Burdensome Clinic Regulations

Although a woman's legal right to have an abortion was established in Roe v. Wade (1973) and reaffirmed in Planned Parenthood v. Casey (1992), abortion opponents have attempted to chip away at this right by erecting endless barriers that a woman has to surmount to obtain an abortion. Such restrictions as biased counseling and mandatory waiting periods have made access to abortion services more and more difficult. The same is true of unnecessary clinic regulations, another legislative tactic of anti-choice groups. In 1995, anti-choice lawmakers in eleven states sponsored bills that sought to make "mini-hospitals" out of otherwise safe, efficient, and cost-effective outpatient abortion facilities. They demanded that the facilities conform to new specifications for minimum square footage in hallways and examining rooms, costly air circulation mechanisms, intrusive record-keeping and reporting, and mandatory ultrasound testing, to name just a few.

The ACLU Reproductive Freedom Project opposes clinic regulations that do not benefit the woman's health but merely increase costs and cause unnecessary delays for women seeking abortions. Although certain reporting requirements were upheld in Planned Parenthood v. Casey, many of the clinic regulations being proposed in state legislatures around the country would fall short of that decision's standard of constitutionality by imposing an "undue burden" on women seeking an abortion. Under governing Supreme Court precedent, clinic regulations are unconstitutional if they have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. Unnecessary clinic regulations do erect substantial obstacles because they add costs without enhancing safety, put providers and patients at risk of harassment and violence, and limit overall access to abortion.

Unnecessary Clinic Regulations Provide No Benefit To The Woman's Health

Abortion is one of the safest gynecological procedures performed on women in the United States. According to the Alan Guttmacher Institute, less than 1 percent of all abortion patients experience a major complication associated with the procedure. The three main factors that affect the safety of an abortion are: 1) the gestational age of the fetus; 2) the type of procedure used; and 3) the skill of the doctor. Most abortion-related deaths and complications occur as a result of the use of anesthesia and are not related to the procedure itself. Unnecessary regulations, such as mandatory ultrasound, superfluous record-keeping, and square-footage requirements, do not enhance the safety of an abortion in any way.

Ninety-three percent of abortions in the United States are currently performed in non-hospital facilities, including abortion clinics, other outpatient facilities, and doctors' offices.(1) The American College of Obstetricians and Gynecologists recommends that first-trimester abortions be performed in the more private and intimate setting of a doctor's office or abortion clinic, rather than in a hospital.(2) First-trimester abortions, which involve little risk and few complications, account for nearly 90 percent of all abortions.

Unnecessary Clinic Regulations Impose Prohibitive Costs For An Abortion

Unnecessary regulations that force outpatient clinics to meet hospital-like standards often require major remodeling and construction costs. For example, elaborate ventilation mechanisms that provide periodic air changes can cost several hundreds of thousands of dollars to install and operate. These costs could force clinics to close and prevent new clinics from being built.

Not only would such costs be incurred by the owner of the clinic, but expensive overhead costs would be passed on to the patient, thus raising the cost of an abortion. It has been estimated that such regulations would increase the cost of obtaining an abortion by 10 to 20 percent.

Abortions performed in hospitals are, on average, nearly six times more expensive than those performed in non-hospital facilities.(3) Superfluous regulations that could force some clinics to close and others to raise their prices for abortion services would foreclose the option of abortion for many women.

Unnecessary Reporting Requirements Put Abortion Providers And Their Patients At Risk Of Harassment And Violence

Burdensome record-keeping and reporting requirements invade the privacy of clinic staff and patients and make them easy prey for abortion foes. Requiring clinics to report and make public the names of all physicians, other staff members, directors, and affiliated organizations puts abortion providers at great risk of harassment and violence. Demands for lengthy periods of record storage, such as a decade or more, also heighten the danger that the confidentiality of patient records will be breached. The longer that records are stored instead of shredded, the greater the chances that anti-choice activists will gain access to them in order to harass patients. Weighed down by added administrative burdens as well as a well-founded fear of being the target of violence, many providers of reproductive health services would cease offering abortion services or close down entirely.

Unnecessary Clinic Regulations Limit Access To Abortion

Burdensome and expensive clinic regulations will inevitably force some clinics to shut their doors permanently, thereby further reducing the scant number of abortion providers and facilities. Already, 84 percent of the counties in the United States have no abortion provider at all, and an estimated 24 percent of women seeking abortion in this country must travel at least 50 miles to an abortion provider.(4)

While some clinics will manage to remain open, the burdens caused by new regulations will be passed on to patients who will have to cope with higher charges and the greater scarcity of providers. Travel time and costs, combined with time lost from work and child care costs, could force women to delay an abortion in order to meet the expenses of the procedure. Meanwhile, as time slips away, the expenses and risks associated with the procedure itself rise dramatically with increasing gestational age. An abortion in a non-hospital facility at 16 weeks of gestation costs $604, and, at 20 weeks, $1,067. Although an abortion is safer than carrying a pregnancy to term, the risk of abortion-related death increases 20 percent for each week after the eighth week of gestation. Moreover, the longer a woman delays the procedure, the harder it becomes to find a provider. Of the small pool of providers in the country, only 48 percent will perform an abortion after the 13th week of pregnancy.(5)

Unnecessary clinic regulations will add to the obstacles already in the path of women seeking abortions and will put abortion services out of reach for many women until it is too late. In the most tragic cases, the problem will be insurmountable, and women will be faced with the emotional and economic repercussions of carrying an unwanted pregnancy to term.

We Oppose Unnecessary Clinic Regulations Because They Are Unconstitutional And Detrimental To Women's Health

Far from being justified, unnecessary clinic regulations are dangerous and jeopardize women's health without serving any legitimate medical purpose. Because these regulations constrict ever more narrowly the opportunities for women to exercise their right to choose, they impose undue burdens on women and thus fail the test of constitutionality.

(1) Stanley K. Henshaw & Jennifer Van Vort, "Abortion Services in the United States, 1991 and 1992," 26 Family Planning Perspectives 100, 104-05 (1994).

(2) American College of Obstetricians and Gynecologists, Standards for Obstetric-Gynecologic Services (7th ed. 1989).

(3) Stanley K. Henshaw, "Factors Hindering Access to Abortion Services," 27 Family Planning Perspectives 54, 57-8 (1995).

(4) Henshaw & Van Vort, supra note 1, at 103; Henshaw, supra note 3, at 54.

(5) Henshaw, supra note 3, at 54.

March, 1996 First published as a FACT SHEET