Reproductive rights, access could be limited by Prop. 23

Capitol Weekly October 28, 2020 By Deborah Rotenberg

The death of U.S. Supreme Court Justice Ruth Bader Ginsberg sent shockwaves through the women’s reproductive rights movement. And the confirmation hearings of Amy Coney Barrett, Donald Trump’s appointee to the Supreme Court, have all reproductive rights advocates geared up for another major fight to protect women’s rights in this country.

That’s why it’s deeply concerning that a health care labor union in one of the most progressive, pro-choice states in the nation is pushing a ballot measure that could provide new ammunition to anti-abortion zealots in their quest to eliminate a woman’s right to choose.

Proposition 23 on this year’s November ballot would require, with limited exceptions, each dialysis clinic in the state to have a doctor on site whenever patients are being treated.  While regulations on dialysis providers may seem wholly unrelated to abortion clinics, there is a direct and dangerous connection between Proposition 23 and the “TRAP” laws that are repeatedly aimed at abortion providers as a means of shutting them down.

TRAP laws (targeted regulation of abortion providers) are burdensome, medically unnecessary laws or regulations designed to increase the cost of operating a clinic or make it impossible to comply with the regulations, resulting in the closure of clinics and impeding access to abortion care.  These laws are often deceptive. On their face they appear to serve a public health or safety interest – but upon closer evaluation, their true purpose is to block access to abortion.

While TRAP laws, like those that have been proposed in states like Texas and Louisiana, are unfortunately common for abortion providers, it is rare to see these burdensome, medically unnecessary regulations imposed on other healthcare providers outside of the abortion setting.

It is precisely for this reason that reproductive health supporters and voters should carefully consider the implications of how a measure like Proposition 23, if passed, could be used to eliminate a woman’s right to choose. If a medically unnecessary and burdensome onsite physician requirement for something as routine and noncontroversial as dialysis centers should pass, that could very well be used as a justification to support a similarly medically unnecessary and burdensome requirement for abortion providers – either in California, or in other states.

According to the Legislative Analyst’s Office, Proposition 23 would increase each dialysis clinic’s annual costs by “several hundred thousand dollars annually.” Furthermore, according to the LAO, the increased costs associated with Proposition 23 could cause some clinics to close, leaving patients without access to life-saving care.

The similarities between Proposition 23 and a quintessential TRAP law are irrefutable, as both are:
–Targeted at only certain providers;
–Medically unnecessary; and
–Impose an undue burden on patients seeking access to care.

The similarity between the two should give reproductive health care advocates and voters pause.

For example, red states attempting to enact or enforce laws requiring medication abortions to be administered by an onsite physician (as opposed to a PA, CNM, or NP acting within their scope of practice and under physician supervision) could justify that policy by arguing that onsite physician requirements exist in other medical practice areas and point to California’s dialysis regulation as an example.  Anti-choice advocates could claim that other outpatient facilities, such as dialysis clinics, are required to be staffed by onsite physicians and that this is a proper public health regulation for outpatient settings generally, including abortion clinics.

Anyone who cares about a woman’s right to choose should take a long hard look at Proposition 23 – because not only is it expensive and unnecessary, it reads like it’s right out of the anti-choice playbook.

Editor’s Note: Deborah Rotenberg is the founder of DJR Health Law and Consulting based in Sacramento.  She is former in-house counsel for Planned Parenthood Affiliates of California and currently represents hundreds of reproductive healthcare providers statewide.