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January of 2013, marked the 40th anniversary of the seminal Roe vs. Wade (1973) case. Before this court ruling, the right to choose had gained serious traction as a strong movement. According to Shields (2013), “it organized letter-writing campaigns, subverted restrictive abortion laws through underground networks of clergy and doctors, and eagerly sought opportunities to debate pro-life advocates” (p. 22). He continues, though, that after Roe vs. Wade the movement collapsed. Pickert (2013) argues that the decline of the pro-choice movement is partially due to our ever changing democracy. Once a goal has been achieved, it is harder to keep the status quo. And, indeed the pro-life movement has pulled ahead in the race.
The United States fell into what is called a ‘moral panic,’ propagated by Catholics and Protestants alike- two denominations that were and still are highly conservative. By 1978, the conservative party edged its way into prominence in Washington D.C. Pro-life organizations were developed and gained strength over the once powerful National Organization for Women (Karrer, 2011).
It can be argued that since Roe vs. Wade the fight for abortion rights has been losing. The reason is that even though the court ruled that abortion is legal in the first trimester, access fell under each state’s purview (Pickert, 2013). With this, Feely (2013) explains that the ruling actually opened up a framework for new restrictions. In fact, in some regions of the United States today, it is harder to obtain an abortion than it was 40 years ago (Pickert, 2013).
By dividing pregnancy into trimesters, with abortions in the first trimester an undeniable national right, it allowed states to impose their own restrictions as the pregnancy progresses- in the second and third trimester (Feely, 2013). The states scope over abortion laws grew even more when soon after the trimester framework was overturned and changed to viability, with the court adding the concept of “potentiality of human life.” Potentiality is an ambiguous and malleable term and will mean different things to different people. For instance, many conservatives argue that life begins at fertilization (it has potential), while many liberals perceive potentiality to mean if the fetus can survive outside of the womb. Gary Bauer, president of American Values and Chairman of Campaign for Working Families said, “An important reason why ‘pro-life’ is winning is the mounting evidence revealing the humanity of the unborn child. Taken together, developments in science belie the pro-choice assertion that an unborn child is nothing more than a clump of cells” (as cited in Mass, 2013, p. 26).
With an ambiguous distinction between the federal mandate of legal abortion and states purview and the pro-life movement growing, abortion was back on the Supreme Courts table in 1992 with Planned Parenthood vs. Casey. The question to be answered was whether or not Pennsylvania could enact certain restrictive laws, such as a 24 hour waiting period or imposing new standards on abortion providing clinics (Pickert, 2013). The court ruled that the restrictive laws were legal as long as it did not produce “undue burden” on the female searching for services. Just as ambiguous as the term ‘viability’ or ‘potentiality,’ states took this ruling to push the boundaries of Roe vs. Wade (Reinzi, 2012). Now, technically, the state could control abortion on both sides of viability, as long as it did not cause undue burden. But who is going to determine what is considered undue burden until another case is brought to court? The states and their majority party.
Planned Parenthood vs. Casey established the precedent for what is the topic of this analysis, Targeted Regulation of Abortion Providers, or TRAP laws. These are laws that intend to limit or eliminate abortion by passing laws that impose many restrictions on the right of the female and the abortion providers themselves. As Pickert (2013) says, “the villain is now in the fine print” (p. 5).
HB57, also called The Women’s Health and Safety Act, is at its core a TRAP law. TRAP laws, under the guise of concern for women’s health, are in fact intended to make abortion more difficult to obtain by placing unnecessary restrictions and responsibilities on abortion clinics. HB57 requires that physicians have admitting rights to a nearby hospital, and that the clinics have the same structural code and ambulatory services as a hospital. Looking at the numbers will make clear these requirements fall under the definition of a TRAP law.
Abortion is a low risk procedure with only 0.3% of women in need of hospitalization due to complications (Guttmacher Institute, 2011), or one woman per 160,000 abortions (National Abortion Federation, 2006). In fact, according to Joff (2013), today death due to complications in child birth is 14 times higher than in a first trimester termination. Most complications in the abortion procedure come from reactions to anesthesia (NAF, 2006), which means it is not the abortion procedure itself that generally requires hospitalization.
In spite of these numbers, Alabama has still imposed more regulations and requirements on abortion providers than on other similar healthcare providers and facilities (Medoff, 2011). For example, regulations for independent dialysis centers and methadone clinics do not require the buildings to have hospital code structures, nor do they require them to provide ambulatory services. These inconsistent requirements for similar independent medical services show that ambulatory services are unnecessary. Therefore, regulations requiring ambulatory services and hospital code structures for abortion providers are targeted, causing HB57 to function as TRAP law.
In addition to these regulations, HB57 imposes another unnecessary condition: requiring physicians to have admitting rights to a hospital and a license to provide healthcare services in the state. These requirements threaten the ability of clinics to stay open because physicians often cannot get admitting rights and sometimes have to obtain medical licenses in multiple states where they practice.
In order to gain admitting rights a doctor must be licensed in the state. In Alabama, and other states, doctors who provide abortions are rarely residents. They fly in from nearby states; therefore they must apply for a second state license. The process of second licensure is extremely challenging and takes many months to obtain (American Medical Association, 2012). The physician must undergo various examinations, continuing education, extended training and pay a fee. These obstacles deter physicians from practicing in other states, and if there are no physicians, there are no clinics.
Beyond second licensure, Alabama requires the physician to be trained in obstetrics or gynecology, which greatly narrows down the field. There is also the issue of violence against abortion providers, from assassinations to bombings to harassment on the street, at home, or even at their place of worship (Askel et al. 2013). Between licensure, additional education and the threat of violence, there is no incentive to become an abortion providing physician unless it is a personal, deep felt cause.
Requiring hospital admitting rights also threatens the ability of a clinic to remain open. Admitting rights come with their own regulations. First of all, there is a fee to obtain these rights, and secondly in order to have admitting rights, many hospitals require a minimum of admittance. Most hospitals require that a doctor admit at least 10 patients per year. However, as previously discussed, statistics point to abortion as a relatively safe procedure and it would be extremely rare for a single physician to have to admit 10 patients a year.
Even if the physicians could provide 10 patients per year, the politics of obtaining admitting rights is another beast. Many hospitals simply will not give admitting rights. Mississippi’s last working abortion clinic is soon to be shut down for this reason. According to the clinic owner, Diane Derzis, the clinic approached 7 hospitals and they all turned her down. She stated, “The hospitals were clear that they didn’t want to deal with abortion and they didn’t want the internal or the external pressure of dealing with it” (as cited by Mother Jones, 2013, n.p.).
Alabama’s last five clinics could suffer the same fate. Nikema Williams, the vice president of Planned Parenthood Southeast, explained, “the reality is the hospital’s decisions will be based on ideology and politics… a lot of boards for public hospitals are appointed by the state” (as cited by Mother Jones, 2013, n.p.) With Alabama’s appointed officials being overwhelmingly conservative and pro-life, the hospitals run by appointed board members are likely to deny admitting rights.
New structural and ambulatory codes also threaten a clinic’s ability to stay open. HB57 requires abortion clinics to follow the same codes as hospitals. This means that clinics will have to renovate, widening doors, stocking patient rooms with unnecessary medical tools, enlarging patient rooms, lobbies and more. The state has given the clinics 180 days to complete this process. But this is expensive, and most abortion clinics in Alabama are already struggling for money. For these clinics, no public funding is available unless the abortion is conducted in order to save the mother’s life or in cases of rape or incest.
These new regulations are forcing abortion clinics in Alabama to raise their prices. Renovations, obtaining admitting rights, doctor licensure and ambulatory services are all extremely expensive. Most clinics simply do not have the funds, and it is women who are affected.
According to Medoff (2011), TRAP laws do deter women from searching out an abortion. In states with TRAP laws, there is a reduction of 15.5 abortions per 100,000. The laws largely reduce abortion rates due to issues of cost. As abortion clinics continue to struggle to comply with new demands, many will no longer be able to operate. This means that women will have to travel further, sometimes even across state lines, to terminate a pregnancy. Medoff (2011) reports that between cost and travel, many women will and have forgone the preferred option of abortion.
Several recent statistics back up these claims. According to the US Census Bureau, as of 2010, 1,707,598 women in Alabama were of childbearing age, measured as ages 15 to 44. Alabama has one of the highest unintended pregnancy rates in the United States at 55% (Baker, 2013). This means that 989,179 women could potentially be seeking abortions. Approximately 40% of all unintended pregnancies end with termination (Guttmacher, 2011). According to these numbers, in Alabama 395,671 women would have abortions. But with TRAP laws, Medoff (2011) proposes these numbers would drastically decrease. That is, due to increased costs forced by HB57 regulations, the women of Alabama will have their autonomy challenged. Most significantly affected will be the 17.6% of women who live under the poverty line in this state (US Census Bureau, 2011). 42% of all women who have abortions live below the poverty line.
Planned Parenthood Southeastern Pennsylvania v. Casey (1992) sought a ruling on TRAP laws. The supreme court came to the conclusion that the woman’s right to choose had positive economic consequences and acknowledged that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” It continued to say that if new laws are not in fact intended to protect the safety of the woman, but only to deter women from having abortions, they produce an “undue burden.”
But, the ruling has not produced results for abortion providers. States are passing more TRAP laws than ever before because they claim these laws are for the protection of women. These laws push the boundaries of Roe v. Wade. In Alabama, the clinics are hoping to bring the legislation to court in hopes of protecting the woman’s right to chose and stop the undue burden imposed by HB57.
In essence, HB57 does not do what it says it is to do, namely ensure the safety of women, but it certainly does what it is intended to do, which is limit abortions. It is a policy that promotes social injustice by stripping a woman of her autonomy and creating for her an undue economic burden.
TRAP laws in other states. TRAP laws are being proposed and adopted at an increasing rate across the United States. In 2011, 92 restrictive abortion laws were passed, more than any other year in American history (Joffe, 2013; Pickert, 2013). It is not coincidental; these laws are part of a phenomenon called blueprint legislation. Blueprint legislation describes the process by which states borrow a prototype or model bill from a national entity and then propose the law to the state congress. Blueprint legislation occurs across party lines; it is a common practice. TRAP laws, however, are generally a Republican cause and are proposed and implemented mainly in red states. In fact, all of the states discussed below have a Republican governor.
In April of 2013, North Dakota passed a law outlawing abortion once a fetal heartbeat is detected, which is as soon as 6 weeks. The North Dakota law also requires doctors to have admitting rights and the clinic to provide ambulatory services. There is only one abortion clinic in North Dakota and it is predicted to close imminently. In the same month, April 2013, Virginia passed a bill requiring clinics to adhere to hospital-like structural codes. Kansas also passed this building code, along with adding a requirement for doctor’s admitting rights, and a new process of clinic licensure. Utah, Mississippi, South Carolina, Texas, Minnesota, Indiana are the most recent states to introduced TRAP laws. Mississippi only has one abortion clinic left. The TRAP law there contains 35 pages of restrictions and requirements. A judge upheld the law, and the one remaining clinic is soon to shut down.
The most common TRAP law, though not the topic of this analysis, is important to mention and spreads across party lines. 45 states and the District of Columbia mandate a female to have an ultrasound, sometimes transvaginal, listen to the heartbeat, and then wait at least 24 hours. Travel already makes terminations more expensive; the 24-hour waiting period makes it more so. With 84% of counties in the United States without an abortion provider (Baker, 2013), a number which will predictably increase, most women will have to travel, which means extra cost to find a place to stay for the night or to spend the gas money to drive home and back in order to comply with the 24 hour waiting period. Midwestern and southern states are lacking the most in services; the majority of clinics are clustered on each coast (Joffe, 2013).
23 states also require counseling (Joffe, 2013). During counseling doctors or counselors must warn the patient of the dangers of abortion, which include increased risk of breast cancer and psychological illness that they call “post-abortion syndrome,” that could lead to suicide. Both of these risks have been debunked, but nonetheless are mandated by law to report to the patient (National Abortion Federation, 2011).
TRAP laws internationally. According to the World Abortion Policies 2011 report, 97% of countries allow abortion to save the mother’s life, 67% for preserving physical health, 63% for preserving mental health, 49% in cases of rape or incest, 34% for social or financial reasons, and 29% at the request of the mother.
The 29% of countries who allow abortions at the request of the mother are largely in North America and Europe. They are not without TRAP laws either. Finland and the United Kingdom require a sign off from two doctors. However, it has been found by the Care Quality Commission report of 2012 in England that many National Healthcare System clinics keep pre-signed documents by one doctor, so the woman then only has to see one. It is a known and accepted practice. Ruling bodies simply turn their heads. However, in the United States doctors who fail to comply with abortion laws are at extreme risk of losing their license, being charged with a felony and imprisoned (National Abortion Federation, 2011).
TRAP laws have proved to be an effective deterrent for seeking abortion (Medoff, 2011). These laws, though, only serve the purpose of moral conviction. Through analysis it has been made clear that women, doctors and clinics are suffering from undue burden and in thus in contradiction of the Planned Parenthood vs. Casey (1992) ruling. Furthermore, HB57 has no economic purpose- in fact Alabama will lose money if the law continues to stand. Clinics are shutting down across the United States, but they are not giving up without a fight. Many TRAP laws in the past have been given injunctions as abortion activists bring suit. For instance, the transvaginal ultrasound requirement in Virginia was ordered stop by a justice of the peace. But, if the right to choose is going to remain a right to choose, it is likely that the Supreme Court will see another case. That case could be the settling vote on the right to abortion, or it might lead to it becoming illegal, though not extinct because history has shown that women have sought out abortions with great risk to their health. The future remains to be determined as the Supreme Court is currently split, with four leaning left and four leaning right and Justice Kennedy as the swing vote.
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