"TRAP Laws" put abortion rights at risk in Virginia

Nearly one-in-four women in the United States have an abortion by age 45, but if you’re in Virginia, getting the procedure might be harder than you think.

Since 2012, a series of so-called TRAP laws have restricted abortion and reduced the number of medical facilities that provide abortion care in Virginia by more than half, from over 40 to around 20.

These restrictive laws are the subject of an ongoing lawsuit brought against the state by the Planned Parenthood Federation of America, the ACLU of Virginia, and the Center for Reproductive Rights.

The ACLU says that the lawsuit “seeks to overturn several core components of the longstanding, unconstitutional abortion restrictions on the books in Virginia.”

TRAP laws

In 2011, Virginia’s Republican-controlled General Assembly voted to force all abortion clinics to comply with hospital-style building codes.

These regulations require minimum hallway widths and entrance awnings, a limit on how loud outdoor heating and ventilation systems can get, and ultra-specific parking requirements.

Pro-choice activists say these laws have no medical justification and that women’s health is safest when abortion is legal and accessible. They argue the laws were passed under the guise of protecting women’s health, but are actually an intentional strategy to make it more difficult for women to access abortion and to force clinics out of business.

Indeed, the laws did just that. Some of the most stringent TRAP regulations ultimately led many clinics to shut down because they were unable to afford the costly renovations required by the laws.

The laws were so onerous that the state’s health commissioner, Dr. Karen Remley, resigned in 2012, citing the state’s abortion clinic regulations.

The regulations also prompted significant and sustained pressure from activists and arguably played a key role in the election of pro-choice Democratic Governor Terry McAuliffe in 2013. Momentum really shifted in 2016, however, when the U.S. Supreme Court ruled that similar TRAP laws in Texas posed an “unconstitutional burden on abortion access.”

Writing for the majority in the Supreme Court’s 5-3 ruling in the case, Justice Stephen Breyer said the Texas laws “vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.”

Following this decision, the Virginia Board of Health repealed the architectural requirements in 2016. But many TRAP laws remain intact, leading Planned Parenthood and the ACLU to sue the state.

The lawsuit

The ACLU says the Texas case set a precedent that all TRAP laws are unconstitutional. Among the many restrictions challenged in their lawsuit is the so-called “two-trip mandatory delay law,” which requires that all patients have ultrasounds and wait 24 hours after the ultrasound to have an abortion, unless they live 100 or more miles from a facility, in which case they have to wait two hours. This means patients have to make two trips to a facility, a practice that pro-choice advocates say is meant to discourage women from going through with the procedure.

The lawsuit also seeks to repeal a law that requires any second trimester abortion to be performed in a hospital. Because of this law, only two facilities in the state can perform second-term abortions, which pro-choice advocates say creates more burdens, delays care and results in some women not seeking abortion at all due to potential loss of income or cost of childcare or travel.

Deputy Solicitor General for Virginia, Matthew R. McGuire, filed a motion to dismiss all eight counts of the complaint, but U.S. District Judge Henry Hudson only agreed to throw one out. In his refusal to dismiss the other counts, Hudson stated “the United States Supreme Court has consistently upheld the right of a woman to choose to have an abortion before viability, without undue interference from the state.”

On Monday, Alice Clapman, a lawyer for Planned Parenthood, appeared before the court and argued that TRAP laws have limited abortion access to the point where some women have been unable to have the procedure before 10 weeks, the time period in which abortions are safest.

Clapman noted the decrease in the number of abortion providers as evidence of the burden the laws place on women. Indeed, as a result of the loss of providers, 92% of Virginia cities or counties now have zero abortion providers, 78% of Virginia women live in counties without an abortion clinic, and all remaining facilities are clustered in five urban areas.

What’s next

Both Planned Parenthood and the state hope Judge Hudson will grant a summary judgment, rather than hold a trial. Hudson said he hoped to rule on the summary judgment request before May 20, the date the trial is set to begin.

Pro-choice activists, meanwhile, continue to pressure legislators to repeal the Commonwealth’s TRAP laws. State Sen. Barbara A. Favola (D-31) tried to do so in 2018, but was unable to because of the Republican majority. Indeed, any change in the state’s TRAP laws are unlikely to occur while the Republicans hold a majority in the General Assembly, but advocates are hoping that things will change if both houses flip to Democrats in this year’s elections.

The future of choice in Virginia may well be on the ballot this November, and several candidates who voted for the state’s TRAP laws in 2011 are also up for re-election, including Republican Delegates Kirk Cox (R-66) and Tim Hugo (R-40).

Recent events have given both sides cause for optimism. The anti-choice movement has been in the news lately and gained some momentum after sinking a late-term abortion bill, but recent elections have favored Democrats.

The state has shifted notably leftward since Virginia Republicans enacted TRAP laws. One of the architects of the laws, Attorney General Ken Cuccinelli lost the 2013 Governor’s race to McAuliffe, and Democrats picked up 15 seats in the House in 2017, nearly gaining control for the first time in almost 20 years.

Yet nothing is guaranteed. Whether future Virginians face the same obstacles to abortion access may well be decided this fall. Poll after poll shows Virginia voters remain overwhelmingly pro-choice, but it remains to be seen if that translates to the courtroom or the ballot box.