How State Health Departments Are Closing Abortion Clinics: Five Key Takeaways

We've highlighted the major conclusions of Pacific Standard's latest investigation.
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From left to right: Governor Mike Parson (R-Missouri), Governor Matt Bevin (R-Kentucky), and Governor John Kasich (R-Ohio).

From left to right: Governor Mike Parson (R-Missouri), Governor Matt Bevin (R-Kentucky), and Governor John Kasich (R-Ohio).

Read the full investigation here.

Missouri is on the brink of losing its last abortion clinic. So is Kentucky. In both cases, new abortion laws or bans didn't create this precipice: State health authorities did.

These states aren't an anomaly. A Pacific Standard investigation found that, over the course of the last decade, states known for their pro-life politics have sought to shut down abortion clinics by creating and enforcing licensing regulations with unproven medical benefits—regulations that some abortion clinics simply can't meet. The result has been a slew of lengthy legal battles, some lost, some won. And some clinics have closed rather than mounting such a fight.

Here are the key takeaways from the investigation.

Political Appointees Wield Great Power Over Abortion Clinics

Health agencies are often controlled by a political appointee named by the state's governor. Twenty-two states have laws requiring licenses for abortion facilities, and in some states, these appointees are the last word on whether an abortion clinic is in compliance with regulations—meaning they can have direct power over even a single clinic's fate.

In some cases, they're ultimately responsible for the drafting of any new abortion rules or regulations. In Louisiana, such regulations spooled out into more than 1,000 separate requirements, according to one ongoing lawsuit.

Both Louisiana and Virginia are facing lawsuits, filed by the Center for Reproductive Rights and abortion clinics in those states, that challenge their entire regulatory frameworks, arguing that the requirements amount to an undue burden on women's access to abortion.

Some State Health Authorities Are Denying or Delaying New Abortion Clinic Licenses

Louisiana, Indiana, and Kentucky—all states with dominant pro-life politics—are each fighting lawsuits over their handling of new abortion clinic licenses. As the number of abortion clinics in the United States had dwindled (from 2011 to 2014, the number of clinics providing abortions in America plunged across the nation everywhere but the Northeast), it's notable that some states have refrained from approving new licenses.

In Indiana, Whole Woman's Health Alliance opened in South Bend in late June after a two-year dispute with the state led to a district court ruling preventing Indiana from enforcing its licensing laws on the clinic—a decision now being appealed to the Seventh Circuit Court of Appeals. Planned Parenthood affiliates have sued the states of Louisiana and Kentucky: in the case of the former, over alleged unnecessary delays, and in the case of the latter, over burdensome regulations that are impossible to meet, the most important of which is requiring transfer agreements with nearby hospitals.

One Popular Regulation—Requiring Transfer Agreements or Admitting Privileges at Nearby Hospitals—Can Spell the End of a Clinic

Kentucky is one of 21 states that have passed laws or policies requiring abortion clinics or doctors to have some kind of formal relationship with a hospital, and Ohio is perhaps the most dramatic example of the power such regulations can have to shut down clinics. There are two key laws at issue in the state: One requires abortion clinics to be licensed as ambulatory surgical centers, and the other requires them to have a transfer agreement with a local hospital in case of a patient emergency.

Often, abortion clinics cannot meet the latter requirement, since hospitals can and do refuse to sign the agreements. These clinics can apply for variances with the state—an alternative that relies on agreements with physicians who have admitting privileges at nearby hospitals—but those aren't guaranteed to be approved. In the eight years John Kasich was governor of Ohio, at least three clinics closed over issues related to securing transfer agreements or variances from the health department, according to local news reports, and an additional three clinics have remained open in part thanks to lawsuits filed against the state over the requirements.

Transfer agreements and admitting privileges laws are an example of what abortion rights groups have termed "Targeted Regulation of Abortion Provider," or TRAP laws—designed, they argue, to make it harder for doctors and clinics to operate. And it's unclear whether they improve treatment. Numerous groups, including the Centers for Medicare and Medicaid Services and the American College of Obstetricians and Gynecologists, have stated such regulations have no proven impact on patient outcomes.

Several States Argue Abortion Clinic Licensing Is About Protecting Women's Health

In Missouri, Governor Mike Parson has said the state's effort to close its last abortion clinic "is not about the pro-life issue at all," but rather "Planned Parenthood not protecting women's health" by failing, he said, to meet the Department of Health and Senior Services' requirements. He added that the clinic shouldn't be given "special treatment" simply because it is the last of its kind in the state.

Kentucky says its regulations simply require "common safety measures among healthcare facilities" to "streamline, expedite, and facilitate the transfer and treatment of patients." It also says it won't be running afoul of Roe v. Wade, the abortion rights U.S. Supreme Court precedent, if it closes its last clinic. Sixteen states have submitted an amicus brief to the Sixth Circuit supporting Kentucky's case.

Health agencies in Ohio, Louisiana, and Indiana have made similar arguments.

Pending Litigation Will Decide the Fate of Kentucky's Last Clinic and Missouri's—and Maybe Even Roe v. Wade

As with much of the abortion landscape in America, the fate of these states' ability to regulate abortion clinics out of existence will likely rest in the courts. Missouri's Planned Parenthood clinic in St. Louis remains open pending an administrative hearing, the outcome of which could very likely be appealed to a state or federal court. Kentucky's last clinic, and the Planned Parenthood affiliate seeking to provide abortions in the state, are scheduled to argue their case in the Sixth Circuit Court of Appeals sometime this year.

Ultimately, the cases could end up before the U.S. Supreme Court—including the two new conservative justices appointed by President Donald Trump—where one of the Planned Parenthood lawyers in Kentucky argues states are "hoping to find a sympathetic audience willing to overturn long-standing precedents that have protected patients and physicians for decades."

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