Using zoning laws and land-use codes, anti-abortion city leaders are shutting down clinics. Can reproductive rights activists beat them at their own game?
Almost as soon as the Supreme Court’s Roe v. Wade decision enshrined a woman’s right to terminate a pregnancy in the first trimester, Cleveland, Ohio, found a subtle way to flout it.
In December, 1973—the same month and year Roe was confirmed—Cleveland’s City Council passed an ordinance that regulated which facilities could offer abortion services. Most were related to the medical procedure itself: guidelines around lab equipment, practitioners, and recovery facilities. To get a license to open, clinics would also have to undergo an inspection and pay a fee.
But when a clinic offering affordable abortions, West Side Women’s Services, came close to opening on Cleveland’s west side in 1977, the city introduced an emergency amendment to the ordinance: No abortion clinics would be granted a license to operate in local retail business districts.
The intention was clear. If the abortion clinic couldn’t be licensed, it couldn’t operate. And without it, Cleveland residents would find it much harder to get the care they sought.
After a legal challenge, the abortion licensing ordinance held, but Cleveland’s emergency amendment was ruled unconstitutional by the state court. It violated Roe by creating an undue burden, wrote Elizabeth B. Meyer in an Urban Law Annual Journal paper in 1987, and besides, “the city had failed to present any evidence of a specific purpose for the emergency ordinance or threat to health, safety, and welfare.”
Today, some cities are following the playbook Cleveland set out decades ago—and with more success. These local strategies are driven by the same anti-abortion activists and politicians who are pushing increasingly strict statewide abortion bills in places like Georgia, Alabama, and Louisiana, and who are hoping to challenge Roe v Wade. In practice, though, the cities are focusing on seemingly more neutral territory: land use.
“Abortion is often talked about or thought about by people as ideological, which it is in some sense,” said Jenny Dodson Mistry, senior manager of special initiatives at the National Institute for Reproductive Health. “But it's also about brick and mortar access to abortion care.”
Zoning for abortion deserts
It’s that brick and mortar access that’s already being eroded in many states. In the five-year span from 2011 and 2016, more than 160 abortion clinics in the country closed or stopped performing abortions, a report from Bloomberg Business found—and only 21 new ones opened to replace them.
For people in 151 urban areas, the nearest abortion clinic is more than an hour’s drive away, according to a Pudding analysis of 2017 data. And because states enforce varied mandatory waiting times and second and third trimester restrictions, accessing abortion services can take much longer: A round-trip from Boise, Idaho, to get an abortion can take an hour at 12 weeks gestation, and more than nine hours once the patient is 16 weeks along. Missouri will soon become the only state with no legal abortion clinics in operation, after health officials declined to renew its last abortion clinic license last week.
Abortion clinic deserts can be created by local protestors, who intimidate centers into closing or out of opening at all; or by states, which—long before the latest wave of abortion bans—have implemented what are known as “TRAP laws,” or the “targeted regulation of abortion providers.” States with TRAP laws define abortion clinics as distinct from other health providers, and regulate them more strictly.
And cities have found another way to place uneven burdens on abortion clinics—by finagling their zoning laws, and fiddling with their land-use codes. Since 2013, at least nine city governments have used the strategy to shutter or restrict clinics’ operation, according to Rewire.News.
“Some of them they try to include some type of medical reason that implies issues about safety or women's health,” said NIRH’s Mistry. “And then some of them, they don't even bother.”
In some states, state TRAP laws and city zoning amendments are combined, with particularly potent effects. Take Texas, where a 2013 House bill mandated that abortions must be done in facilities that are classified as “ambulatory surgical centers” (ASCs). As of 2016, ambulatory surgical center TRAP laws like Texas’s exist in 12 other jurisdictions.
But after a San Antonio Planned Parenthood tried to comply with the state law by moving into an ASC facility, the city of San Antonio revised its local zoning rules. The change meant that in commercial districts like the one Planned Parenthood was operating in, ASCs needed approval from the city council and the zoning commission to open. Planned Parenthood was grandfathered in, and safe from closure—but the legislation “appeared intended to prevent further abortion providers from opening facilities,” an NIRH report reads.
Local activists are fighting San Antonio’s legislation, and hope to reverse it by 2020, says Rebecca Gorena, the field director for the reproductive rights organization Unite for Reproductive & Gender Equity (URGE). But when a city councilor first introduced it, not many people were paying attention.
“It was basically sandwiched in with drainage questions and classic land-use policy questions,” said Heidi Gerbracht, the founder of The Equity Agenda, who analyzed a transcript of the city council meeting that solidified the special zoning laws. “But the folks that testified were talking about being opposed to abortion—they weren’t talking about drainage issue or transportation or parking.”
Tennessee cities have been more unabashed. Nashville’s last two abortion clinics closed last year, and Planned Parenthood stopped providing local abortion coverage in December, Rewire.News reported, driving Nashville residents in search of care to cross state lines to find it. When abortion provider carafem started noticing an uptick in Nashville-based visitors to its clinics in Atlanta—a 4-hour drive away—it decided to fill the local need by expanding into Tennessee.
But when it opened a clinic in Mt. Juliet, a neighboring city to Nashville, the all-male city commission acted fast, calling a weekend session to vote on new land-use regulations for abortion clinics. Now, surgical abortions can only be given in industrial areas; and at the carafem facility, giving a surgical abortion is technically illegal.
“We believe it was targeted,” said Melissa Grant, carafem’s chief operations officer. “The city council is not representative of the clients that need the care.” In the first 48 hours of opening, Grant says the facility filled 30 days of appointments.
“All the city officials did was to amend the zoning ordinance, which all municipalities do from time to time,” Ed Hagerty, the mayor of Mt. Juliet, told Rewire.News. “The zoning ordinance exists to provide for the health, safety, and well-being of all citizens of Mt. Juliet, including those who are not yet citizens, whether they are visitors traveling through our city or those who may be moving here in the future.”
Carafem is still able to offer the abortion pill, birth control, and STD testing. But Grant says Nashville-area patients are continuing to seek out surgical abortions—she knows, because they’re showing up in Atlanta again.
Neighboring cities have already been inspired by Mt. Juliet’s legislation: This month, the mayor of Lebanon, Tennessee, introduced a copycat bill that would ban abortion clinics from high-traffic commercial areas; require them to be built within 1,000 feet of a hospital’s emergency services center, and only in places where they’d be “in character,” and avoid creating “an adverse effect on the surrounding areas.” At a recent city council meeting, the re-zoning plan was deferred to a later session but Lebanon council member Jeni Lind Brinkman told CityLab she expects the mayor to bring it up again.
“It was a safety issue that we were concerned about,” Tick Bryan, another Lebanon city council member, told CityLab. (He made a motion to approve the legislation the first time, but nobody seconded him.) “We wanted to be sure if something like that were to come to Lebanon, they would be in a safe environment in case a procedure that might go wrong—where they could have access to medical care as soon as possible.”
It’s concerning, says Mistry, that while Mt. Juliet was responding to a perceived threat, Lebanon has no planned clinic, and acted anyway. “Lebanon was preempting,” she said. “That's the first example that I know about that I've seen—but it does seem to me like something that we should be keeping our eye on.”
To block restrictive city zoning laws, abortion providers in some cities have used the legal system. West Side Women’s Services won its case against Cleveland using the argument of undue burden, but other state courts have ruled inconsistently; one legal paper suggests a more effective strategy would be to argue that the regulation of their clinics under TRAP or zoning laws”—which makes them much more expensive to operate—constitutes a regulatory taking under the Takings Clause of the Fifth Amendment.” Others have relied on politics: Mayors can always defy their councils, and the laws implemented under one council can’t stop future councils from reversing them.
Last year, South Bend, Indiana’s city council proposed rezoning a property adjacent to a non-surgical abortion provider, Whole Woman’s Health Alliance. They wanted to make it easier for an anti-abortion crisis-pregnancy center to open next door—offering abortion seekers an “alternative” option.
Although the mayor, Pete Buttigieg, told the South Bend Tribune that “issues on the legality or morality of abortion are dramatically beyond my pay grade as a mayor,” he said he opposed the move, citing research showing that abortion clinics next to crisis-pregnancy centers are far more likely to experience harassment.
“It’s about 21 percent, versus about 7 percent when there’s not one right next to them,” Buttigieg said. “I don’t think it would be responsible to situate two groups, literally right next to each other, in a neighborhood, that have diametrically opposed views on the most divisive social issue of our time.”
Buttigieg vetoed the bill, an outcome that was the result of “a huge organizing campaign,” says Mistry. But she says that education on how anti-abortion politicians use land-use laws to promote some ideologies should come sooner—and that reproductive rights advocates should learn to use those same zoning tools to preserve access.
“As people are opening clinics in new places or even for clinics that already exist, it's really important to have a proactive plan looking at the zoning,” added Mistry. “And not just at the site where the clinic is going to open—but how the areas around it are zoned to know that it can be safe.”
Instead of waiting for cities to push abortion clinics into industrial zones, Mistry says, why not change zoning code immediately to specifically accept all medical facilities, including abortion clinics and ambulatory surgical centers? Why not analyze a city’s zoning code before building an abortion clinic, to ensure its neighbor can’t become a crisis pregnancy five years later without a legal fight?
“It feels to me like the reason our conversation is largely theoretical is that it just has not been a thing that councils have been asked to do,” said Gerbracht. As more cities ramp up their use of zoning, organizations like NIRH have started asking.
Where abortion clinics do exist, the safety of visitors and workers is threatened daily by verbal and physical attacks. Because of those threats, clinics are often secluded; at the end of long driveways, barred from the street with tall fences and high-tech security systems. The isolation serves to protect patients, doctors, and volunteers from protestors, and to give them privacy to enter and exit a facility away from prying eyes.
But the Equity Agenda’s Gerbracht dreams of a world where abortion clinics and reproductive health service providers could exist side by side with ice cream shops and Walgreens, as eye doctors or dentists do. “I think people who own and run clinics know that they would be safer located with a coffee shop and a boutique and some housing,” she said.
Landlords are often reticent to put abortion clinics in mixed-use developments, Gerbracht says, for fear that that same harassment that shutters clinics will also cause neighbors to complain.
But what if the city could identify a landlord they knew would support such a project? “City councils in big cities are used to working proactively with land owners and with developers to put together the projects they want to see,” Gerbracht said. An especially progressive city council could conceivably push projects with abortion clinics, just as easily as a conservative city council can rezone an area to restrict it.
Or, better yet, Gerbracht says, the city could be the landlord—allocating space in city-owned property for clinics themselves. “You certainly would have a landlord that committed to the tenant,” she said, “and you’d have potentially more incentive for protective measures on city property.”
Finding a city like this may be rare, but it isn’t hypothetical. Austin’s Planned Parenthood, for example, has long sustained a land-use agreement with the city: The facility leases city-owned space for $1 a year. That may soon change, however, if Texas passes an anti-abortion Senate bill, which would prohibit cities from transferring taxpayer funds to abortion clinics in any capacity—meant partly to stop what Republican Senators called Austin’s “sweetheart deal” with Planned Parenthood.
Jimmy Flannigan, an Austin city council member, defended the rental partnership to CBS, saying: “At the end of the day, the city has a responsibility—as does the community, county, and health district—to make sure that folks have access to cancer screenings for women's health issues.” If the lease ends, Planned Parenthood won’t have to shut down, says Gerbracht, but it may find it more difficult, and certainly more expensive, to operate.
Initiatives that make abortion clinics easier to operate and open—almost like “abortion up-zoning” policies—could have three-fold benefits, advocates say: Increasing physical access; securing safety; and de-stigmatizing the service itself.
“I’m very invested in … doing that work to bust through the stigma of, ‘abortions are bad,’” said Gorena, who lives in Austin. “We need to be taking that shame out of it, and part of that could come from normalizing abortion clinics in the community.”
Austin’s $1-a-year Planned Parenthood is on one of the most bustling streets downtown, sandwiched between bars and restaurant, and is painted bright yellow. But Austin’s a bright blue pocket in a red state. In other cities, people seeking abortion services may not want to be seen—and may prefer a more siloed facility. Abortion clinics aren’t yet viewed in the same light as dentists’ offices or eye doctors, no matter how badly advocates want to change that.
“The most important thing is that people can access abortion, before anything else,” said Gorena. “If that means having a smaller office in a nondescript building next to a hair salon … while we’re working on building a larger clinic in a more visible area, that’s where I land with that.”
Tanvi Misra contributed reporting to this story.