Protecting Women’s Health? Texas Abortion Law Does Just the Opposite

Women’s reproductive rights are under attack as never before. Laws are being passed in state after state that result in abortion clinics being shuttered, doctors being forced to stop practicing, millions of women losing access to necessary health care services and, in an ironic twist, an increase in late-term abortion. Add to that the relentless push to “defund” and tar Planned Parenthood, an organization that has been providing vital care to women worldwide for nearly 100 years, and it feels like an all-out assault.

The lattice work of state abortion laws compels women to view sonograms of their fetuses, institutes waiting periods, forces doctors to deliver court-ordered scripts, and most recently, requires abortion clinics to conform to ambulatory surgical center (ASC) standards and their doctors to have admitting privileges at nearby hospitals. The rationale changes with the type of regulation—informed consent, rights of the unborn, rights of parents and spouses, protecting women from psychological trauma and medical harm—but the underlying goal is always to limit access to abortion.

Over the past decade, abortion foes have focused their efforts most intently on pushing so-called TRAP legislation—Targeted Regulation of Abortion Providers—through state legislatures. These are rules that dictate the size of procedure rooms, corridor widths and how far a clinic can be from a hospital. In 17 states these rules apply even to clinics where only medical abortions are performed—a procedure that involves a woman swallowing two pills before returning home. In 14 states abortion providers must have an affiliation with a local hospital; and in 5 states (Texas, Tennessee, Utah, Missouri and North Dakota) they must have admitting privileges.

Last week the battle over clinic regulations finally moved to the Supreme Court. The eight remaining Justices heard arguments in a case involving Texas law HB2 that requires all abortions be performed in licensed ambulatory surgical centers (ASC) and that all doctors practicing at these clinics have admitting privileges at a nearby hospital. What is the impact of HB2? In November 2013 when the bill passed the Texas legislature some 14 clinics immediately went out of business as the admitting privileges requirement took effect. Over a dozen other facilities closed during a two-week period in which the ambulatory surgical center requirement was in effect. They reopened only after the Supreme Court issued a stay on that provision and currently Texas has only 10 abortion clinics (out of 36 prior to the law taking effect.).

The Texas clinics closed for two reasons: 1) hospitals routinely refuse to grant admitting privileges to doctors performing abortions, and 2) the cost of upgrading clinics to meet ASC standards is prohibitive, to the tune of $1.6-$2.3 million on “expanding hallway widths and ceiling heights; reconfiguring bathrooms; adding locker rooms, janitorial closets, and parking spaces; upgrading HVAC systems; and recoating floors, walls, and ceilings in special finishes,” according to the Center for Reproductive Rights. Building a new clinic to meet these standards would cost at least $3.5 million.

The Supreme Court must decide if the Texas law violates the Constitution by placing an “undue burden” on women seeking abortion. Defenders of the bill, represented by Texas Solicitor General Scott Keller cite the law’s commitment to ensuring women’s health and safety. But Stephanie Toti, senior counsel at the Center for Reproductive Rights who is representing a coalition of Texas abortion providers in the case and U.S. Solicitor General Donald Verrilli make a forceful and evidence-laden argument that health concerns are unwarranted.

According to evidence presented in the arguments, abortion services have a 99% safety record, with less than 1% of patients experiencing any complications and even fewer requiring further treatment at a hospital. Meanwhile, common procedures that include liposuction, colonoscopy, skin cancer excision, vasectomy, D&C after a miscarriage and even childbirth are allowed to take place in facilities that do not meet the requirements of an ambulatory surgical center. Each of these procedures has a rate of complication equal to or higher than abortion. Justice Elena Kagan pointed out in the questioning phase that liposuction, for example, is nearly 30 times more dangerous than abortion.

And what about doctors needing to have admitting privileges at nearby hospital? All abortion clinics already have working relationships with local hospitals to receive patients in case of serious complications. One could hardly imagine an emergency room turning away a woman in distress because she’s arriving via an abortion clinic. That would be just, well, illegal. This rule is instead designed to capitalize on a well-known Catch-22; many hospitals refuse to grant admitting privileges to doctors who perform abortions. No privileges, no doctors to staff clinics, no more abortions. “Had Texas truly believed that these laws provided some important benefit for outpatient surgery, it would have made them generally applicable,” says Toti, “All outpatient surgical providers would have to have admitting privileges or practice in an ASC, but that’s not the case.”

Furthermore, there is absolutely no evidence that women in Texas have been harmed because clinic providers lack admitting privileges. After a tortured exchange with Keller, Justice Stephen Breyer asked the Texas Solicitor General, “So what is the benefit to the woman of a procedure [admitting privileges] that is going to cure a problem of which there is not one single instance in the nation, though perhaps there is one, but not in Texas.”

I think it’s clear. Texas’ HB2 provides no benefit to women’s health. The American Medical Association, the American Congress of Obstetricians and Gynecologists and every other mainstream leading medical association agree that these requirements are not medically justified.

There is also strong proof that HB2 (and laws like it in other states) is as Solicitor General Verrilli put it, the very “definition of an undue burden.” Over a two-week period after the bill went into effect, twelve clinics closed in Texas, only to re-open again when a lower court ruling blocked enforcement of the law. “It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it?” asked Justice Elena Kagan. “It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”

Prior to HB2, Texas clinics performed 65,000-70,000 abortions a year. The remaining clinics licensed as ASCs—all located in major metropolitan regions like Dallas, Austin and Houston–are only able to perform 14,000 abortions, according to testimony. Increased wait times, travel distances up to hundreds of miles and related expenses threaten to harm the health of the very women HB2 is purportedly protecting. “There is evidence in the record that following implementation of the admitting­ privileges requirement, in the six ­month period following, there was an increase in both the number and the proportion of abortions being performed in the second trimester,” Toti told the Justices. “So by delaying women’s access to abortion, these requirements are actually increasing the risks that women face.”

Additionally, by delaying access to early abortion HB2 also led to an increase in the number of surgical abortions vs. medical abortions, which use pills. This increase, noted Justice Kennedy, “may not be medically wise.”

The Supreme Court is not expected to rule on the Texas bill until June. But state regulations continue to pile up as conservatives mount an all-out attack on abortion providers and women seeking their services. This week Florida’s legislature voted to enact an abortion bill that mirrors HB2—requiring that doctors who perform abortions have admitting privileges at nearby hospitals and clinics meet ambulatory surgical center standards. This legislation is again, designed to protect women’s health, right? Hardly. “Let’s get Florida out of the abortion business,” State Senator Aaron Bean, a Republican from Jacksonville said, during a debate over the new law. “That’s what this bill does.”

The legislation also blocks Medicaid funding for low-income women receiving routine care, such as sexually transmitted disease screening and birth control, at clinics that perform abortions.

This week also saw a different line of attack forming, specifically on women facing the most difficult and personal of choices. The Indiana legislature passed a bill that would ban abortions sought when a fetus has a genetic anomaly like Down syndrome or a devastating disability. Doctors who perform such abortions could be sued for “wrongful death” under the new regulations. (A similar law has already been passed in North Dakota) “Those unborn children are Hoosiers and they have constitutional rights,” House Speaker Brian Bosma said after the vote.  “We’re not making a determination about women’s’ health. We are trying to protect the right of the unborn they cannot speak for themselves.”

The fight over abortion has been constant since long before Roe vs. Wade. The challenges change, as do the rationales for further restricting when, where and how women can obtain abortion services and who will pay for them. The Texas law and those TRAP provisions like them that are already on the books or percolating in state legislatures have a false premise—they do not seek to protect the health of women, they seek only to limit access to safe, legal abortion. General Verrilli put it best; if the Supreme Court rules to uphold HB2, it would signal that the right to an abortion “really exists in theory, not in fact.”