This week, the Supreme Court is set to hear arguments in a case that will have wide-reaching consequences for reproductive freedom and abortion rights in America. It’s the first time the Court has weighed those rights since gaining a new conservative majority with the appointments of Justices Neil Gorsuch and Brett Kavanaugh. And the stakes are high.

The case that the court will hear, June Medical Services LLC v. Russo, is being argued by the Center for Reproductive Rights (CCR), and it involves a law in Louisiana known as a “TRAP” – Targeted Restriction on Abortion Providers. The details of TRAP laws can be wonky and complicated, but what they’re meant to do isn’t. TRAP laws are intended to circumvent Roe v. Wade, provide a back door for lawmakers to curtail abortion access, and push reproductive health services out of reach.

Essentially, these laws create burdensome and medically unnecessary regulations for abortion clinics that are written with the goal of forcing them to shut down.

If the Court rules against the plaintiff in the case — an abortion clinic in Louisiana — it’s likely to be a green light for a wave of these laws to be passed in politically conservative states. Many of those states are already in court battles over TRAP laws they already have on the books, and if they get the Supreme Court’s stamp of approval, legislators there are likely to expand the strategic use of those laws, making it increasingly difficult — if not impossible — to access an abortion there.

Anti-abortion lobbying groups know that overturning Roe v. Wade outright is unpopular. According to a 2019 poll, only 13 percent of Americans support overturning the Supreme Court’s landmark 1973 decision that established legal abortion as a constitutional right. And in 2019, the ACLU, along with its partners, successfully blocked high-profile abortion bans in Alabama, Georgia, Ohio, Kentucky, Missouri, Utah, and Arkansas.

TRAP laws take a sneakier path to limiting abortion access. By imposing regulations that sound technical and bureaucratic to a casual observer, they avoid the kind of widespread public scrutiny that the flurry of bans passed in 2019 provoked. Typically cloaked in the language of health care, the regulations they impose on abortion providers are costly and, in many cases, impossible to comply with. They don’t make anyone safer, either, which is why the American Medical Association and other major health organizations oppose them.

What they are meant to do is make it hard for abortion providers to offer medical services, and particularly in the South and Midwest, that’s exactly what they’ve done.

According to the Guttmacher Institute, between 2011 and 2017, TRAP laws caused 50 clinics in the South and 33 in the Midwest to close. In four states — Arizona, Kentucky, Ohio, and Texas — they led to half the available clinics shutting their doors. Kentucky and Missouri now have only one abortion clinic left, and if the Supreme Court lets Louisiana’s TRAP law stand, two of its remaining three will close.

Fewer clinics mean that people who need abortion care are forced to travel longer distances and rack up higher costs associated with transportation, time off work, and child care. Some will be unable to access care as a result. It also makes them likelier to get an abortion later in their pregnancy. Abortion is safe — more so than childbirth — but the risks as well as the costs associated with it increase with unnecessary delays.

TRAP laws took a hit in 2016 when the Supreme Court ruled that a Texas law, identical to the one being challenged in the Louisiana case, was unconstitutional. In a 5-3 majority, the court reaffirmed in Whole Woman’s Health v. Hellerstadt that states couldn’t impose an “undue burden” on people seeking an abortion.

But now, four years later, the court looks different than it did in 2016. With an ascendant conservative bench, the ability of states to impose TRAP laws suddenly seems much less resolved than it did in the wake of Whole Woman’s Health. June Medical Services is the first test of how this new court will treat abortion restrictions. If it breaks with its own recent precedent and gives Louisiana’s law a constitutional seal of approval, conservative lawmakers could be free to use similar laws to make it as hard as possible to get an abortion.

In advance of the hearing, here is a primer on the four most common types of TRAP laws, and what they mean for clinics in states where they’re passed.

Admitting Privileges

The Louisiana TRAP law at stake in June Medical Services is virtually identical to the one the Supreme Court struck down in 2016. It requires doctors at abortion clinics in the state to have “admitting privileges” with a local hospital.

Admitting privileges allow a doctor to check someone into a hospital and then oversee their care. In order for a doctor to get them, the hospital’s administrators need to sign off. At first glance, this sounds simple enough. Why wouldn’t a hospital grant admitting privileges to a qualified doctor, no matter what their practice?

In fact, the process of granting admitting privileges to doctors that work in abortion clinics can be heavily politicized. The hospital might be affiliated with the Catholic Church, or key decisionmakers in its administration could be personally opposed to abortion rights. Even those who are personally sympathetic to reproductive freedom might face intense political pressure from inside or outside the hospital to deny admitting privileges to doctors that perform abortions.

And in many cases, hospital rules require doctors who are granted admitting privileges to live within a certain distance of the hospital, even though many who work at abortion clinics choose to live far away because of stigma and the threat of violence against them. Hospitals also frequently have rules stipulating that doctors must admit a certain number of patients every year in order to qualify for admitting privileges.

For those who work at abortion clinics, the latter requirement can be disqualifying. Abortion is about as safe as it gets – fewer than 0.5 percent of abortion patients require hospitalization for a major complication. Thus, clinic doctors who are denied admitting privileges because they can’t meet the threshold of patients brought to the hospital every year are effectively being penalized for doing their jobs well.

Most importantly, there’s really no coherent argument in favor of requiring doctors who work at clinics to get admitting privileges in the first place. In the very rare instance in which a patient has a complication following an abortion that requires emergency attention, hospitals with emergency rooms are legally required to treat them.

And when complications necessitating hospitalization do happen, symptoms are often not apparent until later, after the patient has returned home. In those cases, they will most likely seek treatment at a hospital close to where they live — not the specific hospital where the doctor from their abortion clinic has admitting privileges anyway.

But patient care isn’t the purpose of the Louisiana law, nor of similar laws in other states. Those laws are meant to close clinics down by forcing doctors to comply with regulations they can’t meet.

 Written Transfer Agreements

A close relative of admitting privilege requirements are TRAP laws that force clinics to have a “written transfer agreement” with a local hospital. The difference is, admitting privileges are granted on a case-by-case basis to individual doctors, whereas written transfer agreements are signed between the hospital and the clinic itself.

Essentially, a written transfer agreement is a contract. By signing one, a hospital agrees to treat anyone who needs emergency care resulting from an abortion performed at a specific clinic. Six states have laws on the books that require clinics to have such agreements with a nearby hospital. A seventh — Kentucky — had one until late 2018, when it was struck down in a lawsuit brought by the ACLU on behalf of the last clinic left in the state. (An appeal in the case is pending.)

Just like admitting privilege requirements, written transfer agreements address a problem that doesn’t exist. Federal law already requires hospitals to admit anyone who needs emergency services. So, in the exceedingly rare situation where someone needs to be transferred from a clinic for emergency medical care related to an abortion, they’ll get that care whether or not the clinic where they were treated had a written transfer agreement with a local hospital or not.

Also, like admitting privileges for doctors, the process of getting a written transfer agreement for a clinic can be politically charged and difficult.

And even when they do get a written transfer agreement, politicians can step in and use their muscle to create new obstacles. Before Kentucky’s law was blocked, its last remaining clinic had an agreement with the OB/GYN department of a nearby hospital. But former Gov. Matt Bevin decided that wasn’t good enough, and ordered the clinic to get a signature on the transfer agreement from the CEO of the hospital.

This, of course, was because he knew that he could pressure that CEO not to sign such an agreement. If a federal judge hadn’t intervened, Kentucky would be without any abortion clinics in the state.

In Ohio, the state Department of Health is using its written transfer agreement requirement to try to shut down every clinic it can. The only clinic in the Toledo area, for example, has repeatedly struggled to obtain a written transfer agreement, bringing it to the edge of closing more than once. State law bars public hospitals from signing transfer agreements with abortion providers, and anti-abortion groups have successfully pressured other hospitals into retracting theirs.

Some states with laws requiring written transfer agreements may allow a waiver if clinics can show, for example, that they have made back up arrangements with doctors who have admitting privileges. But even then, lawmakers and state agencies can move the goalposts to force clinics out of compliance. When one Ohio clinic asked for a waiver from the state Department of Health and provided the names of two doctors who had admitting privileges at a local hospital, it was told that, in fact, it needed three. When the clinic provided a third, the department’s response was: now we require four.

Physical Plant Requirements

The most common TRAP laws require abortion clinics to meet the same requirements of an Ambulatory Surgical Center (ASC). ASCs are health care facilities where surgical procedures that typically don’t require an overnight stay are performed.

Because these facilities perform invasive surgical procedures, states require that they be set up and equipped for emergencies and meet a high standard of sterility. The rules that cover ASCs are strict, often specifying how wide their hallways are, the number of bathrooms they must include, and what size the rooms where patients are treated must be.

Like other types of TRAP laws, physical plant requirements are designed to sound like common sense to a casual observer. Why wouldn’t an abortion clinic have to meet the same standards that facilities performing surgical procedures do?

The answer is: Abortion is a far safer procedure than those performed at most ASCs, in part because abortion does not involve any incision. Moreover, increasingly abortions are induced by the use of medication alone. And as pointed out above, fewer than 0.5 percent of people who have an abortion need to be hospitalized for complications.

Laws that require abortion clinics to be set up like ASCs are meant to force them to pay for costly renovations that can rack up millions of dollars in construction bills. Many clinics just can’t afford the price tag of compliance, and simply close down instead.

Other physical plant requirements have bordered on the absurd, like one passed in Virginia in 2011 that specified how many parking spots, sinks, and toilets clinics needed to have. (That law was later repealed by Virginia’s state board of health.)

According to the Guttmacher Institute, 17 states require abortion clinics to have structural standards that are similar to ASCs.

Personnel and Staffing Requirements

Some states have requirements that clinics providing abortion care hire staff with specific, unnecessary qualifications, including laws that prevent doctors from performing an abortion unless they are board-certified OB/GYNs. By needlessly narrowing which doctors can perform an abortion, those laws serve only to make it harder and harder for people to get an abortion.

In March 2019, Arkansas legislators passed such a measure.  If it had gone into effect, there would have been only one clinic left in the entire state where a person could get an abortion. The ACLU and Planned Parenthood sued and successfully blocked the law from going into effect, but the state has appealed.

These four types of TRAP laws aren’t the only way that lawmakers are trying to restrict access to abortion, but they’re a crucial part of their strategy to roll back the guarantee of Roe v. Wade. Depending on how the Supreme Court rules in June Medical Services, they could find themselves empowered to expand that strategy – if so, some states might have no abortion clinics left before we know it.

The consequences of a turn in that direction would be profound for people seeking to access abortion services. Fewer clinics mean that they will have to travel further distances, take more time off of work, find more childcare and face other enhanced obstacles, if they are able to get the care at all. The burdens will be especially severe for people who are struggling to make ends meet, and people of color.

TRAP laws aren’t intended to keep them safe — they’re meant to push reproductive health services out of their reach.

Ashoka Mukpo, Staff Reporter, ACLU

A group of over 450 public health experts signed a public letter today warning that widespread transmission of the Covid-19 coronavirus within the United States is “inevitable.” Their letter urges government decisionmakers to enact policies that will have the best chance of minimizing the effects of the virus: those based strictly on the best available scientific information, and those that are imposed in a fair and equitable fashion.

It is essential that all government officials follow these experts’ recommendations to help ensure a response plan that protects the health, safety, and civil liberties of all.

At the ACLU, we have always recognized that, during a disease outbreak, individual rights must sometimes give way to the greater good. After all, when it comes to disease, we are not just individuals but also one big bio-mass. That is why people can sometimes be deprived of their liberty through quarantine, for example. And this is as it should be, provided — and this is a crucial and sometimes violated condition — that the science supports the effectiveness and proportionality of measures such as quarantine. And even if a quarantine is imposed, people do not lose their due process rights, which at a minimum require that they be able to challenge their quarantine.

The public health experts remind us in their letter that there is a flip side to the limits on liberty, however. Just as a disease cares little for our notions of individualism — as crucial as they are to our happiness in other contexts — neither does it care about other artifacts of our individualistic society, such as differences in wealth, status, ethnicity, or immigration status. If the authorities want to be effective in limiting the transmission of this virus, they will need to pay particular attention to the most vulnerable people in our society.

A disease does not care who has health insurance, for example. You may have the best insurance in the world, but if 30 million others who are part of your bio-mass are not getting tested or treated because they lack insurance, that will increase your risk. Similarly, if members of immigrant communities fear they’re going to fall into the hands of an ICE officer if they seek treatment, that is a public health problem for all of us. A disease does not care who is undocumented.

In their letter, the public health experts call for officials to work with insurance companies to make sure that lack of insurance and high costs do not become a barrier to testing and treatment. They call for health care facilities to be declared as “immigration enforcement-free zones” — a step that has been taken before during hurricanes and other emergencies. And they call for extra help to be provided to under-resourced front-line hospitals and community health centers, which need more help than wealthy institutions in acquiring materials and equipment.

The experts draw attention to the need to support minimum-wage workers and others who live on the economic margins, cannot telecommute, and cannot afford to lose their job. While an office worker who is starting to feel ill may be able to self-isolate, someone in a more precarious situation may calculate the different risks they face in their life and conclude their only option is to hide their condition and head to work. A disease does not care whose employers offer good sick leave.

The experts also stress the importance of the free flow of information, stressing that “honest, transparent and timely reporting of developments will be crucial to maintaining public trust and cooperation.” Political leaders need to scrupulously ensure that their public messages are accurate and guided by science. There is a sad history of responses to emergencies that are hindered by politics, including China’s response to the SARS outbreak, China’s attempts to repress information about this outbreak, and, as millions of viewers have seen in the recent HBO series, the Soviet government’s response to the Chernobyl disaster. Open government is effective government.

Finally, the experts echo some of the longstanding lessons of their field: Voluntary self-isolation measures are more likely to induce cooperation — and therefore be effective — than coercive measures. Mandatory restrictions such as quarantines and travel bans “can be effective only under specific circumstances” and “must be guided by science, with appropriate protection of the rights of those impacted.” Those rights include due process rights to appeal confinement and the right to legal counsel. While leaders in outbreaks can be tempted to impose draconian measures as a show of strength, the letter’s signers also remind us that a disease also does not care how tough a leader looks.

The ACLU will be watching closely to make sure the government heeds these experts’ recommendations, and that its response is ​scientifically justified and no more intrusive on civil liberties than absolutely necessary.

Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project

I was denied healthcare because I am transgender. The justification, according to the hospital, was that religious doctrine permits them to refuse transgender patients, just because of who we are. 

The Trump administration agrees: Over the past few years, the government has tried to greenlight sex discrimination under the guise of religious liberty. They’re doing this through a series of policy changes targeting our access to healthcare, workplaces, schools, and other spaces that we belong in, like everybody else. It seems like the administration and discriminatory healthcare providers wish that trans people didn’t even exist, but we do, and we have medical needs just like all other people.

My story is unfortunately one of many cases of sex-based discrimination that the administration is trying to allow against LGBTQ people.

In August 2016, I was in the process of undergoing gender-affirming care through a series of medical treatments. I made an appointment to undergo a treatment at Mercy San Juan Medical Center, a hospital in the Dignity Health chain, near Sacramento, California, where I live.

Two days before my appointment date, a nurse called me to go over the details, and I mentioned that I was transgender. The very next day — a day before my procedure was supposed to take place — the hospital called my doctor to inform her that the appointment had been canceled because the procedure was related to my gender transition. When I heard the news, I was so devastated that I collapsed on the floor. Once I was able to pick myself up, I remember just stumbling around the house, blinded by my tears.

I was fortunate to be able to undergo the procedure at a different hospital. But the experience left scars. I had no idea prior to this that my local, community hospital was a Catholic hospital, or that they would argue that religious doctrine permits them to prevent doctors from providing patients with the care they need just because those patients are transgender. It should never be okay to deny transgender people — or anyone else — the care we need just because of who we are.

Dignity Health is the fifth largest health system in the U.S., with billions of dollars in revenue. But according to the Trump administration, I’m a threat to Dignity Health. My life — and the lives of every other transgender American — doesn’t seem to matter to this administration. 

In California, however, the law prohibits businesses open to the general public — including hospitals — from discriminating on the basis of gender identity. In 2017, the ACLU and the law firm Covington & Burling LLP filed a lawsuit against Dignity Health on my behalf. Just last fall, a court agreed that I suffered discrimination when the hospital cancelled my surgery. The court also said that Dignity Health does not have a right to violate California’s nondiscrimination law.

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While my case has moved through the courts, the Trump administration weighed in. Less than a year after I filed my case, the Department of Health and Human Services issued the Refusal of Care Rule to support religious people and entities in limiting the care they provide to patients. HHS is supposed to protect patients and expand access to healthcare — not allow providers to use religion as a license to discriminate. In justifying their Refusal of Care Rule, the Trump administration cited three court cases that they said showed why this discriminatory rule was necessary. Mine was one of them.

My name is now in the Federal Register. The fact that the Trump administration singled me out truly knocked me down for almost a year. When I try to explain this to people, some folks think I should see this as a badge of honor; that I must be doing something right if the administration is coming after me personally. But it doesn’t feel that way to me. It’s emotionally draining, it’s overwhelming and it’s a huge burden I have to carry. The truth of the matter is that I’m still trying to process it.

The impact of the Refusal of Care Rule will reach far beyond trans people. It will profoundly impact access to reproductive health care, particularly for the millions of patients — who are disproportionately Black and Latinx — seeking options counseling and a referral for abortion in the Title X program. It’s also part of the administration’s larger goal of erasing trans people and greenlighting religious-based discrimination. 

Today, I’m speaking truth to power in Congress and defending my right and my community’s right to access healthcare. Despite the repeated efforts of the Trump administration, trans people will not be erased.

Evan Minton