Unlimited Discretion: How Unchecked Bureaucratic Discretion Can Threaten Abortion Availability.

Previous research has assessed the impact of state regulations on abortion clinics and patients, but how bureaucrats implement them is less understood and is increasingly important as states arbitrate abortion regulation. The authors conducted a case study of how bureaucrats use discretion to implement state regulations on abortion, focusing on two abortion facilities in southwest Ohio from 2010 to 2022. Ohio abortion facilities are required to obtain a written transfer agreement, despite it offering no demonstrable health or safety benefits. The authors find that state requirements for obtaining variances-a process that allows abortion facilities to operate without a written transfer agreement-have become exceedingly difficult to comply with. The authors show how state statutes and administrative law have enabled bureaucrats to wield unlimited discretion and enforce arbitrary requirements. This unlimited bureaucratic discretion and accompanying administrative burden exacerbated clinic instability and threatened abortion availability in southwest Ohio for almost a decade. As implementation and interpretation of abortion policy is increasingly left to state bureaucrats and civil servants following the Supreme Court's Dobbs decision, how bureaucrats use discretion will influence clinic stability and abortion availability. The authors posit that unlimited bureaucratic discretion may exert greater influence on abortion availability across the nation as states scramble to clarify and implement policies after Dobbs.

COVID-19 and abortion in the Ohio River Valley: A case study of Kentucky, Ohio, and West Virginia.

INTRODUCTION: During early stages of COVID-19 in the United States, government representatives in Kentucky, Ohio, and West Virginia restricted or threatened to restrict abortion care under elective surgery bans. We examined how abortion utilization changed in these states. METHODOLOGY: We examined COVID-19 abortion-related state policies implemented in March and April 2020 using publicly available sources. We analyzed data on abortions by method and gestation and experiences of facility staff, using a survey of 14 facilities. We assessed abortions that took place in February-June 2020 and February-June 2021. RESULTS: In February-June 2020 the monthly average abortion count was 1916; 863 (45%) were medication abortions and 229 (12%) were ≥14 weeks gestation. Of 1959 abortions performed across all three states in April 2020, 1319 (67%) were medication abortions and 231 (12%) were ≥14 weeks gestation. The shift toward medication abortion that took place in April 2020 was not observed in April 2021. Although the total abortion count in the three-state region remained steady, West Virginia had the greatest decline in total abortions, Ohio experienced a shift from instrumentation to medication abortions, and Kentucky saw little change. Staff reported increased stress from concerns over health and safety and increased scrutiny by the state and anti-abortion protesters. DISCUSSION: Although abortion provision continued in this region, policy changes restricting abortion in Ohio and West Virginia resulted in a decrease in first trimester instrumentation abortions, an overall shift toward medication abortion care, and an increase in stress among facility staff during the early phase of COVID-19.