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INSIGHT: It’s Time to Drop the Pretense About Abortion Restrictions

Aug. 10, 2020, 8:00 AM

On June 29, in June Medical Services v. Russo (JMS), the U.S. Supreme Court struck down a Louisiana law that would have left the state with only one abortion provider. From the moment the court’s fractured decision came down, commentators began speculating and debating whether it signals a shift. Had the court moved from the balancing test applied in Whole Woman’s Health v. Hellerstedt to a more deferential test, one that would focus solely on the degree of burden imposed by a challenged restriction, without inquiring into whether that restriction serves any valid state interest?

Rather than add to this debate, I’d like to focus on how some legal commentary on the right (for example, these opinion pieces by the deputy attorney general of Idaho and the solicitor general of Indiana), frame the questions they pose about the future of abortion rights jurisprudence. This framing is a key part of the strategy used by anti-abortion groups focused on radically limiting or banning abortion.

Specifically, commentary from these groups asks whether Supreme Court precedent allows states to “regulate” abortion—but this benign-sounding term is a red herring. There is no flurry of litigation over “regulation.”

Heavily Regulated

Abortion is heavily regulated throughout this country, exponentially more so than comparably safe medications and medical procedures—and often more regulated than higher-risk care. For example, it recently came out during a trial in Virginia that the state had been frequently inspecting health centers that provide abortion (often at the behest of anti-abortion protesters), while it had not inspected dozens of hospitals for over a decade. The vast majority of abortion regulations go unchallenged and are in effect.

What abortion providers have challenged, on behalf of their patients, are certain particular restrictions that serve no medical purpose, other than to significantly hinder or prevent people from exercising their constitutional right to end a pregnancy. Many of these restrictions—such as facilities requirements or admitting privileges requirements—are sold to the public as “common-sense health and safety regulations,” but in fact are drafted by national organizations committed to ending abortion, such as Americans United for Life.

Other restrictions have been on the books for decades, predating many major medical advances in abortion care (such as the FDA’s approval in 2000 of a pill that safely induces an abortion). But anti-abortion legislators prevent their removal.

Outdated Bans

For example, most states ban non-physician licensed clinicians from providing abortion care. Many of these laws were enacted more than 40 years ago following the Supreme Court’s decision in Roe v. Wade, at a time when non-physician advanced practice clinicians (APCs), such as nurse practitioners and physician assistants, did not yet exist as a standardized, widespread professional category.

These laws served to ban abortion procedures by unlicensed non-clinicians. Today, however, APCs are a major and fast-growing category of graduate-level medical professionals, providing essential front-line care in communities across the country. APCs play an outsized role in filling the gaps left by the nationwide primary-care physician shortage.

Still, outdated APC bans remain in effect in most states. That’s despite overwhelming evidence, as well as medical consensus, among experts such as the American College of Obstetricians and Gynecologists and the National Academies of Sciences, Engineering and Medicine, that trained APCs provide early abortion care just as safely as physicians.

In light of APCs’ increasingly central role providing expert care in the medical system, allowing them to provide abortion care would expand abortion access, especially for rural communities and people of color who already face systemic barriers to health care. But for anti-abortion legislators, that’s precisely the point of keeping these medically obsolete laws on the books: to hinder access.

This is what’s at stake in the seemingly-technical debate over whether states can pass and enforce restrictions without justifying them. And the stakes are enormous. If courts turn a blind eye to whether particular restrictions are justified, then bad-faith restrictions (which are already widespread) will escalate like wildfire and virtually eliminate access to abortion in much of the country. Let’s not try to pretend these laws have anything to do with keeping patients safe.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Author Information

Alice Clapman is a litigator for Planned Parenthood Federation of America and its affiliates.