Unlimited Discretion: How Unchecked Bureaucratic Discretion Can Threaten Abortion Availability

Abstract

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.

Keywords: Ohio; abortion; bureaucracy; discretion.