This Session of the Supreme Court Could Determine Abortion Access for Generations

Amy Hagstrom Miller is used to fielding frantic phone calls. She’s been working in abortion care since 1989; in 2003 she founded Whole Woman’s Health, a group of clinics in five states that provide gynecological care and abortions. In Texas, Whole Woman’s hotline is getting one particular call in particular, over and over.

“Women aren’t even sure if abortions are still legal,” Miller says. “They’re calling just to find out.”

The confusion —and fear, and panic— engulfing many Texas women is thanks to HB 2, the omnibus abortion bill passed in 2013 that placed a blizzard of new restrictions on abortion access.Those restrictions include banning abortion after 20 weeks, requiring that doctors who perform abortions have admitting privileges at a hospital within 30 miles, requiring that abortion clinics meet the standards of an ambulatory surgical center (ASC), and putting new restrictions on medication abortions.

Both the admitting privileges rule and the ASC requirements have been particularly devastating, because they’re nearly impossible for most abortion clinics to meet. ASCs are essentially mini hospitals, costing millions to build and maintain: Whole Woman’s told the New York Times in 2013 that their ambulatory surgical centers cost $40,000 more a month than their abortion clinics. Most abortions are non-surgical and don’t need to be performed in a hospital setting, and abortion is, statistically, one of the safest medical procedures in the United States, with deaths related to abortion complications estimated at 0.70 per 100,000 performed.

As for admitting privileges, most abortion doctors simply don’t need them. Any patient having a medical emergency can be sent to the ER with or without admitting privileges from her doctor. In rural areas, too, it’s geographically impossible for doctors to get admitting privileges somewhere within 30 miles away. And in any case, all that aside, abortion providers usually can’t get them: Admitting privileges are akin to being a staff member, and hospitals regularly decline to extend them to doctors who perform abortions, because of the controversy around the procedure.

Both the ASC requirement and the admitting privileges are widely regarded as TRAP laws, targeted regulations of abortion providers designed solely to shut them down. In the past two years, they’ve started taking hold as never before: according to the Guttmacher Institute, 22 states now have “onerous licensing standards” for abortion clinics, specifying things like how wide the hallways have to be, how many parking spaces they have to have, and ventilation in the building. Fourteen states require doctors to have some kind of affiliation with local hospitals; five require admitting privileges.

“Requiring a certain size of janitorial closets or 40 parking spaces doesn’t improve the quality of care women receive,” says Vicki Saporta dryly. She’s the president of the National Abortion Federation, a professional association which represents abortion providers.

Abortion providers at Jackson Women’s Health, the last abortion clinic in Mississippi, agree. They too are suing over a similar admitting privileges law as the one in Texas. Their case made it to the Supreme Court last session, but the justices have taken no action on it yet, raising speculation they’ll consolidate the case with Texas and rule on both together this session.

“It’s really clear to me that the main objective is to close down clinics by any means necessary,” Hagstrom Miller says. Abortion opponents, she says, have successfully taken on “this language of concern about women or safety. When it boils down to it, it has nothing to do with that at all. It’s about blocking women’s access to safe, affordable abortion care.”

It’s working. And if the Supreme Court doesn’t rule against their legality, the same restrictions will spread to every other red state. They’ll keep abortion legal as a technicality, while turning into something more than half the women in the country can’t access.

In truth, it’s worse than that. Because even if the Supreme Court takes the case and rules in favor of the abortion providers, some of the damage that’s already been done is permanent. The abortion clinics that have already closed are, many of them, likely gone forever. In the meantime, Saporta says, the ones left open are nowhere near able to meet local need.

“The other providers in Texas can’t make up the overflow really,” she says. And even if they could, many are simply too far for women in other parts of the state to reach. “Most women can’t travel 300 miles in order to obtain care. That shouldn’t surprise anybody who understands the realities of these women’s lives.” She adds that Texas Supreme Court “said they can just get in a car and travel. Many of these women, they don’t have cars. They can’t make it to New Mexico or Louisiana. And our member facilities in those states have seen a dramatic increase in the number of women from Texas who are leaving the state in order to obtain the care they need.”

The obstacles those women faced aren’t retroactively reversed; if they were forced to carry pregnancies to term they weren’t ready for, didn’t want, or couldn’t afford, nothing changes that. And while HB 2 has waffled back and forth through the court system, Hagstrom Miller says, she’s seen many abortion providers retire or leave the state. “Texas is just too hard.”

The other day, she says, she was writing on a white board in her home office, trying to make a timeline to remember which clinics opened and closed when. Her nine-year-old child came into the room and commented that maybe they could reopen the Austin clinic.

“I said no, the building gets leased, equipment goes somewhere, staff gets laid off,” Hagstrom Miller says. Even if the Supreme Court ruled in their favor tomorrow, “It’s not just like poof the staff is waiting, the building is still there, the equipment is ready. To rebuild that infrastructure of care is not something that’s simple.”

The bulk of HB 2 didn’t go into full effect until this June, when the 5th U.S. Circuit Court of Appeals upheld most of the law, ruling it didn’t place an “undue burden” on women seeking abortions. The effects were disastrous: most of the clinics in the state that hadn’t closed already shut their doors. In August 2013, before the law took effect, there were 40 abortion clinics in Texas. Now there are 18. If the law takes full effect, there will be nine. (Update, November 11: Those numbers are taken from the Texas Policy Evaluation Project, and were current as of early November. The Center for Reproductive Rights has slightly different figures, current as of today, according to a spokeswoman: “There are currently 19 clinics in the state and 10 will remain if the June decision from the 5^thcircuit goes into effect. Granted, Whole Woman’s in McAllen will be extremely limited in their ability to provide abortion services, but they will technically be open.”)

“At this point, 75 percent of clinics are closed already,” Hagstrom Miller says. “There’s a 20-day waiting period in both the Dallas Fort Worth and Austin areas. Whole Woman’s Health has three clinics and one ambulatory surgical center. We used to have six.”

The situation is even worse in Lubbock, El Paso, Midland, Waco, and Killeen, all large cities surrounding by miles of rural areas. All no longer have abortion clinics. The waiting period for women in those rural areas, Hagstrom Miller says, “isn’t even measurable, because they’re having to travel.”

“The law is having exactly the impact that legislators hoped it would have when they passed it,” says Saporta, the president of the National Abortion Federation. “That women would have a very difficult time accessing the abortion care they need.”

Sometime this week or early next, the Supreme Court will decide whether to consider two of the most devastating aspects of HB2: the ambulatory surgical center requirements, and the admitting privileges rule. What happens there will change the shape of abortion access forever. If ASC rules and admitting privileges are ruled to be constitutionally legal restrictions on abortion, other abortion-hostile states will follow suit. It will make abortion legal in theory but virtually impossible for many women to get: poor women, women in rural areas, anyone who can’t travel.

Whole Woman’s staff is already seeing how that will look. They have a nonprofit arm called Shift, which operates an abortion information hotline. They see the effects of the law firsthand, from the women who call them looking for help obtaining an abortion.

“One woman in Lubbock called upwards of seven times to figure out what clinics were still open,” Hagstrom Miller says. Shift was able to help her raise money for her procedure from several abortion funds. But that didn’t negate the other costs once she learned she would need to travel upward of 200 miles for an abortion. In the meantime, too much time passed.

“She ended up getting pushed into the second trimester,” Miller says. “She was too far along [to have an abortion.] She spent that time trying to figure out gas, money, where to get ultrasounds — she’s a working mom. She can’t take five different times off for all this.”

And that, Miller adds, is precisely what HB 2 is intended to do: bind up abortion in such a snarled bureaucratic web it’s inaccessible. “Her story illustrates the effect once the law is in full effect. It does serve as an undue burden. She has the legal right to an abortion on paper, but it’s completely out of her reach.”

Stephanie Toti is an attorney with the Center for Reproductive Rights, representing Hagstrom Miller and Whole Woman’s Health. She sees this legal challenge as the biggest abortion rights milestone since Planned Parenthood v. Casey, when the Supreme Court ruled states could legally put some restrictions on abortion access, as long as they didn’t pose an “undue burden” to the patient, defined as “ a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

Casey also said that states could make those laws in the interest of protecting the health of both woman and fetus. The Whole Woman’s case, Toti says, will force the Supremes to consider whether the states have to prove what they’re doing is really for the sake of health.

“The court will have to decide, when a state says that it’s enacting an abortion restriction to protect a woman’s health, whether it’s enough for the state to simply say that,” she explains. “Or whether they have to come forward with some evidence that the law will promote health.”

Texas is arguing that it’s enough for the state to assert their goal is health and safety, Toti says. “The plaintiffs are saying the health rationale is just a pretext and the evidence shows the law will actually threaten women’s health by limiting access to safe abortion care, forcing some women into unsafe and illegal options.”

This is the time, she adds, when the United States will decide, at last, whether TRAP laws should remain legal. “These cases have the potential to be the biggest abortion decision in probably more than two decades.”

The worst-case scenario is that the Supreme Court simply declines to look at the case. The law will go into full effect immediately. If they do agree to consider it, there still likely won’t be a ruling until June, when SCOTUS tends to issue their biggest-deal decisions. As Texas Monthly points out, only two justices on the court, Anthony Kennedy and Chief Justice John Roberts, can possibly be considered swing votes, meaning a weighty decision for millions of American women lands on the shoulders of two Roman Catholic men and how they might choose to interpret what health and safety really mean.

Toti says she’s “extremely optimistic” SCOTUS will take the case, and that they’ll ultimately rule in the abortion providers’ favor. She notes that the Supremes have twice upheld an injunction from a lower court preventing the law from going into full effect. In October 2014, they keep the ASC requirement from taking effect while the 5th Circuit was ruling, allowing several clinics to stay open for another eight months. And the 5th Circuit noted in their ruling in June that the Supremes were requiring them to uphold an injunction to keep the Whole Woman’s Health abortion clinic in McAllen, Texas open since it’s the only abortion clinic for women in the Rio Grande Valley.

But there’s no guarantees the court will take the case or rule in their favor, Toti says. “They can always change their minds.”

Hagstrom Miller, too, says the Supreme Court is basically “a magic Eight Ball.”

“There’s just no question we’re standing on the right side of history bringing this case,” Hagstrom Miller tells Jezebel. “Theres a point where we can’t keep complying and complying and complying with absurd regulations.” Even abortion funds have become a band-aid, she says. “There’s a point where it’s not heroic anymore, for us to raise thousands of dollars so a woman can travel and have an abortion. This is the United States of America. It shouldn’t be like this.”

Correction: An earlier version of this post said eight abortion clinics remain open in Texas. Currently, 18 remain open. Nine will remain open if HB 2 takes full effect.

Contact the author at [email protected].
Public PGP key
PGP fingerprint: 67B5 5767 9D6F 652E 8EFD 76F5 3CF0 DAF2 79E5 1FB6