Seeking Common Ground in the Abortion Regulation Debate

38 Pages Posted: 22 Apr 2015

See all articles by Jessica Arden Ettinger

Jessica Arden Ettinger

Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

Date Written: 2014

Abstract

This Note argues that requiring abortion clinics to adhere to the same standards as ambulatory surgical centers is unconstitutional, at least in the context of those clinics that provide only medication abortion, because it unduly burdens a woman’s right to choose whether to obtain an abortion. Although there may be a rational basis to require abortion clinics offering surgical abortion procedures to meet surgical facility standards, no such basis attends the imposition of those requirements on clinics that provide nonsurgical services. Given the number of clinics that continue to close in the face of this new regulatory legislation — which significantly reduces access to abortion services, increases their cost, and makes them logistically more difficult to procure due to increased geographic travel — it is arguable that even requiring surgical abortion clinics to meet ambulatory surgical center standards will result in an undue burden.

At the same time, however, state legislators have a valid interest in ensuring that abortion procedures are conducted in a safe manner. Although abortion clinics currently are subject to regulatory oversight outside the realm of state-specific statutes, the requirements currently in place govern the privacy of patients’ health records, laboratory testing practices, and workplace health and safety, but do not address directly the regulation of surgical procedures.

In light of the constitutional problems embedded in current state efforts to regulate abortion clinic facilities and the shortcomings of federal regulatory efforts, it may be time to entertain a different approach to abortion clinic regulation. Part I presents the legal framework and standards currently governing abortion legislation. Part II utilizes this foundation to evaluate current problems in state regulatory practices, spotlighting two pieces of recent state legislation that seek to impose ambulatory surgical center standards on all abortion clinic facilities within their borders. Lastly, Part III introduces and outlines an alternate means of regulation — accreditation — that offers common ground in the abortion debate by serving everyone’s interest in providing safe, accessible medical services to women.

Keywords: abortion, regulation, legislation, undue burden, rational basis, Wendy Davis, ambulatory surgical center, Casey, Roe, Gonzales, Carhart, accreditation

Suggested Citation

Ettinger, Jessica Arden, Seeking Common Ground in the Abortion Regulation Debate (2014). Notre Dame Law Review, Vol. 90, No. 2, 2014, Available at SSRN: https://ssrn.com/abstract=2596931

Jessica Arden Ettinger (Contact Author)

Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP ( email )

1801 K Street #411L
Washington, DC 20001
United States

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