—Fiona de Londras, Professor of Global Legal Studies, Birmingham Law School
While all around us people have been floundering in the murky waters that followed the Brexit referendum, the US Supreme Court has been revisiting one of its most contentious issues: abortion.
Right at the end of this term the Court handed down its judgment in Whole Women’s Health v Hellerstedt, striking down TRAP laws in Texas. TRAP laws (i.e. Targeted Regulation of Abortion Provider laws) are key instruments in the anti-abortion arsenal to undo women’s capacity to actually access abortion, in spite of the fact that they have a constitutional right to do so under the judgment in Roe v Wade. State legislatures, which cannot simply prohibit abortion (because it is a constitutional right), instead try to frustrate it, putting in place onerous requirements for abortion providers that are far out of proportion to the medical risks of abortion procedures. These laws are remarkably widespread, largely because anti-abortion activism has focused on rolling out what Mark Crutcher called A Guerrilla Strategy for a Pro-Life America, with a remarkable level of recent success.
Rather than trying to undo what Clarence Thomas calls the “putative” right to abortion in his dissent in Whole Women’s Health, this Guerrilla Strategy focuses on exceptionalising abortion as a medical procedure, trying to ensure there is sufficient ambiguity about its legal and medical regulation as to make it significantly more difficult for medical practitioners to deliver and women to access. TRAP laws exemplify this strategy.
The Texan law, entitled HB2, placed a plethora of requirements on abortion providers.
The two that were challenged before the Court were that all abortion providers in the state of Texas would have admitting privileges in local hospitals, and that all abortions (even medical abortions which comprise taking two pills) would take place in ambulatory surgical facilities. These two requirements are not unique to Texas. Alabama, Indiana, North Carolina and Tennessee also oblige abortion facilities to meet ambulatory surgical center requirements. Abortion providers must have hospital admitting privileges in Alabama, Arkansas, Indiana, Louisiana, North Dakota and Wisconsin as well as in Texas. The impact of these laws is to close clinics down, which is precisely what happened in Texas.
Since the introduction of HB2, the number of abortion clinics in Texas halved and if HB2 had been allowed to stand there would have been only ten clinics left to serve the 5.4 million women of reproductive age in the state of Texas. Of course, this impacts most on women who are poor and women who live in rural areas. For them, in particular, abortions now become more burdensome: they are more expensive (because they have to travel long distances), they carry more risk (because they are later because finance, travel, accommodation, time off of work, childcare etc must be organised); they are, in other words, significantly more difficult to access. Research from the University of Texas shows that when HB2 was introduced 417,000 women of reproductive age in Texas lived in a county that was more than 100 miles from the nearest abortion clinic; HN2 increased that to 1.3 million, with associated delays in accessing abortion. This is, of course, the point: TRAP laws exist to make the right to access abortion so difficult to exercise as to be effectively illusory.
Not so, say legislators. Rather, they claim that laws like HB2 are introduced because abortion is dangerous so that we must regulate it (beyond many other medical procedures) in order to protect women. Under this logic, abortion providers must be forced to comply with these onerous and expensive requirements for women’s benefit. But, in truth, these provisions were not introduced to benefit women; they were introduced to frustrate access to abortion because the true claim that underpins them is that abortion is wrong.
When it comes to TRAP laws like this, concern about women’s health is a conceit; a potentially effective one, but a conceit nonetheless. Before the Supreme Court the state of Texas argued that there is medical uncertainty about the safety of abortion, and that even if these laws had led to the closure of clinics—and would lead to more—this did not impose an “undue burden” on women (the test for whether a restriction on abortion is legal under Planned Parenthood v Casey). Rather, it protected them. The majority was having none of it.
In the leading judgment for the Court, Justice Breyer found that this law clearly failed the Casey test because it had the “purpose or effect” of placing undue burdens on women wanting to exercise a constitutional right without addressing an established need to regulate abortion in this way or bringing any benefits to women seeking to access abortion. In this way Breyer does not have to prove that Texas was trying to frustrate abortion access, just that it did and that it did so in a way that was not necessary by reference to medical evidence. While Breyer strikes these laws down, then, and while the Court’s judgment will likely lead to similar TRAP laws being struck down in other states, his judgment still leaves open the door for TRAP laws that can be established as being justified by medical evidence, or even by uncertainty about the safety of abortion.
This is why Ruth Bader Ginsburg’s short concurring opinion is so important. In it, Ginsburg states on the record and unequivocally that abortion is a safe procedure, and that restricting access to abortion means that “women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety” so that “it is beyond rational belief that H. B. 2 could genuinely protect the health of women”.
With this, and in just a page and a half of text, Ruth Bader Ginsburg may just have torpedoed this particular guerrilla tactic for some time to come.
So what is to be learned from Hellerstedt for abortion law reformers in other jurisdictions?
Guerrilla tactics against abortion have not been limited to the United States (see, e.g., Sheelagh McGuinness’ work on these tactics in the UK), and arguments about the implications for women’s health are not uncommon in discussions on whether and, if so, how abortion should be made available. We have also seen that in countries with extremely restrictive abortion laws, women continue to experience cruelty and harm, sometimes meeting the threshold of cruel, inhuman and degrading treatment (as in Mellet v Ireland analysed by Máiréad Enright here), to purchase and take abortifacients without being able to properly rely on support from medical professionals if needed (Independent report), and to access unsafe and illegal abortion. All of this reinforces Ginsburg’s prescient observation: the impact of abortion restrictions is to push women towards unsafe abortions. Any sensible debate on abortion law reform must grapple with this fact, rather than proceed on the basis that a lack of legal abortion means a lack of abortions per se.
Suggested Citation: Fiona de Londras, The End of TRAP Laws?, Int’l J. Const. L. Blog, July 6, 2016, at: http://www.iconnectblog.com/2016/07/the-end-of-trap-laws
 Firestorm: A Guerrilla Tactic for a Pro-Life America (1992, Texas; Life Dynamics)
 The Texas Policy Evaluation Project, University of Texas