Liberals Against Regulatory Traps
Liberals have resisted overregulation that defeats liberal goals before. They should do so again.
There is a growing set of those on the center left who have turned their attention toward rethinking regulations and processes that hinder the realization of liberal goals. “Supply-side progressivism” (also known as “a liberalism that builds” or an “abundance agenda”) has asked liberals to consider the regulatory bottlenecks that are choking off the provision of goods like new housing, clean energy development, and infrastructure improvements.
I’m sympathetic to this effort to improve liberalism and inject more dynamism into government. But not all on the left are onboard — far from it. Many seem to regard efforts to rethink how we regulate to be some kind of concession to right-wing libertarian arguments against the regulatory state, or a capitulation to business and industry. Liberals expand the regulatory state, not contract it, the thinking goes.
As a former abortion rights attorney, I see a (perhaps surprising) connection between the supply-side progressivism push and the abortion rights fight during the 2010s. That fight marks a precedent of liberals in full-throated opposition to onerous and unnecessary regulations that hindered access to an essential right. There are lessons to be drawn from the abortion-rights movement’s resistance to regulation stifling the supply of medical providers for those seeking to secure an abundance of housing, clean energy, and infrastructure today.
Anti-abortion activists employed two distinct strategies during the 2010s. Toward the end of the decade, conservative lawmakers emboldened by President Trump’s reshaping of the Supreme Court went big and started enacting outright bans on abortion, which culminated in last summer’s Supreme Court decision overturning Roe v. Wade. But during the beginning of the decade under the Obama administration, these lawmakers attempted a stealthier maneuver to chip away at Roe: layering burdensome regulatory requirements upon abortion clinics for the ostensible purpose of protecting patients’ health.
These laws — which abortion-rights supporters termed “TRAP laws” (for Targeted Regulations of Abortion Providers) — spread quickly after Republicans made massive statehouse gains in 2010. Some of these laws required abortion clinics to comply with the physical building specifications of hospitals or ambulatory surgical centers — requirements that forced clinics to undertake costly facilities upgrades to widen hallways, expand procedure rooms, and upgrade ventilation systems. Many abortion providers simply could not afford the costs of such mammoth upgrades.
Other laws forced doctors performing abortions to obtain privileges to practice at nearby hospitals. Again, this was ostensibly meant to provide a safeguard in the exceedingly rare instances when a patient had to be hospitalized due to complications arising from an abortion. But in practice, it layered on the specific and individual requirements of hospital policies on abortion providers — and for many, admitting privileges could be very hard to come by. Hospitals in many parts of the country were exceedingly reluctant to grant admitting privileges to doctors performing abortions, and were able to wield an effective private veto over abortion access in the surrounding area.
Of course, TRAP laws were not truly about protecting women’s health. Instead, they were designed to bury abortion clinics in red tape. Lawmakers hoped clinics would be unable to comply with this torrent of regulations and be forced to shut down — which in turn would leave abortion care harder to access for women. (State officials were not particularly discreet about this either. When Texas enacted a pair of TRAP laws in 2013, then-Lieutenant Governor David Dewhurst tweeted a map showing projected clinic closures under the new law, which it claimed would both “keep abortion safe and legal,” while “essentially ban[ning] abortion statewide.”)
Liberals sounded the alarm that TRAP laws would frustrate abortion access in America. The ACLU said “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. [. . .] [T]hese laws create burdensome and medically unnecessary regulations for abortion clinics that are written with the goal of forcing them to shut down.” The Center for Reproductive Rights — my former organization, which twice successfully sued to strike down TRAP laws in the Supreme Court — called them “excessive and unnecessary government regulations [that] increase the cost and scarcity of abortion services, harming women’s health and inhibiting their reproductive choices.” More than 160 Democratic members of Congress (in a legal brief I co-authored) labeled them “pretextual health and safety laws that chip away at women’s constitutional rights.”
To put it another way, liberals called out and resisted a regulatory structure that was stifling an important right. Democratic lawmakers mobilized against the frustration-by-regulation tactic posed by TRAP laws, and introduced federal legislation — the Women’s Health Protection Act — that would codify Roe v. Wade and preempt such laws entirely. Abortion-rights litigating organizations sued to block TRAP laws in the courts, and eked out a pair of wins at the Supreme Court before its right-wing capture was complete.
Anti-abortion TRAP laws were perhaps singular in their transparent bad faith and pretext. And unlike other problematic regulations, TRAP laws were uniformly enacted by liberals’ political and ideological foes. But they marked the weaponization of the conservative insight that if you pile enough regulations on the providers of a good or service, at some point you’ll get much less of that good or service.
That dynamic is what’s ailing the constellation of physical stagnations that concern “supply-side progressivism” / “a liberalism that builds.” Housing construction has fallen short of our housing needs under the weight of local zoning requirements and an excessive number of procedural vetogates, including many that seem deliberately designed to suppress development. Infrastructure projects — including clean-energy installations like wind and solar farms — must run a gauntlet of local permitting requirements plus state and federal environmental review to get off the ground.
Moreover, as University of Michigan law professor Nicholas Bagley notes, administrative agencies tasked with securing the public welfare are laboring under the shackles of excessive rules and procedures. With the institutional odds increasingly stacked against the passage of progressive federal legislation, agencies will only grow in importance for achieving liberal aims.
Liberals who resisted the weaponization of regulation against abortion access would be wise to extend their own logic to its natural conclusion. “If new administrative procedures can be used to advance a libertarian agenda,” Bagley asks, “might not relaxing existing administrative constraints advance liberal ones?” He posed that question in the context of aiming to improve administrative functioning. But liberals should pose the same question toward other aims. Just as overregulation threatened to negate the right to abortion, so too can it stifle the right to housing. Or nullify the right to a livable environment, or thwart the right to travel.
When enacting TRAP laws, anti-abortion advocates emphasized the need to regulate an “industry” — namely, abortion providers. The institutional originator of model TRAP law legislation claimed that under these laws, “women will be better protected from the abusive Big Abortion Industry.” In response, liberal advocates emphasized the ensuing harms that would befall women seeking care because of overzealous regulation on providers. It is thus noteworthy that skepticism on the left of rethinking regulation in other spaces today often focuses on windfalls for real estate developers or energy companies, rather than the ensuing benefits for those seeking housing or those who will gain from a rapid clean-energy transition.
The specific solutions in each of these spheres will vary. But the TRAP law precedent provides a vocabulary and a standard to measure the worth of regulations: Is a given regulation necessary to achieve some desirable public interest? Do the regulation’s benefits outweigh its burdens? Potential policy fixes range from partial preemption of local control over housing and infrastructure, to a “cooperative federalism” system that gives localities controlled choice over where to site clean-energy projects (like the Telecommunications Act did for cellphone towers), to retooling the National Environmental Policy Act so that environmental review doesn’t ensnare pro-climate projects.
More exploration is warranted on the potential rhetorical and policy connections between the abortion rights movement’s TRAP law resistance and the emerging efforts to unwind counterproductive regulations holding back housing, clean energy, and infrastructure. And in the post-Roe era, the connectivity is only growing tighter: in November, an anti-abortion group tried to weaponize environmental review laws to block access to medication abortion.
Toward the end of his book Public Citizens: The Attack on Big Government and the Remaking of American Liberalism, historian Paul Sabin recounts how modern liberals have been negatively polarized into default opposition to regulatory reform. “The Reagan administration’s antiregulatory rhetoric inflamed liberal opponents and mobilized conservative supporters, rather than building support for more effective government,” Sabin wrote. Conservative attacks on the administrative state have left liberals defensive and instinctively hostile to anything that smacks of deregulation. We saw this play out most recently in the significant liberal opposition to Senator Joe Manchin’s modest permitting reform proposal.
The regulatory state has been instrumental to promoting health, safety, and wellness for Americans. It is a liberal triumph. But liberals must honestly account for when regulation goes too far. We need regulation calibrated to meet our today’s needs to stop social bads without entrapping social goods. Just as they did in the context of abortion, liberals must inquire whether regulations are — intentionally or not — trapping their own priorities.
