Abortion conflict sees new strategy

WASHINGTON — WASHINGTON - In the small, historic port city of Beaufort, S.C. - a sort of Charleston in miniature - the old homes with their narrow hallways and small rooms have always made adequate office suites for the physicians clustered by the downtown waterfront.

But one those doctors, William Lynn, who runs clinics that provide abortions, recently closed his down.


Among his reasons for not renewing his lease: the specter of new regulations for abortion clinics in South Carolina - requiring such safety measures as extra-wide hallways and doorways for the movement of stretchers and wheelchairs - which would have made it impossible to continue his practice in one of those old restored buildings without costly renovations.

The 27 pages of abortion facility regulations, which had been challenged in the courts since the mid-1990s and were recently allowed to stand by the U.S. Supreme Court, have been quietly rippling across the country as the latest complicated, volatile and legally entangled skirmish in the abortion rights battle.


The anti-abortion community has seized on this regulatory approach in recent years, arguing that abortion is riskier than much of the public believes and must be held to higher medical standards. This year, seven states have introduced bills to regulate abortion clinics.

Says Mary Spaulding Balch, state legislation director for the National Right to Life Committee: "This indicates to the American public that abortion is not as safe as some people would have you think it is."

On the other side is much of the abortion rights community, which argues that abortion is one of the safest procedures performed in the United States - fewer than 1 in 100 women suffer major complications and there is fewer than 1 death in 100,000 associated with the procedure, according to the Centers for Disease Control and Prevention - and therefore not in need of additional regulation.

TRAP laws

They see the new wave of regulations, which they call TRAP laws, for Targeted Restrictions on Abortion Providers, as an attempt by opponents to put more obstacles in the way of abortion providers and women seeking abortions, especially poor women, by driving up the cost of the procedure and decreasing accessibility.

They have argued in court - in South Carolina and in Texas and Arizona, where similar laws are being challenged - that the regulations violate equal protection rights by singling out abortion providers and place an "undue burden" on the right to an abortion, which the Supreme Court has said states cannot do.

"This is part of the strategy to try to regulate abortion out of existence and fly below the radar screen," says Elizabeth Cavendish, legal director for the National Abortion and Reproductive Rights Action League.

Edward P. Richards, executive director of the Center for Public Health Law at the University of Missouri-Kansas City School of Law, says both sides have legitimate points.


He believes the regulations are "perfectly appropriate health protections." But he also says that, because most other outpatient facilities are not subject to regulation, abortion providers are being unfairly singled out.

"The scandal here," says Richards, "is that we don't have much regulation of any free-standing outpatient surgical centers."

Regulations for abortion clinics are on the books in a variety of forms in 16 states - Maryland is not among them - some dating to 1973, when the Supreme Court ruled that the criminalization of abortion was unconstitutional, and many springing up in the early and mid-1990s after the high court gave states more leeway in restricting abortion.

The South Carolina requirements, challenged by Lynn and three other doctors who provide abortions as well as by the Center for Reproductive Law and Policy, are among the most sweeping of any set of abortion regulations in the country. They are similar to requirements for a new outpatient surgical center where more varied and extensive sorts of procedures - from face lifts to hernia operations - would be performed.

The regulations were passed by the South Carolina Legislature in 1995 after two employees of a now-closed Charleston abortion clinic complained of unsanitary conditions. The law was struck down as unconstitutional by a federal district court in 1999, revived last year by the 4th U.S. Circuit Court of Appeals, and recently allowed to stand by the Supreme Court, which elected not to hear the case.

Stringent requirements


As well as setting stringent requirements for the physical facility - including the dimensions, illumination and ventilation of rooms, and condition of the grounds - the regulations call for a registered nurse, rather than a licensed practical nurse, to supervise nursing care; require all patients to be tested for sexually transmitted diseases; require that the clinic has a consulting agreement with religious counselors, and that doctors have privileges at a nearby hospital. They also allow the state to conduct unannounced inspections and to copy any of the clinic's documents.

The regulations apply to any doctor who provides at least five abortions a month, even if they are nonsurgical abortions, that is, abortions induced by drugs such as the newly approved RU-486.

Around the country, anti-abortion groups have been emboldened by the Supreme Court's refusal last month to hear the case.

Gary Rogers, president of the Colorado Pro-Life Alliance, says his organization is studying the South Carolina regulations and preparing to submit a ballot initiative next year on abortion regulation.

"We see this as a landmark case," says Rogers. "It takes the argument away from the opposition that this law is unconstitutional. The real issue is that abortion, because it has been political, has been hands-off in terms of regulation. Our primary goal is to protect women and their health, and protect them from being victimized by the profit-driven abortion industry."

Some anti-abortion advocates have made little secret of another goal. Life Dynamics founder Mark Crutcher has said his group hopes to create an America where "abortion may be perfectly legal but no one can get one" and where abortion clinics are regulated "out of business."


Battle lines blurred

But the sides in this conflict over abortion regulation are not as neatly defined as they are on many other abortion-related issues.

Clinic regulations such as those in South Carolina are opposed by the National Abortion and Reproductive Rights Action League, the Center for Reproductive Law and Policy and a third abortion rights group, the National Abortion Federation, which in 1995 devised its own set of model regulations for states to adopt. Other abortion rights supporters embrace and have even helped craft statewide regulations in certain places.

Susan Hill, who runs seven clinics in seven states - including North Carolina, Georgia, Florida and Mississippi, which all have some sort of clinic regulations - says she believes the guidelines have been beneficial to abortion providers.

"I know it's not the political thing to say, but they've really helped us to be as good as we can be," says Hill, president of the National Women's Health Organization. "It forces us to operate at the highest standards."

In Arizona, where the regulations are less demanding, the local Planned Parenthood chapter worked with state legislators to pass the bill and is now defending it in court.


Arizona's interest in regulations was sparked by the death in 1998 of a 33-year-old woman at a Phoenix abortion clinic, for which the attending physician was convicted of manslaughter.

"What happened in Arizona was completely a tragedy. It was horrific," says Bonnie Scott Jones, a lawyer for the Center for Reproductive Law and Policy. "But it wouldn't have been helped by these regulations. ... You cannot regulate away malpractice."

'Antithesis of public health'

Dr. David Grimes, a Chapel Hill, N.C., obstetrician-gynecologist who investigated abortion-related deaths for the Centers for Disease Control in the 1970s and '80s agrees, saying the clinic regulations are the "antithesis of public health" because they don't address health and safety issues and instead divert resources away from the care of patients.

"I can tell you with confidence no patients ever died because of a doorjamb" he says, referring to the South Carolina requirement on the width of doorways. "The setting is not important. What is important is the skill of the provider."

It's unlikely the Supreme Court has heard the last of the abortion regulation issue. If another federal appeals court should differ from the 4th Circuit and find a state's regulations unconstitutional, the Supreme Court could end up having to resolve the difference and rule on the merits of such a law.