It’s a TRAP! | Vol. 3 / No. 19.5

In this week’s #FeministFriday post, Elle talks about increasingly dire state of abortion access in America. Read on.

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When we say that abortion is legal in the United States, the sentence really should have an asterisk at the end. Because abortion is legal in the same way that anyone who is at least thirty, a resident of their state, and has been a citizen for at least nine years can be a Senator: yes, it’s technically true, but it’s only actually going to happen for you if you exist in a certain state of privilege. Because at this point, being able to obtain an abortion is definitely a privilege, rather than the right that it should be.

Ever since Roe v. Wade legalized abortion, conservatives have attempted to chip away at it. And they’ve been ridiculously effective. They’ve even co-opted the language: somehow the group that wants women who are the victims of incest and rape to be forced to carry their abusers’ child to term managed to be “pro-life,” and now the discourse around closing abortion clinics is supposed to be about concerns for “women’s health.” Seriously, who let them have all the good PR people?

And for a nation that has such a dismal record for sex education and providing contraception, we seem to be super eager to keep women from having abortions after having said sex. John Oliver recently did an excellent show on particularly nasty pieces of legislation, Targeted Regulation of Abortion Providers, also given the very apt name of TRAP laws. The purpose of these laws is to make abortion impossible to access, thus rendering the legality of the procedure itself moot. Instead of presenting a formal challenge to Roe v. Wade itself, the aim is to lead to a death by a thousand cuts, micromanaging clinics into oblivion. This legislation places ridiculously high standards on abortion clinics (and no other types of medical clinics) in an attempt to bankrupt them into compliance or shut them down. Between 2010 and July of 2015, various state governments passed 282 laws targeting abortion. 

Of course when you actually talk to the people who are passing or supporting TRAP legislation, you realize how thin the veneer of concern for “women’s health” actually is. The TRAP law HB 2 forced over half of the abortion clinics in Texas to close, and led to the case currently before the Supreme Court, Whole Women’s Health vs. Hellerstedt. You might remember it as the one that Wendy Davis tried to block with an awesome filibuster. The bill requires that “abortions be performed in ambulatory surgical centers, hospital-like facilities usually used to perform outpatient surgery” and that any doctor performing an abortion must have admitting privileges at a local hospital. All in the name of “women’s health,” of course. But when the slightest pressure is applied, it becomes clear that “women’s health” is not the primary concern of those who are passing or supporting the laws.

The 1992 case Planned Parenthood v. Casey allows states to regulate abortions, as long as that regulation does not place an “undue burden” on a woman’s ability to obtain an abortion (which is her legal right, remember). And lawmakers have been stretching the meaning of “undue burden” about as far as it can go.  When the Texas Solicitor General Scott Keller tried to claim that HB2 did not cause an “undue burden” since women who would be more than 100 miles from a Texas abortion clinic could get one over the border in New Mexico, Ruth Bader Ginsberg revealed the law for the hypocrisy that it is. Mark Joseph Stern’s retelling of the exchange is worth repeating in full:

“That’s odd that you point to the New Mexico facility,” Ginsburg said, in a clear and firm voice. New Mexico, after all, doesn’t force abortion clinics to meet the same standards that Texas would—standards which, Texas claims, are absolutely critical to protect women.

“So if your argument is right,” Ginsburg continued, “then New Mexico is not an available way out for Texas, because Texas says: To protect our women, we need these things. But send them off to New Mexico,” to clinics with more lenient standards, “and that’s perfectly all right.”

“Well,” Ginsburg concluded, with just a hint of pique in her voice, “If that’s all right for the women in the El Paso area, why isn’t it right for the rest of the women in Texas?”

This exchange was Keller’s first of the morning, and Ginsburg delivered a knockout punch. She very efficiently revealed the inconsistency at the heart of Texas’ argument. The state vows that its new standards—which include minimum sizes for hallways, doorways, and ventilation systems—are essential to protecting women’s health. But when confronted with the fact that these standards are so onerous and expensive that they will shutter many clinics, Texas shrugs and suggests women drive to another state without those ostensibly crucial standards. And in an impressive display of chutzpah, the state even relies on the continued existence of New Mexico’s clinics to defend the constitutionality of its own law.

So to recap, the restrictions in HB 2 are super vital to protect women’s health. Except, of course, when they’re not, so that HB 2 doesn’t prove an undue burden on women. Nothing could make it more clear that the creators of the bill didn’t actually have women’s health in mind; they just wanted to restrict abortion.

When you talk to the people who create TRAP legislation, you also learn how little they actually know about abortion. When Samantha Bee talked to Representative Dan Flynn, who helped create HB 2, she revealed that Flynn knows… basically nothing about abortion. He considers abortion to be “cutting people up” and admits that he’s not a doctor, but he sure did listen to a lot of them. As Bee explains, Flynn basically only needed to fill in a mad-libs version of a bill boilerplate provided by the anti-choice group Americans United for Life.  (Again, why do the conservatives and anti-abortion advocates get to call dibs on the good-sounding names?) So literally any idiot who calls themselves “pro-life” can submit a bill aimed at curtailing abortion rights. Democracy in action?

The harm that these laws do is not theoretical. In 2015, there were 700,000 Google searches that were some variation on “how to self-induce an abortion.”  The searches get horrifyingly specific; Seth Stephens-Davidowitz writes: “There were some 4,000 searches looking for directions on coat hanger abortions, including about 1,300 for the exact phrase ‘how to do a coat hanger abortion.’ There were also a few hundred looking into abortion through bleaching one’s uterus and punching one’s stomach.” In case your head has gone all swimmy with horror, let me write that again: In the year 2015, 1,300 women used the words “how to do a coat hanger abortion” in a Google search. These terrifying searches were most common in states that had 6 to 10 legislative restrictions against abortion (or states like my own home of Wyoming, which has “only” 2-3 restrictions against abortion, but only has one abortion clinic in the *entire state*). Stephens-Davidowitz explains that Google searches for self-induced abortions first spiked following the financial crisis in 2008, but they jumped 40% in 2011, which is when 92 abortion restriction laws were passed. In John Oliver’s piece, Andrea Ferrigno of Whole Woman’s Health in Texas described a call from a woman who could not go to the clinic for an abortion, and instead said, “so what if I tell you what I have in my kitchen cabinet, and you can tell me what I can do.”  In researching for this post I have accumulated an embarrassment of riches, that is, if “riches” means “sentences that make me feel endless despair.”

You don’t have to make something illegal to make it inaccessible. If Prohibition hadn’t made alcohol illegal, but had instead taxed alcohol at 5,000%, it would have still made alcohol inaccessible for the majority of Americans. Roe v. Wade may still be the law of the land, but if TRAP laws continue to be effective and enough states have a single abortion clinic, 24-hour waiting periods, and requirements for transvaginal ultrasounds or pre-abortion “counseling,” then abortion will become functionally illegal for the majority of American women. Just as in the days before Roe v. Wade, the only women who will receive safe abortions will be the ones with time and money. Those women will be able to travel to the few operational clinics to receive their legal abortions.

The rest of the women in America will be left with Google and the contents of their kitchen cabinets.

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Elle Irise is a regular contributor to This Week In Tomorrow. When she’s not horrified by the combined forces of the religious right and the patriarchy (and often when she is), she studies gender in popular culture.