Unlimited Discretion: How Unchecked Bureaucratic Discretion Can Threaten Abortion Availability

Abstract

Previous research assessed the impact of state regulations on clinics and patients, but how bureaucrats implement them is less understood and increasingly important as states arbitrate abortion regulation. We conducted a case study of how bureaucrats use discretion to implement state regulations on abortion, focusing on two abortion facilities in Southwest Ohio from 2010-2022. Ohio abortion facilities are required to obtain a written transfer agreement, despite it offering no demonstrable health or safety benefits. We 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. We show how state statutes and administrative law 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. We posit that unlimited bureaucratic discretion may exert greater influence on abortion availability across the nation as states scramble to clarify and implement policies post-Dobbs.

Abortion as a sociological case

“…In addition to healthcare professionals, government bureaucrats can create substantial administrative burdens on abortion clinics, interfering with their ability to provide care. 165 National regulatory bodies like the FDA, which established the rules around distribution of medication abortion, control the ease with which the pills are available. The FDA's decision, for example, to apply a regulatory regime known as the risk evaluation and mitigation strategies, with requirements including physician registration and direct to patient dispensing (i.e., no pharmacy dispensing), on mifepristone, one of the two drugs in medication abortion, has attenuated access to this technology and hindered the realization of widespread clinical abortion access outside of existing abortion providers.…”

“…Indeed, gatekeeping access to abortion leverages a range of extralegal actors. In addition to healthcare professionals, government bureaucrats can create substantial administrative burdens on abortion clinics, interfering with their ability to provide care 165 . National regulatory bodies like the FDA, which established the rules around distribution of medication abortion, control the ease with which the pills are available.…”