restrictions on abortion focused on the “demand” side, mandating parental notifications and consent for minors and imposing waiting periods, for example. Today’s restrictions focus on the “supply side,” targeting abortion facilities. Two of the most consequential of these regulations are, on their face, aimed at patient health. These require that clinics are certified as Ambulatory Surgery Center (ASCs) and that abortion doctors have admitting privileges at a hospital within a certain distance of their practice. The ASC requirement stipulates that abortion clinics essentially transform themselves into small hospitals, with specifications around air flows, corridor widths, space for janitorial lockers, and specialized sinks—upgrades that can cost well over a million dollars—as well as compliance with the stringent sterility guidelines of hospital operating suites.
The hospital admitting privilege requirement is virtually impossible for many clinics to meet, but for two quite different reasons. The first is that, due to abortion politics, many local hospitals refuse to grant abortion providers admitting privileges. They don’t want to draw community protest. A notable case occurred when Dr. Willie J. Parker, a board-certified obstetrician/gynecologist and former medical school faculty member who trained at the University of Michigan and Harvard, among other institutions, sought to provide abortions in Mississippi’s sole clinic, but was refused privileges at every hospital to which he applied. (Successful court challenges ultimately permitted Dr. Parker to perform abortions in the state).
Yet another, quite ironic, obstacle for providers seeking admitting privileges is that many hospitals require any physician with privileges to have at least ten patient admissions per year. But abortion provision is so safe that it is extremely rare for any abortion doctor to have such an extensive record of hospital admissions. Tammi Kromenaker, the director of North Dakota’s only clinic, once commented to a reporter, “I would never employ a doctor who had to admit ten patients a year. That would mean they were a terrible doctor.” Kromenaker explained that her clinic had only one hospital admission in ten years. (Fewer than 0.3% of American abortion patients experience a complication that requires hospitalization, and these women typically present at an emergency room near their homes, often some distance from the facility in which their abortion took place). Indeed, the National Academy of Medicine recently reaffirmed the safety of clinic abortions and criticized numerous state restrictions for their negative impact on the quality and safety of abortion care.
The ASC and admitting privileges restrictions and others imposed on abortion clinics are called TRAP laws by pro-choice lawyers (Targeted Restrictions of Abortion Providers), and legal scholars say they reveal the extent of “abortion exceptionalism” in our political system. Observers note that in many of the states requiring ASC standards for abortion clinics, outpatient facilities offering procedures with comparable levels of complexity and risk—from vasectomies to sigmoidoscopies and minor neck and throat surgeries—are free of such requirements. Colonoscopies have a mortality rate 10 times higher than abortion but, in Texas, which has some of the most stringent abortion restrictions, colorectal health providers are not subject to ASC requirements. More than 160 clinics providing abortions have closed since 2011, in large part because they cannot meet regulatory demands.
In this hostile environment, abortion rights supporters had a rare moment to celebrate in June 2016, when the Supreme Court, in the Whole Woman’s Health v. Hellerstedt case (WWH) overturned Texas’s ASC and hospital admitting privileges laws. The most immediate result was the continued operation of a number of Texas clinics that had been closed or were operating under temporary injunction. Had the decision gone the other way, the number of abortion clinics in Texas would have gone down to 10 from a previous high of about 40. (Currently, there are about 20 clinics in operation in Texas; a number of those that had closed were unable to reopen, as staff had dispersed and building leases had expired).
Abortion rights supporters were additionally cheered because the Court’s decision signaled, for the first time, that restrictions on abortion must be based on scientific evidence rather than the political whims of state legislators. Many social scientists were particularly encouraged that the Majority opinion made ample use of the work of sociologists and public health researchers. Not surprisingly, researchers had extensively documented that the most severe consequences of abortion clinic restrictions would fall on the poorest women in Texas, who are disproportionately women of color.
The elation was short-lived. Immediately after the decision, the state of Texas introduced yet more restrictions on abortion, including a requirement that fetal remains resulting from abortions be given funerals, a measure that would add considerable cost to the procedure and would upset many abortion patients. (This measure is currently in litigation). And though some states dropped admitting privileges and ASC requirements after the WWH decision, others did not, and “red” state legislatures continue to pass new restrictions.