TRAP (Targeted Regulation of Abortion Providers) Laws.

Sheelagh McGuiness

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TRAP laws are laws and regulations that have a restrictive aim rather than being aimed at the safety of the pregnant woman or the abortion procedure. A defining feature of these laws is that, although they use the rhetoric of ‘patient protection’, their reach extends far beyond this so as to have an obstructive effect. Strategically these laws have had a rise in popularity since the early 90s when anti-abortion campaigners identified their use as part of an incremental strategy to restrict access to abortion services. The strategic aim being through the successful implementation of TRAP laws to give rise to “an America where abortion may indeed be perfectly legal, but no one can get one”.[1]

In the most recent statistics available on TRAP regulations the Guttmacher Institute identify 28 states in the USA that “have laws or policies that regulate abortion providers and go beyond what is necessary to ensure patient’s safety”.[2] Examples of TRAP laws are those that specify the width of door frames and corridors; regulations requiring clinicians to admittance rights at local hospitals or specify the maximum distance from the clinics to the nearest hospital. Commonly TRAP regulations require abortion clinics to meet standards for ‘ambulatory surgical centers’ regardless of the fact that procedures carried out at abortion clinics are less invasive/ risky.[3] As a strategy for restricting access to abortion services TRAP laws have been and continue to be highly effective.[4]

So why should we be concerned about TRAP laws in the UK? Although there has not been a rise in regulations that apply to abortion clinics, there has been a rise in attacks on the trustworthiness of clinician ability to regulate abortion services. Therefore, I think it is clear that the ideological aims of TRAP regulations, obstruction and indirect restriction of service, has been adopted by anti-abortion strategists on this side of the Atlantic.

Abortion regulations in England, Scotland, and Wales have developed within a very medicalised frame. The Abortion Act 1967 was the result of a Bill introduced by David Steel called ‘The Medical Termination of Pregnancy Bill 1966’. The Act is an indication-based model of abortion regulation – this means that it sets out qualitative indicators that justify an abortion. The substance of these qualitative indicators has been left deliberately vague in order not to fetter the discretion of clinicians and it is the medical practitioner who bears overall responsibility for the abortion procedure and ensuring that one of the grounds in s.1(1)(a) of the Act has been met. The following quote from the judgement of Scarman LJ in R v Smith illustrates the importance of the doctor’s role in legitimating an abortion:

The [Abortion] Act, though it renders lawful abortions that before its enactment would have been unlawful, does not depart from the basic principle of the common law, … that the legality of an abortion depends upon the opinion of the doctor…. if they are formed in good faith by the time the operation is undertaken, the abortion is lawful. Thus a great social responsibility is firmly placed by the law upon the shoulders of the medical profession.[5]

It is my contention that recent efforts to undermine the confidence of the medical profession to discharge their responsibilities under the Abortion Act 1967 could impact negatively on the provision of care. The Act places a lot of trust in clinicians. If clinical confidence is undermined then it is likely that we will witness less service with abortions being more difficult to access. This is in keeping with the ideological aims of incrementally restrictive service while leaving any patient ‘right’ to access service in tact. I will pick up on this point in my next post when I discuss the recent attacks on abortion service.

[1] Barry Yeoman ‘The Quiet War on Abortion’ motherjones.com/politics/2001/09/quiet-war-abortion

[2] ‘Targeted Regulation of Abortion Providers’ http://www.guttmacher.org/statecenter/spibs/spib_TRAP.pdf

[3] ‘Targeted Regulation of Abortion Providers’ http://www.guttmacher.org/statecenter/spibs/spib_TRAP.pdf

[4]  Rachel Benson Gold and Elizabeth Nash ‘TRAP Laws Gain Political Traction While Abortion Clinics – And the Women They Serve – Pay the Price’ (2013) 16 Guttmacher Policy Review 7-12.

[5] [1973] 1 W.L.R. 1511

 

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