03 Jun How Zoning Law Is Used Against Abortion Providers
Using zoning laws and land-use codes, anti-abortion city leaders are shutting down clinics. Can reproductive rights activists beat them at their own game?
Almost as soon as the Supreme Court’s Roe v. Wade decision enshrined a woman’s right to terminate a pregnancy in the first trimester, Cleveland, Ohio, found a subtle way to flout it.
In December, 1973—the same month and year Roe was confirmed—Cleveland’s City Council passed an ordinance that regulated which facilities could offer abortion services. Most were related to the medical procedure itself: guidelines around lab equipment, practitioners, and recovery facilities. To get a license to open, clinics would also have to undergo an inspection and pay a fee.
But when a clinic offering affordable abortions, West Side Women’s Services, came close to opening on Cleveland’s west side in 1977, the city introduced an emergency amendment to the ordinance: No abortion clinics would be granted a license to operate in local retail business districts.
The intention was clear. If the abortion clinic couldn’t be licensed, it couldn’t operate. And without it, Cleveland residents would find it much harder to get the care they sought.
After a legal challenge, the abortion licensing ordinance held, but Cleveland’s emergency amendment was ruled unconstitutional by the state court. It violated Roe by creating an undue burden, wrote Elizabeth B. Meyer in an Urban Law Annual Journal paper in 1987, and besides, “the city had failed to present any evidence of a specific purpose for the emergency ordinance or threat to health, safety, and welfare.”
Today, some cities are following the playbook Cleveland set out decades ago—and with more success. These local strategies are driven by the same anti-abortion activists and politicians who are pushing increasingly strict statewide abortion bills in places like Georgia, Alabama, and Louisiana, and who are hoping to challenge Roe v Wade. In practice, though, the cities are focusing on seemingly more neutral territory: land use.
“Abortion is often talked about or thought about by people as ideological, which it is in some sense,” said Jenny Dodson Mistry, senior manager of special initiatives at the National Institute for Reproductive Health. “But it’s also about brick and mortar access to abortion care.”
Zoning for abortion deserts
It’s that brick and mortar access that’s already being eroded in many states. In the five-year span from 2011 and 2016, more than 160 abortion clinics in the country closed or stopped performing abortions, a report from Bloomberg Business found—and only 21 new ones opened to replace them.
For people in 151 urban areas, the nearest abortion clinic is more than an hour’s drive away, according to a Pudding analysis of 2017 data. And because states enforce varied mandatory waiting times and second and third trimester restrictions, accessing abortion services can take much longer: A round-trip from Boise, Idaho, to get an abortion can take an hour at 12 weeks gestation, and more than nine hours once the patient is 16 weeks along. Missouri will soon become the only state with no legal abortion clinics in operation, after health officials declined to renew its last abortion clinic license last week.
Abortion clinic deserts can be created by local protestors, who intimidate centers into closing or out of opening at all; or by states, which—long before the latest wave of abortion bans—have implemented what are known as “TRAP laws,” or the “targeted regulation of abortion providers.” States with TRAP laws define abortion clinics as distinct from other health providers, and regulate them more strictly.
And cities have found another way to place uneven burdens on abortion clinics—by finagling their zoning laws, and fiddling with their land-use codes. Since 2013, at least nine city governments have used the strategy to shutter or restrict clinics’ operation, according to Rewire.News.
“Some of them they try to include some type of medical reason that implies issues about safety or women’s health,” said NIRH’s Mistry. “And then some of them, they don’t even bother.”
In some states, state TRAP laws and city zoning amendments are combined, with particularly potent effects. Take Texas, where a 2013 House bill mandated that abortions must be done in facilities that are classified as “ambulatory surgical centers” (ASCs). As of 2016, ambulatory surgical center TRAP laws like Texas’s exist in 12 other jurisdictions.
But after a San Antonio Planned Parenthood tried to comply with the state law by moving into an ASC facility, the city of San Antonio revised its local zoning rules. The change meant that in commercial districts like the one Planned Parenthood was operating in, ASCs needed approval from the city council and the zoning commission to open. Planned Parenthood was grandfathered in, and safe from closure—but the legislation “appeared intended to prevent further abortion providers from opening facilities,” an NIRH report reads.
Local activists are fighting San Antonio’s legislation, and hope to reverse it by 2020, says Rebecca Gorena, the field director for the reproductive rights organization Unite for Reproductive & Gender Equity (URGE). But when a city councilor first introduced it, not many people were paying attention.
“It was basically sandwiched in with drainage questions and classic land-use policy questions,” said Heidi Gerbracht, the founder of The Equity Agenda, who analyzed a transcript of the city council meeting that solidified the special zoning laws. “But the folks that testified were talking about being opposed to abortion—they weren’t talking about drainage issue or transportation or parking.”
Tennessee cities have been more unabashed. Nashville’s last two abortion clinics closed last year, and Planned Parenthood stopped providing local abortion coverage in December, Rewire.News reported, driving Nashville residents in search of care to cross state lines to find it. When abortion provider carafem started noticing an uptick in Nashville-based visitors to its clinics in Atlanta—a 4-hour drive away—it decided to fill the local need by expanding into Tennessee.
But when it opened a clinic in Mt. Juliet, a neighboring…