Seeking common ground in the abortion regulation debate.

• Author: Ettinger, Jessica Arden

INTRODUCTION

Texas State Senator Wendy Davis drew national attention in June 2013 when she staged one of the longer filibusters in United States history--nearly eleven hours--in an effort to prevent a vote on pending legislation that would "ban[] abortions after 20 weeks of pregnancy in Texas, severely limit[] access to medication-induced abortions and regulate[] first-trimester abortion clinics as ambulatory surgical centers." (1) Repeatedly during her filibuster, Davis asked her colleagues to describe the ways in which the legislation would achieve its stated purpose of increasing women's safety. (2) In particular, she questioned how the requirement that "clinics be regulated in the same way as ambulatory surgical centers" would increase women's safety when not all Texas abortion clinics provide surgical abortions. (3) Davis received no response. (4)

The fervor currently surrounding abortion legislation in the United States, and, specifically, the requirement that abortion clinics be held to ambulatory surgical center standards, form the topic of this Note. The strongest criticism of these regulations is that they are motivated by legislators' efforts to close clinics, rather than to ensure maternal health and safety. (5) As of November 4, 2014, the Guttmacher Institute (6) identified facility regulations in twenty-five states that "go beyond what is necessary to ensure patients' safety." (7) In more than half those states, the regulations apply to all abortion clinics equally, those in which surgical abortions are performed and those in which no surgical abortions are performed (clinics providing only medication-induced abortions). (8)

This Note argues that requiring abortion clinics to adhere to the same standards as ambulatory surgical centers is unconstitutional, at least in the context of those clinics that provide only medication abortion, because it unduly burdens a woman's right to choose whether to obtain an abortion. Although there may be a rational basis to require abortion clinics offering surgical abortion procedures to meet surgical facility standards, no such basis attends the imposition of those requirements on clinics that provide non-surgical services. Given the number of clinics that continue to close in the face of this new regulatory legislation--which significantly reduces access to abortion services, increases their cost, and makes them logistically more difficult to procure due to increased geographic travel--it is arguable that even requiring surgical abortion clinics to meet ambulatory surgical center standards will result in an undue burden.

At the same time, however, state legislators have a valid interest in ensuring that abortion procedures are conducted in a safe manner. Although abortion clinics currently are subject to regulatory oversight outside the realm of state-specific statutes, the requirements currently in place govern the privacy of patients' health records, (9) laboratory testing practices, (10) and workplace health and safety, (11) but do not address directly the regulation of surgical procedures. (12)

In light of the constitutional problems embedded in current state efforts to regulate abortion clinic facilities and the shortcomings of federal regulatory efforts, it may be time to entertain a different approach to abortion clinic regulation. Part I presents the legal framework and standards currently governing abortion legislation. Part II utilizes this foundation to evaluate current problems in state regulatory practices, spotlighting two pieces of recent state legislation that seek to impose ambulatory surgical center standards on all abortion clinic facilities within their borders. Lastly, Part III introduces and outlines an alternate means of regulation--accreditation--that offers common ground in the abortion debate by serving everyone's interest in providing safe, accessible medical services to women.

1. WHO REGULATES ABORTION CLINICS?

   The federal and state governments concurrently regulate abortion practices and the facilities in which those practices take place. This Part introduces the legal framework for abortion regulation, presenting the basic premise of the undue burden standard and the preference for as-applied challenges--rather than facial challenges--to abortion legislation.

   1. Recent State Regulations of Abortion Clinic Facilities

      Recently, multiple states enacted laws restricting the facilities in which physicians perform abortions to hospitals and clinics that meet the standards of ambulatory surgical centers. These pieces of state legislation require abortion clinics to obtain state health department licenses, meet heightened administrative and facility standards, and mandate hospitalization for abortions performed after a threshold date in the second trimester. (13) The prochoice movement dubbed such regulations "TRAP" laws--Targeted Regulation of Abortion Providers--on grounds that the laws single out "doctors who provide abortions, and impose on them requirements that are different and more burdensome than those imposed on other medical practices." (14) Under these regulations, private physicians' offices that do not offer abortion services are not required to obtain the same state licenses, (15) and those facility regulations imposed on abortion providers are "not imposed on other medical facilities." (16)

      Although many disagree with these new regulatory measures, the Supreme Court has been quite clear that states have the power to regulate abortion practices in light of the legitimate governmental interests in maternal safety and the promotion of life. In Planned Parenthood of Southeastern Pennsylvania v. Casey, (17) the Supreme Court restored to the states much of the regulatory power they lost under Roe v. Wade (18) by replacing the trimester framework with an "undue burden standard." (19) The Casey Court described this standard as "shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." (20) Accordingly, a statute whose purpose is not to "inform the woman's free choice, [but] ... hinder it" (21) will be held invalid, as will a statute that furthers one of the state's legitimate interests but "has the effect of placing a substantial obstacle in the path of a woman's choice." (22) This new standard lowered the level of protection that Roe initially secured: post- Casey, the courts will uphold any state regulatory measure that does not pose a "substantial obstacle" to a woman's decision to obtain an abortion. (23) In designing regulatory measures in furtherance of the legitimate interest in maternal health, the state may consider both the physical and psychological consequences of having an abortion and legislate accordingly. (24) As such, the majority of discussion today centers on whether the state regulation imposes a "substantial obstacle" on a woman's ability to obtain an abortion. (25)

      This regulatory power extends to the facilities in which abortions are performed. In Simopoulos v. Virginia, (26) the Court held that Virginia's requirement that "second-trimester abortions be performed in licensed clinics is not an unreasonable means of furthering the State's compelling interest in 'protecting the woman's own health and safety.'" (27) Though this decision came down prior to Casey, Casey did not overrule Simopoulos. To the contrary, the Casey Court specifically included Simopoulos in a string citation of cases supporting its conclusion that "only where state regulation imposes an undue burden on a woman's ability to make this decision [to obtain an abortion] does the power of the State reach into the heart of the liberty protected by the Due Process Clause." (28)

      Recognizing the states' ability to regulate abortion clinic facilities, the question becomes whether the new requirement that abortion clinics satisfy the facility standards for ambulatory surgical centers is in furtherance of the legitimate interest in maternal safety and, if so, whether such regulations impose an undue burden on a woman's ability to seek an abortion. As of November 4, 2014, twenty-three states required abortion clinics to meet the facility standards for ambulatory surgical centers. (29) Ambulatory surgical centers are clinical facilities that provide same-day outpatient surgical care. (30) Although each state dictates additional requirements, at a minimum, every ambulatory surgical center must have "at least one dedicated operating room and the equipment needed to perform surgery." (31) Given that most ambulatory surgical centers provide care to patients covered by Medicare, they generally are subject to federal governance and must comply with standards established by Medicare itself, (32) which include regulations on "facility design [and] patient care." (33) In addition, the centers must comply with state-specific regulations and the Health Insurance Portability and Accountability Act (HIPAA). (34)

      Indeed, prior to this new legislation, all non-hospital clinics providing abortion services were and continue to be subject to the regulations imposed by HIPAA, the Clinic Laboratory Improvement Amendments (CLIA), the Occupational Safety and Health Administration (OSHA), and state and local building and fire codes. (35) HIPAA regulations govern the privacy of patients' health records and provide a mechanism for dealing with breaches of that privacy. (36) CLIA regulations cover laboratory-testing practices "on specimens derived from humans for the purpose of providing information for the diagnosis, prevention, treatment of disease, or impairment of, or assessment of health." (37) Finally, OSHA holds employers in all industries accountable to "workplace health and safety standards," (38) as established and promulgated by agency and state-approved plans. (39)

      Aside from these federal regulations, many abortion clinics also are...