In Alabama, "Back Door" Restrictions on Abortion and Roe

JURIST Guest Columnist LaJuana Davis of the Cumberland School of Law evaluates the implications of legislative efforts in Alabama and other states to restrict access to abortions...
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Alabama's recent passage of the Women's Health and Safety Act joins a wave of state abortion reform laws requiring abortion clinics to meet the same building and licensing standards as outpatient surgical care facilities. Supporters of Alabama's law say that it imposes critical safeguards for women's reproductive health care centers. Detractors say laws like Alabama's are back-door restrictions on the right to have an abortion. Ten states have passed or are considering legislation like Alabama's, including Arkansas, Arizona, Florida, Kansas, North Carolina, Mississippi, North Dakota, Oklahoma, Tennessee, and Virginia, according to the Pew Center. Lawmakers intend to force the US Supreme Court to reexamine its 1973 decision in Roe v. Wade, which held that abortion is a constitutionally-protected privacy right.

Alabama's Women's Health and Safety Act is a plank of the House Republican Caucus' 2013 platform called "We Dare Defend Our Right to Life," to address "[q]uestionable Supreme Court rulings [that] have eliminated the state's ability to prohibit abortions altogether." The sponsor of Alabama's law, Rep. Mary Sue McClurkin, told an Alabama newspaper [Paywall] that the law was needed to protect women because "[w]hen a physician removes a child from a woman, that is the largest organ in a body."

The Women's Health and Safety Act is among the most restrictive state laws for abortion providers. The law requires that within six months, the state's five reproductive health centers must provide the same patient care and meet the same building codes as ambulatory surgical clinics. Alabama clinics will likely have to add rooms, widen doorways to accommodate stretchers, and add pipelines for anesthesia.

The Alabama law also requires reproductive care clinics to report the name of the father of an unborn child to police when a patient is under age 16. The doctor performing an abortion on a minor must also contact the county department of human resources if the father is more than two years older than the minor. If a minor patient initially refuses to name the father, the law directs the clinic to encourage the minor to do so, consistent with state child abuse reporting requirements.

The provision that that will likely have the most impact, however, is the regulation of doctors who work at reproductive health care centers. The law mandates that every physician at a clinic where abortions are performed must have staff privileges at a hospital within the clinic's metropolitan area. Alabama law previously required that only one doctor at a clinic have admitting privileges at an area hospital. The admitting privileges requirement is difficult for reproductive health centers to meet: hospitals with religious affiliations commonly refuse admitting privileges to OB/GYNs who perform elective abortions. A federal court recently stayed the enforcement of a similar Mississippi law after no area hospital would admit doctors who worked in that state's only abortion clinic. In places where there are few in-state doctors willing to perform abortions, clinics must seek out-of-state physicians who are willing to travel. Given the controversy surrounding abortion issues, even local hospitals that have no religious affiliation may be reluctant to grant admitting privileges to out-of-state doctors for abortion care.

Opponents call such state abortion reform laws TRAP laws (Targeted Regulation of Abortion Providers). The goal of TRAP laws, argue organizations such as the Center for Reproductive Rights, is to do incrementally what Roe prevents states from doing directly: ban abortions. Pro-choice advocates say that these measures make providing abortions so expensive and burdensome that clinics will be forced to close. They also argue that the new laws' building codes and surgical care requirements are also medically unnecessary, pointing to CDC reports that of 784,507 legal abortions performed in the United States in 2009, twelve women died as a result of the procedure.

Some states have passed more stringent abortion statutes, such as banning abortions when there is a fetal heartbeat, which can occur as early as six weeks after conception and recognizing fetal "personhood," which protect a fetus' "inalienable right to life" at conception onward. Fetal heartbeat and personhood bills are unlikely to survive federal court scrutiny, and, according to some pro-life advocates, success in the courts is not the point. Anti-abortion activists justify the legislative efforts as part of a "new paradigm of the pro-life movement," Dan Becker, president of Georgia Right-to-Life told the Economist in March. Becker explained that their abortion strategy is "all about introducing tension into the law.... We have different courts ruling in different ways, which is a surefire way to challenge Roe."

Another category of recent abortion laws require women seeking abortions to have ultrasounds and further mandate [PDF] that doctors display the ultrasound screen and describe the fetus' image to the patient. Three states, North Carolina, Oklahoma, and Texas, do not give [PDF] the woman an option to refuse the ultrasound image and description. Lawmakers intend that if women see the fetus during an ultrasound, it may dissuade them from going through with the abortion. Paradoxically, as one commentator notes, forced ultrasounds may strengthen women's resolve to have an abortion because it reminds patients of losing their ability to choose. A less-recognized issue with ultrasound requirements, however, is that they may add significant cost to an abortion procedure.

The recent abortion regulations are already having an effect. In Mississippi, pro-choice advocates are suing to prevent the state's only abortion clinic from closing. Courts now will decide if this recent wave of abortion-reform laws are within the states' powers to enforce. Under Roe, states cannot abolish or restrict abortion rights unless they have a "compelling state interest" to do so, which balances the states' interests in protecting the health, safety, and welfare of its citizens against the right to an abortion. The Supreme Court, however, will allow states to pass laws to protect the health of its citizens, including setting medical licensing regulations, and it is this power that states will use arguing that their regulations do not contravene Roe.

LaJuana Davis is Associate Professor of Law at the Cumberland School of Law of Samford University in Birmingham, AL. She teaches criminal law and procedure and is interested in women's rights. Formerly a consultant for the Federal Defender's Office for the Middle District of Alabama, Professor Davis is a strong advocate for indigent persons seeking competent counsel.

Suggested citation: LaJuana Davis, Alabama, "Back Door" Restrictions on Abortion, and Roe, JURIST - Forum, May 15, 2013, http://jurist.org/forum/2013/05/lajuana-davis-alabama-abortion.php


This article was prepared for publication by Alex Ferraro, the Section Head of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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