This year will see the second-highest number of state-level abortion restrictions ever. Prominent among restrictions so far in 2013 are so-called targeted regulation of abortion providers (TRAP) requirements, a regulatory thicket designed not to benefit patients but to make it impossible for many providers to come into compliance. While not a new tactic, the scope of some of these new TRAP laws is unprecedented, as is the blunt focus by anti-abortion state legislators on driving abortion providers out of business.
As is often the case with other efforts to make abortion care more difficult to access, the reasons offered in support of specific TRAP requirements—which are usually marketed under the guise of protecting women’s health—do not stand up to close scrutiny:
At the most general level, TRAP requirements are a solution in search of a problem. Abortion care in the United States is already very safe, and fewer than 0.3 percent of all abortion patients experience complications that require hospitalization. The risk of dying from a legal abortion in the first trimester—when almost nine in ten abortions are performed—is no more than four in a million (see Safety of Abortion here).
Requiring a Connection to a Local Hospital
TRAP requirements often mandate that abortion facilities or their clinicians have connections to a local hospital (such as admitting privileges or transfer agreements) that are at best unwarranted and at worst simply impossible for clinics to obtain. Such links are not necessary for patient safety, since hospitals are already required by federal law to provide emergency care to those who need it, including abortion patients in the unlikely event they experience complications (see Mandating Links to Hospitals here). Two recent examples underscore that these links are unnecessary and serve only to force abortion providers out of business:
Texas: In response to the requirement that abortion providers obtain hospital admitting privileges, the Texas Hospital Association (THA), which represents 85 percent of the state’s hospitals, issued a statement that reaffirms its commitment to “high-quality care” and declares that “a requirement that physicians who perform one particular outpatient procedure, abortion, be privileged at a hospital is not the appropriate way to accomplish these goals.” The statement further elaborates that “[t]housands of physicians operate clinics and provide services in those clinics but do not have hospital admitting privileges” and that any woman who experiences complications “will appropriately be treated by the physician staffing the emergency room when she presents there.”
Ohio: In this case, the law itself refutes the claim that it is meant to protect patient safety. Ohio has long required abortion providers to have an agreement (itself unnecessary) with a hospital allowing them to transfer patients needing emergency care. However, in June, Ohio adopted a new provision prohibiting public hospitals in the state from entering into these transfer agreements. If taken at face value that transfer agreements are needed to protect patient safety, then the new Ohio provision would serve only to harm patient safety (in fact, Ohio should incentivize or even require hospitals to enter into transfer agreements). Instead, the new provision is clearly aimed at making it impossible for some providers to come into compliance.
In short, requiring abortion providers to have links to hospitals adds nothing to long-standing patient safeguards, but effectively grants hospitals (or those who control them) veto power over whether an abortion clinic can exist.
Requiring That Abortion Facilities Meet Standards for Ambulatory Surgical Centers
Nearly all TRAP laws dictate that abortions be performed at sites that are the functional equivalent of ambulatory surgical centers. However, ambulatory surgical centers provide more invasive and risky procedures than abortion and use higher levels of sedation than commonly provided in abortion clinics. Twelve states specify the size of procedure rooms and the same number specify hallway widths, often giving a minimum width well in excess of what is actually needed to transport a patient in case of an emergency. In addition, it is extremely difficult for providers to meet these standards, and there is no evidence that requiring abortion providers to do so improves patients’ health or safety.
Rules recently implemented in Virginia require abortion providers to meet standards based on those for hospitals, even though the state’s chapter of the American Congress of Obstetricians and Gynecologists (ACOG) called them unnecessary to protect patient safety. The new rules mandate larger-than-necessary dimensions for procedure rooms and corridors, and even specify requirements for the ventilation system, parking lot, and covered entrances.
Finally, 18 states have unnecessary requirements that facilities providing only medication abortion adhere to the same standards as those that also provide surgical abortion care. Again, this requirement has not been shown to improve patient safety, but imposes additional burdens on abortion providers and threatens the trend toward abortion care being provided earlier in pregnancy, when it is safest.
Unable to document actual safety shortcomings in their respective states that would be addressed by specific TRAP requirements, lawmakers who support such laws instead often cited the criminal acts committed by Kermit Gosnell in Philadelphia as a rationale for the new restrictions. However, Gosnell was able to prey on low-income women seeking abortions not because of inadequate regulation, but because Pennsylvania authorities failed to enforce the regulations already on the books.
Using Kermit Gosnell as justification for laws that are not good-faith efforts to make an already-safe procedure safer, but instead aim to make legal and safe abortion care less accessible, is particularly cynical.
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