There really is a first time for everything, because by the time I'd finished "suggesting" I had (finally ;-) ended up with a diary of my own. So thank you, mcjoan . . . I think.
The TRAP is what providers of abortion care worry about even more than the threat of bombs and bullets. This is what they would like everyone else to know.
While the possible loss of Roe certainly looms on the horizon, it's not at the top of the list for me. Not for me, and not for anyone else I know who does what I do. Just about anyone in America's abortion-providing community (it's sort of like dKos, but a whole lot smaller) will tell you that the most imminent and potent threat to the continued existence of safe and legal abortion care in most parts of the United States is the TRAP - and that's just what it says it is.
If you already know that TRAP stands for the Targeted Regulation of Abortion Providers, then you probably understand why these laws are proliferating faster than we can count them. There are so very many TRAP laws already in existence, and so many more on the way, simply because they work so very well.
Since doctors have been denied access to traditional health care settings such as hospitals and surgical centers for the provision of abortion services, an infrastructure of specialized, freestanding clinics has arisen to fill a need that otherwise would go unmet. That marginalization hasn't been entirely a bad thing, because highly specialized doctors become highly experienced and highly skilled doctors.
Advances in surgical abortion methods don't trickle down to the clinics from the major teaching hospitals. A couple of generations ago, battlefield medics returned home to enhance the delivery of emergency trauma care. Today many doctors who provide abortions "on the front lines" in freestanding clinics are routinely asked to lend their hard-won expertise to their OB/GYN colleagues at major hospitals - highly skilled and experienced practitioners who are nevertheless unsure of how best to manage abortion procedures needed by their own high-risk patients.
Besides, a woman has a much greater assurance of medical confidentiality in a small clinic, and it is easier for a small facility to keep its services affordable. But specialized clinics have become the only settings in which abortion care is available in most of the country - and in their isolation, they are increasingly under siege from hard-line state governments that, even though they can't make abortion illegal, are intent on making it all but impossible.
Almost everyone has heard by now about the ubiquitous "Woman's Right to Know" laws requiring biased information and mandatory waiting periods, those sections of TRAP laws most directly affecting women who seek abortions. Anti-choice politicians such as Frank Corte, the perpetrator of Texas' antiabortion law HB15 (and whose newest bill aims to deny women in Texas not only abortion, but birth control as well), have no trouble marketing and selling TRAP laws to an impressionable public.
The sales pitch goes like this: "We're not saying that abortion shouldn't be LEGAL. But this law is the only way to make sure that vulnerable women can get SAFE care from shady and unscrupulous "abortionists." The true intent of these laws is very different, of course; they are intended to prevent access to abortion care, and they do.
But the rest of the story is that TRAP laws and their attendant "under the radar" regulations are also expressly written to impose extreme medico-legal risks and punitively high expenditures upon abortion-providing doctors and clinics, a tremendously effective strategy for increasing both the risk and the cost of providing abortion care to such an extreme point that it becomes unfeasible for a physician to continue doing it.
TRAP laws and regulations are in effect in over 30 states, but here are just a few ways for either your own or someone else's innocent oversight to effectively end your medical career in Texas, even if you're lucky enough not to end up in jail:
- All licensed abortion facilities in Texas are required to make a photocopy of each patient's photo ID, and to keep it as part of her medical record. That is an egregious intrusion on a woman's privacy, but the doctor's problem begins when someone presents a fake ID good enough to pass inspection, one that says the patient is 19 years old instead of 17. Well, Doctor, unless you can prove you didn't know she was under 18 (and negatives are notoriously hard to prove, a Houston jury having found a couple of years ago that even though a doctor didn't know, he damned well should have, and the state having further tightened the law since) you can be found guilty of a criminal offense.
- Yesterday morning your patient called the clinic to arrange an appointment, and received the requisite state-mandated information "orally by telephone," meaning that she heard a message that you have recorded for that purpose. She came in for her appointment today as scheduled, and you performed her abortion procedure. The patient is relieved and grateful, and thanks you repeatedly before she drives herself home. Everything's fine, right? Wrong. According to your own surgical notes, you began her procedure at 10:37 AM, but the documentation in her chart says that she heard the recorded information yesterday morning at 10:38. The law says the waiting period has to be a full 24 hours. Whether you overlooked the documented time, misread someone else's bad handwriting, or simply forgot to check your watch doesn't matter; none of those excuses is a defense under the statute. Tough luck, Doctor; you are guilty of yet another criminal offense.
- Thank goodness, this next patient looks like a safer proposition. Her chart says that she received her required information way last week. The only thing is, she and the counselor hit it off and got started talking during their session, and somehow it slipped the counselor's mind to have the patient initial every single blank on the state's certification form and sign it - you know, the form that says you told her every single item of misinformation on the government's lengthy list.
And you know what, Doctor? Count your paranoid self lucky, because it's even worse across the Sabine River in Louisiana, where you can be sued by any one of your patients for an unlimited amount of damages for up to ten years after performing the abortion that she requested - if, during that procedure, you did "damage" to a fetus. Yeah, I know. That's why they call it the "Duh" law - but it's still on the books.
What the antiabortion mob can't legislate, they regulate, so don't get so worried about the laws that you forget to pay attention to the regulations. These are just a few examples from the 69 printed pages of regulations enforced by the State of Texas upon no other class of heath care providers except facilities that provide abortion care:
- Not only does the law in Texas now expose our doctors to criminal prosecution for omitting to tell a woman the hellish lie that abortion is a risk factor for developing breast cancer, or that it may lead to thoughts of suicide, but the 2004 cost of our necessary licensing increased from $1,500 to $8,200. Aside from the cost of the license itself, $5,700 of this amount is levied against us to cover the cost of the "informational materials" published by the state to warn women of the dire dangers posed to their lives and health by abortion - you know, like the breast cancer thing.
- Dentists and other health care providers routinely administer nitrous oxide to their patients without any requirement by the state that they use specialized monitoring equipment, but when our patients receive laughing gas, we must provide the same technologically sophisticated pulse oximetry with which critically ill patients are monitored in an ICU setting. There is no medical justification for it, of course, but the state considers the amount we must spend to purchase and maintain pulse oximeters for every one of our treatment rooms to be reason enough.
- Even the smallest clinics must employ, maintain and insure a medical staff sufficiently large to ensure that a patient's vital signs - including her BP, pulse, and respirations - are monitored, recorded and documented in her clinical record more often during a simple and extremely safe first-trimester office procedure than they would be in an ER trauma room if she were having a heart attack -- five times during a five-minute procedure. If the patient says that she would like to have a little laughing gas, add three assessments and recordings of blood oxygenation, all within that same five-minute time frame. Are those strictly enforced requirements medically necessary? Not even on TV. Does it improve our patient's quality of care? Not when the nurse is too busy repetitiously noting her vital signs and SpO2 to so much as hold her hand. But does it cost us thousands a year and make us audit every clinical record with a stopwatch? Well, OK then . . . maybe it's worth doing after all.
- The state's licensing rules also require us to provide extensive written notifications to our patients "at the time of the first consultation," newly defined in 2004 as a prospective patient's first phone call to the clinic. The only way to avoid incurring the expense of an additional full-time employee to mail, e-mail or fax that information every time the phone rings is to publish the notifications online -- which is why even the smallest abortion-providing clinic in Texas maintains a web site. The hour and minute that these written notifications are provided must be documented in the patient's medical record, along with the signature and title of the person doing the providing. And what vitally necessary information is contained in those all-important written notifications? Well, they consist entirely of a detailed list of instructions for filing complaints against us with - you guessed it -- the state.
What both anti-choice legislators and abortion-providing doctors know is that TRAP laws are the most highly effective strategic weapons yet devised for the legal intimidation and persecution of physicians by hostile enforcement agencies. Along with the graying of the ranks of abortion-providing doctors -- well over half of whom are already over 65 - and the increasing difficulty that those doctors have even finding malpractice insurance, let alone affording it, the steady increase in the number and severity of TRAP laws ensures that the number of doctors who provide abortion care will continue to diminish every year.
Texas has become notorious for the virulence of its right-wing fanaticism; I don't call our state capitol the Reichstag on the Brazos for nothing. But compared to those of several other states, even Texas' TRAP laws look almost moderate. It won't matter as much that Roe survives after the providers are gone.
If you are one of the few remaining physicians dedicated, courageous and downright stubborn enough to still be providing abortion care - or if you're someone like me, for whom risk management for such terribly vulnerable doctors has become a way of life -- all of this is part of what passes through your mind every time you hear someone invoke the now-iconic "Safe, Legal and ... Rare."