One spring day in 2017, Dr. Ernest Marshall received an inauspicious letter from the Kentucky Cabinet for Health and Family Services, the state's health agency. Marshall, a Louisville native with a round face and a trimmed mustache, has been an OB-GYN and teacher with the University of Louisville School of Medicine for nearly four decades. For just as long, he's owned what is now the state's last abortion clinic. EMW Women's Surgical Center sits on a stretch of sprawling, sparsely populated real estate in downtown Louisville, across from a cinema-sized money lender and down the block from a Subway restaurant.
Marshall's mother had 13 pregnancies and "no way to control her reproductive life," he's said, by way of explaining his chosen career. "I think women should have a right to control the size of their family. I think that there are fetuses with congenital anomalies that are incompatible with life, and there are mothers whose [lives] are threatened by pregnancy, and I think there are cases of rape and incest." He added, "I've dedicated my life to women's reproductive health."
The letter threatened to close Marshall's clinic. His abortion facility license, renewed by Kentucky's health agency 11 months earlier, was in fact "in error," the letter stated. The clinic's previously acceptable agreements with a hospital and an ambulance service now contained "deficiencies." Kentucky law required clinics to have formal transfer and transport agreements with hospitals and ambulance services in the case of a medical emergency (even though hospitals and ambulances must serve all patients regardless of the deals). Marshall was given 10 calendar days to "cure" the deficiencies, or he'd face "an immediate revocation" of his license.
"I felt I had 10 days," Marshall later recalled, "or it was over."
Months earlier, the Cabinet for Health and Family Services had effectively shut down Marshall's other office (and the state's only other abortion clinic), an hour and a half away in Lexington. The agency has also declined to grant an abortion license in Louisville to Planned Parenthood of Indiana and Kentucky, the only other entity in recent years to apply. In a joint lawsuit expected to be heard this year before the Sixth Circuit Court of Appeals, Marshall and Planned Parenthood allege that Kentucky "has spent the last two years doing everything it can to shut down EMW (and to prevent Planned Parenthood from providing abortions)."
Before this spring, some considered Kentucky the state most likely to make "redemptive history," to quote the leader of the far-right anti-abortion group Operation Save America, by becoming the first state without an abortion clinic since the facilities began to pop up across the country after the Supreme Court's 1973 decision in Roe v. Wade. But Kentucky now has competition from a close neighbor. In late May, Missouri's health department appeared ready to shut down that state's last abortion clinic, run by a Planned Parenthood affiliate, over a licensing regulation dispute, and then followed through on the threat in June. A judge stopped the state from closing the clinic, and an administrative hearing officer then granted the clinic reprieve until at least October. Missouri Governor Mike Parson has said the clinic shouldn't be given "special treatment" simply because it is the last of its kind, suggesting the right to an in-state abortion paled in comparison to the state's concerns for "women's health."
Credit for dwindling abortion access in America tends to fall at the feet of state politicians and their decades of kaleidoscopically restrictive laws, especially after a spring of mammoth anti-abortion gains in state legislatures. There's no doubt their efforts have been rewarded. From 2011 to 2014, the latest data compiled by the reproductive rights research group the Guttmacher Institute, the number of clinics providing abortions in America plunged across the nation everywhere but in the Northeast. The South lost 13 percent of its clinics, and the Midwest experienced the largest decline, losing 27 clinics, or nearly a quarter of its stock. Today, six states have only one clinic.
But the focus on pro-life lawmakers overlooks a set of crucial players, in Kentucky, Missouri, and elsewhere. Under the administrations of a series of pro-life governors in the South and Midwest, state health officials have taken actions that, while not explicitly designed to close clinics and curb access, have that clear effect. Using the vast power of their bureaucracies, they have quietly helped unravel legal abortion in America.
In many cases, political appointees vested with broad authority are directly involved in the crafting of abortion policy and the licensing and treatment of individual clinics. In some places, legislatures have granted health agencies carte blanche to write any new regulations the agencies see fit for abortion clinics.
Agencies can use emergency powers to enact new rules that take instant effect, giving clinics no time to comply. Sometimes, the legal departments of health agencies are deeply entwined in matters related to abortion clinics, allowing states to claim attorney-client privilege over the contents of conversations, emails, and meetings, thereby limiting public oversight. Some health authorities in states with dominant pro-life politics haven't approved new abortion licenses for years. In a handful of states, health agencies—not laws—are closing clinics.
Brigitte Amiri, a reproductive rights lawyer for the American Civil Liberties Union working on the Kentucky suit, claims certain health departments have become "an anti-abortion political wing of the executive branch."
While restrictive abortion laws come wrapped in pro-life beliefs, health agency action arrives on state letterhead in the language of bureaucracy, citing compliance matters, deficiencies, and other issues of regulatory nuance. Such letters create the sense that views of abortion didn't shut down a clinic; health-related matters did.
In these cases, officials routinely assert that their actions bear no connection to the anti-abortion views of the governor in charge. Instead, they characterize policy, regulation, and licensing decisions as upholding laws or rules, following agency procedures, or advancing the health of women. Despite campaigning on pro-life credentials, governors tend not to celebrate these actions as anti-abortion wins: "This is not about the pro-life issue at all," Missouri Governor Mike Parson told reporters in May, but rather about "Planned Parenthood not protecting women's health." There is none of the fanfare of a new pro-life bill signing, and unless the clinic closing is the last in the state, little of the national attention.
How a State Gets to the Brink of Losing Its Last Abortion Clinic
On the night Republican Matt Bevin won Kentucky's gubernatorial race in late 2015, the voluble, clean-cut politician lauded the state's "core Christian values." Bevin had aggressively courted religious conservatives during the campaign, even paying a visit to Kim Davis, the clerk made famous for refusing to sign a same-sex marriage license, in county jail. He has since made a name for himself as a selfie-loving loyalist of President Donald Trump, one fixated on advancing anti-abortion laws and legal battles. His administration's attention to abortion has extended into the Cabinet for Health and Family Services.
Within weeks of Bevin's election, his appointed staff began combing through abortion clinic licensing and regulations, dramatically reinterpreting them, and eventually sending out a series of letters cumulatively stating that none of the current or potential abortion clinics in the state met the regulations. Over the course of two years, the agency shut down one abortion provider, denied a license for another, and tried to close the last—failing only by virtue of a federal court injunction.
By the time Marshall received his letter, much of that work had already been done. It began in late 2015, just after Bevin officially took power, with the health agency's incoming chief of staff, Steven Davis. That December, Davis reviewed an abortion clinic license application filed by Planned Parenthood of Indiana and Kentucky, and briefed his new boss and the state's top health official, the new secretary Vickie Yates Brown Glisson (Glisson would go on to run for Congress with an endorsement from Kentucky Right to Life). Under the previous Democratic governor, the agency had already scheduled a site inspection at the Planned Parenthood clinic, a key remaining requirement for the license and an indication that the agency saw no problem with the application up until that point.
But Davis found problems in the paperwork. He took his concerns to the acting inspector general, a civil servant named Stephanie Hold, and drafted a letter for her to sign and send to Planned Parenthood saying the organization's transfer agreements were "deficient." Hold canceled the inspection. She later told a federal court that, over the months that followed, Davis became the point person for anything Planned Parenthood-related. Hold testified that she felt unable to approve the application on her own, despite that job falling squarely within her role as inspector general. (She claimed she consulted Davis because she didn't have much experience with abortion clinic licenses.) She also said that the licensing process may not have faced as much scrutiny if it hadn't been related to Planned Parenthood.
Meanwhile, the clinic had already begun providing abortions in early December. It had been told by the health agency's previous inspector general that it needed to be performing the procedure in order to be inspected—a bizarre regulatory quirk that Planned Parenthood's lawyer repeatedly sought clarification on. But the new administration was livid. Bevin told reporters Planned Parenthood would be "hammered down" for its "illegal" action. His administration sued Planned Parenthood for "knowingly and callously" providing abortions before its license was approved, seeking $914,000 in fines.
That same month, the state's interest spread to a Lexington clinic owned by Marshall. A senior health official had lodged a complaint against it, triggering an inspection. Marshall lost an ensuing legal battle over whether that office needed to be licensed as an abortion clinic. He had initially argued that it was a private doctor's office and therefore exempt from the state's licensing law, but a court disagreed. The state would go on to deny Marshall's application for a license in 2016, and the clinic subsequently closed.
Kentucky is one of 22 states with laws requiring licenses for abortion facilities, according to a 2018 review of state laws published by Temple University. What constitutes an "abortion clinic" varies, based on the number of procedures performed per month or year, or the method. Failure to comply can result in fines or criminal penalties in 17 states, the researchers found. The laws generally give health agencies wide-ranging powers over abortion clinics through regulations written by state boards of health and agency staff, as is true, for example, in Louisiana, Indiana, Virginia, and Texas. Abortion doctors often have little—if any—say in crafting the new rules. In Kentucky, and in some other jurisdictions, the top political health appointee has the final power to approve, deny, or rescind a license, giving the appointee the ability to wield influence on a case-by-case basis.
When Davis, the health agency chief of staff, decided that Planned Parenthood's license application was flawed, he zeroed in on one particular detail: the clinic's transfer agreements with a hospital and an ambulance service stipulating that both would accept the clinic's patients. These agreements have been mandated by Kentucky law since 1998, and, according to evidence later brought at trial, it was the first time the agency had found a transfer agreement to be deficient.
The health agency used its power to dictate the precise wording and nature of these documents. Among other complaints, Davis initially concluded that Planned Parenthood's transfer agreement didn't list the job title of the hospital official who signed it; that it was signed "nearly two years" before the application was filed; and that it didn't list the clinic's address—details the original application process had not specified.
According to the Guttmacher Institute, 21 states have passed laws or policies requiring abortion clinics or doctors to have some kind of formal relationship with a hospital. Among those, seven states have required transfer agreements with hospitals, and 16 have required abortion doctors themselves to have hospital admitting privileges or a similar arrangement. (Courts have blocked some of these laws. Texas' admitting privileges law was struck down in the landmark Whole Woman's Health v. Hellerstedt Supreme Court ruling in 2016, and Louisiana's has been stayed pending a likely Supreme Court review.)
Transfer agreements 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. Legal abortions in America are far safer than childbirth, or even plastic surgery, and hospitalization is rare. In an emergency, hospitals are required by federal law to stabilize all patients, regardless of insurance. In general, transfer agreements are used by health-care facilities and hospitals to expedite the treatment of a patient in an emergency and ensure the transfer of key medical information. But hospitals are entirely in control of whether or not to sign them. And it's unclear how much the agreements improve treatment. The Centers for Medicare and Medicaid Services said last year that it has found "no evidence of negative patient outcomes" from a lack of transfer or admitting privileges agreements. The American College of Obstetricians and Gynecologists and more than a dozen other physician, nursing, and health-care organizations deem such agreements medically unnecessary for abortion clinics, in part because abortion complications are so rare. This, combined with the fact that hospitals can and do refuse to have associations with abortion providers, had led pro-choice groups to condemn such laws and regulations as predatory (while the National Abortion Federation counsels clinics to consider signing these agreements, it opposes making them mandatory).
When Planned Parenthood learned the state was rejecting its transfer agreement with the University of Louisville, it revised and re-filed it. Davis, the health agency chief of staff, would later testify this new version addressed his concerns, but the agency did not approve the clinic's application. Instead, it asked for reams of additional information in 70 separate bullet points. Planned Parenthood's re-signed transfer agreement would not last long.
Around the time Bevin was excoriating Planned Parenthood for providing abortions, in late January, he also released his first proposed budget. In it, a single line banned all state and federal funding for any "affiliate of" abortion providers. The language raised alarms for John McCarthy III, a lobbyist for KentuckyOne, the company then managing the University of Louisville Hospital. After a meeting with Stephen Pitt, the governor's general counsel, McCarthy warned KentuckyOne that, under the proposed budget, signing a transfer agreement meant it could be considered an affiliate of Planned Parenthood. If the language banning abortion affiliates from using public funds was stripped from the budget, McCarthy added, the governor might enact the change through an executive order. Internal KentuckyOne emails show executives fretted over the possibility of losing public funding and discussed needing an "out" of their Planned Parenthood agreement. Planned Parenthood emails from the time, later read aloud in court, allege that Ruth Brinkley, then KentuckyOne's chief executive officer, received a "thinly veiled threat" from a legislator.
On March 1st, three months into Bevin's administration, KentuckyOne terminated the transfer agreement. In a meeting with Planned Parenthood, Brinkley denied any threats were made, but did tell Kim Greene, the board chair of Planned Parenthood of Indiana and Kentucky, that hospital management had received "questions" relating to "funding buckets," and another official indicated the questions came from the capital, Frankfort. KentuckyOne talking points drafted for the meeting cited "public controversy and the Governor's lawsuit" and concern regarding the governor's "authority" over the hospital's finances. "They would say they're really sorry, they know this is difficult," Greene remembers of the meeting with KentuckyOne executives. "But their emphasis was always on, 'But you know we'll take any emergency patient you have.'"
Brinkley and another official later met with Pitt in person to inform him the agreement had been canceled (another hospital entity, Norton Healthcare, would also advise the governor's office of its decision not to enter into transfer agreements with abortion clinics). In the following months, after a series of similar rejections, Planned Parenthood managed to sign agreements with two more hospitals outside the city of Louisville. The state rejected both, before eventually denying the license outright after an administrative appeal in July of 2017.
As it was fighting Planned Parenthood, the health agency turned to what was now the last clinic in the state, Marshall's EMW Women's Surgical Center in Louisville. The new inspector general, Robert Silverthorn (also endorsed by a pro-life group), an agency attorney, and Davis, the chief of staff, began emailing each other about the clinic's hospital and ambulance agreements and how they might relate to the Planned Parenthood case (the contents of the emails are covered by attorney-client privilege). They looped in lawyers for the governor, and Davis asked Bevin's general counsel to review a draft letter intended for Marshall—the letter that would give him 10 days to fix "deficiencies" or to be shut down.
Marshall first tried to re-sign his University of Louisville Hospital agreement—something the head of the hospital agreed to and then backed out of the same day (even though the line that would have barred public funding from groups affiliated with abortion providers didn't actually become law). Three other hospitals in the area similarly declined, and Marshall still hasn't been able to sign a transfer agreement with a local hospital. "We've pretty much asked all the hospitals near our clinic. There's nowhere else to go," Marshall said, calling the process "fruitless."
"When the new governor came in, he brought a whole new cast of characters, literally," says Donald Cox, a lawyer representing Marshall's Louisville clinic. Cox views the health agency as a proxy for Bevin's office and believes no Louisville hospital will sign an agreement "because they don't want to piss off the governor."
On March 29th, 2017, 16 days after receiving the letter, Marshall sued the state. He won a temporary restraining order barring the state from enforcing the transfer agreement requirement and thus allowing the clinic to stay open. Nearly three months later, claiming an "imminent threat to public health," the inspector general enacted emergency regulations shrinking the possible hospital and ambulance partners for clinics by dictating maximum distance and travel time. The regulations came into immediate force, but allowed clinics to ask the health agency for one 90-day extension at a time. (Marshall later balked at the idea of trying to operate his business under the extensions and "at the whim of being closed every 90 days.") Michael Abate, a lawyer for Planned Parenthood, says the clinic previously offered to file a new application if the state would commit to reviewing it promptly, but health officials wouldn't agree to a timely process.
The clinics won a district court ruling in the fall of 2018 declaring the agreements unconstitutional for infringement on women's right to abortion, and the ruling permanently prevented the state from enforcing transfer agreement requirements. The court found that the transfer agreements "have no significant impact on the quality and timeliness of emergency medical care received by abortion patients who experience complications" while also imposing "a significant burden upon women who are deciding whether to undergo an abortion." The decision relied, in part, on the 2016 Whole Woman's Health v. Hellerstedt Supreme Court ruling, which found that Texas couldn't impose rules that burden women's access while providing minimal to no health benefits. In late June of this year, the judge in the Kentucky case further determined that the state had violated the court's restraining order when the health agency denied Planned Parenthood's license application in 2017 over the lack of an acceptable transfer agreement, and the court ordered the health agency to make a new decision on the license by August 19th.
In a brief filed on appeal to the Sixth Circuit (the case is being tried by Pitt, the governor's counsel), Kentucky says its regulations simply require "common safety measures among healthcare facilities" to "streamline, expedite, and facilitate the transfer and treatment of patients." The state argues that there's no proof its regulations would unduly burden women's access to abortions or cause Marshall's clinic to close, because the clinic didn't try to keep operating under 90-day extensions, and that the agreements' "benefits are not substantially outweighed by the very minimal burdens they impose."
During the district court trial, Silverthorn told a courtroom there was "no specific desire to shut down any facility that is in compliance. And opportunities have been given to EMW Women's Surgical Center to do so, and hopefully they'll be able at some point to provide that documentation."
"Well," Cox replied, "how does it help women's health to impose requirements that we can't meet?"
How a State Can Slowly Close Clinics Over Time, With Little National Attention
In neighboring Ohio, troubles with transfer agreements have been hastening the closure of abortion clinics for years. They're what shut down one of Dr. Martin Haskell's two abortion clinics in the state, and depending on an appeal to the Ohio Supreme Court, they could close his last.
The agreements first appeared in 1996 as regulations promulgated by the Ohio Department of Health for ambulatory surgical facilities, which in Ohio include abortion clinics. In 2003, the department's director at the time used the rule to try to shut down Haskell's Dayton clinic, Women's Med Center, which opened in 1983. Haskell—a physician credited with popularizing the abortion procedure known as dilation and extraction (pro-life groups call it "partial-birth abortion")—sued the state, claiming the agreements were unconstitutional. In 2006, the Sixth Circuit upheld the state's transfer agreements. In a foreshadowing of what clinics in Kentucky would face more than a decade later, the only transfer agreement Haskell has ever managed to sign with a Dayton-area hospital lasted a period of a month before the hospital rescinded it. A court order kept the clinic open for a period of time, until the state granted a variance to the transfer law in 2008. Haskell continued to request variances until 2015, at the start of John Kasich's second term as governor.
Ohio elected Kasich to the governor's office in 2010. In 2012, he appointed Michael Gonidakis, the head of Ohio Right to Life, to the state's medical board. A year later, Kasich signed a bill enshrining the health department's transfer agreement rule into law. It was one of 17 anti-abortion measures the Republican signed between 2011 and the spring of 2016, according to an analysis by the Washington Post.
Kasich isn't known for grand proclamations about the sanctity of life (the president of the pro-life Susan B. Anthony List told Politico that Kasich was a "classic under-commit, over-perform" politician), but his reign proved quietly effective, in part thanks to a key caveat in his 2013 law. It requires abortion clinics to sign transfer agreements or to obtain a variance—an alternative that relies on agreements with physicians who have admitting privileges at nearby hospitals—and also bans public hospitals and their staff from entering into such agreements. According to one complaint filed against the state, abortion clinics are the only ambulatory surgical facilities that have ever needed to ask the state for a variance. In the eight years Kasich was governor, at least 10 abortion clinics in the state closed—three of them for issues related to securing transfer agreements or variances from the health department, according to local news reports. An additional three clinics have remained open thanks in part to lawsuits filed against the state over the requirements.
Haskell's second Ohio clinic, located just outside of Cincinnati, falls into the former category. The health department first proposed to revoke the clinic's license in 2012, when it rejected the clinic's variance request (staff who had initially approved the license's renewal that year were suspended as a result, according to an investigation by the Cincinnati Enquirer). Roy Croy, the bureau chief in charge of licensing abortion clinics at the time, later told the Enquirer the health department was "looking for anything" to close Haskell's clinics, and he separately alleged that the governor's pro-life views were "filtered through true believers on the governor's legal staff." The clinic lost an administrative appeal, and in 2014, a state judge ruled his court had "no jurisdiction" to review the decision of the director of the health department, the top political appointee, because that official had sole discretion over whether to grant licenses.
Rather than continue the legal battle, Haskell decided to close the clinic. In a fiery op-ed in a local paper, he called the women he served "the silent victims left in our governor's wake as he closes abortion providers one by one" and blamed "the governor's manipulation of the Department of Health."
The next year, Haskell's clinic in Dayton—and that city's only abortion clinic—came under scrutiny. By then, Richard Hodges, a former state politician and director of the Ohio Turnpike Commission, was leading the department. Hodges had limited public-health experience heading into the job, and Jennifer Branch, a civil rights lawyer who regularly represents abortion clinics, including Haskell's, says Hodges was particularly keen to utilize his department office. "I guess they always had that power, but none of the directors used it to the extent Hodges did," Branch says.
In an email, Hodges, who is now the health policy executive in residence at the Ohio University College of Health Sciences and Professions, disputed the idea that abortion clinics were singled out by the department during his time there. He noted that the department did approve some abortion clinic variance requests and added that the process was the same for all ambulatory surgical facilities. "It is a question of law and science, and I relied on the medical and legal departments," he wrote. "I did not get involved in the process until the very end, and I do not recall a time I overruled or modified the outcome of the process on any subject."
The health department regulates abortion clinics "to ensure the safety and health of all Ohioans" and is "required to follow the law as enacted," a department official said in a statement. The statement did not directly address allegations of politically motivated treatment of abortion clinics.
Between 2012 and 2014, Haskell's Dayton clinic had applied each year for a variance to the transfer law. In 2012, it named three back-up doctors with admitting privileges, but in later years, named two. The department hadn't responded, so the clinic kept operating. Then, in 2015, politicians in Columbus added new abortion language to the budget bill, directing the health department to grant or deny a variance application within 60 days, and crucially adding that a variance application that hasn't been approved in that timeframe is considered denied (a federal court later prevented the state from using that last provision to suspend abortion licenses). Kasich signed the bill in June, and that same month, Hodges wrote that he was denying three years' worth of the Dayton clinic's variance requests, saying he was concerned about "just two" back-up physicians (the rule requires "one or more"). His office gave Haskell 30 days to reapply, implying the clinic needed a third doctor.
"They scrambled, got a third doctor, submitted the variance, and ODH denied it two months later and said, 'Nah, we don't need three, we need four,'" Branch, Haskell's lawyer, recalls. (A Planned Parenthood clinic in Cincinnati that faced a similar series of letters was able to find a fourth doctor.)
The department officially denied the clinic's variance that fall, citing three doctors as not meeting the department's expectation for "patient health and safety," and moved to revoke the clinic's license. Haskell has since fought the state in administrative hearings and courtrooms. This summer, he finally found a fourth doctor back-up doctor, and Branch is hoping the health department will finally approve the new variance request. If not, "my last opportunity to keep him licensed is an appeal to the Ohio Supreme Court," Branch says. She filed it in May.
A similar case decided only a year ago (and also argued by Branch) doesn't bode well for Haskell. Capital Care Network, Toledo's only clinic, spent four years in a legal battle with the health department over its inability to sign a transfer agreement with a Toledo-area hospital, and the Ohio Supreme Court ruled against the clinic in January of 2018. The court's majority opinion called the case "a policy decision," and thus concluded it was "not necessary" to consider the constitutionality of the agreements and whether they infringed in any way on women's right to access abortion. The department was simply following its own rules, the court decided, in effect ending the clinic's legal options.
In her dissent, Chief Justice Maureen O'Connor argued the law, "if allowed to stand, permits the legislature to do through private actors what it may not legally do following Roe and its progeny: wholly prevent a woman from exercising her fundamental right to a pre viability abortion." Within days, Gloria Steinem released a statement urging local hospitals to step in. ("God bless her," Branch says, "who knew she was from Toledo?") The same day, ProMedica Toledo Hospital announced it would sign a transfer agreement. "When push came to shove, the community in northwest Ohio said, 'Wait a minute, what do you mean our only last standing clinic is going to close?'" Branch says. Three months later, the state granted the clinic a new license.
In the midst of litigation, the health department also levied a proposed $40,000 fine against Capital Care Network over five alleged deficiencies, only one of which was later deemed founded by a hearing officer, who suggested a fine of $3,000. The department countered with $15,000, which the clinic agreed to pay. "At that point it was going to cost more in attorneys' fees than paying off the fine," Branch says.
She considers the department's multitudinous legal battles with clinics a "brilliant" strategy. "I don't know that Ohioans are paying attention to this detail," she says. "It's minutiae. It's one clinic at a time. It's just nickel and diming them to death."
The Piling on of Regulations
Hope Medical Group for Women sits on a corner lot at a busy intersection in Shreveport, northwest Louisiana, surrounded by trees and spring-blooming azaleas. On a recent morning, a handful of escorts patrolled the clinic property line under sharp sunlight, looking for patients to accompany past the protesters (in that instance, two middle-aged women belting out a Christian hymn).
Hope is the plaintiff in nearly every recent abortion rights lawsuit in Louisiana—including two ongoing disputes targeting the state's entire suite of abortion clinic regulations. Its administrator, Kathaleen Pittman, a hospitable and commanding woman, is responsible for ensuring the clinic is in compliance with the more than 1,000 separate requirements created by the Louisiana Department of Health since 2001, when state law first required that abortion clinics be licensed.
For a time, the regulations were fairly succinct. But in 2013, claiming it would "promote the health and welfare of Louisiana citizens," the department enacted emergency regulations that rescinded the entire regulatory scheme and immediately replaced it with a rewritten set of regulations three times as long as the original document. "I fail to understand what the emergency was," Pittman quips.
The department would later argue that it needed to replace the regulations not due to an emergency, per se, but in order to include two laws passed that year (one mandated that abortion doctors be OB-GYNs and be in the room while patients take abortion medicine; the other defined a coerced abortion as child abuse). The changes came during the administration of Governor Bobby Jindal, a Republican who oversaw Louisiana's rise to the top anti-abortion state, a position it went on to hold six years in a row, according to Americans United for Life. A senior health official at the time says the administration's views on abortion were no secret, and staff "understood this was a priority of the governor's office, and that these changes were a part of their agenda."
The regulations drew widespread response, much of it backlash, and the department abandoned them for a time. But two years later, it created a new scheme. A largely unchanged version of the previously proposed regulations, it had hundreds of detailed new requirements. As of 2017, the rules included 175 specifics about a clinic's "governing body" and 54 requirements related to patient medical records, according to one lawsuit. In one instance, the rules require clinics to write anesthesia reports even for patients who don't receive anesthesia. Per the regulations, the secretary has the power to revoke any abortion license for any single infraction or violation of any state or federal law; under the changes, if a clinic's license is denied or revoked, or if a renewal is refused, the state "shall" prohibit nearly any owner or staff at that clinic from managing any other clinic for a minimum of two years.
The Jindal administration made the changes despite another onslaught of criticism (the department fielded about 10,000 comments, so many of them negative that one staff member at the time wondered if the agency would proceed given "the opposition to this proposed rule"). In 2017, Hope sued the state, arguing the department's response to public comments—it posted a single, "global" response online—violated state procedural laws. A Louisiana judge invalidated the entire scheme, but the regulations have been left in place pending an appeal.
In a separate, novel federal suit filed with the Center for Reproductive Rights, Hope is alleging that the entire regulatory framework creates "an environment of unpredictable, constantly shifting, and arbitrarily enforced regulations" of little medical benefit, and is therefore placing an undue burden on women's constitutional right to an abortion (Louisiana has called the suit a "scattershot approach" and "blunderbuss-style attack" on its regulations). At least three more states are now facing similar challenges to the very idea of detailed abortion clinic regulations: Mississippi, Indiana, and Virginia, where at least two clinics closed after the states' boards of health developed a web of new regulations in 2012 at the encouragement of then-attorney general Ken Cuccinelli (now Trump's head of U.S. Citizenship and Immigration Services).
How States Can Block New Clinics From Opening
Two states—Louisiana and Indiana—are fighting additional lawsuits alleging that they've used their licensing powers to try and prevent new abortion clinics from opening.
In June, a new clinic welcomed its first patients in South Bend, Indiana, after a two-year battle with the state over obtaining a license to operate. A federal district court sided with Whole Woman's Health Alliance in May and barred the Indiana State Department of Health from preventing the clinic's opening. "Slight or none" is how the court described the benefits to the state of requiring that the clinic be licensed. The state has appealed to the Seventh Circuit.
"Simply put," the judge wrote, "there is unmet demand for abortions in and around South Bend which is, at this point, state-created, without any appreciable benefit to maternal health or fetal life."
Indiana disagrees. In a statement, the attorney general's office said that licensing is needed to enforce state abortion laws and to "screen out unreputable providers." The state disputes that there is any need for the clinic, adding that the state's treatment of the clinic "was not fueled by anti-abortion ideology, but by genuine concern about the reputation of Whole Woman's Health."
In 2018, Planned Parenthood Gulf Coast, Inc., sued Louisiana's health department for, it claims, purposefully delaying its application to offer abortions at a New Orleans clinic through baseless investigations and "bogus" regulations, actions that "demonstrate" the department "intends never to make a formal decision" on the application. The Planned Parenthood affiliate has submitted multiple rounds of extensive materials to the department since 2014. It alleges the department created a "facility need review" process through an emergency regulation specifically to throw up roadblocks for the clinic (the process required an abortion clinic to prove there's a "need" for its services before being granted a license; the department later rescinded the rule in another emergency regulation). Over the years, the department has both investigated Planned Parenthood's billing practices and questioned its handling of fetal remains (Planned Parenthood did not, and doesn't, provide abortions in Louisiana). In 2017, under the administration of pro-life Democratic Governor John Bel Edwards, Planned Parenthood received a letter stating that the health department needed to "conduct an investigation," this time into any possible "violation of any federal or state law or regulation." In asking the court to dismiss the suit, the state has said Planned Parenthood has no basis to sue because its application hasn't been rejected, adding that the health department's review of the application is "both real and ongoing." The license remains in limbo.
The Final Role of the U.S. Supreme Court
The make-up of the U.S. Supreme Court after Trump appointed Justices Neil Gorsuch and Brett Kavanaugh—and especially its views on the constitutionality of abortion—could prove critical for the ultimate fate of state licensing efforts, if one or more of the current hoard of federal cases arrives, eventually, before the Supreme Court bench.
In Kentucky, for instance, Governor Bevin's administration is arguing that it can both eliminate the state's last abortion clinic and still uphold the constitutional right to abortion, since those who want the procedure, it says, could simply travel out of state.
"The strategy on the other side is very much about re-examining first principles, and hoping to find a sympathetic audience willing to overturn long-standing precedents that have protected patients and physicians for decades," says Abate, the lawyer for Planned Parenthood of Indiana and Kentucky. Such a strategy could target the Roe v. Wade precedent directly, but it could also aim to file down its teeth. It's possible that the Supreme Court, with its new conservative bent, might choose the latter—perhaps upholding the actions of state health agencies like Kentucky's, leaving the door open for others to follow. Indeed, 16 states have submitted an amicus brief to the Sixth Circuit supporting Kentucky's case.
Five years ago, as he shut down his abortion clinic near Cincinnati, Dr. Martin Haskell warned that Ohio was at a "crossroad"—either its citizens needed to take a stand, or the governor and the Department of Health would replace the option of abortion with a "public health crisis." His plea has become prophetic for states other than his own, even as Roe remains law. As in Ohio, the health agencies of Missouri and Kentucky aren't relying on a cataclysmic new Supreme Court precedent or an audacious abortion ban to rid their states of clinics. Instead, they are perfecting a bureaucratic method that could soon achieve, in a far less flashy fashion, the same effect. ❖
This reporting was supported by the International Women's Media Foundation's Reproductive Health, Rights, and Justice in the Americas initiative.
Author: Rosemary Westwood is a New Orleans-based writer whose recent work has appeared in the Guardian, Maclean's, Vice, Chatelaine, and elsewhere. She is currently working on a book about abortion.
Illustrator: Ian Hurley is an associate editor at Pacific Standard, where he oversees the artistic and creative direction of editorial projects and multimedia extensions. Previously, he directed our engagement strategies and social media accounts. He is a graduate of St. John's University and has a master's degree from the University of Southern California.