THE BLOG
01/31/2014 04:55 pm ET Updated Apr 02, 2014

TRAP Laws Restrict Abortion Rights the Same Way Poll Taxes and Literacy Tests Restricted Voting Rights

In Louisiana, a new law has the potential to shut down every abortion provider in the state. Does that law ban abortions? No, not specifically. But it's an example of something that has become much more prevalent in recent years, namely TRAP laws. More analysis of what's going on in Louisiana is here. Reading about this got me thinking about another way to fight back, both in terms of a legal argument and in terms of political framing.

What are TRAP laws? The National Abortion Federation defines them as laws that "single out abortion clinics for unnecessary, politically motivated, restrictive regulations....TRAP bills are measures calculated to chip away at abortion access through the guise of legitimate regulation."

Reading that definition reminded me of a parallel situation, namely the kinds of restrictions on voting rights that state governments enacted in the Jim Crow South. I'm not talking here about making a moral equivalence per se between Jim Crow and these new abortion-related laws, but about the impact they will have. Measures such as the poll tax, the literacy test, and the "white primary" did not directly prevent black people from voting on Election Day, but that was their effect in reality and that was exactly the intent of the people who wrote them. Same goes for the TRAP laws. 100 percent.

The legal, i.e., constitutional argument, is not straight-forward, as the literacy test was not found to be unconstitutional on its face if it was applied in a race neutral way (which it was not for decades, thanks to the grandfather clause). The 24th Amendment to the Constitution banned poll taxes, but there is no parallel prohibition on charging for abortions.

On the other hand, the so-called "white primaries" of the Jim Crow South may offer a legal parallel. For decades, Southern states claimed that as long as there was no racial discrimination on Election Day (which there was), they were following the Constitution (which they weren't). However, the political parties were private organizations, and if it was decided blacks couldn't vote in, let's say, the Democratic primary, then that was outside the government's purview. Given that the South was a one-party Democratic (i.e., Dixiecrat) region during Jim Crow, this meant effective disenfranchisement based on race. In Smith v. Allwright (1944), the Supreme Court agreed, and declared the "white primary" unconstitutional. I would argue that a law that severely restricted access to abortion in a state might well be a direct parallel in constitutional terms.

The constitutional issues aside, I want to emphasize the matter of how we frame this as a political and moral issue. It's about the intent of the laws, and their effect. Just as with Jim Crow voting restrictions, the goal was to prevent citizens from being able to exercise their constitutionally guaranteed rights. We cannot allow that to happen.