Revisiting TRAP Laws: The Courts, The Clinics, and the Targeting of Women’s Rights

Anti-abortion laws have been getting smarter over the past few years.  As the courts have upheld a pregnant person’s right to choose when laws target the actual act of abortion-~-for example, the courts have struck down a series of 20-week bans across the United States-~-legislators have taken a different approach, through the use of TRAP laws.  TRAP-~-or Targeted Regulations of Abortion Providers-~-laws are, in theory, supposed to make clinics safer…but what they really do is create difficult or even impossible conditions, which result in many clinics closing down.  These restrictions can be anything from arbitrary mandatory hallway dimensions that would require expensive remodeling of clinics to requiring doctors to have admitting privileges at hospitals, or multiple hospitals.

TRAP laws have been of major concern to reproductive justice advocates, as clinics across the United States have been forced to close their doors, and pregnant people have had to travel further or risk losing out on their ability to access abortion services.  Twenty-six states have laws which regulate abortion providers beyond what is necessary to ensure patient safety, and seventeen of these states impose these requirements in facilities where surgical abortion is not even performed, only medical abortion.  That constitutes a widespread threat to pregnant people’s rights, and until recently, it seemed like TRAP laws could successfully wipe out abortion services from one state in the US: Mississippi.

The Jackson Women’s Health Organization is the only remaining abortion provider in the state.  The rest have closed their doors over the past several years, and the Jackson Women’s Health Organization has had to fight for survival.  The clinic flies in doctors from out of state, because no doctor in Mississippi will perform abortions.  It is regularly protested by anti-choice activists, but the clinic continues to provide vital reproductive health services to women from around the state.  Last week, the Fifth Circuit ruled in favor of the abortion provider, striking down a law that would have forced it to close down.

What happened?  Based on the precedent from Planned Parenthood v. Casey, the court found that eliminating ALL abortion providers within a state would constitute an undue burden, defined as a “”substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”  In the majority opinion issued by the Fifth Circuit, Judge E. Grady Jolly stated: “Mississippi may not shift its obligation to respect the established constitutional rights of its citizens to another state. Such a proposal would not only place an undue burden on the exercise of the constitutional right, but would also disregard a state’s obligation under the principle of federalism—applicable to all fifty states—to accept the burden of the non-delegable duty of protecting the established federal constitutional rights of its own citizens.”

It doesn’t end there: earlier this week, a federal judge struck down an Alabama law requiring admitting privileges, saying that the law posed an undue burden on pregnant people seeking abortion services.  The law would have closed down three of Alabama’s five abortion clinics, which, like Mississippi’s lone remaining clinic, rely on traveling doctors, who are unable to obtain admitting privileges.  In her opinion, U.S. District Judge Myra Thompson wrote that poor women were unlikely to be able to access abortion services due to their lack of access to independent transportation and resources, and that were this law to be enforced, it would pose a substantial obstacle to low-income people’s ability to exercise their rights regarding bodily autonomy and pregnancy.

This is all good news, but these are battles we have won-~-the war wages on.  Earlier this week, a federal court in Austin began hearing arguments on a Texas abortion law, now in its second time through the court system.  Previously, the courts had upheld the law on the basis that it didn’t constitute an undue burden, but in light of these more recent precedents, reproductive rights advocates are hopeful that the courts will strike down the restrictive Texas legislation.  The law has already caused every abortion provider in the Rio Grande Valley to close its doors; the closest clinic to the area is now a 500-mile round-trip drive, and while the Fifth Circuit had previously upheld the law (despite striking down Mississippi’s law, indicating the court has considered the issue on a state-by-state basis), there is a chance the court will rule similarly to the decision in the Alabama case.  It’s worth noting that in the Alabama case, the judge ruled that the law was unconstitutional even though there would still be clinics operating in the state, the increased difficulty in accessing these services still qualified as undue burden.

This won’t be the end of TRAP laws, but it could be the beginning of a real wave of progress, a chance to undue some of the damage that legislators have caused in forcing women’s health organizations to close their doors.  Though we do not yet know what will happen in the Texas case, it’s telling that the courts are beginning to consider the real implications of undue burdens, and which segments of society truly need protection.  Only time will tell if these decisions will gain momentum, leading to increased protections of the rights of pregnant people in the United States of America.

~ by Randi Saunders on August 7, 2014.

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