How Texas Is Beating the Supreme Court on Abortion

By Renuka Rayasam, Politico

19 April 17

 

‘Texas has taken what might have happened in a decade or more in another state and collapsed it into a year.'

hen Texas lost a major abortion case before the Supreme Court last year, the state’s conservative lawmakers didn’t back down.

Republicans who control both chambers of the Legislature responded with about four dozen new anti-abortion bills this session, positioning the state to continue to be one of the most restrictive in the country, where women in large swaths of Texas are hundreds of miles from the nearest provider.

One proposal would ban a common second-trimester procedure. Another would bar state funding for abortion providers, including Planned Parenthood. A third would require fetal remains to be buried or cremated.

Meanwhile, dozens of clinics shuttered under the now-quashed law have remained closed, unable to muster the resources to reopen in a politically hostile, regulation-heavy environment. Texas has become the model for states that want to chip away at legal abortion until it is outlawed, while dodging court precedents that knock down laws.

“We have made tremendous gains,” said Joe Pojman, executive director of the Texas Alliance for Life. He hopes that someday, perhaps under President Donald Trump, the Supreme Court will overturn the Roe v. Wade ruling upholding abortion rights. In the meantime, when he surveys abortion trends in Texas, he sees “huge progress.”

Abortion rights advocates ruefully agree they have lost ground.

“What makes Texas unique is that the clinic system was undercut so quickly,” said Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a reproductive rights research group. “Texas has taken what might have happened in a decade or more in another state and collapsed it into a year.”

Texas has “eroded the fabric of care once in place to serve women and make the current landscape extremely difficult to navigate,” Whole Woman's Health CEO Amy Hagstrom Miller wrote in an email. “As a result of these laws, there are fewer abortion providers in the state and many women have to travel hundreds of miles to receive care.”

Whole Woman’s Health had five clinics in the state a few years ago. After Texas imposed new restrictions, the group shuttered two and decided to challenge the law in court. One clinic is finally set to reopen in Austin in the next couple of weeks. The other, in Beaumont on the Gulf Coast, will remain closed.

Texas lawmakers began clamping down on abortion several years ago and in 2013, bundled several restrictions into one law, known as HB2. One section required clinic doctors to have admitting privileges at local hospitals; another forced abortion clinics to meet the same standards as ambulatory surgical centers.

Officials said those rules would protect women’s health and safety. But last June, the Supreme Court dismissed that safety argument as a fallacy, striking down the law as unconstitutionally interfering with women’s right to abortion.

For many clinics, the court victory was too late.

More than half the clinics and abortion facilities in the state had already shut down. Just 17 abortion facilities remained in six counties — down from 41 centers in 17 counties in 2012, according to the Texas Policy Evaluation Project, a university group that tracks legislation’s impact on reproductive rights.

About half of the Planned Parenthood clinics in the state are among those that have closed. The clinics that are still open face new restrictions and onerous administrative requirements for them and their patients. Women seeking abortion services face travel distances that have increased by four times over the past few years, according to the Texas Policy Evaluation Project.

A few abortion providers are making plans to reopen: Northpark Medical Group in Dallas started performing abortions again in February after a three-year hiatus. Planned Parenthood will reopen its clinic in Waco by the summer. And Whole Woman’s Health, the Supreme Court plaintiff, will reopen soon in Austin.

But access is unlikely to get back to where it was. Planned Parenthood has no plans to reopen its six shuttered clinics, though it resumed services at its San Antonio clinic in 2015. That’s the closest clinic for a woman in the Lower Rio Grande Valley — 250 miles away.

Large parts of Texas, especially in the rural western and southern parts of the state, don’t have abortion clinics and aren’t likely to get any soon.

Reopening an abortion facility is a “major undertaking,” said Dr. Daniel Grossman, an investigator with the Texas Policy Evaluation Project and a professor at the University of California, San Francisco. A clinic needs to buy back equipment it might have sold and reapply for licenses, not to mention keep up with new regulations.

“Obviously, this is a high-risk environment where the legislature is staying very busy providing restrictions to access to abortion care,” he said.

If the new spate of proposed restrictions pass and get signed into law — and a few likely will be — another round of lawsuits will be triggered. Even if those laws are ultimately struck down, they can make operating a clinic tenuous, as the 2013 law did. That’s exactly what anti-abortion activists like Pojman and Texas Right to Life intended.

“We joke that if we pass a pro-life bill that didn’t get challenged, we got something wrong,” said John Seago, legislative director at Texas Right to Life. “We have a very experienced AG’s office. They look for these kinds of fights.”

Health care providers and abortion rights advocates are fighting back.

“Texas is both a cautionary tale and a success story,” said Sarah Wheat, vice president for community affairs at Planned Parenthood in Austin.

When Planned Parenthood built its Austin clinic in 2005, for example, it made sure that it met the requirements of an ambulatory surgical center — knowing that the anti-abortion movement was pushing those rules in a number of states. When Texas adopted the rules, the Austin clinic was able to keep providing abortions while other centers closed.

Wheat acknowledges, though, that the restrictions still on the books take a toll. When a woman goes to a clinic seeking an abortion, a doctor must ask if she wants to see a sonogram of the fetus. She must wait 24 hours for the abortion — a hurdle as clinics close and women must travel greater distances. And she has to go through and sign a 30-odd page packet of forms and waivers, and get the controversial “Women’s Right to Know” booklet, which makes discredited claims such as the link between abortion and breast cancer.

Wheat said that donations to Planned Parenthood grow whenever funding is threatened. A recent Planned Parenthood rally drew a crowd of supporters to the Capitol steps. Speakers including Wendy Davis — the Texas state senator who shot to fame when she filibustered the abortion restrictions in 2013 and later made an unsuccessful bid for governor — talked about how abortion rights advocates can organize, even in a place as hostile as Texas.

People like Marsha Correira, 72, have felt moved for the first time to speak out against abortion limits. She recently organized her own small protest, with a dozen or so older adults at the steps of the Statehouse.

“I wasn’t active in the abortion rights movement at all,” said Correira, from nearby Bastrop County, who said she had an emergency abortion for medical reasons — she had started to miscarry and needed surgery — back in 1965. But after watching legislators chip away at abortion access she said she “grew angrier and angrier.”

“They keep making laws that are impossible for clinics to meet,” Correira said. “They’ve motivated us to speak out.”