Abortion Clinic Shutdown Laws, Post-Whole Woman’s Health: Why Still Happening?

| Reproaction

By: Kylie Cheung

The year 2019 saw total or near-total abortion bans introduced and passed on the state-level at such an alarming rate, it’s easy to forget abortion access has been under attack since the moment the Roe v. Wade decision affirmed the federal constitutional right to abortion was released. For years, corrosive, restrictive laws purposed with shutting down as many abortion clinics as possible have ravaged access to reproductive health care across the nation.

In 2016, the Supreme Court ruled in the landmark decision Whole Woman’s Health v. Hellerstedt that abortion clinic shutdown laws pose an unconstitutional, undue burden on access to abortion care. [1] The case had been prompted by a lawsuit filed against Texas’ HB2, a law that shut down more than half of Texas’ abortion clinics within three years by imposing costly, medically unnecessary, and purposefully impossible requirements on clinics. [2] This was part of an ongoing trend, with states across the country passing their own versions, shuttering clinics at unprecedented rates and yielding mass abortion deserts, which are regions where people have to travel more than 100 miles to access abortion. This required many people seeking abortions to travel out-of-state or great distances for care. Currently, 90 percent of U.S. counties lack abortion providers, and 58 percent of American women of reproductive age live in states that are hostile toward abortion rights. [3]

The Whole Woman’s Health decision in 2016 marked a critical victory for abortion access. The only problem is, three years later, many states continue to maintain abortion clinic shutdown laws even after the ruling.

HB2, passed and enacted in 2013, required all abortion clinics to have clinicians with admitting privileges at nearby hospitals and meet facility standards of surgical health centers in the state, among other restrictive, excessive components. [4] These requirements are predicated on feigned concern for women’s health and safety, and are known to be medically unnecessary due to the highly safe nature and low complication rates of abortion services. [5] Rather than advance women’s safety, abortion clinic shutdown laws like HB2 exist to shut down clinics that are not able to meet these burdensome standards, which can be either highly costly or geographically impossible.

As a result of decreased access to key reproductive health care, Texas women’s health and living standards significantly worsened. The state currently has the highest maternal death rates in the country and the industrialized world, disproportionately impacting and claiming the lives of women of color, who are especially impacted by abortion clinic shutdowns. And research by the Center for Reproductive Rights and Ibis Reproductive Health found that in general, states with more restrictions on abortion access have significantly higher maternal death rates than states that do not. [6] Not only that, but in place of comprehensive reproductive healthcare providers, the state has funneled funding into anti-abortion fake clinics, which have do not provide comprehensive services to patients and do not fill the gap left behind by the closure of unbiased, comprehensive medical providers. [7]

Today, 25 states place especially punitive regulations upon abortion providers and go beyond “what is necessary to ensure patients’ safety,” according to Guttmacher Institute. Twenty-two states have specific requirements for size of procedure rooms and corridors, and require facilities be a certain distance from and have relationships with local hospitals, though some of these state laws have been suspended pending the Whole Woman’s Health Supreme Court decision. Fourteen states have laws that require clinics to have an abortion provider who has an affiliation with a local hospital. [8]

The following table lists which states impose which TRAP laws, as of September 2019:

States with excessive regulations for abortion providers States with requirements for procedure rooms/corridors States with requirements for hospital distance, admitting privilege States with requirements for abortion provider to have affiliation with nearby hospital
AL, AZ, AR, CT, FL, IN, KS (pending litigation), KY, LA, MD, MI, MS, MO, NB, NC, OH, OK, PA, RI, SC, SD, TX, UT, VA, WI AR, IN, LA, MI, MS, NB, OK, PA, UT AZ, AR, FL, IN, MI, MO, NC, ND, OH, PA, WI, UT; pending litigation: AL, KS, LA, OK AL, AZ, FL, IN, LA, MI, MO, ND, OK, SC, TX, UT; pending litigation: AR, KS
Total: 25 Total: 9 Total: 13 Total: 14

Guttmacher Institute, September 2019

Clearly, despite the landmark Whole Woman’s Health ruling, we still have our work cut out for us to ensure abortion remains accessible in reality, and not just a theoretical right. Whole Woman’s Health provides a critically important legal basis for abortion clinic shutdown laws to be challenged and overturned in court. But the ruling itself has not eliminated the need for advocates of abortion access to continue organizing and speaking out against abortion clinic shutdown laws in our states, and fighting for abortion access that far too many women — and disproportionately low-income, women of color — are being systematically denied.

That means in addition to fighting to protect surgical abortion clinics from being shut down, we must also advocate for increased access to and education about self-managed abortion with pills. The most recent data has shown about one-third of all abortions are self-managed through medication abortion. Reproaction proudly shares information from World Health Organization protocol about the safe and effective use of abortion pills to end a pregnancy within the first 12 weeks. [9, 10] Medication abortion empowers pregnant people to safely have their abortions on their own terms, and can be a convenient, cost-efficient alternative to traveling 100 miles or more to access a basic health care need, in the face of rapid clinic shuttering.

However, despite its approval by the Food and Drug Administration and extremely low complication rate [10], medication abortion remains excessively regulated, when it should be available for low-drama prescription just like other safe and effective pills. Specifically, as of September 2019, 34 states require clinicians who administer medication abortion to be licensed physicians as opposed to other healthcare professionals who can prescribe medications, and 18 states require that the clinician providing a medication abortion be physically present while the patient ingests the pill, prohibiting telemedicine administration. [11]

As abortion clinic shutdown laws continue to restrict access to abortion, disproportionately harming the most vulnerable communities, and pro-life lawmakers are increasingly introducing and passing abortion bans, the demystifying of self-managed abortion with pills has never been more important. In the current era, the existence of safe and effective abortion pills means that the pre-Roe days of dangerous coat hanger abortions no longer accurately describes what self-managed abortion must look like if abortion is made illegal or purposefully pushed out of reach. We must fight for both increasing the number of abortion providers within the medical system and increasing access to abortion pills, which are here to stay no matter what anti-abortion politicians do.


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