Seeking Common Ground in the Abortion Regulation Debate

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. I. WHO REGULATES ABORTION CLINICS? …