The Quiet War on Abortion

by Barry Yeoman on September 1, 2001

After decades of noisy protests and violence, anti-abortion activists are relying on a new ‘stealth strategy’ to shut down clinics.

Originally published in Mother Jones.

IT WAS COUNSELING DAY LAST SPRING at the Hope Medical Group for Women, a small brick abortion clinic tucked discreetly along a street of upscale shops in Shreveport, Louisiana. In the waiting room, pregnant women paged through magazines. At the front desk, a receptionist monitored the clinic’s perimeter on an overhead screen and buzzed in patients through a locked door, alert for signs of trouble from anti-abortion activists. Robin Rothrock, the clinic administrator, was preparing for the day’s appointments when the telephone rang.

The caller, a pro-choice attorney who represented the clinic, had some disturbing news: The 5th U.S. Circuit Court of Appeals had thrown out a lawsuit filed by Rothrock and four other providers that challenged Louisiana’s newest anti-abortion law, a measure so sweeping it could instantly shut down every clinic in the state. The “civil-liability law,” as it’s usually called, would allow any woman who has had the procedure to sue the doctor for up to 10 years—not just for her own injuries, but also for “damages occasioned by the unborn child.” With no limit to the amount doctors could be ordered to pay, one big judgment in favor of a woman who regretted her abortion could drive a clinic out of business.

Earlier, a lower federal court had found the law unconstitutional, saying it would limit women’s access to abortions by discouraging doctors from providing them. But the appellate judges reversed the decision, ruling that providers could not sue the state over the issue in federal court.

“What?” Rothrock asked the caller, hardly believing the news. She had assumed the judges would find the law so absurd that it would die quietly in the courts. When she learned it had been resurrected, all she could think of were horror films. “It was like a really scary movie, when you think the bad guy is dead, and suddenly he rises up and grabs you,” Rothrock says. “There’s no way a physician can perform an abortion with this law on the books. It’s an insane level of exposure.”

While the ruling panicked pro-choice advocates like Rothrock, it received little attention in the media beyond a brief news clip on page 7B of the Baton Rouge Advocate. And that’s just how abortion foes want it. For years, the anti-abortion movement has pressed its case with noisy demonstrations that blocked clinics, with high-profile legislation that directly challenged the U.S. Supreme Court decision Roe v. Wade, and in some cases with violence, including the assassination of physicians. But 28 years after Roe, with public support of abortion rights running high, the movement has adopted what might be called a stealth strategy: to chip away at abortion rights, slowly and discreetly, with low-profile legislation and lawsuits that stop short of trying to outlaw the procedure.

The new tactic is to bombard providers with a barrage of costly rules. In addition to the civil-liability law, Louisiana has tried to slap abortion providers with extra-stringent building codes that regulate everything from the width of hallways in clinics to the angles and jet types for drinking fountains. Abortion opponents want to create small, expensive obstacles that cumulatively make it harder for clinics to offer services—or, in the words of one right-to-life leader, to create an environment “where abortion may indeed be perfectly legal, but no one can get one.” Not only does the tactic have the benefit of generating little public attention, but it also allows anti-abortion activists to couch the issue in terms of a woman’s welfare—for example, the right of a patient to sue her physician for unlimited sums.

“This is certainly one campaign that’s gaining increasing popularity as a way to hammer at abortion providers: to do it under the guise of caring about women’s health,” says Linda Rosenthal, a staff attorney at the Center for Reproductive Law and Policy in New York. “That’s a pretty palatable starting point. Of course, everybody cares about women’s health. But the way these regulations translate is onerous.”

The stealth strategy is being deployed nationwide, from Utah to Connecticut. But it’s Louisiana that serves as the incubator for the rest of the nation, the state where anti-abortion activists develop innovative measures to test on a state legislature where Catholics and Southern Baptists predominate. “Louisiana really seems to be leading the way in devising new and particularly burdensome regulations for abortion providers,” says Stephanie Mueller, director of public policy for the National Abortion Federation, an organization of providers based in Washington, D.C. “We expect that if something were to pass there, other states would follow their lead.”

For Rothrock, whose facility serves women from a 200-mile radius throughout rural Louisiana, Arkansas, and Texas, the stealth campaign poses an alarming new threat to a clinic that has already endured chemical attacks and paramilitary-style protests. Unlike the more flamboyant attacks, this one actually has the potential to make abortion unavailable to thousands of women. “We’re an outpost under siege,” Rothrock says. “Not only are we working in a hostile environment with limited resources, but there’s the constant deluge of legislation. The most overwhelming part comes from the realization that you have the entire state government, with all its resources, having only one objective, and that is to shut you down.”

AT 51, ROBIN ROTHROCK is one of those people whose physical presence and sheer forthrightness allow her to commandeer whatever room she walks into. Tall and gap-toothed, with gray-flecked blond hair that cascades to her shoulders, she has a face that practically changes shape as the conversation turns from denouncing state legislators to describing her clients. Running an “outpost under siege” was not how she planned to spend her career. “I had no idea what I was getting into,” she admits.

As a young woman, Rothrock was living a relatively comfortable life in Cocoa Beach, Florida, working for a program that helped teens and young adults make the transition from welfare to work. She soon noticed a pattern among certain clients. “I was struck by the fact that if a woman got pregnant and had a baby, it would wreck her opportunity to be self-sufficient,” she says.

At the same time, Rothrock was volunteering at a women’s clinic whose owner had grown up in Shreveport. The owner lobbied Rothrock to go there to open an abortion facility, explaining that women had no place to obtain the procedure in the 400-mile stretch from Dallas to Jackson, Mississippi. Intrigued by the prospect of bringing medical care to an underserved part of the South, Rothrock looked at the region’s demographics and learned that the area had a high concentration of poor and working-class women who didn’t have the resources to fly to Dallas for a procedure. One evening, at a beachside bar in Florida, she watched the sunset and prayed, “If I am supposed to go to Shreveport, show me this is the right thing to do.” A few minutes later, while using the rest room, she noticed some graffiti that said, “If men got pregnant, abortion would be a sacrament.” That was enough of a sign for Rothrock. “God has a strange way of communicating,” she says.

So at 29, Rothrock moved herself and her young son 1,000 miles to northwestern Louisiana, where she bought and renovated an anonymous-looking 50-year-old building down the street from a small Methodist college. On opening day in 1980, the Hope Medical Group had six patients—and 1,000 protesters, including a state senator, who staged a mock baby funeral. It was the beginning of two decades of relentless opposition that occasionally spilled over into terror. In 1983, a recently released psychiatric patient in a red jumpsuit attacked the clinic with a sledgehammer, shouting, “The Lord has sent me, and this building is coming down.” In 1992, when a vomit-like odor permeated the clinic, the staff assumed someone had thrown a stink bomb. But when the smell worsened, Rothrock realized the clinic had been attacked with a toxic chemical. Someone had drilled a hole in the door and inserted butyric acid, which is easily absorbed through the skin and carries an array of side effects. One staff member suffered a collapsed lung and had to be hospitalized.

In the following weeks, Rothrock pulled up carpets and cleaned the clinic, oblivious to the effect the chemical was having on her own health. “Three months later, I went to get my hair cut, and the hairdresser said, ‘Where’s your hair? What happened to it?'” Rothrock’s doctor ran tests, which revealed abnormal liver enzyme levels.

Despite the attacks, Rothrock remains unfazed. She has put down roots in Shreveport, where she has served as president of the state League of Women Voters. “Providing services in Louisiana is a natural place to be,” she says. “It’s like providing assistance in a Third World country because of the issues of poverty and inequality and race. The good thing is that you don’t have to worry about malaria and traveling with a passport.”

But in the past five years, Rothrock has faced a far bigger threat than the right-wing protesters she has seen over the last two decades. The men and women who could force her out of business don’t wear red jumpsuits and carry sledgehammers. Instead, they wear business suits and carry drafts of legislation. And they have counterparts in almost every state in the country.

THE NEW STEALTH STRATEGY has its genesis in the 1992 U.S. Supreme Court decision Planned Parenthood v. Casey. The ruling reaffirmed 1973’s Roe v. Wade, signaling that overt bans on abortion were unlikely to pass constitutional muster. But it also declared for the first time that states have some authority to regulate abortion clinics, as long as they don’t place an “undue burden” on women’s access to abortions.

The Casey decision started abortion opponents rethinking their tactics. Since direct assaults on Roe wouldn’t fly, “there had to be a shift in strategy by regulation on the outskirts of abortion,” says Dorinda Bordlee, staff counsel for Americans United for Life. That’s when leaders developed a new approach: Couch the issue in terms of women’s health. By claiming that abortions take place in dirty facilities and cause such illnesses as depression and breast cancer, right-to-lifers realized they could subtly move the focus of the debate. “For 25 years, the pro-life movement focused on the baby, and the abortion-rights movement focused on the woman,” says Bordlee. “The baby and the woman were pitted against each other. What we have realized is that the woman and the child have a sacred bond that should not be divided. What’s good for the child is good for the mother. So now we’re advocating legislation that is good for the woman.”

In reality, abortion is already one of the safest procedures a woman can have—less risky than taking penicillin, and much safer than having a baby. The Centers for Disease Control and Prevention (CDC) reports that only 3 women died from legal abortions in 1997, compared to 327 who died from pregnancy complications. Adjusting for the higher number of pregnancies, it’s still 30 times more dangerous to try to carry a fetus to term. And for all the recent talk of a link between abortion and breast cancer, a study of 1.5 million women published in the New England Journal of Medicine failed to turn up such a correlation.

That hasn’t stopped conservative legislators from trying to make an issue of abortion safety. One of the most popular methods has been through laws that pro-choice advocates call Targeted Regulation of Abortion Providers (TRAP). Pioneered in the mid-1990s by South Carolina and Mississippi, the laws apply licensing requirements specifically to abortion clinics, but not to other facilities that perform similar or riskier procedures. The laws vary from state to state, but often include building regulations that specify ceiling heights, hallway and doorway widths, counseling-room dimensions, air-circulation rates, outdoor weed-control practices, and separate changing rooms for men. Some require the purchase of expensive supplies not normally used in clinics, such as general anesthesia equipment. Others mandate staffing levels above those usually needed for first-trimester abortions. Missouri, for example, requires a registered nurse on staff when most clinics rely on less-expensive licensed practical nurses.

TRAP law supporters, who have been successful in 16 states, insist they are simply trying to legislate good medical practice. “Look, I’d love it if the Supreme Court would overturn Roe v. Wade, ” says Mike Johnson, a Baton Rouge attorney who has helped draft Louisiana’s anti-abortion legislation. “That would be the greatest day of my life. But until we can do that, I accept the fact that they can perform abortions legally, and I just want them to do it under the same health and safety standards that any other medical professional has to adhere to.”

The problem, say opponents, is that the regulations go well beyond what other health care providers must follow, while doing little or nothing to improve the outcome of an already safe procedure. “I can say with confidence that these regulations will not have a single positive impact on women’s health,” says David Grimes, the former chief of the CDC branch that monitors abortion safety. “Having published on every hemorrhaged abortion death in the United States, I can assure you that not a single one was caused by a door width.” Grimes calls TRAP laws the “antithesis” of good medical policy. “In public health,” he says, “we identify a problem, figure out the causes, look for solutions, and implement them. Here we see a vigorous response in the absence of a problem. It’s science run amok. It’s public health run backwards.”

The real motive for TRAP laws, say Grimes and others, is to force clinics to spend money on costly renovations for fear of being shut down by the state. This drives up the cost of abortions, placing them out of reach of some women. It could even force providers to shut down entirely. In 1999, physician William Lynn shuttered his small clinic in Beaufort, South Carolina, saying he could not afford renovations to bring the historic building with narrow hallways into compliance with the state’s new clinic regulations.

TRAP laws are only one of the new tactics used by the anti-abortion movement. Montana, for example, passed a law in 1995 that permitted only physicians to perform abortions. Touted as a safety measure, the law was actually targeted at physician’s assistant Susan Cahill, the only first-trimester abortion provider in the northwestern corner of the state. Although two respected studies have shown that physician’s assistants can perform abortions as safely as doctors, Cahill was forced to stop performing the procedure for 11 months until the law was overturned.

In fact, abortion opponents have found that the courts are as powerful a tool as the state legislatures. In the past few years, clinics and doctors have been hit with a spate of lawsuits claiming that women didn’t give proper consent for an abortion or suffered psychological damage afterward. “A case will be brought against a provider that will most likely be thrown out,” says Mueller of the National Abortion Federation. “However, the physician still has to go through a lengthy court battle, and endure costs and publicity throughout the case.” Even the most far-fetched claims can hurt clinics. Anti-abortion lawyer John Kindley recently wrote a 21,000-word article in the Wisconsin Law Review suggesting that malpractice suits against abortion doctors “may serve an important role in raising public awareness” of the alleged abortion-breast cancer link. Kindley put that theory into practice in 1999, suing a Fargo, North Dakota, clinic for disputing the breast-cancer theory in a brochure. Even before the case has gone to trial, the Red River Women’s Clinic has been forced to pay $5,000 in legal fees. “Part of their strategy is to drag this out as much as possible,” says clinic administrator Jane Bovard. “They do everything they can to make us incur more expenses. I think their goal is to nickel away at us, to make it too expensive to provide services.”

LOUISIANA’S LATEST ROUND of legislation was triggered by a local television news series in 1999 alleging that the Delta Women’s Clinic in Baton Rouge was practicing bad medicine under unsanitary conditions. The reports used photographs that purported to show rusty instruments and drops of blood on the floor and tables. It was just the weapon anti-abortion leaders needed—even though some in state government weren’t convinced the reports were accurate. “Were they rusty or did they not photograph well?” says one high-ranking state employee familiar with the case. “That’s always been the question for us.” During an inspection of the clinic four months earlier, the state Department of Health and Hospitals (DHH) had found only minor violations.

But the dubiousness of the television series didn’t stop state officials from pouncing. That February, Republican Governor Mike Foster declared a “public health emergency” and ordered the immediate inspection of abortion facilities without warrants or probable cause. “This situation cannot be tolerated,” the governor declared. “We’re taking action now.” DHH reinspected the Delta clinic—and found only two minor problems, including a sticker that needed replacement on a dumpster.

Within two weeks of the order, Robin Rothrock and the state’s other abortion providers had filed suit to block the inspections. For Rothrock, it was a familiar scenario. Ever since the Casey decision, she has been involved in challenging one anti-abortion action after another, in both the courts and the state legislature. Others she didn’t even bother to fight, knowing there was no chance for defeat. In 1995, for example, the legislature passed a measure requiring women to wait 24 hours between a state-scripted counseling session and the actual abortion procedure. “It’s very sneaky, because the public doesn’t really see what’s wrong with this law,” Rothrock says. But many women in outlying areas can’t afford the extra travel or hotel costs—not to mention lost wages and childcare expenses—involved in a two-day trip to obtain an abortion. Samantha Evans, a receptionist at Rothrock’s clinic, remembers explaining the state-mandated waiting period to a woman planning to travel 100 miles from Tyler, Texas. “I can’t do it,” the woman told Evans. “I’ve got to come in one day.” She never called back.

This time around, a federal judge ruled in Rothrock’s favor, stopping the Foster administration from carrying out its emergency clinic inspections without the court’s approval. But by then, the right-to-life movement had sprung into action. Mike Johnson, the Baton Rouge lawyer, approached state Rep. Tony Perkins, who had helped pass the civil-liability law two years earlier. Using the allegations against Delta Women’s Clinic, he asked Perkins to introduce a TRAP scheme that would regulate abortion clinics much like ambulatory surgical centers, which perform much more invasive surgery. “You tell me what to do, and I’ll sponsor it,” Johnson recalls Perkins telling him. In the legislature, Perkins showed his colleagues a video of the TV reports on the Delta clinic. “That pretty much squelched any debate,” the Republican lawmaker says.

By early last year, the Department of Health and Hospitals had drafted a new set of regulations to implement the law. That’s when Rothrock realized how invasive the legislation would be. The proposed rules would have required Hope Medical Group to invest thousands of dollars in changes she considered medically unnecessary. They would have required the clinic’s cozy recovery room, with its ceiling fans and herbal tea offerings, to be moved across a hallway and expanded to the size of a small apartment. They would have forced the clinic to build additional storage areas to keep patient records on the premises for 10 years. They would have demanded the hiring of a facility manager and a registered nurse, as well as the purchase of emergency equipment not generally needed for first-trimester abortions. The list continued for 18 pages.

The Foster administration insists it only wants to protect patients. “Our agenda is to assure health and safety to women who go to abortion facilities,” says DHH Secretary David Hood. “We’re not interested in putting them out of business.” But to pro-choice advocates, such concern sounded disingenuous coming from a government that prohibits most abortions at its highly regulated state-run hospitals. In one publicized case, the Louisiana State University Medical Center in Shreveport refused to terminate the pregnancy of a 27-year-old woman with a heart condition that could have killed her if she had given birth. Rothrock’s clinic didn’t have the capacity to help her, and she had to be transported 260 miles to a hospital in Houston.

Once again, Rothrock’s Hope Medical Group joined some of Louisiana’s other abortion providers in suing the state over the restrictive building codes. Last summer, a federal judge threw out the law over a technicality in how it was drafted. But if the ruling deflated abortion opponents, they were reinvigorated this year by a much more significant court decision. In February, the U.S. Supreme Court let stand South Carolina’s TRAP law, which imposes 27 pages of requirements on abortion clinics—providing a virtual blueprint for states that want to create constitutional clinic regulations.

“We took that as our cue that the state has the authority to draft regulations specifically for abortion providers,” says Johnson, the right-to-life attorney. The administration developed a new proposal, modeled partly on South Carolina’s law, which was then introduced quietly by a Democrat. This time around, “they didn’t do the video stuff. They didn’t do the dramatic stuff,” says Russell Henderson, an abortion-rights lobbyist. “The main people testifying were Secretary Hood and his staff, saying, ‘We just want to protect women.’ It was very much muted in contrast to two years ago.” The measure sailed through both chambers and was signed by the governor in June.

So now Rothrock is gearing up for another round of legal challenges to the new TRAP law. She’s not relishing the prospect. Trying to run a clinic while simultaneously battling the state government has exhausted her. “I don’t try to think about it too terribly much, because it can become overwhelming,” she says. “When we come up against something that seems insurmountable, I visualize myself climbing Mount Everest. I think of the immediate challenge facing us as a particularly treacherous and difficult face of the mountain that requires strategy, endurance, strength, and courage.” She thinks, too, of the hardship Louisianans would face if clinics like hers were forced out of business. “The health and autonomy of women and their families depends on our ability to keep our doors open,” she says. “Unless individuals are willing to provide abortion care, all this talk about ‘rights’ is just empty talk.”

POSTSCRIPT: Rothrock died of breast cancer in 2010.