In Alabama, Access to Abortion Through the Entire South Is on Trial

The law, lawyers, and the court.
May 26 2014 11:45 PM

Caught in a TRAP

If an Alabama law and others like it stick, abortion clinics will disappear from swaths of the U.S. map.

U.S. Supreme Court Associate Justice Anthony Kennedy in the House Chamber at the U.S. Capitol on January 28, 2014 in Washington, DC.
The Alabama District Court decision will likely be a pit stop on the way to this man.

Photo-illustration by Slate. Photo by Chip Somodevilla/Getty Images

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).

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

We’ve reached the Rubicon, and if we cross it, abortion clinics will disappear from parts of the U.S. map. The weirdest thing is that the whole script has been written for an audience of one—Supreme Court swing voter Justice Anthony Kennedy. He isn’t in the courtroom to hear the testimony. But he’s the person whose view ultimately matters.

Alabama’s law is cheerily called the Women’s Health and Safety Act. It’s based on a model bill, written by Washington, D.C., anti-abortion groups and their lawyers, which has passed in whole or part in a slew of states. Over the last 40 years, the states have tried many ways to limit abortion. They’ve imposed waiting periods. Required parental consent for minors. Required ultrasounds. Stopped Medicaid from paying for the procedure. Limited private insurance coverage. Banned particular late-term procedures.

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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. “They did not want a relationship with Planned Parenthood at all,” said one doctor who testified Thursday of the state hospitals, speaking behind a black curtain and under a pseudonym, because of past harassment. “They did not want the political controversies that come with having a relationship with Planned Parenthood.”

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.

Did I mention that the American Congress of Obstetricians and Gynecologists and the American Medical Association oppose admitting privileges requirements as medically unnecessary?*

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