Keep Abortion Clinics Open Act

Summary: The Keep Abortion Clinics Open Act would ensure that no clinic could be shut down under TRAP laws without a due process administrative proceeding that proves it is a bona fide threat to public health.

Background Summary

Abortion care is one of the safest and most common medical procedures in the United States. The Centers for Disease Control found that legal abortion is significantly safer than childbirth, and a study in the American Journal of Public Health reported that first-trimester abortion is one of the safest medical procedures in America. Approximately three in ten women will have an abortion in their lifetimes, and will need access to safe, legal facilities to obtain abortion care.

Despite the safety of the procedure, abortion clinics are frequently required to follow burdensome and unnecessary regulations that are actually designed to close those facilities. Currently, 24 states have Targeted Regulation of Abortion Providers or “TRAP laws,” designed to close abortion clinics. Most often, the restrictions dictate that abortions be performed at sites that are the functional equivalent of ambulatory surgical centers, or even hospitals, which makes the delivery of health care services prohibitively expensive. Other TRAP laws require clinicians at abortion facilities to have admitting privileges at a local hospital or mandate transfer agreements with hospitals—setting standards that are extremely difficult for providers to meet and effectively giving hospitals veto power over whether an abortion clinic can exist.

TRAP laws have done what their proponents intended—they have closed scores of abortion clinics. In 2015, four states had only one abortion provider, and at least ten states had five or fewer abortion providers. Today, almost 90 percent of U.S. counties have no abortion facility at all.

Leading medical associations oppose TRAP laws as unnecessary and counterproductive. In a court brief opposing the Texas TRAP law that is being reviewed by the U.S. Supreme Court, the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG) oppose requiring abortion facilities to meet ambulatory surgical facilities requirements and physicians providing abortion services to have admitting privileges at a local hospital. They explain that such a law “does not serve the health of women…but instead jeopardizes women’s health by restricting access to abortion providers.”

The Keep Abortion Clinics Open Act would restore medical standards to abortion law. It would ensure that no clinic could be shut down under TRAP laws without a due process administrative proceeding that proves it is a bona fide threat to public health.

Model Legislation

SECTION 1. SHORT TITLE

This Act shall be called the “Keep Abortion Clinics Open Act.”

SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS—The legislature finds that:

1)      Approximately three in ten women will have an abortion in their lifetimes, and will need access to safe, legal facilities to obtain abortion care.

2)      Women often rely on these same facilities for other preventive care and reproductive health services, including cancer screenings, family planning, pap smears, gynecological and other well-woman health care services, as well as STI treatment and counseling.

3)      Almost 90 percent of U.S. counties lack an abortion facility. Laws that impose medically unnecessary and costly requirements on these facilities force additional facilities to close, further reducing women’s access to crucial reproductive health services.

4)      Clinic closures can force women to travel long distances to reach the nearest clinic, or force women to delay care as they arrange transportation, time off from work, and save additional money for travel or lodging costs. [Add state specific information about how far a woman would have to travel if a clinic closed.]

5)      Clinic closures can make women more likely to seek out less safe alternatives to legal abortion, thus putting their health at risk.

6)      Major health care organizations, including the American Medical Association and the AmericanCollege of Obstetricians and Gynecologists, oppose medically-unnecessary regulation of abortion facilities.

7)      In evaluating whether a law imposes an undue burden, federal courts have held that regulations of abortion facilities that purport to protect women’s health must be justified by legitimate medical evidence. For instance, the U.S. Court of Appeals for the Seventh Circuit held that “[t]he feebler the medical grounds [justifying an abortion restriction], the likelier the burden, even if slight, to be ‘undue.’”

(B) PURPOSE—This law is enacted to protect the health and safety of women by blocking the enforcement of laws that unjustifiably force clinics to close.

SECTION 3. DISCLOSURE OF CRITICAL INFORMATION TO PREGNANT CLIENTS

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1)      “Abortion facility” means a medical office or other facility in which abortions are provided or performed.

2)      “Bona fide threat to patient safety” means a condition or set of conditions in an abortion facility that has caused or is likely to cause serious injury, harm, impairment, or death to a patient or patients.

3)      “Department” means [insert name of relevant state agency].

4)      “Proximate cause” means a cause that produces a result in a natural and probable sequence and without which the injury would not have occurred.

5)      “State” means the state of [insert state name] and includes any branch, department, agency, instrumentality or individual acting under color of law of the state or a subdivision of the State.

(B) PROCEDURES REQUIRED FOR ABORTION FACILITY CLOSURES

1)      General rule. The State shall not enforce any law(s) or regulation(s) that was the proximate cause of the closure of an abortion facility or facilities and which the Department fails to prove, by clear and convincing evidence, was necessary to prevent a bona fide threat to patient safety.

2)      Presumption of improper legislative purpose or effect.

a)      The closure of an abortion facility or facilities in this State within two years prior to or after the effective date of this section creates a presumption that a state law or regulation had the improper legislative purpose or effect to close the abortion facility or facilities.

b)      Such closure triggers an investigation by the Attorney General within 180 days of the effective date of this section.

c)      If the Attorney General fails to commence such an investigation within 180 days, an abortion facility that closed within two years prior to the effective date of this Act may petition the Attorney General to commence an investigation. The Attorney General shall commence an investigation upon 30 days of receipt of such petition.

d)      An abortion facility may waive an investigation required by this section.

3)      Investigation requirements. In conducting an investigation required by subsection (2), the Attorney General shall determine whether a state law(s) or regulation(s) was the proximate cause of the closure of an abortion facility or facilities. If such a determination is made, the Attorney General shall require the Department to prove by clear and convincing evidence that such a state law(s) or regulation(s) was necessary to prevent a bona fide threat to patient safety. In determining whether the Department has met its burden, the Attorney General shall consider, but not be limited to, the following factors:

a)      The purported need for the law(s) or regulation(s);

b)      The actual need for the law(s) or regulation(s) based on patient safety;

c)      Alternative means by which the purported or actual need could be met;

d)      The safety record of the abortion facility or facilities throughout the state;

e)      The documented benefits of the law(s) or regulation(s)’ requirements for patient safety as it applies to the provision of abortion;

f)       Evidence from medical institutions, organizations, or experts that address the necessity of this type of law or regulation for the safety of patients who obtain an abortion, or evidence of opposition to this type of law by such institutions, organizations or experts;

g)      Evidence of threats to patient safety at abortion facilities throughout the state prior to enactment;

h)      Legislative history documenting the abortion facility’s projected inability to comply;

i)        Legislative history indicating animus toward abortion or improper purpose, including but not limited to prior bills introduced by the law’s sponsors, statements made during committee hearings or floor debates, and statements made to the media;

j)        Evidence of similar laws or regulations closing abortion facilities in other states; and

k)      The community need for the abortion facility, including service to underserved patients or communities.

4)      Written findings. The Attorney General shall issue a written report that includes:

a)      Whether a state law(s) or regulation(s) was the proximate cause of the closure of an abortion facility or facilities pursuant to subsection (3);

b)      The Department’s response related to each of the factors considered in the assessment of the Department’s burden; and

c)      The Attorney General’s analysis and conclusions as to whether the Department met its burden to prove, by clear and convincing evidence, that a state law(s) or regulation(s) was necessary to prevent a bona fide threat to patient safety pursuant to subsection (3).

SECTION 4. ENFORCEMENT

If an investigation conducted pursuant to Section 3 concludes that a state law(s) or regulations(s) was the proximate cause of the closure of an abortion facility or facilities and that the Department failed to prove by clear and convincing evidence that the law(s) or regulations(s) was necessary to prevent a bona fide threat to patient safety, the Attorney General [and/or relevant prosecutorial entity] shall not enforce such law or regulation against any abortion facility in the State.

SECTION 5. EFFECTIVE DATE

This Act shall take effect on July 1, 20XX.

[Bill drafting note: This bill can also be used as an amendment to a pending TRAP bill with the following language: The closure of an abortion facility or facilities in this State on or after the effective date of this Act triggers an investigation by the State Attorney General within 180 days of such closure pursuant to subsection (2). Then insert the rest of this bill.]

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