The right of a woman to choose abortion is being hampered by rising controls in conservative states and is expected to be further constrained by the appointment of Brett Kavanaugh to the U.S. Supreme Court, according to experts.
Limitations are currently so onerous in some states that they could ultimately create a divide in which abortions are available only in large cities and the East and West Coast states.
Targeted Restrictions on Abortion Providers, also known as TRAP laws, are reportedly wrapping some abortion clinics in red tape, such as paperwork or petty requirements that hallways be a certain width. Some states are delaying abortions with a two-day waiting period, licensing schemes or parental consent laws.
“Abortion providers are burdened until it’s no longer feasible for clinics to stay open,” said Andy Ayers, assistant professor and director of Albany Law School’s Government Law Center in New York.
So far, at least seven states have curtailed widespread access.
“By our count, Kentucky, Mississippi, North Dakota, South Dakota, West Virginia, Wyoming and now Missouri only have one abortion clinic in the state,” said Rebecca Wind, associate director of communications with the Guttmacher Institute.
In Virginia, the identity of an abortion practitioner was sealed by court order on August 20 as a protection against harassment while a complaint filed by a coalition of abortion advocates lead by the Center for Reproductive Rights is litigated in the Eastern District.
“It’s a climate, depending on the politics where you live, in which abortion providers may be worried about safety if their name or identity is disclosed,” said Professor Jessie Hill, who teaches constitutional law and reproductive rights at Case Western Reserve University.
“Physicians can get protesters at their home, people following them or their kids can be targeted.”
These obstacles have emerged despite the constitutional right to abortion afforded by U.S. Supreme Court cases, such as Roe v Wade in 1973, Planned Parenthood v Casey in 1992 and Whole Woman’s Health v. Hellerstedt in 2016.
The most recent, the June 27, 2016, U.S. Supreme Court decision, states that the challenged provisions of Texas law H.B. 2 close most of the abortion facilities in Texas and place added stress on those facilities able to remain open.
“They vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.”
Although it should apply to all states, the 2016 SCOTUS ruling isn’t effectively resolving the differing opinions that have emerged in various federal circuit courts in recent years and may land abortion rights back in the lap of the U.S. Supreme Court.
“Even though impeding access to abortions was settled as unconstitutional, federal circuit courts in Louisiana, Arkansas and Missouri found ways to distinguish their cases based on facts on the ground in those states,” Ms. Hill told PacerMonitor. “It’s an interesting development that’s playing into the outcome of the Virginia lawsuit because of these other decisions that were issued after the Texas victory.”
In Louisiana, the 5th circuit decided in June Medical Services v Gee that the state’s admitting privileges law are not as burdensome as was deemed in the state of Texas.
In Arkansas, the 8th Circuit vacated and remanded a lower court decision in Planned Parenthood Arkansas v Larry Jegley, which granted Planned Parenthood a preliminary injunction preventing the state of Arkansas from enforcing a contract-physician requirement.
In Missouri, the 8th Circuit reversed a lower court’s decision that banned the state from requiring abortion clinics to be ambulatory surgery centers and requiring physicians who provide abortions to have admitting privileges at local hospitals.