Supreme Court Set To Hear Challenge To Texas Law Restricting Abortion Access

“Landmark” Abortion Case “Could Shape Abortion Rules For Years To Come.” The Supreme Court is scheduled to hear oral arguments for Whole Woman's Health v. Hellerstedt on March 2, a case surrounding a Texas abortion law that “requires abortion doctors to be affiliated with nearby hospitals and also limits abortion to ambulatory surgical centers.” Pro-choice advocates and “major medical groups say [the law] will not enhance patient safety and will only reduce women's access to abortion.” According to The New York Times, the challenge is seen as a “landmark case” that “could shape abortion rules for years to come”:

On March 2, the Supreme Court is scheduled to hear arguments on the challenge to the Texas law, which requires abortion doctors to be affiliated with nearby hospitals and also limits abortion to ambulatory surgical centers. Abortion opponents say such measures are needed to protect women, but major medical groups say they will not enhance patient safety and will only reduce women's access to abortion.

Overruling a lower court's injunction, the Fifth Circuit appeals court allowed the Texas admitting-privilege rule to take effect throughout the state in 2013, immediately shuttering about half of what had been more than 40 abortion clinics, although exceptions were later granted for geographically isolated clinics in McAllen and El Paso. The second requirement, mandating costly surgical center facilities, has been temporarily stayed by the Supreme Court, but it would force still more reductions if upheld.

At stake in the case, Whole Woman's Health v. Hellerstedt, is not only the future of abortion access in Texas and in the nine other states that, like Alabama and Louisiana, have adopted similar physician rules. It could also affect dozens of other regulations of disputed medical value that have been adopted by numerous states, including limits on nonsurgical drug-induced abortions, mandated building standards for clinics and two-day or three-day waiting periods. [The New York Times, 2/24/16]

The Texas Law, HB 2, Has Led To Closure Of More Than 20 Facilities Providing Abortions. Following passage of the Texas law at the center of the case, House Bill 2 (HB 2), the number of abortion clinics in Texas dropped from over 40 to 19. If the Supreme Court upholds the law, “all but 10 abortion clinics in a state with 5.4 million women of reproductive age” would be shuttered, according to the Center for Reproductive Rights. The law has led to “higher costs, longer delays and extra steps for women seeking abortion care, and in the process [has punished] women for their decision to exercise their constitutional right to end a pregnancy.” [Center for Reproductive Rights, 2/16/16]

Texas Media Highlight How Abortion Restrictions Negatively Impact Women's Health And Access To Health Care

Dallas Morning News: Rape Victims, Low-Income Women, Latina And Immigrant Women, And Service Women Are “Heavily Burdened” By HB 2. Dallas Morning News reporter Brittney Martin detailed on January 5 that briefs submitted by pro-choice advocates “argue that some groups of Texas women will be more heavily burdened by the contested provisions than others,” noting how “longer wait times and travel distances caused by shuttered clinics could 're-traumatize' sexual assault victims” and that “the struggle to secure funds causes low-income women to be more likely to delay an abortion or carry an unwanted pregnancy to term.” Martin also detailed how Latina and immigrant women “were more likely to face obstacles to obtaining abortions than white women,” and that “shuttered clinics would particularly inconvenience service women” who would face time and distance barriers to the closest abortion facilities:

Abortion-rights proponents submitted 45 amicus briefs to U.S. Supreme Court justices Mondayencouraging them to strike down provisions of a 2013 Texas law that they say will burden Texas women seeking abortions.

The Supreme Court will hear oral arguments on the Texas case March 2. By considering the constitutionality of two provisions of the Texas law, requiring physicians that perform abortion to have admitting privileges at a nearby hospital and requiring all abortions to be performed in hospital-like facilities, the justices will decide how far states can go to restrict abortion.

Currently there are 18 abortion clinics operating in Texas, down from at least 40 before the law took effect. If the facilities requirement is allowed to go into effect, it is currently on hold by the Supreme Court pending its review, the number of clinics could be reduced to nine. The remaining clinics would all be located in the state's four largest metropolitan areas: Austin, Houston, San Antonio and Dallas-Fort Worth.

In the submitted briefs, advocacy groups argue that some groups of Texas women will be more heavily burdened by the contested provisions than others. [Dallas Morning News, 1/5/16]

San Antonio Express-News: “Long-Term Damage” From Strict Anti-Choice Laws “Has Now Been Documented.” A February 9 San Antonio-Express News article cited research from the Texas Policy Evaluation Project at the University of Texas at Austin, which found that Texas' restrictive access to reproductive health services led to significant declines in Medicaid claims “for long-acting reversible contraceptives [and] longer-lasting injectable contraceptives,” as well as “a 27 percent increase in the number of births billed to Medicaid among women who had previously received the injectable contraceptives.” The article also noted how “cuts to family-planning grants, a reduction of 66 percent across the state, resulted in the closing of some 82 clinics, about one-third of them with Planned Parenthood” (emphasis added):

On a “truth tour” to energize supporters, raise funds and focus attention on next month's scheduled Supreme Court hearing of a suit challenging Texas' signature anti-abortion law, activists who gatheredTuesday at a Southeast Side clinic said recent events have strengthened their embattled movement.

Speakers from NARAL Pro-Choice Texas, Planned Parenthood, the Texas Freedom Network, the Lilith Fund and the host clinic, Whole Woman's Health, among others, told the crowd that while House Bill 2 has closed roughly 25 clinics across the state since it was enacted in 2013, it has also emboldened new abortion rights supporters.

[...]

Still, a loss at the Supreme Court is unlikely to change the long-running Republican legislative campaign to restrict abortion rights. And long-term damage from that campaign has now been documented by medical researchers, abortion rights advocates say, pointing to a study published last week in the New England Journal of Medicine by the Texas Policy Evaluation Project at the University of Texas at Austin.

It reported a 35 percent decline in Medicaid claims from 2011 to 2014 in Texas for long-acting, reversible contraceptives such as implants and IUDs and 31 percent fewer claims for longer-lasting injectable contraceptives, and a 27 percent increase in the number of births billed to Medicaid among women who had previously received the injectable contraceptives.

The cuts to family-planning grants, a reduction of 66 percent across the state, resulted in the closing of some 82 clinics, about one-third of them with Planned Parenthood, researchers said. [San Antonio Express-News, 2/9/16]

San Antonio Express-News: New Documentary Explains How HB 2 “Has Made [Abortion] Procedures More Dangerous For Women Or Completely Unattainable.” A February 23 San Antonio Express-Newsarticle highlighted a documentary examining “the nearly 300 laws regulating abortion providers” passed nationwide since 2010, with specific focus on Texas' HB 2 law. The article explains how “San Antonio providers play a prominent role in the film in explaining how they say the new law has made [abortion]procedures more dangerous for women or completely unattainable,” noting research showing “that up to 240,000 women aged 18 to 49 have tried to induce an abortion at home in the last five years” as a result of Texas' “strict abortion regulations”:

A new documentary spotlighting strict abortion regulations enacted in Texas and across the country and its effects on women's health will be screened at South By Southwest next month with the help of former gubernatorial candidate Wendy Davis.

'Trapped,' a documentary directed by Dawn Porter, focuses on the nearly 300 laws regulating abortion providers that have been passed by state legislatures since 2010, according to its site. Much of the documentary focuses on Texas, where a controversial, omnibus law passed in 2013 (HB2) led to the closures of a vast majority of abortion providers.

[...]

San Antonio providers play a prominent role in the film in explaining how they say the new law has made [abortion] procedures more dangerous for women or completely unattainable.

A University of Texas study released last year found that up to 240,000 women aged 18 to 49 have tried to induce an abortion at home in the last five years, according to the Guardian. [San Antonio Express-News, 2/23/16]

The Austin Chronicle: “The Destruction Inflicted By HB 2 Is Painfully Palpable” For Texas Women. In a January 29 article for The Austin Chronicle, staff writer Mary Tuma detailed the severe consequences for women if the Supreme Court upholds HB 2. According to Tuma, clinic closures were a “direct result of the difficulty in obtaining admitting privileges” or an inability to “subsidize costly building changes” to meet Ambulatory Surgical Center (ASC) standards. She argued that “the destruction inflicted by HB 2 is painfully palpable” for Texas women as wait times have compelled many women to attempt self-inducing abortions and clinic closures could raise “the annual number of those later-term abortions from about 6,600 to nearly 12,400, a potentially dangerous prospect”:

Nearly three years later, the destruction inflicted by HB 2 is painfully palpable.

While 41 abortion clinics existed in Texas prior to HB 2, only 19 remain today. The closures, a direct result of the difficulty in obtaining hospital admitting privileges for physicians and an inability to subsidize costly building changes, came in waves. Eight facilities shuttered or stopped offering abortion care after the bill passed. Another 11 clinics did so when it was enforced in November 2013. Over the next two years some clinics closed then reopened as oscillating court rulings pulled providers in different directions, while others shuttered for good. If the final ASC provision of the law goes into effect, as few as 10 clinics, concentrated in five major metro cities, are expected to serve all 5.4 million reproductive-age women in Texas. In Austin, only two abortion clinics - Planned Parent­hood's South Austin Health Center, an ASC, and Austin Women's Medical Center - remain today out of the four in operation prior to the rollout of HB 2. Planned Parenthood will be the only center in Austin offering abortions if the ASC requirement is upheld.

[...]

“Clearly, we are trying to be prepared and take whatever steps we need to expand services to meet the demand for women,” says Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas. “But these restrictions are too onerous. There should be more than one provider to service our community in Austin; there should be the full network of health providers that existed before the law passed.” In a troubling preview of what may come, Planned Parenthood experienced a staggering 660% increase in callers seeking to schedule an abortion appointment when the ASC rule temporarily went into effect in October 2014.

More women would also be pushed from the first trimester of pregnancy to the second, raising the annual number of those later-term abortions from about 6,600 to nearly 12,400, a potentially dangerous prospect. “The increase in second-trimester abortion is concerning from a public health perspective. While they are very safe, they're associated with a higher risk of complications compared to early abortions and are more expensive,” says Dr. Daniel Gross­man, a TxPEP co-investigator. [The Austin Chronicle, 1/29/16]

The Houston Chronicle: Texas' “Added Restrictions ... Create An Unnecessary Burden On Women And Make It Harder For Them To Find A Clinic.” A February 22 Houston Chronicle article explained, “Abortion is already one of the safest surgical procedures in America,” and further noted that “added restrictions like mandatory waiting periods just create an unnecessary burden on women and make it harder for them to find a clinic.” The article continued, explaining that pro-choice advocates “point to studies that show self-induced abortions on the rise in Texas because of limited access to clinics”:

The law - currently paused as it goes before the U.S. Supreme Court - requires abortion clinics to maintain the same building standards as outpatient surgical centers and that doctors have hospital admitting privileges. While these regulations sound agreeable on paper and former Governor Rick Perry says they're designed to protect women's health, pro-choice says they really do the opposite.

They point to studies that show self-induced abortions on the rise in Texas because of limited access to clinics. Opponents of the law also point to how some states still require doctors to spread the lie that there's a link between abortion and breast cancer.

Abortion is already one of the safest surgical procedures in America (and more “dangerous” procedures don't have the same restrictions). The added restrictions like mandatory waiting periods just create an unnecessary burden on women and make it harder for them to find a clinic. [The Houston Chronicle, 2/22/16]

The Houston Press: “There's Already Evidence” That HB 2 Is “Endangering Women.” Houston Pressreporter Michael Barajas wrote on January 6 that “more than 100 women in the upper echelons of legal, political, and academic life” submitted amicus briefs to the Supreme Court, joining “a staggering number of medical associations, politicians, attorneys, religious leaders and even government agencies” who have been arguing that “the law would endanger women.” Barajas noted the law could negatively impact nearly “1 million Texas women ... because they'd live so far from those clinics that do survive the law that obtaining an abortion would be arduous (if not impossible due to, say, socioeconomic status or the threat of domestic violence)”:

In a groundbreaking series of filings with the U.S. Supreme Court this week, more than 100 women in the legal field, politics, business, higher education and even one Episcopal priest publicly revealed their own personal stories of abortion.

[...]

Much of what these groups argue isn't new. While debating the bill, the GOP-dominated Texas Legislature heard from medical groups like the American Medical Association, the American College of Obstetrics and Gynecologists and the American Academy of Family Physicians, which filed a brief with the court Monday, saying the law would endanger women. The legislature passd it anyway under the guise of women's safety--and, surprise, there's already evidence it is, in fact, endangering women. In 2014, a federal district court judge cited the “dearth of credible evidence” that the law would make women any safer when he blocked its strictest provisions from being implemented. Yet the U.S. Fifth Circuit Court of Appeals, the most conservative federal appeals court in the country, let the law stand. The court concluded that the nearly 1 million Texas women who'd be hurt by the law, because they'd live so far from those clinics that do survive the law that obtaining an abortion would be arduous (if not impossible due to, say, socioeconomic status or the threat of domestic violence), were simply not a “large” enough “fraction” of women to rule the law unconstitutional.

While these arguments may not be new, what's unprecedented is more than 100 women in the upper echelons of legal, political, and academic life detailing their own experience terminating a pregnancy in an apparent effort to counter the stigma surrounding abortion, a stigma that persists despite the fact that one in three U.S. women will have the procedure at some point in her lifetime. The women did so without anonymity--one of the briefs by 113 attorneys “who have exercised their constitutional right to an abortion” contains an appendix listing them name after name. [The Houston Press, 1/6/16]

Texas' Anti-Choice Laws Written With Help From Extreme Group Americans United For Life

HB 2 Was Written With Help From And At The Behest Of Americans United For Life. Texas' HB 2 was written “with the help of” Americans United for Life (AUL), an extreme anti-choice organization that helps state legislatures craft bills limiting access to abortion. The bill was written “specifically using AUL model language” and was “enacted with AUL and AULA's support.” [Americans United for Life, 6/9/15, Americans United for Life, 2015]

Then-Texas Gov. Rick Perry Thanked AUL For “Developing And Promoting Legislation” Like HB 2. In an introduction to AUL's annual “Defending Life” book, then-Texas Governor Rick Perry lauded AUL for playing a “key role in developing and promoting legislation” like HB 2 “crafted to minimize damage done by the abortion industry and its proponents.” Perry also spotlighted AUL's "'Women's Protection Project,' a precise collection of legislation that every state needs to consider to fight back against [the] abortion industry." [Americans United for Life, 2014]

The Guardian: AUL President Rejects Women's Right To Choose Even In Cases Of Rape Or Incest. The Guardian reported in 2012 that AUL president and CEO Charmaine Yoest explained that she does not support abortions even in cases of rape or incest:

Limits on the legal right to abortion are sweeping through legislatures across the United States, from moves to require women seeking abortion to undergo intrusive ultrasounds, to the defunding of Planned Parenthood, America's largest family planning provider.

Behind the raft of bills and regulations is one group with an aggressive approach: a non-profit, anti-abortion group called Americans United for Life.

[...]

This year, AUL has worked with local legislators in Georgia to help push through a bill enacting an abortion limit at or after 20 weeks' gestation, with no exemptions for victims of rape or incest. Arizona was the first state to enact AUL's model legislation on banning abortions after 20 weeks.

[AUL President and CEO Charmaine] Yoest's personal view on women made pregnant by rape or incest is this: “It doesn't solve one tragedy to effect another.” She says “many friends” in the pro-life movement who have been victims in such cases agree. “They are the ones who are qualified to speak about this,” she said. [The Guardian, 5/25/12]

Mother Jones: AUL's Goal Is To End Access To Abortion By Crafting Model Legislation For Every State. As reported by Mother Jones, Americans United for Life's (AUL) initial goal was to reverse Roe v. Wade, but the group has since attempted to push restrictions on abortion rights across the country by promoting model legislation that focuses on “chipping away at abortion access”:

Understated rhetoric aside, AUL's mission is to end all abortions in the United States. Founded in 1971 by a Unitarian minister from Harvard Divinity School, AUL first focused on reversing Roe v. Wade flat out, but in the 1990s it turned its attention to rolling back reproductive rights incrementally at the state level. Lately, it's been chipping away at abortion access at an ever-faster pace. Its team of lawyers has written dozens of model bills, which are collected in a playbook, Defending Life, and delivered to every state and federal legislator. [Mother Jones, September/October 2012]

PFAW: AUL Aims To Eliminate Access To Abortions Through Incremental Restrictions. According to a report by People for the American Way (PFAW), AUL's strategy involved slowing chipping away at abortion access by creating tighter restrictions:

Since the Supreme Court affirmed a woman's right to choose an abortion in 1973's Roe v. Wade, anti-choice activists have been split on how to go about restricting abortion rights. Several major anti-choice groups, including Americans United for Life, argue for taking incremental measures in legislatures and in the courts to chip away at Roe's protections. AUL's general counsel once compared his group's approach to carving a Christmas ham: “Each slice makes it smaller and smaller until it is no more. [People for the American Way, accessed 2/24/16]