SOUTH CAROLINA ABORTION REGULATORS CAUGHT IN THEIR OWN "TRAP"
"What I want to know," asked Judge Traxler, "is what requires DHEC to keep these records - that they can go in and copy at will - confidential?" He also questioned one of the more broadly written ordinances. "This section 606 - 'all outside areas, grounds and/or adjacent buildings shall be kept free of rubbish, grass and weeds that may serve as a fire hazard or as a haven for insects, rodents and pests...' I confess, I don't understand how you would keep insects out of grass."
- District Court Judge William Traxler, Jr., (now on the U.S. Fourth Circuit Court of Appeals) expressing concern over legislative regulations in South Carolina, including one that would have allowed inspectors to copy abortion clinic patients' personal medical records.
When David Beasley ran for governor of South Carolina in 1994, he vowed to "regulate abortion" in his state. Sure enough, 18 months after his election twenty-seven pages of new regulations, entitled S.C. Code Ann. Regs. 61-12, passed the state legislature, requiring doctor's offices and medical facilities that perform five or more first-trimester abortions a month to heighten ceilings and widen hallways, eliminate indeterminate odors and maintain office temperatures within a four degree margin. A clinic could even be found in violation of the law if grass from an adjoining lawn grew over onto the property.
"I thought the rules were unfair and ridiculous," says Lorraine Maguire, director of the Charleston Women's Medical Clinic, one of five women's reproductive clinics in the state. "They were not intended to improve health care in South Carolina. I thought, he's [Gov. Beasley] going to fulfill his campaign promise to make South Carolina an abortion free state."
Across the country, anti-choice legislators and government officials are passing laws that impose burdensome requirements on abortion providers, in order to drive them out of business. The Center for Reproductive Rights calls this anti-choice strategy TRAP, the Targeted Regulation of Abortion Providers. The Center for Reproductive Rights has determined that at least fifteen states have existing TRAP laws that vary in detail and scope, and twenty new TRAP bills have been introduced since the beginning of the year. Center for Reproductive Rights attorney Janet Crepps says, "Anti-abortion groups are increasingly using TRAP laws as a means of reducing access to abortion. These laws threaten to increase the cost of abortion and eliminate services through unnecessary and unconstitutional regulations."
South Carolina's legislative strategy to undermine abortion clinics did not stop at costly and unnecessary building codes. A slew of new administrative burdens required frequent staff meetings, formal training, medical testing of employees, and many other extensive policies and procedures inappropriate for clinics of that size. Maguire estimated the new staffing requirements alone would swell her clinic's payrolls by many tens of thousands of dollars. In addition, the clinic she had successfully run for almost twenty years would have to undergo over $27,000 in renovations and be in full compliance within two years.
South Carolina women seeking abortions would have to pay more as well. Patients would have to undergo costly tests for sexually transmitted diseases, irrespective of any medical need for such testing. Maguire's clinic would have to raise the procedural charge from $36 to $75, while another S.C. abortion doctor estimated an increase of as much as $367, likely resulting in him ceasing to perform abortions in his area of the state.
Maguire knows what it's like to jump hurdles to attain a legal abortion. She became pregnant as a teenager before the passage of Roe v. Wade and had to see two psychiatrists before she could get an abortion costing her $1,000. She was determined to not let any unfair or unnecessary obstacles complicate the lives of other women.
So in July 1996, with the assistance of Center for Reproductive Rights litigators and local attorney Randall Hiller, Maguire and three S. C. physicians and their clinics successfully sought an injunction against the S.C. Department of Health and Environmental Control, the governor, and attorney general to prevent the implementation of Regs. 61-12, arguing that regulations governing doctors who perform abortion are a violation of women's constitutional right to choose abortion.
Presiding over the hearing was District Court Judge William Traxler, Jr., now a judge on the U.S. Fourth Circuit Court of Appeals, who expressed concern over the provision for DHEC inspectors to copy patients' personal medical records. "What I want to know," said Judge Traxler, "is what requires DHEC to keep these records - that they can go in and copy at will - confidential?" He also questioned one of the more broadly written ordinances. "This section 606," he said. "'All outside areas, grounds and/or adjacent buildings shall be kept free of rubbish, grass and weeds that may serve as a fire hazard or as a haven for insects, rodents and pests. . .' I confess, I don't understand how you would keep insects out of grass."
In federal district court two years later, Center for Reproductive Rights attorney Bonnie Scott Jones began the week-long trial by pointing out, despite the DHEC's assertion that its regulatory actions were an attempt to protect women's health, South Carolina was not experiencing any health problems relating to the provision of first-trimester abortions. Across the nation there is no evidence of deficient care in outpatient facilities, where more than 90% of all abortions are performed. Even a witness for the defense, Dr. Charles Ward, testified that abortion is one of the safest surgical procedures performed in the United States and the majority of the physicians practice to an acceptable level of care.
The Center for Reproductive Rights introduced evidence that showed none of the drafters of Regs. 61-12 had any expertise or experience in the provision of abortions, nor did they undertake any steps to educate themselves about first-trimester abortions and how they were performed. One witness for the prosecution, Dr. David Grimes, who is an expert in ob/gyn, public health and abortion procedures, asserted that the clinic regulations would more likely harm the health of women in South Carolina by forcing some women to delay their abortions until later in their pregnancy.
Grimes also testified that the regulations were so ambiguously written, interpretation was ultimately left to the discretion of DHEC health inspectors. And these inspectors were not required to impose the same regulations on physicians who perform identical abortion procedures, but less than five times a month. The plaintiffs' claim that facilities which perform five or more first-trimester abortions a month were being unfairly singled out, was further evidenced by the less stringent design and construction regulations governing surgical centers, which actually perform more risky and invasive procedures.
Judge Traxler oftentimes seemed to agree. Maguire says he questioned the regulation requiring clinics to have an awning or roof over the front door to protect handicapped people. "There's no awning over the front of this courthouse and no awning over my doctor's office," she recalls him saying. And when Maguire was asked to testify about her inability to keep the temperature at her facility between 72 and 76 degrees, she says the judge interjected, saying, "no one can monitor their temperature that close."
In a 94-page ruling, dated February 5, 1999, Judge Traxler wrote, "Despite the fact that abortion clinics have been operated in a safe manner for the past twenty-three years, [the state] loaded these abortion clinics down with so many unnecessary requirements that this court has no choice but to conclude that the regulation unduly burdens a women's fundamental right to undergo an abortion."
One month later, the state defendants filed an appeal with the United States Court of Appeals for the Fourth Circuit. However, the Center for Reproductive Rights is hopeful the Fourth Circuit Court will be influenced by Judge Traxler's carefully reasoned ruling, setting a positive course for closing future TRAPs.
- Ann Farmer
