Undue burden

Emily Bazelon has about the best piece I’ve read on TRAP (Targeted Regulation of Abortion Provider) laws.  The controlling SC precedent, 1992’s Casey v. Planned Parenthood, is pretty damn clear– laws that place an undue burden (i.e., a substantial obstacle) on a woman’s ability to obtain an abortion are unconstitutional.  To this end, spousal consent, long waiting periods, etc., have been struck down as clearly an undue burden.  You know what else is an undue burden?  Laws that are designed to close a whole bunch of abortion clinics.  It is so transparent and obvious that this is the intent of these laws, thus so frustrating to see their proponents and judges pretend otherwise and that this is somehow about women’s health.  Bazelon:

Abortion is on trial this week in Alabama. Technically speaking, the witnesses are appearing before federal District Judge Myron Thompson to discuss a new state law that requires doctors who perform abortions to have admitting privileges at local hospitals. That sounds reasonable, I know, but it isn’t, and it’s also not what’s at stake. This trial is about whether poor women in red (and even purple) states will continue to have access to abortion, or whether some states will succeed in shutting down every clinic within driving distance, all in the name of protecting women (from themselves)…

But these tactics mostly seek to discourage women rather than block them entirely. And so, the new abortion restrictions have a different target—clinics. What are known as TRAP laws (for “targeted regulation of abortion providers”) make it prohibitively expensive, or simply impossible, for a clinic to operate. In Alabama, three of five clinics say they will have to close if their doctors are required to get admitting privileges from a local hospital, because no hospital will agree to give this to them…

There are a few ironies here. Aside from politics, one reason Alabama hospitals refuse to grant admitting privileges is that they only do so for doctors who live within a 30-mile radius. Both of the Alabama abortion providers called to testify travel in from out of state, because if you’re worried enough about backlash to testify behind a curtain, you probably don’t want to move in down the block.

Another reason for the hospital refusals is that the abortion providers send in too few patients to qualify, due to the low rate of complications that demand hospital care. This week’s testimony included the fact that of 2,300 abortions performed in one clinic in Birmingham in 2013, only three patients went to the emergency room. Another fact: The overall rate of abortion patients with complications requiring emergency care is .1 percent. “It’s safer than getting a shot of penicillin,” testified Paul Fine, an obstetrician-gynecologist and medical director of a Planned Parenthood affiliate serving Texas and Louisiana.

To any honest observer, it is crystal clear that theses laws are designed to place a substantial obstacle in the path of a woman’s right to an abortion and are thus, quite clearly, and unconstitutional undue burden.  The question at this point is how many federal judges– and ultimately Anthony Kennedy– are honest observers.

About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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