Targeted Regulation of Abortion Providers

Targeted regulation of abortion providers (TRAP) bills single out abortion clinics and providers and subject them to regulations that are more stringent than those applied to medical clinics generally. Unlike many restrictions intended to delay or influence a pregnant woman’s decision to obtain an abortion in the name of protecting a state’s interest in potential life, TRAP laws seek to eliminate access to safe abortion care by requiring that clinics meet medically unnecessary and sometimes ridiculous conditions (for example, the size of a janitor’s closet), thereby raising the costs of retrofitting clinics to a degree that makes running a clinic untenable.

Passed under the guise of safety and protecting women’s health, these laws make it difficult if not impossible for small, independent providers to perform abortions due to the expense and uncertainty involved in complying with onerous regulations. These laws also subject abortion providers to civil and criminal penalties and harassment in the form of multiple and unannounced clinic inspections, and interfere with their practice of medicine. In essence, these regulations, which force clinics to transform into miniature hospitals, do not reflect medical best practice standards, under which such regulations are entirely unnecessary.

According to the Guttmacher Institute, less than 0.3 percent of abortion patients in the United States experience a complication that requires hospitalization, making abortion one of the safest procedures in the country. The risk of dying from a legal abortion in the first trimester—which is when nearly nine in ten abortions in the United States are performed—is no more than four in a million. The risk of death from childbirth, by way of comparison, is about 14 times higher than that from abortion.

Given the procedure’s long track record of safety, nearly all abortions in the United States are performed in outpatient facilities such as doctors’ offices and clinics. Indeed, in 1983, the U.S. Supreme Court held in Akron v. Akron Center for Reproductive Health that requirements that abortions be performed in hospitals during the second trimester of pregnancy could not be justified on the basis of protecting the woman’s health and safety.

Nevertheless, anti-choice activists have found great success in imposing a variety of TRAP laws that create unnecessary and restrictive regulations.

There are three main categories of TRAP laws: (1) those requiring that abortion facilities (but not comparable outpatient clinical facilities) be licensed by the state and adhere to a wide range of medically unnecessary regulations governing such matters as physical construction, staffing, and procedures; (2) those requiring abortion facilities to meet the standards required for ambulatory surgical centers (ASCs), thus subjecting them to unaffordable regulations that are not necessary for outpatient facilities like abortion clinics, such as requiring surgical gurneys in clinics that do not even perform surgical (but only medical) abortion; and (3) those requiring doctors who perform abortion care to obtain special agreements with local hospitals—in the form of admitting privileges or transfer arrangements—which are often difficult or outright impossible to obtain due to the reluctance of hospitals to enter into such arrangements, and which medical consensus says are medically unnecessary.

Examples of TRAP Laws (last updated September 13, 2018)

According to the Guttmacher Institute, 23 states have laws or policies that regulate abortion providers in a manner beyond what is necessary to ensure patient safety. Each of these 23 states’ laws apply to clinics that perform surgical abortion. In 14 states, such regulations apply to physicians’ offices where abortions are performed; in 18 states, these regulations apply to clinics that provide medical abortions but do not provide surgical abortions.

Sixteen states require facilities where abortion services are provided to meet standards intended for ambulatory surgical centers, with nine states specifying the size of the room in which abortions are performed; seven states specifying the width of corridors in abortion facilities; eight states requiring abortion facilities to be within a set distance from a hospital; and eight states requiring abortion facilities to have an agreement with a local hospital in order to transfer patients if complications arise. (A total of 21 states require either an abortion facility or an individual provider to have a relationship with a hospital.)

Eleven states require abortion providers to have some affiliation with a local hospital, with two states requiring that providers have admitting privileges and ten states requiring providers to have either admitting privileges or an alternative arrangement, such as an agreement with another physician who has admitting privileges; and one state requiring the clinician to be either a board-certified obstetrician-gynecologist or eligible for certification—a standard that is clearly unnecessary since a range of providers can safely perform abortions.

As noted by the Center for Reproductive Rights, TRAP laws raise a variety of constitutional concerns. These laws may violate a woman’s constitutional right under Roe v. Wade to choose an abortion; subject women and abortion providers to unequal treatment under the law, in violation of the Equal Protection Clause of the 14th Amendment; subject abortion providers to vague criminal laws, in violation of the constitutional right to due process; infringe on abortion providers’ rights to be free from unreasonable search and seizure under the Fourth Amendment, since many TRAP laws permit health departments to inspect abortion facilities whenever the health departments choose; and, to the extent that certain state regulations permit health inspectors to view patient files, infringe on a patient’s constitutional right to informational privacy.

Laws