In a recent op-ed in the New York Times, Valerie Peterson detailed her experience struggling to get access to an abortion in Texas. Petersen, a mother of two, found that she was pregnant with a fetus with alobar holoprosencephaly, or the failure of the brain to split into two halves. The fetus had no chance of survival, and Peterson opted to seek legal abortion. Due to the scarcity of abortion clinics in Texas, she would have had to wait up to four weeks for an abortion, at which point the procedure would require three visits, for mandatory counseling, a sonogram, and a 24-hour waiting period. Furthermore, at 16 weeks pregnant there was a real risk that waiting for an appointment would take her over the 20-week limit at which point most abortions in Texas are prohibited.
Faced with these complications, Peterson chose to travel to Florida the very same week, spend nearly $5,000 out-of-pocket, and obtain a legal abortion with fewer hurdles. Why was obtaining a constitutionally protected medical procedure such an ordeal? Unfortunately, Texas, like many other states, has implemented a variety of restrictions that make legal abortion difficult to access.
The 1973 Supreme Court ruling in Roe v. Wade established the nationwide legality of abortion, granting women complete freedom of choice during the first trimester of pregnancy and permitting limited state-level restrictions during the second and third trimester. While Roe v. Wade is the law of the land, anti-choice state lawmakers have attempted to restrict and even criminalize abortion.
“Targeted Restriction of Abortion Providers”, or TRAP laws, have been particularly insidious and effective methods of limiting women’s ability to access abortions. These laws, passed under the pretense of improving safety and maternal-fetal health, make it increasingly difficult for women to obtain abortion services. Common TRAP laws include requiring medical practices that perform abortions to conform to more stringent licensing requirements than other facilities, mandating onerous waiting periods or repeat visits not required for other medical procedures, or restricting the administration of FDA-approved abortion-induction medications.
Texas implemented some of the most restrictive TRAP laws in the United States in 2013 before the laws were struck down by the Supreme Court in 2016. The story of the laws paints a stark picture of what happens when states restrict abortion—women’s health suffers. As the data shows, TRAP laws do not make women safer. Rather, these laws that claim to protect women actually harm maternal health by making pregnancy more dangerous and posing barriers to safe and legal abortion.
First, Do No Harm
Empirically, childbirth is a more dangerous experience than legal abortion. The Centers for Disease Control track yearly abortion-related and pregnancy-related mortality. While pregnancy-related mortality has actually increased steadily since the late 1980s, abortion-related mortality has stayed nearly constant. Childbirth is already a fairly safe undertaking, with just over 15 pregnancy-related deaths per 100,000 live births, yet this mortality rate is over 20 times the mortality rate for legal abortion.
Figure 1: Abortion-Related and Pregnancy-Related Mortality Over Time; Source: CDC
This data shows that abortion is not truly a driver of maternal mortality relative to childbirth, and that TRAP laws are not necessary to improve safety. Moreover, by restricting access to legal abortion, TRAP laws may drive women to illegal abortion—a procedure that is far more dangerous. Estimates suggest that prior to Roe v. Wade, women in the United States obtained 1.2 million illegal abortions annually, leading to 5,000 deaths per year. This amounts to an abortion-related mortality rate of 416 deaths per 100,000 illegal abortions, a rate close to 700 times higher than the mortality rate for legal abortion in the United States. Clearly, legal abortion is safer than childbirth, yet rather than focus on improving comprehensive maternal care, legislators often simply attempt to restrict abortion.
Texas on TRAP
For an indication of the effect of TRAP laws, look to Texas, where House Bill 2 forced massive clinic closures and increased late-term and surgical abortions. The 2013 bill was an omnibus abortion regulation law with four main provisions. First, all abortion providers were required to have admitting privileges for their patients at a hospital within 30 miles in order to facilitate transfer of patients; second, all abortions after 20 weeks were banned except in cases of fatal fetal abnormality or where the life of the mother was endangered; third, the use of medical (non-surgical) abortion after seven weeks was prohibited despite evidence-based guidelines allowing later use, and its use required multiple return visits to the clinic; fourth, all abortion facilities, even those performing only medical abortion, would be required to meet the licensing requirements of ambulatory surgical facilities.
In November 2013, the first three requirements were implemented. The fourth was temporarily blocked due to judicial challenges, and then briefly enacted in 2014. When the Supreme Court agreed to hear Whole Women’s Health v. Hellerstedt, the clinics were granted a stay on meeting the new requirements, allowing them to continue normal operations. Then in 2016 the Court ruled 5-3 to strike down HB2. While Texas clinics and abortion providers could celebrate their renewed freedom to continue providing legal abortion, and advocates for choice were relieved by the precedent the court had set in striking down HB2, it is important to recognize that the law made it extraordinarily difficult for Texas women to obtain abortion between 2013 and 2014 when it was in effect.
Prior to HB2, there were 41 clinics providing abortion in Texas, in July 2014 only 20 remained open. During the period when the ambulatory surgical center licensing requirement was enforced, only eight clinics were able to provide services. Additionally, the percentages of late-term and surgical abortions increased, and women were forced to travel further to obtain legal abortion. In her concurring opinion on the Court’s ruling, Justice Ruth Bader Ginsberg observed that “many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory surgical-center or hospital admitting-privileges requirements.” For this reason, she and the Court found that “it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law would simply make it more difficult for them to obtain abortions.”
TRAP’s Immediate Impact
In the aftermath of HB2’s passage, the percentage of early medical abortions in Texas plunged, while the percentages of first and second trimester surgical abortions increased. In 2012, prior to HB2, the restrictions on early medical abortion were less stringent and women used it roughly three times as often as they did in the period from 2013 to 2014 when HB2’s restrictions were in effect. Since early medical abortion requires neither invasive procedures nor suction instruments, there is no risk of injury to the cervix or uterus as there is with surgical abortions. Early medical abortions also afford women increased privacy, another important reason to ensure its availability.
Figure 2: Percentages of different types of abortions in Texas Pre-HB2 and during HB2, Source: Grossman, Daniel et al. “Change in Abortion Services after Implementation of a Restrictive Law in Texas.” Contraception 90.5 (2014): 496–501. PMC. Web. 23 Dec. 2016.
Furthermore, second trimester abortions account for two-thirds of all abortion complications, despite the relatively small percentage of procedures that they comprise. Evidently, earlier term abortions are safer, and should be prioritized in a system designed to improve women’s safety. Unfortunately, HB2’s implementation did just the opposite for women in Texas, despite its purported aim of improving safety.
TRAP’s Total Effect
Due to clinic closures, HB2 also dramatically increased the distance most women had to travel to reach a clinic. Specifically, the temporary enforcement of HB2 forced the closure of every abortion clinic in the Rio Grande Valley, and all but one in West Texas. Incredibly, for Texas women, the average travel distance to a clinic increased from 14 to 70 miles. During oral arguments in Whole Women’s Health V. Hellerstedt, Texas Solicitor General Scott Kelley argued that women in West Texas could simply visit a clinic in neighboring New Mexico. Justice Ginsberg was quick to note the inconsistency in mandating policies supposedly designed to protect women’s safety while simultaneously encouraging women to travel out of state to clinics that do not require those same policies; however, this rebuttal missed an even larger concern—abortion is getting harder and harder to access, no matter what state a woman lives in or travels to.
The number of TRAP laws in existence nationwide is increasing drastically, and access to abortion is being eroded more rapidly than ever. Between January 2011 and July 2016, states enacted 344 abortion restrictions, accounting for 30 percent of all abortion restrictions passed since Roe v. Wade legalized abortion. There are 43 states which set points in pregnancy past which abortion is illegal, 32 states which restrict the use of public funds for abortion for Medicaid recipients, and 45 states which allow individual providers to refuse to provide abortions. These are just a few of the many TRAP laws in effect throughout the United States.
Figure 3: Number of States with Various TRAP Laws as of December 1st, 2016, Source: Guttmacher Institute
Moreover, there is significant variation in legislative restriction of abortion between the states. While the state of Vermont maintains zero of the 21 types of laws categorized above, Oklahoma and Indiana each maintain 16.
Figure 4: Number of TRAP Laws by State as of December 1st, 2016, Source: Guttmacher Institute
Ultimately, Roe v. Wade may be the law of the land, but due to laws enacted at the state level, women across the United States have very different access to legal abortion services.
The Future of TRAP
Texas Attorney General Ken Paxton insisted that “if [HB2] is upheld, women in Texas will be safer. If any part is struck down, women in Texas will be less safe, and that would be a tragedy.” However, the true tragedy is the erosion of abortion rights caused by TRAP laws. Masquerading as a necessary safety measure, TRAP laws actually harm women’s safety by increasing later-term, riskier abortion procedures, and curtailing access to abortion clinics.
As Peterson, who was forced to travel to Florida to obtain an abortion, wrote, TRAP laws mean that “women are risking their jobs, spending their life savings, driving hundreds of miles, crossing state lines as [she] had to—all to exercise a right that the Constitution protects.” While the Supreme Court’s rejection of Texas’ HB2 sets an important precedent of invalidating TRAP laws and preserving access to abortion, the right to choose is far from secure. TRAP laws continue to exist across the country and to be introduced in state legislatures, demonstrating that abortion may be theoretically legal, but actually obtaining safe and legal abortion can be incredibly difficult.
Image Source: Akshaya Annapragada