The Triumph of Bureaucracy Over Abortion Rights

The abortion battleground is becoming a fight over reams of red tape. No wonder nobody is really paying any attention.

09.09.13 8:45 AM ET

The recent revelation that nearly one in 10 abortion clinics in the United States have closed during the past two years has received a lot less coverage than Todd Aiken’s asininities or proposals to force transvaginal ultrasounds on unwilling women. Nor has there been much chatter about the new round of assaults on RU-486, which have led to a case that’s been accepted before the Supreme Court, with potentially far-reaching conclusions. Partly, this is due to fatigue—these days, news of broad new abortion restrictions is barely news at all. Partly, it’s because there’s so much going on in the world—public attention is, understandably, focused on Syria. But it’s also because the anti-abortion movement has been making epochal advances using regulations that are as tedious to read about as they are to describe. In the abortion wars, boredom has become a powerful weapon.

Let’s start with the clinics closings. To find out what’s happening on the ground, Bloomberg’s Esmé E. Deprez did the painstaking work of reaching out to abortion providers all across the country, tallying 58 that have closed since 2011. “A wave of regulations that makes it too expensive or logistically impossible for facilities to remain in business drove at least a third of the closings,” she wrote. According to the Dallas Morning News, at least four more clinics are about to close in rural Texas. The sole clinics in North Dakota and Mississippi remain open only because courts have temporarily blocked the regulations that would shut them down.

The story of how clinics are being regulated out of existence isn’t exciting. It’s about laws that specify the size of procedure rooms and the width of clinic hallways, passed specifically to force abortion providers to undertake costly renovations or to close. It’s about the rules requiring abortion providers to have admitting privileges at local hospitals, passed knowing that the hospitals won’t grant them.

As I write this, I can imagine the rejoinders from anti-abortion activists claiming that these laws protect patients. To answer them, I could explain why medical associations have called these regulations “onerous and unnecessary,” and get into the details of the 1986 Emergency Medical Treatment and Labor Act, which already entitled patients to hospital transfer if something goes wrong. Or I could discuss how some hospitals grant privileges only to doctors who admit three or even 10 patients a year, which no abortion provider does, because abortion is so safe. By then, however, most people will have stopped reading, and I can’t really blame them. In this respect, bureaucracy is proving far more effective than right-wing terrorism.

With clinics being forced to shut their doors, more women will likely rely on medical abortions, which combine RU-486, or mifepristone, with another drug called misoprostol. As Bloomberg’s Deprez noted, the number of private practitioners offering prescription abortions has climbed since the FDA approved the drugs in 2000, even as the number of surgical abortion providers is declining. But medical abortion, too, is under regulatory assault. Again, the details are technical. The effect on women’s access to care is potentially devastating.

Much will depend on the outcome of Cline v. Oklahoma Coalition for Reproductive Justice, a case the Supreme Court accepted in June. At issue is an anodyne-seeming Oklahoma law, originally drafted by Americans United for Life, requiring doctors prescribing abortion-inducing drugs to follow FDA instructions. Similar laws have been passed in Ohio, Texas, Arizona, and North Dakota. As Linda Greenhouse of The New York Times writes,  “Viewed outside its context in the battle over abortion, the law looks perfectly sensible, a routine state regulation of medical practice. (Spoiler alert: it isn’t.)”
Here’s why. When RU-486 was approved, the agreed-upon dose of mifepristone was 600 milligrams, to be used in concert with misoprostol, which had already been approved for the treatment of stomach ulcers. Initially, this abortion-drug combination was considered safe for use during the first 49 days of pregnancy. Doctors have since found that mifepristone is effective at only 200 milligrams, and that the drug combo can be used at any time during a pregnancy’s first nine weeks. This sort of evolution in the use of prescription drugs is very common. “I cannot remember a state ever banning an off-label use of a prescription drug before,” wrote Hank Greely, director of the Center for Law and Biosciences at Stanford. “States generally trust doctors with prescribing authority—and the AMA and state medical associations work to ensure that.”
Except, apparently, when it comes to abortion. What’s significant about the Oklahoma law isn’t just that it would limit the time period during which abortion-inducing drugs can be used. It’s that it would force doctors to violate current standards of care by prescribing a medication at triple the necessary dose. To do so would be an ethical trespass, and many would likely stop prescribing the drug altogether.
If women did manage to get prescriptions, they’d have to pay significantly more—each mifepristone pill costs between $85 and $90—as well as suffer heightened side effects for no medical reason.
Then there’s the Catch-22 embedded in the law. As Greely points out, while FDA approval of mifepristone specifies that the drug be used in concert with misoprostol, the FDA never officially approved misoprostol for use as part of an abortion regimen. It simply assumed that misoprostol would be used off-label. “The Oklahoma statute, by requiring only on-label use of RU-486, requires the use of misoprostol, but that same statute, by requiring only on-label use of misoprostol, forbids that use,” Greely writes. Got that?
These sorts of deliberate, and deliberately confusing, regulatory traps are a lot less headline grabbing than, say, one of those zygote-rights initiatives that even Mississippi voters rejected. But when it comes to keeping abortion out of women’s reach, they’re proving far more effective. “The anti-choice folks have gotten smarter,” says Vicki Saporta, head of the National Abortion Federation. “They’re no longer talking about overturning Roe, because there would be a huge backlash. But if you make abortion inaccessible in state after state, they are in fact achieving their goal while seeming reasonable, when they’re anything but.”