TRAP Laws and the Emptying of ‘Roe’

When the U.S. Supreme Court decided in 1992 that states could regulate a woman’s right to choose abortion, it introduced a constitutional virus that has taken some 20 years to fully take hold.

The case, Planned Parenthood v. Casey, introduced the notion of the so-called balancing test in cases concerning a woman’s right to choose abortion. The court, while maintaining the constitutional protection of a right to choose abortion that it had established in Roe v. Wade in 1973, said for the first time that this right was to be balanced against another, seemingly competing legal interest: the state’s interest in protecting maternal and fetal health.

And so was born the notion that states can regulate the right to choose abortion, so long as those regulations do not pass the nebulous line of creating an “undue burden” on a woman’s right to choose.

Relying on the “undue burden” doctrine, federal courts in the last 20 years have upheld everything from forced waiting periods and ultrasounds to “informed consent” provisions.

For example, in 2012, when Mississippi Gov. Phil Bryant signed the state’s admitting privileges law, which had been introduced under the guise of “patient safety,” he proclaimed it a “historic” moment.

“Today you see the first step in a movement I believe to do what we campaigned on to say we’re going to try and end abortion in Mississippi,” Bryant told reporters.

Late month, when the U.S. Court of Appeals for the Fifth Circuit upheld the portion of a Texas law that requires abortion providers to obtain hospital admitting privileges or face civil fines, it pushed further the limits of that “undue burden” doctrine, which has in 2014 become the anti-choice community’s most potent weapon.

The reason the “undue burden” doctrine is so dangerous for choice, is because of its corollary: so-called targeted regulation of abortion providers (TRAP) laws, which impose a bewildering array of medically unnecessary and prohibitively expensive requirements on abortion providers, all in the name of protecting women and fetuses. The real aim, of course, is to make abortion unavailable, even if it remains theoretically legal.

An analysis by RH Reality Check shows that courts increasingly find in favor of the interests of the state, over the interests of the pregnant person generally, even when the evidence strongly disputes lawmakers’ claims that TRAP laws are important tools in protecting patient safety.

TRAP laws, in other words, are now being used in many states to undermine any meaningful constitutional right to choose abortion—a de facto defeat of Roe v. Wade, without the need for the Supreme Court to explicitly say so.

There are three main categories of TRAP laws. The first requires abortions facilities to meet special licensing requirements, and subjects clinics to procedures like “surprise inspections.” The second kind requires all abortion clinics to meet the same architectural and regulatory standards as ambulatory surgical centers, regardless if the clinic performs only medical abortions, like a battle embroiling North Carolina recently. And the third type, like the law recently upheld by the Fifth Circuit, requires doctors who perform abortions in the state to enter into special agreements with local hospitals, in the form of transfer arrangements or admitting privileges.

According to the Guttmacher Institute, fewer than 0.3 percent of abortion patients in the United States experience any complication that would require hospitalization. By way of comparison, the risk of dying from a legal abortion in the first trimester is no more than four in a million, whereas the risk of death from childbirth is about 14 times higher than that from abortion.

Additionally, these restrictions are designed to add expenses to providers, to either price them out of business or make the cost of obtaining an abortion too expensive for women to bear.

And TRAP laws are not confined to states like Texas and North CarolinaRH Reality Check’s analysis of state laws shows that 24 states now require facilities that provide abortions to meet standards intended for ambulatory surgical centers, with 13 states specifying the size of the room in which those abortions are performed. At least 13 states go further, specifying the width of the corridors in abortion facilities. Ten states require abortion facilities to be located within a set distance from an area hospital, the new analysis shows. So far, 22 states require either an abortion facility or an individual provider to have a relationship with a hospital.

Since Casey, courts have floundered at finding a limit to what constitutes an “undue burden.” But so far, with the exception of the Fifth Circuit, laws requiring hospital admitting privileges requirements have mostly failed. In Kansas, a law that resembled the Texas law at the center of the Fifth Circuit’s recent ruling remains blocked. In North Dakota, the only abortion clinic in the state recently settled its lawsuit challenging that state’s admitting privileges requirement once its providers were finally granted privileges.

Meanwhile, one federal court is currently reviewing Mississippi’s admitting privileges law, while another ordered a trial in the legal challenge to Alabama’s admitting privileges law.

Should anti-choice lawmakers succeed in defending those laws, Mississippi’s only abortion clinic will be forced to close, while Alabama’s three most populous cities will be left without any abortion clinics.

The Fifth Circuit’s decision makes it more likely that the Roberts Court will step in to answer just how far is too far to have to travel for abortion care. Is 500 miles too far? What about out-of-state? Is there a limit to the expense and inconvenience to which a state can subject someone who needs to terminate a pregnancy? And if the stated purpose of the law is to protect women’s health, what if it does the opposite?

The problem, of course, is that this is in its nature a subjective inquiry, to be performed by a Supreme Court with a solidly anti-choice majority. It’s also an increasingly irrelevant inquiry since it ignores the impact of all the other restrictions a woman must navigate to terminate a pregnancy or a provider must navigate to perform abortions.

Put another way, how many “undue burdens” on accessing abortion must exist before we consider the protections of Roe to be effectively overturned? If we’re not there already, we’re getting close.

The conservative Fifth Circuit believes the law places only a minimum obligation on the state to support its abortion restrictions with actual evidence. A less conservative Seventh Circuit has initially disagreed, finding in Planned Parenthood of Wisconsin v. Van Hollen that the state must have at least some connection between its purported interest in women’s health and passing onerous TRAP restrictions that the medical community insists do the opposite.

Those cases, while coming to different conclusions, are on different procedural footing. The decision by the Fifth Circuit reversed the district court after a three-day trial, whereas the Seventh Circuit decision was in review of a grant of a preliminary injunction—a temporary order blocking the law while a trial on the merits proceeds. The trial in the Wisconsin challenge is currently set for later this spring. Should that law go into effect, at least two Wisconsin clinics would be forced to close, including one in Milwaukee.

The “geography of abortion access” is increasingly a zone of concentrated coastal and urban access and nothing else. If we understand the right to choose abortion to be a federally protected right, then this should not be our reality. It should not matter whether you live in Massachusetts or Mississippi: There should be a baseline of access that is guaranteed.

But because of Casey, we’ve largely removed abortion rights conversation out of the context of federal rights and into the power of the state. The result has been to sideline the role of pregnant women even further than the Roe decision did by intertwining the rights of a pregnant woman with those of her doctor. We don’t have to look any further than Texas’ Rio Grande Valley and the rights’ efforts to increase that access desert to see the unmistakable tragedy that results.

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  • Rita, Canberra

    Surely the state’s legal interest in protecting maternal and fetal health is no “constitutional virus”. The unalienable right to life is constitutionally protected for both patients, the mother and her tiny unborn daughter or son being nurtured in her womb.

    No medical professional may abuse that right, nor deprive any human being of that right arbitrarily—that’s what ‘unalienable’ means.

    Genuine reproductive health care does no deliberate harm to either patient, the mother or her unborn child.

    The state should never trivialize or tolerate medically negligent, abusive treatments, not even against these smallest human beings. The Universal Declaration of Human Rights has ‘recognized’ that all children are entitled to “legal protection before as well as after birth”. (See Declaration on the Rights of the Child)

    Elective abortions should be treated not as idiosyncratic, personal ‘choices’ but as abusive practices, as human rights violations perpetrated by individuals and involving the complicity of others.

    • Micah

      Sorry, Rita, a fetus is no more a person with unalienable rights than my left pinky finger or my pancreas.

      • Rita, Canberra

        I do suggest that anyone with any doubts on the humanity of the fetus take a good introductory course in embryology and fetology.

        You will find, Micah, there is a profoundly significant difference between a fetus and your left pinky finger.

        Both reason and science confirm that a mother’s unborn child at the fetal stage of life is already in existence, as a separate, fundamentally independent organism (not independent, of course, in the sense of not needing basic nutrition and a sympathetic environment, but independent in the sense that this unique human being is self-directed towards growth, development and maturity).

        With astonishing accuracy, we can locate the child within definite co-ordinates of space and time. The child is not a generic, anonymous fetus. We can identify the child’s father, and whether the child is a son or a daughter. We can ascertain long before birth that the child is a unique member of the human family, biologically, genetically, and genealogically.

        • Lieutenant Nun

          Wrong. People have minds. Zef’s are non sentient non sapient mindless organisms.

        • Micah

          The pinky finger is similarly amazing, suffused with the magic of life. But that does not entitle you to tell me how to medically treat it based on your subjective moral reasonings.

        • Arekushieru

          Again, human =/= humanity/human being/person. Any biology, embryology or fetal development textbook that uses the word human being only uses it in the context of human.

          A fetus is not separate from the woman, which makes me think you, yourself, may benefit from a good introductory course in any one of those three you mentioned. There is that whole umbilical cord thing, after all. That is how it gets its basic nutrition and sympathetic environment, y’know, pretty much the only reason that it can ‘self-direct’ its own growth, development and maturity. Which, in turn, is why it is not an organism.

          A fetus is not a child nor does it have a mother or father. Again, not a son or daughter. We can identify whether it is female or male after a certain point, but that’s about it.

          A fetus is pretty much like a stranger. It is unseen, responds only by reflex, is mute and has no awareness or sentience, of which we can speak, in order to share its thoughts or emotions, even with its host.

          Unique? We can pretty much ascertain all of that in regards to the woman, visually and immediately, whether it be, yes, biologically, genetically or genealogically.

        • goatini

          Rights accrue to citizens at birth.

        • Ella Warnock

          None of which matters if a woman is not going to remain pregnant, whatever the reason. She’s certainly not going to be thinking about science, nor should she.

        • Jennifer Starr

          I just love how anti-choicers reduce the woman to a mere location and container. The uterus is more than that. And I think you’re a litle confused about what separate and independent actually mean. Because if something is separate, it is able to be separated.

        • P. McCoy

          It is in a parasitic relationship with its female host body. This just like we don’t force someone to surrender their liver, kidney, or blood products to keep a hopeful donee alive, one should find the same principle applicable in relation to the zygote, fertilized egg etc;within someone’s body. This is taking into consideration the hypothesis of the concept of personhood for the above zygote etc;. Now the fact is that since personhood is acquired legally at birth, so much more truth there is to the fact that abortion should be legal at any state of pregnancy as well as it is not murder of anyone. We are not bound by any four thousand years old strains of thought in this area just as we are not bound by what was believed about slavery, technology, concepts of whether certain medical procedures like autopsies etc;were sinful or not and so on . In short, if your beliefs forbid abortion then don’t have one. But you don’t get to impose your beliefs on ever one else. Also, just as I living in a society that makes one pay for the death penalty and I don’t approve of it, but as a citizen must pay for it, so you too must pay for things you don’t agree with. with . To oppose such obligations makes you opposed to the Democratic process of our government and thus an enemy of the state.

        • fiona64

          Welcome back, Rita Joseph. Once again, I find myself pointing out that all viviparous vertebrates carry fetii. And that most of them are indistinguishable from one another until fairly late in gestation. Don’t believe me? Here are embryos at similar stages of gestation: (Most honest people, BTW, admit that they picked the skink embryo out of the lineup as being human).

          Personhood is a legal status and is conferred with birth. All of your “arguments” are specious.

        • cjvg

          —-“Both reason and science confirm that a mother’s unborn child at the fetal stage of life is already in existence, as a separate, fundamentally independent organism “—-

          Eh, no! Science most definitely does NOT confirm this. Instead science confirms that a developing embryo does not have even the brain structure that houses sapience, consciousness and human awareness. It merely has a brain stem which is the most primitive part of the brain and which is often still functional in cadavers who are already declared LEGALLY DEAD and thus cleared for organ harvest.

          Also this organism is most certainly NOT independently geared towards development. If it was any actions that impact the health of the woman would not have an impact on the fetuss self-directed growth towards development and maturity.

          —-“With astonishing accuracy, we can locate the child within definite co-ordinates of space and time.”—–
          Duh, a fetus is confined to a very limited physical space, obviously we can “find” where they are with a reasonable amount of technology. Try finding something the size of an early embryo without being confined to a specific organ in a specific location. Finding an aneurism (which is often about the size of a fairly large embryo) is not nearly as easy, regardless of the fact that we know they only occur along the artery

          —-“The child is not a generic, anonymous fetus. We can identify the child’s father, and whether the child is a son or a daughter. We can ascertain long before birth that the child is a unique member of the human family, biologically, genetically, and genealogically.”—-
          Except that it is NOT! The “child” is a potential that might eventually after a long and taxing gestation develop towards that goal if nothing interrupts that development. Death of the mother, illness, miscarriage etc are all very effective at stopping that development, Abortion is only one of the many reasons that “the child” will never be. A woman however is already a complete unique present aware and HERE member of that human family, as such she deserves much more consideration and rights then a potential does!

    • Lieutenant Nun

      Forced pregnancy and birth violates the UN declaration of human Rights.

      Furthermore, the UNDHR only applies to born persons, not zygotes.

      • Jennifer Starr

        This is Rita Joseph again–she’s been here before.

    • Arekushieru

      Methinks someone is confused about the term ‘unalienable’. If a rapist is killed, was his right to life violated? No? Why is that? Perhaps because their right to life is non-existent while violating someone else’ bodily autonomy? Because one’s right to life is only ‘unalienable’ when it doesn’t infringe on that fundamental right? Which brings us to the next question: how is it then ‘arbitrary’ for a fetus to be ‘deprived’ of a right that is non-existent due to similar circumstances?

      A fetus is not a patient (unless the PREGNANT human [not a mother] determines that it should be), nor is it a child, let ALONE a ‘son’ or ‘daughter’, yet.

      Human =/= human being/person.

      Health care is anything that returns the actual patient to their former state of health. It’s reproductive health care when it involves reproductive organs. A fetus is not caused deliberate injury (harm) by abortion, itself. A fetus dies due to lack of compatibility with life upon separation from the uterus. Nothing more.

      Was that a deliberate misuse of Dr. Seuss’ own words? Ones he had expressly asked people not to use for their political agendas?

      Legal protection? You mean like that offered in Canada? Where a fetus is protected from deliberate injury inflicted as a result of violence committed against the person of the maternal host?

      All that is required for a choice to exist is two options of equal value that address an untenable situation for even just a single individual. Since termination and continuation of a pregnancy require equal but opposite responses to an unwanted pregnancy, for a woman, there are no scare quotes required around the word ‘choices’. However, if the anti-choice crowd has its way, continuing a pregnancy will no longer be an option and there will, indeed, be no more ‘choices’.

      The only ones committing human rights violations are the anti-choice crowd… upon the woman.

    • Shan

      “The unalienable right to life is constitutionally protected for both patients”

      No, it isn’t. And there’s a reason for that.

    • goatini

      There is only ONE reproductive health care patient – the WOMAN.

    • Ella Warnock

      “Legal protection” of zefs will result in less (or no) legal protection for women.

      Elective abortions *should* be treated as personal choices. Because it’s personal, as in none of your business. If you want to blow the lid off of the privacy issue, go right ahead. Just be aware that the next closet full of things you wanted to keep private that the State gets into might be yours. Privacy means very little to authoritarians – until it hits them where they live, of course

      It’s almost amusing, the same people who’d like to line up ovulating women each month and make sure they’re getting and staying pregnant are the same people who screech the loudest about spy drones and the NSA reading their email and text messages.

    • Jennifer Starr

      There is one patient, the woman who is pregnant. And unless you can be pregnant for her (and I’m pretty sure you can’t), you don’t get to make her reproductive decisions. And that includes whether or not she chooses to have an abortion.

  • Suba gunawardana

    I would think that federal law should supersede any state law. Therefore, a woman’s constitutional right to be secure in her person should supersede any purported state interest in “protecting maternal and fetal health”.