Acronyms are rarely perfect, but when it comes to TRAP, short for Targeted Regulation of Abortion Providers, the word says it all.
Anti-abortion zealots have long contended that abortion is unsafe and have pushed state legislatures to impose burdensome requirements on providers. These requirements, in effect in nearly half the country, are more stringent than those imposed on other outpatient medical practices.
Critics say that the laws are essentially a game of gotcha and have done little to improve patient care or reduce surgical risk. Instead, since abortion is safe–only 0.3 percent of abortion patients require hospitalization for post-operative complications–they argue that the laws have less to do with protecting women’s health and more to do with limiting reproductive choices. Statistics from the Guttmacher Institute bear this out: The number of abortion providers in the U.S. dropped from 2900 in 1982 to 1787 in 2005, at least in part because of TRAP laws.
"The anti’s strategy has been to allow abortion to remain legal, but to make it unavailable," says Bonnie Scott Jones, Deputy Director of Domestic Programs at the New York-based Center for Reproductive Rights. "Their goal is to make abortion so difficult to obtain it’s not really an option. They’ve also worked to make it more difficult to be an abortion provider than any other kind of doctor. TRAP laws work as a disincentive to becoming part of, or remaining in, the abortion field."
The laws fall into three categories: Licensing, hospitalization, and staffing/patient care. And they run the gamut, from the common-sensical to the illogical and impractical.
Take South Carolina where the law requires six air changes per hour in the recovery room and mandates that there be no grass or weeds near clinics or medical offices where pregnancies are terminated. Arizona requires MDs performing abortions to do gonorrhea and Chlamydia tests on every patient, a practice, providers say, that usurps a physician’s ability to judge what measures are necessary. It also drives abortion fees up by $30-$40 per procedure.
In Missouri, a presently-enjoined law requires doctors who perform five or more first-trimester terminations a month to convert their offices into ambulatory surgery centers. Among the requirements: Hallways must be six feet wide, doorways must be 44 inches across, and the recovery room must have at least four beds.
These restrictions, if upheld, will put Dr. Allen Palmer, the only private physician performing abortions in the Show Me state, out of business. "Dr. Palmer does a full range of gynecological services," says attorney Bonnie Scott Jones. "He works out of a regular doctor’s office. It would cost him in excess of $1 million to turn it into a surgical center. If we lose the case he will retire because abortions are enough of his business that without them he has no practice. This is a man, a family gynecologist, who sees the daughters of patients he treated 20 years ago."
In addition to the law’s singling out of abortion providers, and not, say, those performing gastric bypasses or liposuction, Jones is further incensed that there is no grandfather clause built into the Missouri law. "You can’t increase hall widths in existing buildings," she says. "Most laws that change zoning or construction standards only apply to new construction or massive renovations and wave in facilities that already exist. Laws like the Americans with Disabilities Act don’t apply retroactively."
Texas is an example of what happens without grandfathering protections. When TRAP laws were passed to require clinics performing abortions after 16 weeks to become ambulatory surgery centers, the availability of care plummeted. "In 2003 there were more than 20 providers doing abortions at or after 16 weeks," Jones reports. "After the law took effect in 2004 there were none." While the number of licensed second trimester providers has begun to creep up — Jones says there were four in 2007 — in a state the size of Texas the unmet need is likely enormous.
TRAP laws have also impacted the way Diane Derzis, owner of New Woman All Women Health Care — a Birmingham, Alabama, clinic that was bombed by Eric Robert Rudolph in 1998 — does business. After a nurse at Birmingham’s Summit Medical Center erred in determining the gestational age of a fetus in 2006, newly-passed TRAP laws gave the state greater power to regulate abortion. Although Summit was subsequently closed, Health inspectors increased surveillance of the state’s six remaining providers. "We had investigators come to the clinic four times in 2007," Derzis says. "All visits are unannounced and they always barge in when patients are inside. They take charts out of the clinic and copy them, which they have an absolute right, under the law, to do."
You pick your battles, Derzis shrugs. Nonetheless, she becomes irate when she speaks about inspectors observing abortions. "We’ve had to ask patients, ‘Do you have a problem with a Department of Health observer in the OR?’ Most say ‘no,’ but I still don’t think inspectors have any business in surgical procedure rooms."
June Ayers, owner and Director of Reproductive Health services in Montgomery has, like Derzis, been on the receiving end of the Alabama Health Department’s probing. "For about five years we had a verbal agreement with an emergency physician," she begins. "When the Health Department called him he said he could no longer do back-up for us because he did not want to be bothered by the Health Department. The inspectors closed us down immediately, suspending our license for six weeks. We’d never had a deficiency before in 28 years of operation. I made arrangements with another physician to provide back-up within two weeks but they refused to re-open the clinic. It wasn’t just that we couldn’t do abortions. We couldn’t do pregnancy tests, give out contraceptives, or even do paperwork. We’re a small clinic, seeing about 1200 women a year. From a clinical and monetary standpoint, the whole thing was a nightmare."
Worse, at meetings to discuss re-opening, the state attorney told Ayers that since new regulations were about to be promulgated she needed to agree, in advance, that RHS would abide by them. If Ayers refused she understood that the clinic would remain shuttered.
"The new standards of care require our doctors to be certified by a disinterested physician saying that he or she is qualified to perform abortions," Ayers says. "These are already licensed MDs who have to find someone to stick his or her neck out and do this unnecessary paperwork once a year."
In addition, a "Did You Know?" bill presently requires Alabama clinics to provide a resource guide to all abortion patients. The booklet lists services for women, children and families, including information about adoption and abortion alternatives. "The law says that the only people who can hand the brochure to patients are licensed psychologists, sociologists, RNs, or MDs. My counselor, who has worked at the clinic for 10 years, is not qualified to distribute it," says an exasperated Ayers.
"These laws are supposed to provide a higher standard of care," she continues. "But that’s not what happens. TRAP laws do not elevate care or help patients. They’re punitive, forcing clinics to provide services under adverse conditions. It’s why Alabama is down from 10 clinics to six. When it becomes too difficult to provide services, clinics close."
That, says CRR’s Bonnie Scott Jones, is the point. Since the 1992 Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which weakened the test of unconstitutionality for abortion law to "undue burden," "the antis have been testing the limits to see how onerous regulations can be and still be upheld by the courts."
Onerous, of course, is subjective, but clinicians and pro-choice activists call TRAP regulations unnecessary, even galling. "There was a horrific death of an abortion patient in Arizona in 1998, a clear example of criminal medical malpractice," Jones says. "But like in Alabama, because the incident was abortion related, it provided the impetus to pass really bad TRAP laws. Malpractice happens and it always needs to be addressed, but TRAP laws just add fuel to the fire of anti-abortion activism."
The National Abortion Federation, a professional association for providers, agrees. According to their website, "TRAP bills stigmatize and burden abortion providers…By implying that abortion clinics are dangerous and in need of special regulation, such bills promote an unfounded fear that abortion is unsafe. Abortion has an outstanding safety record. These regulations create a burden for small outpatient clinics."
You can almost hear the antis cheering.