Lately, the preferred strategy for reproductive rights opponents in the United States seems to be: if you can’t beat Roe v. Wade, then simply regulate around it.
Whether it’s the newly-imposed 72-hour waiting period for women seeking abortions in South Dakota, or Virginia’s Targeted Regulation of Abortion Provider (TRAP) law that shuttered a clinic after 40 years in operation because the ventilation and temperature control systems required by the new regulations were simply too expensive — when it comes to undermining women’s autonomy and banning abortion in 2013, it’s all about petty bureaucracy.
The current battle playing out in Texas is only one example among dozens of states trying to bury abortion rights in red tape.
The spring of 2013 was a busy time for lawmakers in Bismarck. The GOP-controlled legislature passed four draconian measures with strong majorities, giving North Dakota the dubious distinction of having the most restrictive abortion laws in a country rich with restrictive abortion laws.
The most shocking — though probably the least likely to survive a legal challenge — is the ban on abortions after a fetal heartbeat is “detectable,” which can be identified by a transvaginal ultrasound as early as six weeks into a pregnancy. With only a narrowly defined exception for the life of the mother, it is the most extreme pre-viability ban in the country. After signing the measure, Republican Gov. Jack Dalrymple acknowledged that it had very little chance of standing: “Although the likelihood of this measure surviving a court challenge remains in question, this bill is nevertheless a legitimate attempt by a state legislature to discover the boundaries of Roe v. Wade.”
But the greatest threat to abortion access in the state, reproductive rights advocates say, is not the six-week ban — it’s a TRAP law passed during the same session. Much like the the omnibus bill currently being debated in Texas, North Dakota’s law requires that clinics obtain hospital admitting privileges, a requirement that could shutter the state’s last remaining abortion provider, the Red River Women’s Clinic. As clinic director Tammi Kromenaker recently told RH Reality Check, hospitals mandate clinics transfer 10 patients a year in order to maintain these agreements, a requirement the clinic could never meet: “I’ve had one time that I’ve had to admit a patient in the last ten years,” she explained. “The other [antiabortion] bills aren’t really a threat right now, but this one could close us,” she added.
Reproductive rights groups have filed suits challenging both laws, which are slated to go into effect in August.
Kansas
In April, Kansas lawmakers approved their own antiabortion omnibus bill. The measure contains more than a dozen provisions to deny services to women seeking abortions, two of which are currently being held up in court.
The first is a troubling provision to redefine what constitutes a medical emergency so that pregnant women experiencing life-threatening complications — including hemorrhaging, infection and ruptured ectopic pregnancies – would be forced to wait at least 24 hours before obtaining an emergency abortion. After signing the legislation that would imperil the lives of pregnant women in medical emergencies, Republican Gov. Sam Brownback remarked: ”All human life is sacred. It’s beautiful. With this, we continue to build this culture of life in our state.”
A second provision of the law mandates that doctors inform women seeking abortions that fetuses can experience pain after 20 weeks, a scientifically-disputed claim, and that “the abortion will terminate the life of a whole, separate, unique, living human being.” Under the same law, doctors are also required to tell women that abortion puts them at greater risk for breast cancer, despite the fact that this is a medically unsubstantiated claim that has been refuted by medical experts, including the National Cancer Institute.
Arkansas’ 12-week abortion ban (passed in February, less than a week after the state approved a separate measure to ban abortion at 20 weeks) was slated to take effect in August, but is currently being blocked by a federal court injunction. Like North Dakota’s six-week ban, Arkansas’ law would make abortion illegal in almost all circumstances after a fetal heartbeat is detectable (with an abdominal, rather than transvaginal) ultrasound.
Democratic Gov. Mike Beebe, wary of inevitable legal challenges, vetoed the measure soon after it reached his desk, noting in a statement that ”it would impose a ban on a woman’s right to choose an elective, nontherapeutic abortion well before viability” and violate “the United States Constitution, as interpreted by the Supreme Court.” Beebe went on to argue that defending the extreme ban in court would prove “very costly to the taxpayers of our state,” given that “lawsuits challenging unconstitutional laws also result in the losing party — in this case, the state — being ordered to pay the costs and attorneys’ fees incurred by the litigants who successfully challenge the law. Those costs and fees can be significant.”
Interestingly, the ban was also denounced by antiabortion activists, who said it was symbolic grandstanding that was bound to be overturned in court: “As much as we would like to protect the unborn at that point, it is futile and it won’t save any babies,” National Right to Life General Counsel James Bopp Jr. told the New York Times.
The Arkansas state legislature went on to override Beebe’s veto, with the bill’s sponsor, state Sen. Jason Rapert telling his critics: “We’re going to stand up for this law, regardless of who opposes it.”
South Dakota
The mandatory waiting period for an abortion in South Dakota — already the longest in the country — was deemed in need of extending by antiabortion lawmakers in February. The new law forces women to wait 72 hours — excluding weekends and holidays — before they can legally obtain an abortion.
A provision requiring that women seek counseling from faith-based, antiabortion “crisis pregnant centers” is currently being blocked in court. (For those who need reminding about the kind of dangerous, pseudoscientific and outright false information these centers provide, please see here.)
Supporters of the bill claim it gives women time to consider their decision to terminate a pregnancy (despite research indicating that mandatory waiting periods and counseling do not affect a women’s choices, with 87 percent of women seeking abortions reporting feeling “highly confident” in their decision), but opponents argue that it is intended to place unnecessary barriers between women and a safe medical procedure, as Sarah Stoesz, president of Planned Parenthood President of South Dakota, recently noted: ”This bill has absolutely nothing to do with helping women. Instead, this bill is about further delaying women from having an abortion and protecting the convenience and schedules of crisis pregnancy centers – a stunningly cynical use of the Legislature and of taxpayer dollars.”
Virginia
In the final weeks of 2012, state lawmakers and the state board of health voted to use the size of parking lots, the width of doorways and the length of corridors to begin shuttering abortion clinics in the state. After a lengthy and heated debate, state lawmakers approved a measure to regulate abortion clinics in the same manner as surgical centers.
But in a surprise move, the state health board voted to grandfather existing clinics from the new building and regulation codes. Unfortunately, the board reversed its decision after threats from attorney general (and gubernatorial hopeful) Ken Cuccinelli, leaving clinics vulnerable to the new standards.
The law is already having an impact. In April 2013, the Hillcrest Clinic was forced to close its doors after 40 years in operation because meeting requirements set by the new law could cost nearly $500,000, money the clinic just did not have. “After 40 years of providing quality reproductive health care, Hillcrest Clinic is closing effective April 20, 2013. We have been honored to serve the women of Tidewater with safe, legal healthcare for four decades,” a statement on the clinic’s website read.
Ohio
A two-year budget was the weapon of choice for Ohio lawmakers seeking to eradicate abortion from their state. Republican Gov. John Kasich signed the controversial budget in June, which, in addition to amendments to defund Planned Parenthood and redirect state funding from comprehensive reproductive health facilities to faith-based, antiabortion “crisis pregnancy centers,” includes a provision to block transfer agreements between abortion clinics and hospitals — an insidious little trick that could shutter several of the state’s 12 providers.
Here’s how it works: clinics in Ohio must have a transfer agreement in place with nearby hospitals to send patients to in case of an emergency, but the new budget bans public hospitals from entering into those agreements. The new provision then forces abortion providers to seek out agreements with private hospitals, which are often religiously-affiliated and antiabortion.
Even prior to the new regulations, securing such agreements in the state was already a challenge. Before the budget was signed in June, the Toledo-based Center for Choice shut its doors after each of the area hospitals refused to enter into a transfer agreement with the facility. Another nearby clinic, Capital Care Network, is expected to close after it loses its transfer agreement with the University of Toledo Medical Center, which bowed to political pressure from antiabortion activists, opting to stay “neutral” on a “controversial issue,” according to a statement from the hospital.
Reproductive rights advocates warn that the Toledo clinics are harbingers of what’s to come elsewhere in the state.
Mississippi
Like North Dakota, Mississippi is home to a single abortion provider, making that clinic the exclusive target of legislation to eradicate abortion access in the state.
The Mississippi Department of Health in February served the Jackson Women’s Health Organization a notice of intent to revoke its license, citing the clinic’s failure to comply with a 2012 TRAP law requiring that doctors at the facility have admitting privileges at a nearby hospital. But the clinic had tried, repeatedly, to comply with the regulation.
Each of the seven area hospitals rejected the Jackson clinic’s petitions for admitting privileges. Mississippi law allows healthcare facilities to refuse any medical service on religious grounds, which extends to granting admitting privileges, leaving little doubt that these denials were politically motivated, advocates say.
“For years, we have been beating back Mississippi’s underhanded tactics to close the only abortion clinic in the state,” Nancy Northup, president and CEO at the Center for Reproductive Rights said in a statement last year about the state’s TRAP law. “This measure would force Mississippi women who are already facing difficult circumstances to travel hundreds of miles to a neighboring state to get an abortion. That is simply not an option for many poor and working-class women, and will certainly lead some to consider unsafe and illegal alternatives that pose grave risks to their health, lives, and reproductive future.”
But a judge has, once again, issued a temporary injunction against the law, preventing the state from revoking the Jackson clinic’s license — for now.
Oklahoma
Oklahoma is already home to a number of restrictive abortion laws , including a mandatory waiting period of 24 hours, compulsory pre-abortion counseling and a 20-week ban on the procedure based on scientifically-disputed claims of fetal pain, but the latest frontier of denying women access to reproductive care in the state is the targeting of medicinal abortions.
A 2011 law banning the “off-label” use of abortion-inducing drugs was blocked by a legal challenge, but is currently up for review by the Oklahoma Supreme Court, as the Los Angeles Times reports: “At issue ultimately is the meaning of the high court’s 1992 decision in Planned Parenthood vs. Casey, which upheld a woman’s right to choose abortion, but said states may regulate the practice, so long as they do not put an ‘undue burden’ on the patients or their doctors.”
Reproductive rights advocates and lawyers for the Center for Reproductive Rights — who challenged the law in court — said the regulations would prevent women from accessing safe, nonsurgical abortion care: “The statute at issue here effectively bans all abortions using medication, rather than by surgery,” the lawyers told the high court.
North Carolina
Women seeking abortions in North Carolina already have to endure a 24-hour waiting period, undergo mandatory counseling and submit to a forced ultrasound in order to terminate a pregnancy, but that hasn’t stopped antiabortion lawmakers in the state from pushing to further restrict access.
In a move that is familiar to the point of being redundant, the state legislature is now using red tape and unnecessary regulations to crush abortion rights. But the packaging the omnibus abortion restrictions came bundled in was, however, a little unusual: House Republicans in July pushed through an “anti-Sharia Law” measure that, in addition transparently trying to stoke anti-Muslim sentiment in the state, was packed with stringent abortion regulations.
The provisions included in the last-minute bill would force abortion clinics to meet the standards of surgical centers; mandate a physician, rather than a trained technician under the remote supervision of a doctor, be present during chemical abortions; require clinics to have transfer agreements with local hospitals; restrict healt care coverage of abortion; as well as introducing a broad “conscience protection” to allow any healthcare provider to opt out of providing abortion-related services.
The timing of the bill — the day before a long holiday weekend — was scrutinized by reproductive rights advocates and House Democrats. “They’re doing it quietly on Fourth of July weekend because they’ve seen what’s going on in Texas and know that women will turn out,” Melissa Reed, vice president of public policy for Planned Parenthood Health Systems, told WRAL News.
Texas
According to data from the Guttmacher Institute, close to 90 percent of Texas women live in a county without an abortion clinic. The antiabortion omnibus measure currently being debated during a second special legislative session could shutter 37 of the state’s 42 clinics, leaving the women of the second most populous state in the country without meaningful access to basic reproductive health services and abortion care.
In addition to criminalizing abortion at 20 weeks, the proposed measure would impose expensive and unnecessary regulations on abortion providers, including hospital admitting privilege requirements, restrictions on telemedicine and chemical abortion and other regulatory derailments of clinic operations.
And while Texas’ current battle over reproductive rights has grabbed unprecedented national attention, this isn’t the state’s first rodeo. During the 2011 legislative session, Texas lawmakers passed a two-year budget cutting $73 million from family planning programs. In 2012, Gov. Rick Perry dissolved the state’s partnership with the federal Women’s Health Program and forfeited millions in Medicaid funding for low-income women’s healthcare. Republican lawmakers were unabashed about the reasoning behind such extreme measures, which was, as state Rep. Bill Zedler, R-Arlington, openly acknowledged to “defund the ‘abortion industry.”
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