Abortion Rights Foes Have Weaponized Zoning Regulations. Here’s How. (Updated)

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Abortion Rights Foes Have Weaponized Zoning Regulations. Here’s How. (Updated)

Rachel Wells

Using zoning rules to hinder access to abortion services has picked up momentum as an anti-choice strategy on the local level. Reproductive rights advocates have a plan to fight back.

UPDATE, December 18, 2019, 4:58 p.m.: The ACLU, ACLU of Tennessee, and the law firm of Willkie Farr & Gallagher LLP filed a lawsuit against the city of Mt. Juliet, Tennessee in federal court on Wednesday over a zoning ordinance prohibiting surgical abortion care. The lawsuit was brought on behalf of carafem. 

Last year in South Bend, Indiana, city council members rezoned an area next to the site of a proposed abortion clinic to allow an anti-choice pregnancy center to open next door. Last month, city council officials in Mt. Juliet, Tennessee, rezoned surgical abortion clinics to industrial zones rather than commercial, pushing out a clinic that had opened a few days prior. And this month, in Lebanon, Tennessee, the city council is pushing a zoning scheme that would erode access to abortion services.

Using zoning rules and regulations to hinder access to abortion services is nothing new, but it’s picked up momentum as an anti-choice strategy in recent years as reproductive rights foes use every available tactic to make abortion inaccessible. Since 2013, nine cases of cities using local zoning ordinances in attempts to shutter abortion clinics have been reported, many tracked by the National Institute of Reproductive Health (NIRH), a leading reproductive rights organization.

When carafem, a provider of reproductive health-care services, saw an uptick of Nashville patients in their Atlanta office last year, they opened a clinic in Tennessee. People in Nashville were crossing state borders to get the care they needed after the remaining clinic in town, a Planned Parenthood facility, closed temporarily. After carafem opened in Mt. Juliet, just outside of Nashville, the city council moved swiftly, over a weekend, to change the zoning laws where the clinic was situated. In less than five minutes, Mt. Juliet council members rezoned surgical abortion clinics to industrial areas only, making abortion procedures illegal at the carafem location.

Roe is gone. The chaos is just beginning.

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In February 2014 in Manassas, Virginia, City Councilperson Marc Aveni proposed a change to the zoning code requiring abortion clinics to apply for “special use permits.” These permits would subject clinics to public hearings and city council approval. Aveni’s proposed ordinance failed in 2014, but he raised it again in 2015 and this time the ordinance passed by a 4-3 vote, pushed over the edge by Mayor Hal Parrish. The move wasn’t unprecedented; in 2013, NOVA Women’s Healthcare clinic in Fairfax, Virginia, was forced to apply for a new location due to burdensome targeted regulation of abortion providers, or TRAP laws. During their application process, the city council introduced a new term to their zoning categories: “medical care facilities” ultimately requiring clinics to obtain an expensive special use permit and city council approval. NOVA’s permit was subsequently denied, and the clinic closed in June 2013.

Jenny Dodson Mistry, senior manager of special initiatives at NIRH, believes it can be easy to miss policy trends on the local level versus the state level, where attacks on abortion are more visible. As the only national reproductive rights organization with a focus on local policy, the NIRH tracks local policy, including the misuse of zoning ordinances, informs the broader movement they are happening, and develops resources to support local pro-choice advocates.

“We know our opponents are trying to find ways to push abortion out of reach through every level of government, and that they have been pushing their anti-abortion agenda at the local level for decades,” Dodson Mistry said. “That’s why NIRH invests not just in proactive local policy, but in also providing local elected officials and their supporters with the resources they need to identify attacks on access to abortion care and be prepared to respond.”

To assist advocates and lawmakers in supporting this work, the organization developed the Local Reproductive Freedom Index report, an initiative that evaluates the reproductive health, rights, and justice policies of 40 U.S. cities.

Rewire.News spoke to national, state, and local reproductive justice and rights advocates to understand how the community at large believes it can win against these growing local threats with a multi-tiered approach beginning with proactively working with city governments, building relationships with stakeholders, increasing municipal policy education for state and local advocates, and integrating with other social justice organizations.

Taking Proactive Steps Toward Safety

In the case of South Bend, Indiana, mayor and now Democratic presidential candidate Pete Buttigieg vetoed the city council’s decision to allow the anti-choice clinic to open next to the slated abortion clinic. “I don’t think it would be responsible to situate two groups, literally right next to each other, in a neighborhood, that have diametrically opposed views on the most divisive social issue of our time,” Buttigieg told reporters, according to the South Bend Tribune. “I saw data that there was about triple the rate of violence or harassment issues when a clinic is located next to a crisis pregnancy center…that was obviously a concern that got my attention.”

It’s in situations like this that advocates believe proactive conversations, education, and ordinances can make the biggest impact. By focusing on constituents’ safety, local politicians can drive future challenging conversations toward the tangible impacts of a community instead of wading into abortion rights, an issue they face less often on a local level and therefore are typically less accustomed to dealing with. Heidi Gerbracht, founder of Equity Agenda, a national organization focusing on public policy and working with municipally elected officials, said leaders should reinforce the need to protect their citizens first. This creates clear boundaries.

Protecting citizens includes safeguarding access to important health-care services. In New York City, creating protections means integrating Roe and forward thinking. “Those who are fighting to limit women’s access to abortion have now set their sights on creating ‘no abortion zones.’ This is all the more reason that it’s critical that places that can be proactive, like New York, take the lead on enshrining Roe into our laws and defending our health-care clinics on the ground,” said Sonia Ossorio, president of the National Organization for Women in New York, referring to New York Democrats passing the Reproductive Health Act in January.

What does this mean in action? Gerbracht believes cities and towns should embrace the planning aspect.

“Taking proactive steps in city planning to re-incorporate abortion services into more mixed-use settings (e.g. in buildings or otherwise close to where people are getting haircuts and/or eating in restaurants, etc.) would help protect the folks accessing and providing abortion services,” she said.

Prioritizing land use in these conversations makes sense to Gerbracht. “The combination of real estate professionals and urbanist activists could be really powerful in terms of thinking proactively,” Gerbracht said.

Strengthening Ties With Local Politicians

In 2012, Gerbracht was responsible for the passing of an ordinance in Austin, Texas, for an anti-choice clinic, or crisis pregnancy center (CPC). The ordinance requires CPCs, staffed by anti-choice activists who often lie to pregnant people, to display a sign on their front door, in English and Spanish, indicating that they did not perform abortion or refer patients to abortion providers. After the ordinance passed, Gerbracht galvanized other Texas cities to enact similar ordinances to strengthen the case if and when it was presented.

She struggled to get that done, and the Austin ordinance was eventually reversed when a federal judge struck it down in 2014. Still, Gerbracht believes if allies and like-minded council members from municipals across the state were more connected, the outcome could have been different. “We [Austin] were kind of hanging out there by ourselves. However, I am certain that Houston, Dallas, and even El Paso and other smaller towns have people on their city councils who support Planned Parenthood and never thought for one minute that there was something they do on the council level,” she said. “This just isn’t an issue they encounter very often.”

Dodson Mistry agrees enrolling local decision makers into the conversation early can not only protect a city’s reproductive rights but also encourage creative, proactive action. “Unfortunately, abortion clinics are the only entity that we know of who are targeted in this way, so it is up to us to develop new policies and innovative strategies for responding,” she said. “However, we can certainly learn from our allies in economic justice, immigrants’ rights, and LGBTQ+ rights, among others, who have been leaders in changing the conversation on their issues using proactive local policy.”

Educating Advocates on Municipal Policy

Millennials in the United States are more actively involved in addressing the social issues they care about than ever before. Of the 3,000 millennial respondents in The Millennial Impact Report those who label themselves as “activists” have greater confidence in their abilities (71 percent) and of organizations’ abilities to create change. Millennials performed supportive actions (voting, protesting, signing petitions, etc.) most often toward local causes and didn’t abandon them even when supporting national societal issues. The foundation has been set; the groundswell is here.

Rebecca Gorena, field director for Unite for Reproductive & Gender Equity (URGE), a national pro-choice organization that focuses on giving young people advocacy tools, believes their power is underestimated. “Young organizers are so creative and have shown time and again they are committed to fighting harmful policies proactively. If we invested municipal and zoning knowledge in them, we would have a whole new batch of field experts, activists, and policy advocates, ” she said. “There are many opportunities for wins; if we shifted some of our resources and focus onto strategizing that way, we could really have something on our hands.”

If in Nashville there were a group of activists who’d spent time in zoning or land use training, Gerbracht believes the carafem outcome in Mt. Juliet could have potentially been different. “If the reproductive rights movement had more folks educated about land use and local government in cities and towns, we would have had a heads up in advance of the [city council] meeting, our national network would support local advocates, and local advocates could rally to show up to register opposition. Most importantly, local advocates would have the tools and arguments to make their case effectively,” she said. “It’s not just about being in favor of abortion rights; smart land use planning does not support putting medical services of any kind in solely industrial areas. We may not have won, but we could have made it much harder for them to pass this.”

The NIRH and Guttmacher Institute offer toolkits and resources on creating change for local advocates; what’s missing in many cases is a stronger link between like-minded advocates in states, cities, and neighboring towns. “If it is within their capacity, state-based reproductive health, rights, and justice organizations should have both a municipal and state-level strategy for their state,” Dodson Mistry said. “Reproductive freedom advocates can also collaborate with the many other progressive movements that are happening on the local level, such as the fight for a living wage or for protections for undocumented immigrants so that advocates can support the fight for policies that benefit their communities while building stronger coalitions.”

Integrating With Social Justice Organizations

The reproductive justice movement, separate from reproductive rights, is intrinsically tied to socio-economic equality, education, and health-care access. The term reproductive justice, a combination of reproductive rights and social justice, was coined by a coalition of women-of-color organizations when they realized the larger pro-choice movement wasn’t accurately representing their concerns, according to Kimala Price’s 2010 essay, “What is Reproductive Justice? How Women of Color Activists Are Redefining the Pro-Choice Paradigm.”

In Tennessee, Brianna Perry and Anna Carella are co-directors of Free and Health Tennessee, a coalition of agencies, organizations, and individuals, promoting sexual health and reproductive freedom in the state. The coalition works on mostly state-level issues because the threat of Republican legislators overriding progressive local laws is ever present.

Carella brings up the recently passed Nashville Police Department Community Oversight Board as a cautionary tale for activists. “Individuals used everything they had to garner 8,000 petition signatures [to get the COB proposal onto the ballot for a vote], they knocked on so many doors, it was such a huge lift to get it passed; and it passed and was immediately rolled back by the state,” she said.

Many women who couldn’t afford traditional health care in Fairfax, Virginia, relied on NOVA Women’s Healthcare for access to birth control, Pap smears, and breast cancer screenings, among other services. When the clinic shuttered due to rezoning, access to life-saving health care went too. “NOVA Women’s Healthcare provided medical services to thousands of women,” Alena Yarmosky, a spokesperson for NARAL Pro-Choice Virginia, told the Washington Post. “It was the largest abortion provider, but thousands of women also relied on them for birth control and other health care, and they went to NOVA because they could not afford care otherwise. Now they are left without their trusted health-care provider, in part due to politicians. It’s definitely a loss.”

Perry believes if advocates don’t put intersectionality first in building power across cities leading to the state level, the movement will falter. “We see social justice organizations working on a variety of issues like economic justice, electoral work, and environmental justice. A lot of that work is done at the city level,” she said. “We need to show people how to highlight intersections, what’s at the root of these things, these attacks on our bodies. We are building out a broader movement highlighting the intersections because we lose when people don’t see them.”

“Building up power” as Perry refers, takes carefully constructed coordination not only between multiple social justice groups but between cities and towns across regions. Gorena believes having regional insights based on local advocacy groups and leaders can help other nearby towns develop their own successes. “Municipal governments are each unique so we need to be able to figure out how to zoom in and understand the specificities of the cities/regions we are trying to do this work in,” she said. “There isn’t a need to reinvent the wheel; we need to collectively work together and find overlaps with other progressive groups doing similar work.”