The Future of Texas Women's Reproductive Rights Will Be Determined in 2016

In Texas, 2016 is going to be the biggest year for reproductive rights since 2013. Following three years of stops and starts, contradictory court rulings and healthcare clinics closing their doors only to reopen them days or weeks later, the U.S. Supreme Court will finally decide the fate of 2013's Texas House Bill 2, the hotly contested anti-abortion law that's already prompted the closure of more than half of the abortion providers in the state.

HB2 basically did three things. It banned abortions more than 20 weeks after gestation, required doctors performing abortions to have admitting privileges at a hospital close to the clinic at which they perform abortion and required that every abortion performed in Texas take place in an ambulatory surgery center. An ambulatory surgical center (ASC) is an outpatient facility where one would typically expect day surgeries to be performed.

The 20-week ban has basically become settled law in Texas. Even Wendy Davis, the Texas State Senator who successfully filibustered HB2 before it was eventually passed in a special session, supported it as the Democratic nominee in the 2014 Texas gubernatorial election. The ban is not part of the case — Whole Woman's Health v. Cole — that the SCOTUS will hear. The admitting privilege requirement is also, mostly, in place and likely to stay there. So far, one clinic in McAllen has been excluded from the requirement because of the distance any abortion-seeking woman in the Rio Grande Valley would be forced to travel should it close. Whether or not the admitting privileges portion of HB2 will remain in effect for the McAllen clinic is a part of Whole Woman's Health v. Cole, but not the biggest part.

The biggest issue that will be decided when the SCOTUS takes up the case is the ASC requirement. In 1992's Planned Parenthood v. Casey, the court affirmed that women in the United States had a legal right to abortion, but muddied the waters by also affirming that states could place restrictions on that right, so long as those rights did not cause an undue burden on women seeking an abortion.

Immediately prior to any portion of HB2 being effective, there were 42 abortion clinics in the state of Texas. Twenty of those clinics have remained open following the admitting privileges requirement taking effect — nine of which are ASCs. If the SCOTUS holds up all of HB2, only the nine ASCs will remain open, but the number of clinics could rise as abortion providers are either built or retrofitted. In anticipation of HB2's becoming fully effective, Planned Parenthood remolded an ASC in southern Dallas and two doctors spent more than $3 million of their own money to do the same in San Antonio.

The closed clinics have led to increased wait times for women. This summer, the University of Texas' Texas Policy Evaluation Project looked at the average wait time for DFW women seeking to terminate their pregnancies. Prior to June 2015, wait times held steady at about five days, according to TxPEP. Then the Routh Street Women's Clinic closed. When it did, the 350-500 abortions it performed each month where shunted to other facilities in North Texas. Wait time ballooned to an average of 20 days.

The longer wait times mean women will be farther along into their pregnancies when they get abortions, often into the second trimester.

“The increase in second-trimester abortion is concerning from a public health perspective, since later abortions, although very safe, are associated with a higher risk of complications compared to early abortions," Dr. Daniel Grossman, TxPEP's lead researcher said in October. "Later abortion procedures are also significantly more costly to women." 

The whole point, according to the state of Texas attorneys who are fighting for HB2 and state leaders in support the bill is to protect women's health, as Texas Attorney General Ken Paxton said in November just after the SCOTUS decided it would take the case.

“The common-sense measures Texas has put in place elevate the standard of care and protect the health of Texas women," Paxton said. "The state has wide discretion to pass laws ensuring Texas women are not subject to substandard conditions at abortion facilities. The advancement of the abortion industry’s bottom line shouldn’t take precedence over women’s health, and we look forward to demonstrating the validity of these important health and safety requirements in Court."

There are other burdens imposed by the increased wait times as well. Abortions, which are not covered by Medicaid or many other insurance providers in Texas, are progressively more expensive the later in pregnancy they occur. A first trimester abortion can cost about $500 — at 18 weeks it could cost between $3,000 and $4,000. Because of a 2011 state law that mandates at least a 24-hour waiting period between an initial consultation and seeing a doctor, women are forced to make two clinic appointments, which makes potential wait times, especially for women travelling hundreds of miles to the nearest clinic, even more consequential. 

If the court upholds all of the law, women in McAllen will face a 250-mile, multi-day trip to San Antonio to get an abortion. Or they'll seek out alternative means of ending their pregnancies. According to additional research from TxPEP, Texas women, especially those near the border, are heading to Mexico to get surgical abortions or to acquire misoprostol, an abortion-inducing drug, from Mexican pharmacies. El Paso women will face either leaving the state to get an abortion in Mexico or New Mexico or travelling more than 600 miles to Fort Worth.

If the court decides those difficulties are a reasonable burden for women to bear, nine clinics will remain to serve the 5.4 million reproductive-aged women in Texas.