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Crit Public Health. Author manuscript; available in PMC 2017 January 01.
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Published in final edited form as:

Crit Public Health. 2016 ; 26(1): 77–87. doi:10.1080/09581596.2015.1077205.

TRAP laws and the invisible labor of US abortion providers

Rebecca J Mercier, MD, MPH,
Department of Obstetrics and Gynecology, Sidney Kimmel Medical College, Thomas Jefferson
University, Philadelphia PA 19107 United States

Mara Buchbinder, PhD, and

Department of Social Medicine, University of North Carolina at Chapel Hill, 341A MacNider Hall
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CB 7240, Chapel Hill, NC 27599 United States

Amy Bryant, MD, MSCR

Department of Obstetrics and Gynecology, University of North Carolina at Chapel Hill, 4002 Old
Clinic Building, CB 7570, Chapel Hill, NC 27599 United States
Rebecca J Mercier: rebecca.mercier@jefferson.edu; Mara Buchbinder: mara_buchbinder@med.unc.edu; Amy Bryant:
amy_bryant@med.unc.edu

Abstract
Targeted Regulations of Abortion Providers (TRAP laws) are proliferating in the United States and
have increased barriers to abortion access. In order to comply with these laws, abortion providers
make significant changes to facilities and clinical practices. In this article, we draw attention to an
often unacknowledged area of public health threat: how providers adapt to increasing regulation,
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and the resultant strains on the abortion provider workforce. Current US legal standards for
abortion regulations have led to an increase in laws that target abortion providers. We describe
recent research with abortion providers in North Carolina to illustrate how providers adapt to new
regulations, and how compliance with regulation leads to increased workload and increased
financial and emotional burdens on providers. We use the concept of invisible labor to highlight
the critical work undertaken by abortion providers not only to comply with regulations, but also to
minimize the burden that new laws impose on patients. This labor provides a crucial bridge in the
preservation of abortion access. The impact of TRAP laws on abortion providers should be
included in the consideration of the public health impact of abortion laws.

Keywords
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Abortion; reproductive health; health policy; invisible labor

Introduction
Abortion laws are proliferating in the United States, particularly Targeted Regulation of
Abortion Providers (TRAP) laws, which impose restrictions on clinics and individual

Corresponding Author: Dr. Rebecca J. Mercier, Department of Obstetrics and Gynecology, Sidney Kimmel Medical College, Thomas
Jefferson University, 833 Chestnut Street Philadelphia PA 19107, Phone 917 627 3494, Rebecca.mercier@jefferson.edu.
Disclosures: None of the authors of this manuscript have any relevant financial interests or benefits to disclose.
 Mercier et al. Page 2

clinicians who provide abortion services (Guttmacher Institute, 2015). TRAP laws are more
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stringent than is necessary to ensure patient safety and more rigorous than regulations for
providers of similar, but less stigmatized, procedures. Frequently, TRAP laws require
medically unnecessary changes to facilities, staffing, and credentialing, which providers
have difficulty meeting because of the additional time, cost, and resource burdens of these
requirements (Medoff, 2012). Thus, while the stated purpose of such laws is the protection
of women’s health and safety, the practical consequence is often restricted access to
abortion.

TRAP laws have resulted in pronounced geographic barriers to abortion access in certain
regions of the country (Grossman, White, Hopkins, & Potter, 2014). In several states,
clinical requirements introduced by TRAP laws have resulted in such significant institutional
barriers to abortion provision that multiple clinics have closed. Provider-level restrictions
have translated to increased patient costs (Baum, Grossman, & Potter, 2013; Medoff, 2008;
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Phillips, Grossman, Weitz, & Trussell, 2010), delays in accessing care, and decreased
availability of second-trimester abortion services (Bitler & Zavodny, 2001; Jones & Weitz,
2009; Upadhyay, Weitz, Jones, Barar, & Foster, 2014). Many of these barriers are
compounded for women of color and women of lower socioeconomic status (Dehlendorf,
Harris, & Weitz, 2013; Finer, Frohwirth, Dauphinee, Singh, & Moore, 2006; Medoff, 2008).
Such “supply-side” restrictions have not been shown to reduce the demand for abortion
(Gius, 2007; Joyce, 2011; Medoff, 2010; Medoff, 2009). Instead, they make it more likely
that patients will face delays, travel long distances, and, when they cannot access a provider
at all, resort to extra-legal means of obtaining an abortion. While abortion is, in general, a
very safe procedure (Raymond & Grimes, 2012), abortions performed at later gestational
stages incur greater risks. Consequently, access barriers pose a public health threat due to the
potential for delays, an increase in undesired pregnancies, and unsafe or self-induced
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abortions (Bartlett et al., 2004; Grimes et al., 2006; Grossman et al., 2010; Jones, 2011).

In this article, we draw attention to an additional, yet less often acknowledged, area of public
health threat: strains on the abortion workforce. We introduce the concept of invisible labor
to highlight the work undertaken by abortion providers to minimize the burden that new laws
impose on patients. The concept of invisible labor, which is taken from second-wave
feminist sociology of the 1970s and 80s, draws attention to the ways in which women’s
work is often unrecognized and largely uncompensated (Daniels, 1988; Hochschild, 2012;
Oakley, 1975; Smith, 1987). More recent accounts have productively transposed this concept
from its origination in the domestic sphere (Devault, 2014; Wichroski, 1994). Here, we find
it useful to point out that just as the work of women can often be invisible, work undertaken
for women can be similarly obscured.
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Specifically, we argue that a framework that focuses on the impact of abortion laws on
patients may inadvertently overlook the key, and often invisible, work undertaken by
abortion providers to minimize the burden on women and preserve abortion access. We draw
on data from our qualitative study of the experiences of abortion providers in North Carolina
practicing under a new law to demonstrate that the impact of abortion laws on abortion
providers forms a critical component to the public health threat of recent abortion legislation
in the USA. The steps providers take to adapt their clinical practices and continue to provide

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services is central to maintaining access to safe abortions in the US. Insofar as these laws
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may drive providers away from an already under-resourced area of public health delivery
(Freedman, 2010), this represents a pressing public health problem and a missing piece of
the conversation on US abortion policy.

US abortion law and the legacy of “undue burden”

Until the 1800s, abortion was largely unregulated in the US, with little thought to restrict the
termination of a pregnancy before “quickening,” the first perception of fetal movement,
which generally occurs during the 5th month of pregnancy. In the mid-19th century, a
growing community of organized physicians began to push for legal restrictions. By 1900,
abortion was illegal throughout the United States (Mohr, 1978; Reagan, 1997).

States began to liberalize abortion laws in the mid-20th century following pressure from
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activists, who emphasized the maternal morbidity and mortality associated with illegal
abortions. In 1973, the Supreme Court’s landmark decision (7–2) in Roe v. Wade established
that the right to an abortion during the first trimester was protected under a constitutional
right to privacy. The Court ruled that states may have a competing interest in protecting the
fetus after viability, and that the risks associated with abortion in the second and third
trimester may give states the right to regulate some aspects of abortion care. However, the
right to obtain an abortion was legally protected to the same standard as freedom of speech
or religion, and any law that pertained to abortion access would be subject to “strict
scrutiny.” This standard meant that if a law restricting abortion were challenged in court, the
onus was on the state to prove that the regulation did not infringe on this fundamental right
(Estrich & Sullivan, 1989).

The landscape of abortion regulation changed in 1992 with the Supreme Court’s decision in
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Planned Parenthood v. Casey, which challenged the 1989 Pennsylvania Abortion Control
Act (PACA), which many consider to be the original TRAP law. PACA introduced what
have become familiar abortion requirements: counseling with state-mandated content, a 24-
hour waiting period between counseling and abortion, parental consent for minors, extensive
reporting requirements for abortion providers, and spousal notification if the woman seeking
abortion was married. In a 5–4 decision, the Supreme Court upheld all but one provision of
the law, finding only the requirement for spousal notification unconstitutional.

With this decision, the Court upheld the legality of abortion throughout the US, but
dramatically changed regulatory standards in several key ways. Under Planned Parenthood v.
Casey, while a state could not prohibit a woman from obtaining an abortion prior to viability,
states did have the right to restrict abortion, as long as those restrictions did not pose an
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“undue burden” on the woman seeking an abortion. An undue burden existed only if “[the
law’s] purpose or effect is to place a substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability” (Planned Parenthood of Southeastern
Pennsylvania v. Casey, 1991). Because PACA was purportedly designed to protect women’s
health and safety by providing them with information, it did not constitute an undue burden
(Allen, 1992; Benshoof, 1993a).

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The Casey decision ushered in a new era of abortion regulation. While several states had
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passed abortion restrictions following Roe, most were struck down as unconstitutional under
the standard of strict scrutiny. Under Casey, courts were now directed to consider the
particular restriction and the degree to which it would interfere with the woman’s ability to
access abortion. States seeking to regulate or restrict abortion had a new standard to meet,
and a template for a law that met this standard. Restrictions modeled on PACA spread
rapidly (Benshoof, 1993b).

While TRAP laws regulate the behavior and actions of abortion providers, they ultimately
add to the steps a woman must take to access abortion services. Waiting periods in three
states (Missouri, Utah and South Dakota) have expanded from 24 to 72 hours, and 11 states
require an ultrasound before the procedure (Guttmacher Institute, 2015). Two clinic trips are
required if mandatory counseling must take place in person, or if an ultrasound must be
performed 24 hours prior to the abortion. This is a departure from standard clinical practices,
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and results in extended timelines and additional clinical duties, which can be burdensome to
both patients and providers alike.

However, the definition of “undue burden” remains imprecise and subjective. When laws are
focused on patient-level variables, such as gestational age or parental involvement for
minors, the imposition of a burden on the patient seems clear. Since TRAP laws target
providers instead of patients, they result in burdens to patients most directly when a law will
cause a clinic to close and limit women’s access (Guttmacher Institute, 2015). Judicial
decisions regarding the constitutionality of a particular law may thus turn on different
projections of the effects of a given law, and on differing interpretations of what constitutes a
significant burden. In Texas, a TRAP law (HB 2) was enjoined in district court as
burdensome since clinics would close, but was then reinstated after appeal in the Fifth
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Circuit Court, as the Circuit Court held that the law was unlikely to represent a true burden
to women (Complaint in Planned Parenthood of Greater Texas Surgical Health Services v.
Abbott, 2014, Planned Parenthood of Greater Texas Surgical Health Services v. Abbott,
2014).

Abortion provision in the United States has become a dance between lawmakers and
providers. The challenge for anti-choice lawmakers is to write abortion restrictions in a way
that complicates access, but not to such an extent that they impose a blatant undue burden on
patients, which will not stand up in court. The challenge for abortion providers is to meet the
standards of the law, which may require extensive changes to a clinic’s physical structures
and patient care procedures, so that they can continue to operate legally and ensure abortion
access. In this way, the abortion provider, and the steps she takes to adapt to the ever-
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changing regulatory landscape, becomes an essential component of protecting abortion

access throughout the country.

The provider impact of US abortion laws: lessons from North Carolina

Our insights into the burdens of abortion laws on providers are informed by our research on
the experiences of abortion providers in North Carolina following the passage of the 2011
“Woman’s Right to Know” (WRTK) Act (HB 854). HB 854 follows the template of the

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Pennsylvania Abortion Control Act of 1989. The law, which is similar to laws in 37 other
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states (Guttmacher Institute, 2015), requires counseling with state-mandated information by

a “qualified medical professional” (physician, registered nurse, nurse practitioner, or
physician assistant) and a 24-hour waiting period after counseling before an abortion can be
performed. The counseling must contain information about the potential harms of abortion,
risks of carrying a pregnancy to term, pregnancy alternatives, obligations of the father to
provide financial support, and the availability of assistance from the state if the pregnancy is
continued. Initially, the law also mandated that an ultrasound be performed and the images
be described to the woman; this portion of the law was enjoined and later overturned by a
federal judge in January 2014. There are no provisions in the law for providers to use
discretion in consideration of specific patient circumstances.

For our study, we recruited physicians, physician assistants, nurses, counselors, and clinic
administrators involved in abortion provision in North Carolina (hereafter referred to as
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“abortion providers”). Providers were eligible if they worked under the WRTK law and had
prior experience practicing in a less restrictive environment. A list of North Carolina
abortion providers was compiled from the National Abortion Federation database, and the
researchers’ professional networks; these providers were invited to participate. In addition,
we employed a snowball sampling strategy where participants could share information about
the study with colleagues, and those contacts were invited to participate as well. We
conducted semi-structured, open-ended interviews with providers. With one exception,
interviews were conducted in person and all were audio-recorded and transcribed verbatim.

We interviewed a total of 31 healthcare professionals who were involved in multiple aspects

of abortion provision at 11 distinct clinical practices (see Table 1). Interviews covered topics
including the provider’s professional history, current practice characteristics, personal
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experiences in providing care under the law, perceptions of how the law affected their
patients and how their practice had adapted to comply. Our detailed methodology and a
summary of our findings have been described elsewhere (Mercier et al. 2015).

We found that providers made major adaptations to their clinical practice to comply with HB
854. Most providers made changes not only to meet the law’s requirements, but also to
minimize the burden of the law on patients. For example, they chose to implement telephone
counseling rather than require two in-person clinic visits, acknowledging that attending two
visits would be difficult for many patients. As one female physician working at a hospital-
based academic practice described, “It would be much, much more challenging for people
having to essentially make two separate visits. So that would become a much bigger barrier
for people, in terms of taking time off from work, someone to bring them, transportation.”
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Implementation of telephone counseling, however, required significant adaptations by

providers. Several high-volume providers hired additional nurses and developed a call-center
infrastructure with dedicated staff for telephone counseling. Lower-volume providers did not
institute such extensive structural changes, but responded to the new requirements by
changes in scheduling and work tasks. For example, nurses at practices which provided
general health care alongside abortion services described leaving other clinical duties to
perform the counseling whenever office staff could get patients on the phone. As one female

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nurse at a free-standing group practice noted, “If an abortion patient calls and we’re in the
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middle of seeing other patients, we have to stop what we’re doing and try to do the
counseling so that she can get in when she wants to.”

Providers who worked in small or solo-practice clinics frequently extended the hours of
existing staff to meet demands. One male physician who ran an independent practice
devoted mostly to abortion services reported that: “The vast majority of our calls come
outside of office hours. We developed a scheduling form. We keep these at home, we keep
them with us in my car...and so they call, I can get the call anytime day or night and I know
we have it documented.” For him, answering phones and performing counseling in off-
hours, at home, or while traveling, had become a standard way to facilitate patient access.

In making changes to preserve patient access and minimize the impact of HB 854 on
patients, providers took on an increasing reciprocal burden. In general, we observed a
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tradeoff between cost and time burdens, depending on the practice type and structure. Some
high-volume, freestanding providers reported adding the equivalent of a full-time nursing
position simply to accomplish the counseling, with staff dedicated to counseling calls. Costs
were greatly increased by the requirement that a licensed medical professional perform the
state-mandated counseling, The clinic administrator noted at one large abortion clinic in an
urban setting described the law as having “a huge financial impact ...you know, nurses are
expensive.”

In contrast, for lower-volume clinics, solo practitioners, and hospital-based clinics, costs did
not increase, as no additional staff was hired. However, the providers, typically physicians,
described how they and their colleagues worked more uncompensated hours to meet the
law’s requirements. In the academic setting, this work was generally done by resident
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physicians who simply came in earlier or stayed late in order to accomplish counseling calls
in addition to other clinical duties. At one small solo practice, the burden was shouldered by
the female physician-owner, who took on work not typically performed by a physician in
order to provide care within the practice’s operating budget:

I have to do the phone calls every Monday because [otherwise] I would have to pay
overtime and they have to be registered nurses. So I’ll just do it. I answer phones,
make appointments on Mondays. It used to be other staff members doing that. You
see, I can’t afford to pay nurses time and a half and it used to be other lower paid
staff that could come in on Mondays. Now I’ve got to do it.

All of the clinics represented in our sample continued to offer the same in-person counseling
and support as they had prior to HB 854. Therefore, new staff hours did not replace any
previous clinical duties. In general, providers absorbed both the financial and time burden of
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these changes. No providers reported increasing their prices to compensate, and several
specifically stated that they made an explicit decision not to pass the cost onto patients. In
discussing this decision, several providers stated that passing the financial burden onto
patients would have been “not fair” or “unkind”, given that patients already struggled to pay
for their procedures. Larger practices with greater resources performed dedicated
fundraising activities to support the increased costs.

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Many providers also described a personal emotional burden associated with the law,
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centered on their concern that it was ultimately harmful to women. Most providers did not
think that the 24-hour waiting period benefited women, and in fact believed that many
aspects of the state-mandated counseling were unnecessary, irrelevant, or potentially
harmful. Echoing sentiments expressed by many study participants, a female nurse at a free-
standing clinic stated that “They (lawmakers) are not looking out for the wellbeing of
women, so for us who are caring about women and women’s health, it’s a great source of
frustration and makes us angry and resentful.” Therefore, providers struggled to balance the
requirements of HB 854 against their own commitment to provide high-quality, responsible
medical care.

We found that for many providers, the emotional burden stemmed from this nexus: the law
created a work burden but the burden they accepted to achieve compliance had little benefit
and possible harm for patients. As one female nurse who was involved in adapting her
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clinic’s practices and personally performed counseling noted, “We have accommodated the
pre-24 hour counseling. It’s a pain in the neck. It’s so inappropriate. It’s so undermining of
what these poor families are going through.... We do it, but it’s really disturbing.”

While telephone counseling was used to minimize the burden on patients, many providers
described remote counseling to be particularly problematic—especially since patients
sometimes experienced the content as alienating or judgmental. Providers indicated that
having initial patient contact by phone rather than in person could interfere with the
establishment of trust and rapport, which they identified as essential components of
compassionate abortion care. Concern for the impact on the patient and on the patient-
provider relationship caused distress for several providers, as described by a female nurse
who performed several consent calls each week: “It really upsets a lot of patients to have to
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hear all this overwhelming stuff on the telephone by someone you haven’t met yet or made
eye contact with... I feel very guilty.”

Providers suggested that it took special effort to overcome these barriers and establish a
therapeutic relationship after telephone counseling. However, the need to protect patients
from burdensome and needless trips to the clinic outweighed these challenges. Overall,
providers found compliance with the waiting period and the counseling process to be
“onerous,” “frustrating,” “insulting,” and “draining,” as they attempted to shield patients
from both the practical and emotional effects of HB 854.

Abortion providers and the public health impact of US abortion laws

There are multiple reasons why abortion providers have often been left out of public health
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conversations on abortion. First, as we described earlier, the historical legacy of Planned

Parenthood v. Casey has directed challenges of abortion restrictions toward establishing an
undue burden for patients. Consequently, this legal standard has dominated much public
debate and understanding (Borgmann & Jones, 2000; Luna & Luker, 2013). Yet when an
abortion provider successfully navigates new regulations and continues to provide care, it is
her invisible labor and clinical adaptations that prevent a restrictive law from imposing
undue burden. While this invisible labor mitigates public health concerns about patient

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access to abortion services, the strain on the abortion workforce may not be recognized as a
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public health problem in its own right.

Focusing on abortion patients rather than abortion providers is also compelling for
sociopolitical reasons. Abortion providers have often been vilified in popular media
representations of the US “abortion wars.” While providers, scholars, and advocates have
worked hard to dispel such myths, highlighting the empathy and compassion that necessarily
underlie abortion care (Freedman, Landy, & Steinauer, 2010; Harris, 2012; Joffe, 1995), a
focus on patient-level access barriers avoids the controversy that swirls around public
representations of abortion providers themselves. Challenging abortion laws by focusing on
patient-level impacts may thus be an easier case for reproductive rights advocates to make.

The research-practitioner nexus is not exempt from this logic, and may be complicit in the
neglect of provider-level impacts in studies of abortion restrictions. As a relevant example,
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consider the response of one peer reviewer to an early draft of one of our articles. This
reviewer urged us to reframe our article to focus on the impacts of HB 854 on patients, out
of concern for the possible political repercussions of portraying providers as worried about
the increased costs associated with the law. Given the stigmatized nature of abortion work,
and the ongoing and increasing burden of abortion legislation, we are concerned about the
unintended consequences of silencing conversations about the challenges of abortion
provision in the US (Harris, Martin, Debbink, & Hassinger, 2013)—financial, emotional, or
otherwise.

In addition to these legal, historical, and sociopolitical reasons why providers have often
been left out of public health discussions of abortion, another possible explanation exists:
because much of the public health field is ideologically aligned with improving the health of
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vulnerable populations, public health researchers and practitioners may be inclined to focus
on structural interventions to enhance women’s access. Thus, when they hear that new
abortion restrictions have resulted in increased barriers to care, they might ask what
providers can do to connect women to abortion services more quickly and easily. This is
certainly a reasonable response and aligns with providers’ own actions—our findings on the
responses of North Carolina abortion providers to new legislation demonstrate that
preservation of access motivated the majority of administrative and clinical adaptations.
However, the expectation that providers can continue to respond to new challenges
indefinitely is not realistic. There must be recognition of the limits to what overburdened and
under-resourced providers can do. To the extent that legal challenges to abortion restrictions
have focused on establishing an undue burden on patients, these legal challenges may
obscure the substantial, burdensome, and uncompensated work performed by abortion
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providers to shield patients from the potential effects of these laws.

Such work is more than inconvenient—it makes it ever more difficult for abortion providers
to deliver high quality care. As one male physician at an academic hospital-based practice
noted, “Already, people are hesitant to provide (abortion) services to patients. It’s already a
challenge just at baseline to have providers continue to do this and it just makes it more
challenging for them to do it.” Many providers also expressed concern regarding the
willingness of physicians who might be considering offering abortion services in the future.

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In particular, they feared that for young physicians starting their careers, the extra burden on
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abortion providers may drive people away from an already under-resourced, yet critically
needed, field of public health delivery.

Although Roe v. Wade legalized abortion in the US more than 40 years ago, abortion
providers in many parts of the country continue to practice under considerable occupational
stigma, threats to personal safety and wellbeing, and institutional barriers to offering
abortion care (Harris, Debbink, Martin, & Hassinger, 2011; Harris et al., 2013; Joffe, 2014;
Norris et al., 2011; O’Donnell, Weitz, & Freedman, 2011). New laws threaten to exacerbate
these occupational challenges even further. While the stigma faced by abortion providers is
well-documented, our work sheds light on an additional element: the invisible labor of
abortion providers to minimize the burden on patients.

The invisible labor of abortion providers highlights the extent to which patient and provider
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burdens are deeply intertwined. As TRAP laws continue to increase, ever greater numbers of
providers are practicing in restrictive environments. Many struggle to provide affordable,
accessible, and compassionate care while complying with new laws. Therefore,
understanding how abortion laws limit patient access and how providers work to maintain it
in the face of political and legal challenges are both essential to understanding the public
health impact of abortion laws. It is critical for public health practitioners, researchers, and
scholars to attend to the multi-dimensionality of abortion laws and their implications for
patients, providers, and society.

Acknowledgments
This research was supported by grants from the Society for Family Planning (SFPRF7- 15, Rebecca Mercier: PI)
and the Greenwall Foundation (A15-0165, Anne Drapkin Lyerly: PI). Mara Buchbinder’s efforts were supported by
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a grant from the National Center for Research Resources and the National Center for Advancing Translational
Sciences, National Institutes of Health (KL2TR001109). The content is solely the responsibility of the authors and
does not represent the official views of the NIH. We are grateful to Rachel Wilbur for research assistance and to
researchers at UCSF’s Advancing New Standards in Reproductive Health for offering helpful comments on an early
version of this work.

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Table 1

Characteristics of Study Participants

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Characteristic N (%)

Provider Professions
Physician 17 (55%)
OB-Gyn 15 (88%)a
Family Medicine 2 (12%)a
Nurse 9 (29%)
Physician Assistant 1 (<1%)
Counselor 1 (<1%)
Administrator 3 (9%)
Practice Type
Hospital Based 9 (29%)
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Free-standing clinic 22 (71%)

Solo Practice 9 (41%)b
Group Practice/Clinic 13 (59%)b
Sex
Female 23 (74%)
Male 8 (26%)
Years in practice providing abortion
<10 16 (52%)
11–20 5 (16%)
21 – 35 5 (16%)
>35 5 (16%)
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a
% of physicians;
b
% of free standing clinic
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Crit Public Health. Author manuscript; available in PMC 2017 January 01.