Targeted Regulation of Abortion Providers (TRAP): Avoiding the TRAP

“TRAP” laws (Targeted Regulation of Abortion Providers) target the medical practices of doctors who provide abortions, and impose on them burdensome requirements which are different and more stringent than the legal requirements imposed on other medical practices. These excessive and unnecessary government regulations increase the cost and scarcity of abortion services, harming women’s health and inhibiting their reproductive choices. To give just a couple of examples, such regulations may: (1) require extensive renovations of the abortion provider’s physical facility, (2) threaten patient privacy by authorizing unannounced inspections when patients are present, and (3) require that registered nurses, who are generally in short supply and high demand nationwide, carry out functions for which they are over-qualified.

TRAP laws fall into three broad categories: health facility licensing schemes, ambulatory surgical center requirements, and hospitalization requirements. Each of these types of TRAP laws is discussed below. A number of states impose more than one of these types of TRAP laws on abortion providers. For example, some states impose both a health facility licensing scheme on providers of all abortions and an ambulatory surgical center requirement on providers of second trimester abortions. It should also be noted that some states regulate abortion providers as part of a generally applicable health facility licensing scheme that applies equally to providers of other, comparable medical procedures. Because those schemes do not specifically “target” abortion providers, they are not considered TRAP laws and are not discussed herein.

Health Facility Licensing Schemes

Many states impose on abortion providers health facility licensing requirements that are not imposed on other providers of comparable medical procedures. These requirements vary considerably in terms of their breadth and burdens, and may include physical plant specifications, warrantless searches, personnel requirements, onerous administrative policies, and expensive licensing fees. Additionally, while some such schemes apply to all abortion providers, including providers of only medication abortions, other schemes (1) exempt abortion providers who perform less than a specified number of abortions in a given time period, (2) apply only to providers of abortions after the first trimester, (3) exempt private physicians’ offices, or (4) apply only to providers of surgical abortions.

The following states impose targeted health facility licensing schemes on providers of abortions at any stage of pregnancy:

Alabama
Arizona¹
Arkansas
Connecticut
Florida
Indiana
Kentucky
Louisiana
Michigan
Mississippi
Missouri
Nebraska
Oklahoma
North Carolina
Pennsylvania
Rhode Island
South Carolina
South Dakota
Texas
Wisconsin

The following states impose targeted health facility licensing schemes on providers of second-trimester abortions:

Minnesota
Utah

Ambulatory Surgical Center Requirements

Ambulatory surgical center (“ASC”) requirements mandate that abortion providers become licensed as ASCs and meet all requirements imposed on ASCs. ASC regulations usually include all of the types of burdensome requirements imposed by health facility licensing schemes, as well as stringent physical plant requirements, which generally cannot be met by doctors’ offices or outpatient clinics, and which go far beyond the recommendations of recognized medical guidelines.

The following state requires ASC licensing of providers of abortions at any stage of pregnancy:

Missouri²

The following states require ASC licensing of providers of second trimester abortions:

Georgia
Indiana
Mississippi³
New Jersey
Virginia
Illinois (post-18 weeks)
Rhode Island (post-19 weeks)
South Carolina (post-18 weeks)
Texas (post-16 weeks)

Hospitalization Requirements

Hospitalization requirements mandate that abortions after a specified gestational age (generally some point in the second trimester) be performed in a hospital. Many states have some type of hospitalization requirement on the books, however, the vast majority of those laws have been declared unconstitutional by a court ruling or state official, or have been invalidated by another law.

The following states have hospitalization requirements that have not been challenged or declared unenforceable:

Alaska: applies to all second trimester abortions
Arkansas: applies to abortions post 20-weeks
North Carolina: applies to abortions post-20 weeks
Nevada: applies to abortions post-24 weeks

The following states have hospitalization requirements that have been rendered unenforceable:

Idaho (pursuant to attorney general opinion)
Massachusetts (pursuant to court ruling)
Missouri (pursuant to court ruling)
New York (pursuant to Department of Health official’s interpretation)
North Dakota (pursuant to court ruling)
Ohio (pursuant to court ruling)
Oklahoma (pursuant to court ruling)
Pennsylvania (invalidated by another law)
South Dakota (law not triggered because it applies only if abortions are available from hospitals in the state, and hospital-based abortions are not available)
Tennessee (pursuant to court ruling)
Utah (invalidated by another law)
Wisconsin (pursuant to court ruling)

1. Preliminarily enjoined by stipulation and order. Tucson Women’s Clinic v. Eden, No. CIV 00-141 (D. Ariz. Oct. 23, 2000). Case is pending as of November, 2007.
2. Preliminarily enjoined by federal court. Planned Parenthood v. Drummond, No. 07-4164-CV-C-ODS (D. Mo. Sep. 24, 2007). Case is pending as of November, 2007.
3. Mississippi’s requirement that abortion providers become licensed as ambulatory surgical facilities was struck down by a federal court ruling. However, a new law was passed requiring abortion providers to meet ASC requirements without being licensed as ASCs. The new law has not been challenged.