Abortion opponents have taken several tacks in their four-decade fight against Roe v. Wade, the 1973 Supreme Court ruling that recognized a constitutional right to an abortion. Early efforts by opponents of Roe often involved fetuses or the mother by, for example, curtailing the period during which women may end their pregnancies or banning particularly grisly-sounding techniques like “partial-birth” abortion. But about a decade ago, abortion opponents embraced a different legal strategy, moving away from passing regulations affecting the right to obtain an abortion to passing regulations restricting the availability of the procedure.
On March 2, the Supreme Court heard oral argument in one of the most important reproductive rights cases in a generation; that the Court is hearing the case reflects the success of abortion opponents’ shift in strategy. The Court’s task: to determine whether a 2013 law that shuts down more than three-quarters of the 40-odd abortion clinics in the state of Texas runs afoul of a 1992 precedent prohibiting states from passing laws which “place a substantial obstacle [i.e. an undue burden] in the path of a woman seeking an abortion before the fetus attains viability.”
Two aspects of the Texas law (also known as “H.B.2”) are at issue before the Supreme Court. First, H.B.2 states that a physician “performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that: (A) is located not further than 30 miles from the location at which the abortion is performed or induced; and (B) provides obstetrical or gynecological health care services.” Second, H.B.2 provides that abortion clinics must be expensively fitted out as “ambulatory surgical centers” (“ASC”).
Texas legislators pitched the requirements as a boon to the health and general welfare of women seeking abortions by raising the standard and quality of care. However, both the purpose and effect of H.B.2 is to present a “substantial obstacle” to Texas women seeking abortion care – a reality that has been candidly embraced by the law’s supporters. Then-Governor Rick Perry, who signed the restrictions into law and made it part of his broader initiative to “make abortion, at any stage, a thing of the past,” stated bluntly with respect to H.B.2 that “[t]he ideal world is one without abortion. Until then, we will continue to pass laws to ensure that they are [as] rare as possible.” And in a briefing to the Fifth Circuit Court of Appeals, the law’s supporters suggested that H.B.2 is good law because women are “far better protected by no access than access to abortion care.” But leaving aside the intention of the legislature or the law’s supporters, H.B.2’s purported health benefits are nonexistent.
Abortion is already one of the safest medical procedures performed in the United States; the risk associated with childbirth is approximately fourteen times higher than abortion. Over 90% of abortions in the United States are performed in outpatient settings and almost all complications that arise after an abortion can be, and are, treated on an outpatient basis. Compared to other procedures, hospitalization due to a medical abortion is exceedingly rare – 0.06%. But even when such care is required, there is less than 0.3% risk of major complications following an abortion, and a recent study found that the risk of major complications from first trimester abortions by the aspiration method is even less – 0.05%. According to Texas vital statistics data as of 2011 (the most recent year for which data is available), since 2008, there have been no reported maternal deaths out of 227,912 abortions in Texas. To place this into perspective: the mortality rate of a colonoscopy (34.5 per 100,000) is more than 40 times greater than that of abortion (0.67 or less per 100,000). And yet, Texas law does not require doctors who perform colonoscopies to possess admitting privileges to a local hospital. There is absolutely no medical reason to treat facilities that provide abortions differently than facilities at which riskier surgical procedures are performed, including those that use general anesthesia.
Rather than increasing the quality of care or protecting women’s health, H.B.2 is designed to sharply curtail access to abortion care in Texas.
Take H.B.2’s admitting privileges requirement, for example. Advocates of requiring doctors who perform abortions to have admitting privileges often argue that such a requirement “further[s] continuity of care for patients and also address[es] the problem of emergency rooms not having enough ob-gyn specialists on call to deal with complications resulting from an abortion.”
This argument, however, makes little sense in the context of current Texas law and prevailing medical practices. Under the Texas Administrative Code, abortion providers are already required to have “readily accessible written protocol for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital.” Thus, in the rare instances when a woman experiences a complication after an abortion and requires hospital-based care, she is, an can be, appropriately treated by emergency room physicians or, if necessary, the hospital’s on-call specialist, both of whom are trained to handle abortion-related complications in the same way they are trained to handle complications arising from any other medical procedure. Simply stated, the care a woman receives at the emergency room is independent of, and not contingent on, her abortion provider having admitting privileges. Continuity of care is achieved not by requiring hospital admitting privileges, but through effective communication and collaboration by specialized health care providers.
In reality, the intended effect of the admitting privileges requirement is to shutter the majority of Texas abortion care providers, a legislative goal that was easily met – after H.B.2’s passage 12 of the 34 remaining abortion clinics were forced to stop providing abortions because providers did not have privileges. This is because it is difficult, and frequently impossible, for even well qualified doctors to obtain such privileges when they are associated with an abortion care provider. This difficulty is not theoretical. As Manny Fernandez reported in the New York Times, “nearly all of [Whole Woman’s Health’s] doctors were unable to obtain admitting privileges at nearby hospitals . . . some hospitals declined to even provide doctors with applications for admitting privileges.” Similarly, in Jackson Women’s Health Org. v. Currier (2014), the hospitals’ justification for denying admitting privileges included: “[t]he nature of your proposed medical practice is inconsistent with this Hospital’s policies and practices as concerns abortions and, in particular, elective abortion”; and “[t]he nature of your proposed medical practice would lead to both internal and external disruption of the Hospital’s function and business within the community.”
But even in the unlikely circumstance that an abortion provider gains admitting privileges to a hospital within 30 miles of the abortion clinic, maintaining these privileges could prove problematic. Many Texas hospitals require that their physicians handle a fixed number of hospital admissions annually, and physicians who specialize in performing abortions are frequently unable to satisfy such requirements due to the fact that abortion care is extraordinarily safe. Few patients seeking an abortion ever experience complications requiring hospitalization, making the required quotas difficult, if not impossible, to meet.
More clinics will close as a result of the ASC requirements, provisions which have not yet taken effect. Many of the ASC requirements are arbitrary and unnecessary for abortion clinics, imposing conditions on square footage, ceiling finishes, number and placement of janitorial closets and parking spaces, among other things. These are conditions which have no impact on, or connection to, the quality of care. They do, however, make conforming existing abortion clinics or building new clinics cost prohibitive. In Whole Women’s Health v. Lakey (2014), the district court recognized that the costs of retrofitting existing facilities “indisputably approach 1 million dollars and will most likely exceed 1.5 million dollars.” Likewise, the cost of building a new clinic that could meet H.B.2’s lengthy requirements would “likely exceed three million dollars.”
Taken separately or in tandem, thus, the admitting privileges and ASC requirements have proven to be insurmountable obstacles to the continued operation of most of Texas’s abortion care providers. If the Fifth Circuit’s decision is allowed to stand, only ten or fewer abortion providers are likely to remain in Texas, all but one of whom will be clustered in Texas’s four principal metropolitan areas (Dallas/Fort Worth, Austin, San Antonio, and Houston). This 75% reduction will leave the vast majority of Texas communities without any access to abortion care.
The closure of abortion clinics is particularly significant in Texas, a state with an abysmal health care record that has led to poor outcomes for women and staggering racial disparities in care. The State Task Force on Maternal Mortality and Morbidity reported in 2015 that while there were 24.4 pregnancy-related deaths per 100,000 overall births in Texas in 2011, among African-American women there were 67.3 such deaths per 100,000 live births. For perspective, the national average is 18.5 deaths per 100,000 births.
Fewer abortion clinics will only make Texas’s problems with maternal health worse. The handful of remaining clinics could not possibly meet the demand of all Texas women, and delays in obtaining an abortion significantly endanger women’s health as the risk of complications associated with abortion procedures increases with the length of the pregnancy. Medical studies consistently show that the mortality rate for abortion-related deaths in the first trimester (when almost nine in ten abortions are performed) is no more than four in one million abortions; that number increases to one death per 11,000 when an abortion is performed at 21 weeks or later.
H.B.2 thus not only creates an impermissible obstacle to accessing abortion care, but also endangers the health of Texas women seeking to have an abortion. Contrary to its proponents’ claims, H.B.2 does absolutely nothing to enhance the safety of, or healthcare provided to, women in Texas.
The current case before the Supreme Court, however, goes far beyond Texas. H.B.2 is but the latest incarnation of a coordinated effort by abortion opponents to end or sharply curtail access to abortion care. A 4-4 split at the Supreme Court would let the Texas law stand, and such a result would permit other states in the Fifth Circuit (where the suit originated) to restrict abortion access in similar ways, and would embolden others to follow suit. As the US solicitor-general, Donald Verrilli, summed it up before the justices, the question before the court boils down to a rather simple issue: whether a woman’s right to abortion “really only exists in theory” or “in fact, going forward.”
Featured Image Credit: Victoria Pickering on Flickr (via creative commons license)