Virginia's Targeted Regulations of Abortion Providers: The Attempt to Regulate Abortion out of Existence

By Greenier, Katharine; Glenberg, Rebecca | Washington and Lee Law Review, Spring 2014 | Go to article overview

Virginia's Targeted Regulations of Abortion Providers: The Attempt to Regulate Abortion out of Existence


Greenier, Katharine, Glenberg, Rebecca, Washington and Lee Law Review


Table of Contents

I. Introduction 1234

II. The Emergence of TRAP in Virginia 1238

A. At the General Assembly 1238

B. Administrative Process 1240

III. Legal Flaws in the Adoption of TRAP 1242

A. Statutory and Regulatory Background 1243

B. Virginia's Administrative Process Act 1244

C. Adoption of the TRAP Regulations 1245

D. Additional Legal Defects 1248

IV. TRAP Undermines the Constitutional Right to Abortion 1249

V. The New Regulations for Women's Health Care Centers in Virginia Are Unnecessary and Unrelated to Health and Safety 1252

VI. The Effect of TRAP in Virginia, Including TRAP'S Impact on Access to Abortion for Low-Income Women 1256

VII. Where Do We Go from Here? 1259

VIII. Conclusion 1261

I. Introduction

After forty years of providing safe, trusted reproductive health care, Hillcrest Clinic in Norfolk, Virginia, closed April 20, 2013.1 The clinic, which opened in October 1973, just nine months after the Supreme Court decided Roe v. Wade,2 was the first ever medical facility in South Hampton Roads to provide legal abortions.3 A bomber, an arsonist, and an antichoice extremist firing two dozen bullets into the clinic could not close Hillcrest's doors.4 What did? Burdensome, discriminatory government regulations that imposed requirements unrelated to patient safety only on doctor's offices and clinics providing first-trimester abortions.5 The clinic's director, Suzette Catón, said that it would have cost the clinic $500,000 to install the new physical plant requirements, including new ventilation and temperature controls,6 required by the rules, none of which were required to provide good medical care.7 The onerous and unnecessary regulations Caton cited are called Targeted Regulations of Abortion Providers (TRAP).8

Antichoice movement leaders unable to ban abortion using lawsuits, intimidation, or, in some cases, violence have now turned to a strategy of seeking to regulate abortion providers out of existence, achieving indirectly what they couldn't accomplish directly, particularly with respect to first-trimester abortions, which enjoy the greatest protection under Roe v. Wade9 TRAP laws are one of the regulatory initiatives the purpose of which is to eliminate all access to legal abortions by making it physically or economically impossible for doctors and clinics to provide these services.10

TRAP laws require women's health centers that provide firsttrimester abortions to follow more stringent regulations than other similar outpatient medical facilities.11 One common TRAP law requires that women's health centers meet the standards of Ambulatory Surgical Centers (ASCs),12 which perform outpatient procedures that are more invasive and more risky than abortion.13 These regulations generally cannot be met by doctors' offices or outpatient clinics and go far beyond what evidence-based medical practice guidelines would require to assure quality care and patient safety.14 By either forcing some centers to close because they cannot meet the new requirements or by driving up the cost of abortion procedures so much that some women can no longer afford them, TRAP laws make a woman's constitutional right to abortion illusory by imposing insurmountable obstacles on access to abortion.15

The right to decide whether and when to be a parent is essential to women's equality. As the Supreme Court noted, without the ability to control their reproductive lives, women cannot participate fully and equally in society.16 In order to ensure women's equality, attempts to restrict reproductive rights must be seen for what they truly are-measures aimed, incrementally and state by state in a coordinated nationwide strategy, to make abortion legal in name only by cutting off access to abortion procedures.17 TRAP is one such strategy.18

First-trimester abortion is and should be seen as just one service among the full array of comprehensive women's health services. …

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