Study: State regulations on abortion depend on bureaucratic implementation

A study done by legal and academic researchers found that implementation of abortion regulations in Ohio “have become exceedingly difficult to comply with,” even as clinics attempt to adhere to state law.

The difficulty may be intentional, with “bureaucratic discretion” that “may exert greater influence on abortion availability across the nation as states scramble to clarify and implement policies” following the downfall of national abortion legality with the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, it said.

The study, written by four researchers from the University of Cincinnati, one for the Ohio State University and two from Case Western Reserve University, along with another from the University of Wisconsin Oshkosh, appeared in the Journal of Health Politics, Policy and Law.

The research profiled two clinics who provide abortion care, including interviews with staff and physicians, to spell out how state regulators used rules and specific state law requiring access to hospitals to make it harder for clinics to provide care. Both facilities are in Southwest Ohio and provided more than 30% of all abortions in the state in 2020.

“Their closure or inability to provide procedural abortion care would have a significant impact on abortion availability in the state,” the study stated.

One of the authors, Jessie Hill, is also helping represent abortion clinics in a lawsuit to bar a six-week abortion ban from being put into place in Ohio. The ban has been stopped indefinitely as a Hamilton County court decides the merits of the lawsuit against it.

With the recent study, Hill and the other researchers find that not only do state regulations like abortion bans hinder health care in the state, but rules like hospital transfer variances required of abortion clinics to provide care damper access to care in a more nuanced way.

Written transfer agreements require abortion clinics to be affiliated with doctors who have hospital privileges, but “ambulatory surgical facilities,” which abortion clinics are considered, can apply for a variance from the Ohio Department of Health if they are within a certain distance of an eligible hospital.

Legislation passed in 2021 narrowed the distance from 30 to 25 miles.

“While the opportunity to seek variances may appear to alleviate the burden of compliance with the (written transfer agreements) requirement, we show that variances can constrain facilities’ time, resources and ability to provide procedural abortion care,” according to the study.

Abortion clinics in Southwest Ohio said this and other parts of Senate Bill 157, effectively forced the closure of the clinics, partly because the law also barred any physicians affiliated with public university medical schools from participating in abortion clinic services, which the facilities profiled in the study said disqualified most physicians from eligibility, including those that served as “backup physicians” for the facilities.

“Whether either facility will be able to secure any backup physicians that meet the new requirements if the law goes into effect, let alone a number that will satisfy the ODH director, is yet to be seen,” according to the report.

The study was specific to abortion services, but “unlimited discretion also has the potential to undermine patient-doctor relationships and evidence-based healthcare in other medical contexts as well.”