Beyond imposing reproductive rights restrictions on women themselves—from abortion bans, to abstinence-only sex education programs for teens, to abortion funding restrictions for poor women—right-wing lawmakers have spent the last decade trying to put abortion providers out of business. Their method? Targeted Regulation of Abortion Providers (TRAP) laws, which single-out abortion clinics with onerous and unnecessary regulations that are different and more stringent than those imposed upon comparable medical clinics.
At their worst, these laws enable state officials, typically health inspectors, to conduct unannounced raids on abortion providers and to review and copy the medical records of their patients for any reason. In many cases, unsubstantiated or anonymous complaints prompt the inspections, thereby enabling anti-choice activists to harass abortion providers and their patients.
Recently, a client of the Center for Reproductive Rights was forced to allow health inspectors into his clinic during office hours solely because authorities received an anonymous telephone complaint about an overflowing trash dumpster and rodents on the clinic's premises. The inspectors found both allegations to be unsubstantiated.
More commonly, TRAP regulations require abortion providers to make structural changes to their clinics in order to satisfy requirements such as those concerning the width of doorways, temperature ranges, airflow rates, the number of parking spaces, and the number of janitor's closets. These provisions fail to improve the quality of care that women receive from abortion providers—and that's precisely the point. They are intended to hike up the cost of abortion services, threatening to put already beleaguered abortion providers out of business.
Twenty-five states and Puerto Rico enforce TRAP laws. In sixteen of these states, TRAP schemes apply to providers who perform abortions in the first trimester of pregnancy. Seven states have introduced TRAP legislation so far in 2003.
"TRAP laws blatantly discriminate against abortion providers and, in turn, the women who seek their services," said Priscilla Smith, director of the Domestic Legal Program for the Center for Reproductive Rights. "These laws are yet another step towards making the right to choose a hollow guarantee."
CHALLENGING TRAP LAWS STATE BY STATE
Since our founding in 1992, the Center for Reproductive Rights has been a frontline actor in efforts to overturn TRAP laws throughout the U.S.
We have worked proactively with advocates and pro-choice lawmakers to defeat TRAP bills. In Virginia, Erica Smock, our state legislative counsel, helped local advocates use legal arguments to convince senators to kill TRAP legislation before it surfaced for a final vote. Smock has also worked with lobbyists in Kansas to secure the governor's veto of a TRAP bill and has armed a Florida lawmaker with the legal arguments needed to keep a proposed TRAP legislation in committee—where it is likely to die.
In October of 2002, we knocked down an Arizona regulation that would have allowed the state department of health to conduct inspections of abortion clinics without a warrant and to review the medical records of the women seeking abortions.
Though the judge upheld the provisions of the law that require providers to meet vague and unnecessary staffing and physical plant requirements, the law's threat to confidentiality has been defeated. The case is currently on appeal with the U.S. Court of Appeals for the Ninth Circuit.
In Louisiana, we secured a permanent injunction in 2000 against a TRAP law that would have forced a statewide shutdown of abortion providers by requiring that they meet the regulatory standards of ambulatory surgical centers.
SUPREME COURT TURNS A BLIND EYE IN SOUTH CAROLINA
One of the Center's toughest legal battles came in South Carolina, which has passed the nation's most extreme TRAP regulation. Though the Supreme Court declined to review our challenge of the law on April 28, the Center kept it from going into effect for the duration of our six-year long legal battle.
The South Carolina regulation, which will be implemented in early May, allows inspectors from the state's Department of Health and Environmental Control to remove, review and copy patient medical records for any reason, including an anonymous telephone complaint. The state law authorizes the department to release the information during licensing or investigative proceedings for the provider—a blatant violation of doctor-patient confidentiality and an open invitation to harassment by anti-choice zealots.
The regulation also requires abortion providers to establish "admitting privileges" for their patients at a local hospital. This requirement is difficult for many providers to fulfill because these hospitals usually require the providers to live or work nearby.
More troubling, however, is that the admitting privileges requirement essentially gives hospital administrators—including those who preside over Catholic hospitals that forbid any affiliation with abortion providers—the authority to determine who can provide abortions in South Carolina. The law also requires that abortion providers maintain professional affiliations with clergy who can provide their patients with counseling regardless of the beliefs of either the physician or the patient. This provision explicitly forces religion into private doctors' offices and clinics.
In February, the Center petitioned the Supreme Court to review the regulation for its grave violations of informational privacy, due process and the separation between church and state. The U.S. Court of Appeals for the Fourth Circuit had upheld the South Carolina regulation in September 2002 and the Supreme Court's refusal to review the case leaves the appellate court's decision standing.
"Patients seeking reproductive health services in South Carolina can no longer be guaranteed of the confidentiality of their health care decisions or their medical records," said Bonnie Scott Jones, a staff attorney with the Center for Reproductive Rights and lead counsel on the case. "South Carolina is denying women their constitutional right to informational privacy, and the Supreme Court has turned a blind eye to that situation," added Jones.
In a brief supporting the Center's petition to the Court, the American College of Obstetricians and Gynecologists and the American Public Health Association said the Fourth Circuit's decision "is a harbinger for the erosion of doctor-patient confidentiality in all areas of medicine....As a result, patients in South Carolina and elsewhere will face the prospect of never knowing whose eyes may be inspecting their medical records."
Weeks after the U.S. Senate passed an unconstitutional federal ban on so-called "partial-birth abortion," Virginia became the first state to follow suit when the legislature enacted, on April 2, a similar ban on "partial-birth infanticide."
The Virginia ban is similar to the unconstitutional federal ban passed on March 13, which is, in turn, similar to a Nebraska abortion ban that was struck down by the U.S. Supreme Court in Stenberg v. Carhart—a case brought by the Center for Reproductive Rights. The authors of the Virginia law attempted to sidestep the Supreme Court's decision in Carhart by replacing the word "abortion" with "infanticide"—a simple word change that fails to make the law constitutional.
In the Center's successful Supreme Court challenge to Nebraska's abortion ban, the Supreme Court ruled that the ban was unconstitutional because it would have prevented women from obtaining the safest methods of abortion and lacked a health exception. The Virginia law, which goes into effect on July 1, suffers from the same flaws.
"This is yet another attempt to impose an unconstitutional ban on abortion, and Virginia has enacted a law that suffers from the same flaws as previous unconstitutional abortion bans," said Erica Smock, legislative counsel for the Center for Reproductive Rights.
Meanwhile, Virginia has intensified its assault on young women's reproductive rights by transforming its parental notification law into one that requires minors to obtain the consent of a parent or guardian before obtaining a legal abortion. The law also requires that the consent form be notarized-a step that could compromise a young woman's privacy. Virginia Governor Mark Warner attempted, and failed, to remove the notary requirement through an amendment to the bill.
The new forced parental consent law also requires judges who grant a judicial bypass of the law to notify a parent or guardian, unless this compromises the best interests of the minor-a standard that legal experts say requires a high burden of proof. The law goes into effect on July 1.
"The Virginia legislature has launched an all-out-assault on the reproductive rights of young women," said Smock. "Laws like this undermine young women's right to privacy and jeopardize their ability to choose."
Other states have since followed Virginia's lead and attempted to scale down the reproductive rights of young women:
- In New Hampshire, a state known to be pro-choice, legislators are considering a bill requiring minors to notify their parents of the decision to undergo abortion 48 hours prior to obtaining the procedure.
- The Missouri legislature is debating a bill that would allow the parents or guardians of a minor to sue any individual who helps a minor obtain an abortion in a neighboring state if the minor does not first comply with Missouri's parental consent law.
- A bill was introduced in Arkansas that would change its parental involvement law from notification to consent.
The Center for Reproductive Rights is continuing to work with state advocates and pro-choice lawmakers to defeat or weaken these anti-choice bills, in order to safeguard reproductive rights.