Morning After: The Supreme Court Strikes Down Texas' Tough Anti-Abortion Rules, but More Are Already in the Works

Not all of the women who pull into the driveway at Whole Woman’s Health Clinic in West Fort Worth go inside. For some, facing the images of bloody fetuses on the signs carried by demonstrators manning a gantlet outside, the shouts and the threat of having images of their cars posted on Facebook is enough to turn them away.

Whether the women inside were coming to the clinic for an abortion or not, every car that turns away is a small victory for those determined to end abortion in Texas. Temporary, perhaps, but if the women choose to come back, the protesters will likely still be there.

Dr. Bhavik Kumar, the man who performs abortions at Whole Woman’s Health, will too.

“They shout things at me. They get in my face. One man who’s always there at the clinic in Fort Worth tells me that he prays that my hands fall off,” Kumar says. “Everyone that goes in the clinic gets awful, demeaning things shouted at them even if they’re not coming in for an abortion.”

None of it deters Kumar — not the hours shuttling between his home in Austin and Whole Woman’s Health Clinics in San Antonio and Fort Worth, workdays that can begin well before dawn or the shouts of “murderer” as he heads to work. He’s no firebrand of protest, but he’s here because he saw a need long ago, when he started medical school at Texas Tech.

“When I was going to medical school in West Texas, I saw first hand high schools that were designated for pregnant teens, high rates of STIs and abstinence-only education in high schools,” he says. “You have a whole group of people who weren’t learning about their bodies and reproductive health care and you had a health system that was really restrictive.”

Kumar joined a group called Medical Students for Choice and quickly figured out that Texas held a special place in the national debate over abortion.

“I saw how different things were on the West Coast and the East Coast. I thought, this seems so much better for kids growing up to have the tools to decide what’s best for them when they need to,” he says.
Kumar decided to become an abortion provider, but he couldn’t find training in Texas.

“I started looking for a residency program that had abortion training in its curriculum, but I couldn’t find one in Texas nor could I find a mentor. I vowed that if I was going to leave and get good training in comprehensive reproductive healthcare that I would come back to Texas and be a provider here,” he says. “When I was in medical school, the people I knew that had the same views and ideas, a lot of them had their eyes set on going other places, like the East Coast or the West Coast and setting up shop there. It was really clear that, if all of us leave, nothing really changes here.”

When Kumar returned from a New York residency program in 2015, he stepped into the arena of arguably the biggest challenge to legal abortion since the U.S. Supreme Court struck down outright bans with its decision in Roe v. Wade in 1973 — a case that originated in Dallas. The Texas Legislature had passed a law called House Bill 2 that laid out a scheme of regulations so stringent that half of the abortion clinics in the state closed between 2013 and 2015. Others, including Fort Worth’s clinic, were threatened with closure if HB 2’s most controversial requirement took effect. It required abortion clinics to be certified as ambulatory surgical centers, an expensive requirement that most clinics in the state could not afford to meet.

“I wasn’t expecting [the laws to tighten] so drastically, but that strengthened my resolve to come back, because the state had become so restrictive toward reproductive health based on legislators’ ideologies rather than medicine,” he says.

On June 27, Kumar and the rest of the Texas pro-choice movement got a reprieve from the Supreme Court. For Kumar and his boss, Whole Woman’s Health CEO Amy Hagstrom Miller, the court’s decision means their clinics in McAllen, San Antonio and Fort Worth will remain open.

Chalk that up as a win for the pro-choice side in the debate, but it’s a Pyrrhic one at best. HB 2 may no longer be the law in Texas, but it still caused some two dozen clinics to close over the last two years. Given the expense and the political climate in Texas, it’s anybody’s guess how many — if any — will ever reopen. Meanwhile, the number of abortions in the state declined 14 percent from 2013 to 2014.

Lawmakers will reconvene in January, and the opposition is laying plans for a new line of attack, one aimed at the most common procedure used in surgical abortions. If they succeed in getting their proposal made into law, as seems likely, doctors like Kumar will face at minimum more months of uncertainty about how they will be able to provide abortions. The court’s June decision spared 10 Texas clinics, but it’s merely the signal to begin the next round in Texas’ abortion battle.
The morning of March 2 was a cold one in Washington, but the streets around the U.S. Supreme Court building were busy, filled with sign-waving, chanting cadres from both sides as the court convened to hear oral arguments in Whole Woman’s Health v. Hellerstedt, the case to decide the future of HB 2 and the future of 10 Texas clinics.

The pro-life movement found itself at a disadvantage brought about by a death. Justice Antonin Scalia’s unexpected passing had robbed abortion opponents of a firm ally on the court, leaving Chief Justice John Roberts and Associate Justices Clarence Thomas and Samuel Alito as three likely votes to favor HB 2. Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor seemed likely to side with the pro-choice plaintiffs.

With the court reduced to eight justices, HB 2’s supporters were playing for a tie. A 4-4 split would leave a ruling by the U.S. 5th Circuit Court of Appeals intact in Texas — not forever perhaps, but long enough to spell the end for the bulk of the state’s clinics.

Justice Anthony Kennedy once again was in the role of America’s abortion umpire. His shared opinion with former Justices Sandra Day O’Connor and David Souter in 1992’s Planned Parenthood v. Casey set the standard that attorneys in Whole Woman’s Health v. Hellerstedt had to address. Did the restrictions HB 2 imposed amount to an unconstitutional “undue burden” on the right to an abortion for a large percentage of Texas women?

A walk down Washington’s First Street that Wednesday morning made it apparent that pro-choice activists had taken Kennedy’s standard to heart. Purple is the color of the pro-choice movement, and women of all ages and ethnicity were flying color as they streamed toward the plaza in front of the Supreme Court’s classical facade. They bore signs, many of them carrying a common message: “The burden is undue.”

The phrase had become a rallying cry as HB 2 wound its way first through the Texas Legislature and lower federal courts. The 5th Circuit Court had ruled the Legislature had the authority to require abortion clinics be certified as ambulatory surgical centers. The court also OK’d a provision in the law that required any doctor performing an abortion in Texas to have admitting privileges at a hospital within 30 miles of the abortion clinic. Neither requirement placed an undue burden on Texas women seeking abortion, the appellate court ruled.

An ambulatory surgical center is often described as a mini-hospital, with wide halls and specialized equipment that make them a far cry from what was accepted in the early days after Roe v. Wade, when doctors could perform abortions in their offices.

“For somebody who hasn’t had an abortion or maybe isn’t familiar with it, think about any other medical procedure, or even like a dentist for a teeth cleaning or something that’s routine, and imagine being asked to put on a hospital gown and undress completely and go into this surgical suite for a five to 10 minute procedure,” Kumar says. “It’s a really different experience, if you can imagine what it’s like, just being there and having to trust somebody else. The environment changes your perception of what may or may not happen.”

HB 2’s supporters argued that the requirements imposed by the law increased women’s safety during and after an abortion, something that courts have ruled is within a state legislature’s purview.

Stephanie Toti, the lead lawyer for plaintiffs Hagstrom Miller and Whole Woman’s Health, argued the mini-hospital requirements did little or nothing to advance women’s health.

“The reality is that abortion, as currently practiced, in the U.S. at outpatient clinics and specifically in Texas, is very, very safe. There may be a misperception among the public about it that leads them to think that these laws may serve some public good, but the reality is that abortion is very safe,” says Dr. Daniel Grossman, lead researcher for the Texas Policy Evaluation Project and chief medical witness for the plaintiff.

In 2013 the rate of complications experienced during and after an abortion in Texas, was 0.04 percent, according to the Texas Department of State Health Services. In 2014, it was 0.03 percent. Complication rates in liposuction and colonoscopies, often performed in clinics not certified as ambulatory surgical centers, are far higher, Supreme Court Justice Elena Kagan pointed out to Texas Solicitor General Scott Keller in March.

Considering HB 2’s supporters own rhetoric and abortion’s low risk, it’s reasonable to assume that safety wasn’t the primary motive behind the law, but that’s beside the point. Lawmakers are allowed to be disingenuous. The question the majority of the court would take up was whether the burden the law placed on a patient’s right to obtain an abortion far outweighed the health benefits.

For the pro-choice side, HB 2 seemed clearly beyond the pale. In exchange for what evidence suggested was only a nominal improvement in safety, the two provisions would have left more than 750,000 reproductive-age Texas women more than 200 miles from the nearest abortion clinic. The nine clinics in the state that are ambulatory surgical centers are located in the state’s four most populous metropolitan areas. Combined with Texas’ mandatory 24-hour waiting period between consultation and abortion, HB 2 was especially troublesome for women who live in rural areas and faced overnight trips to get an abortion.

Whatever a lawmaker’s real intent, the law appeared to be having the effect abortion foes sought. Between 2013 and 2014, when the admitting privileges requirement was first enforced, the number of abortions in the state dropped from 63,849 to 54,902, or about 14 percent. In the two years prior to HB 2, the number of abortions dropped 7 percent and 6 percent respectively.

With Kennedy joining in, a Supreme Court majority struck down both provisions. Justice Ginsburg rejected the notion the Legislature was trying to do anything but restrict abortion.

“It is beyond rational belief that HB 2 could genuinely protect the health of women, and certain that the law would simply make it more difficult for them to obtain abortions,” she wrote.

Requiring doctors to obtain admitting privileges at nearby hospitals was also a needless burden, and its only practical effect was to limit abortions, the court majority ruled. Many hospitals, especially those operated by religious organizations, are unwilling to give privileges to abortion doctors. Even if a doctor can get privileges, as Kumar did after a three-month slog last spring, having them makes little difference.

“It’s a lot of time, a lot of paperwork and it’s ultimately unnecessary because, if I had an emergency and a patient had to be admitted to a hospital, I would do what any other medical office or doctor’s office would do,” he says. “I would call the emergency room physician, say ‘I’m transferring this patient and here’s the clinical scenario.’”

Heading into oral arguments over the HB 2, attorneys on both sides believed the court would leave the admitting privileges rule intact. More than half of the clinics in the state that performed abortions before the law went into effect had already closed because they couldn’t get a doctor with the proper credentials.

The 5th Circuit ruled that Hagstrom Miller and Whole Woman’s Health could not challenge the admitting privilege requirement because it had already been challenged in an earlier unsuccessful lawsuit, and they weren’t allowed a second bite of the apple. In his majority opinion, Justice Stephen Breyer wrote that because the circumstances in the case changed — namely, the admitting privilege requirement actually went into effect, shuttering more than 20 clinics — the plaintiffs were within their rights to challenge the requirement again.

Hagstrom Miller’s Whole Woman’s Health Clinics were safe, as were the other 18 clinics still operating in Texas.

“I am beyond elated,” Hagstrom Miller said on a press call after the decision came down. “Every day Whole Woman’s Health treats our patients with compassion, respect and dignity — and with this historic decision, today the Supreme Court did the same. We’re thrilled that justice was served and our clinics stay open.”

John Seago, Texas Right to Life’s legislative director, accused the court majority of bending to the threats of an industry perfectly capable of meeting the requirements imposed by HB 2.

“This is a dangerous precedent,” Seago said in a Facebook address to pro-life supporters immediately after the ruling. “It’s not just a bad ruling because it’s against us and it’s against our law. It’s a bad precedent because what the Supreme Court just did is they told all these abortion clinics around the country that all you have to do to challenge a pro-life bill, that all you have to do to challenge pro-life safety standards is to go to court and say that you’re going to close your ... doors instead of following these standards.”

Pro-choice advocates were handed a bigger victory than they thought possible this spring, but regardless, the abortion practice in the state is unlikely to return to the status quo before HB 2. Pro-lifers suffered a setback and they needed a new line of attack; a portion of HB 2 that was not challenged in court provides a potential opening.

“The component of House Bill 2 that we were most interested in, the top priority, was the preborn pain section that prohibited elective abortions after 20 weeks,” Seago says.

That provision, Seago and other pro-life advocates contend, establishes the principle that Texas has a legitimate interest in protecting fetuses from pain, something that had not previously been a part of Texas law. That, they believe, opens up the opportunity for the state to ban dilation and evacuation, the most common procedure used in second-trimester abortions.

Regardless of one’s opinion about abortion rights, an objective description of a D&E procedure is grim. (Of course, a blow-by-blow description of an appendectomy doesn’t make for light dinnertime reading either.) In a D&E, the woman’s cervix is dilated and the fetal tissue is removed using a combination of suction, pulling, cutting and scraping.

Substitute the words “unborn baby” for fetal tissue, and the emotional charge amps up, making selling a D&E ban to an amenable Legislature a safe bet. (For good measure, the anti-abortion movement calls dilation and evacuation abortions “dismemberment abortions.”)

Emotions aside, anti-abortion advocates see reason to believe that a ban on D&E abortions could pass muster with the Supreme Court as well. A court decision in Gonzales v. Carhart, written by Kennedy, allowed the ban of what pro-lifers call “partial birth abortion,” in which the fetus is left intact as it’s removed from the uterus. That ruling suggests the court might be amenable to a ban on procedures considered “gruesome and inhumane,” to use the words Congress used in banning the procedure.

Banning dilation and extraction would effectively move the 20-week ban back by at least five weeks, since beginning in the 13th week of pregnancy, the majority of all abortions occur by dilation and extraction. By the 15th week of pregnancy, that number grows to almost 80 percent. While roughly 90 percent of abortions nationwide take place in the first trimester of pregnancy, since HB 2 became law, the percentage of Texan abortions taking place in the second trimester increased by 27 percent between 2013 and 2014, according to an NBC News report. By narrowing the time, place and procedures available for abortions, the window for obtaining one shrinks.

Within two days of the recent Supreme Court decision, Texas Right to Life was working on a petition drive to ban D&E procedures. The group describes the procedure in gruesome terms straight from a medical examiner’s report and suggests that it’s painful to the fetus.

When a fetus might experience pain is subject to debate. The most common medical reference for legislators seeking to ban abortion at 20 weeks is from University of Tennessee professor of pediatrics, anesthesiology and neurobiology Dr. Kanwaljeet Anand, who contends that at 20 weeks fetuses have neural development capable of perceiving pain. Other research, including a report published by the UK Royal College of Obstetricians and Gynaecologists in 2010, suggests that while the fetus may begin developing the appropriate neural pathways at 20 weeks, they aren’t completed. Any medical procedure performed on a fetus before 24 weeks, the Royal College says, doesn’t require that it be anesthetized. It’s not hard to imagine that these numbers will someday be bruited about before another Supreme Court.

While the anti-abortion side prepares for the next session of the Texas Legislature, the pro-choice advocates face a stiff climb if they want to get closed clinics back in business.

“People think that it’s simple, reopening the clinics,” Hagstrom Miller says, “but it’s going to take a lot of money and a lot of time. How long will it take us to rebuild the clinic infrastructure in the state? It’s going to take years.”

Clinics have let their leases lapse, sold their buildings and laid off staff, Hagstrom Miller says. Finding doctors like Kumar isn’t easy.

“Some of the clinics are likely not coming back,” Rebecca Robertson, the public policy and advocacy director of the American Civil Liberties Union of Texas, said at a press conference held in a now shuttered abortion clinic in Austin on June 27. “What we’ve seen in other cases where an abortion restriction has gone into effect and then been overturned by a court is sometimes it takes years to rebuild the access that we had before the law was passed, and I would expect that the same is true here.”

When clinics aren’t open, wait times for women seeking abortions increase.

Dallas’ Routh Street Women’s Clinic closed in June 2015. At the time, it was facilitating between 350 to 500 abortion procedures a month, according to research from the Texas Policy Evaluation Project. When those procedures were shunted elsewhere in the area, what had been an average five-day waiting period for DFW women seeking an abortion ballooned to 20 days by July 2015.

Second trimester abortions — those occurring in week 13 of pregnancy or later — are generally safe, but still more dangerous and far more expensive (an abortion in the eighth week of pregnancy can cost around $550, that number can reach $900 or more in the second trimester).

Any effort to reopen clinics and reduce wait times will come as abortion opponents rain fire down upon pro-choice advocates’ heads, which means the way forward for the pro-choice side is playing defense, which has been the case ever since Roe v. Wade. As Justice Ginsburg, a pro-choice advocate for more than half a century, has said, the court’s decision in that case gave the pro-life movement something to shoot at. Because the decision was so sweeping, it stopped the pro-choice movement from incremental and widely accepted gains through the political process.

“That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” Ginsburg told University of Chicago students in 2010. “My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”

Since Roe, things have gotten progressively more difficult for abortion-seeking women in Texas, says Julie Lowenberg, a retired Dallas attorney who signed a brief supporting the plaintiffs in HB 2. Lowenberg’s father, Irving Loeb Goldberg, served on a three-judge panel for the U.S. District Court for Northern Texas that was instrumental in the Roe v. Wade decision.

“I actually had an abortion in those first few years after Roe v. Wade when you just went to your doctor,” Lowenberg says. “During the years before the right-to-life people got organized, it was easy.”

As pro-life groups like Texas Right to Life and Texas Alliance for Life have organized and mobilized, they’ve become forces in Texas politics. Seago helps write legislation that he believes will do two things: undermine Roe v. Wade and stand up in court. He has allies in the Legislature willing to fight hard for the bills pro-lifers care about the most.

“One of the roles that we have is to narrow the Legislature’s focus and to convince them that this handful of issues, these four or five [pro-life] issues are the most pressing things that the Legislature needs to look at related to our work. That happens before we go into the session,” Seago says. “Once we go into session, we do the research, the drafting and work with the individual legislators on particular issues. We did work on House Bill 2 with the legislators. We worked with [HB 2’s author] Jodie Laubenberg before it got piled into one bill, on all the components of House Bill 2.”

At the legislative level, pro-life advocates got everything they wanted from House Bill 2. In the courts, things have not gone quite as well, and a template has emerged for pro-choice activists to fight back.

“Clearly, we’re going to be prepared for the 2017 session. We know that we can expect some [anti-abortion] legislation to be filed, but we will be prepared to work with all of our advocates, to work with the people, to work with medical professionals to make sure that the policies that we pass are evidence-based and in the best interests of Texas women and their families,” state Representative Donna Howard said after the Supreme Court decision.

Breyer’s opinion makes it clear that legislative intent is not enough in and of itself to justify legislation that limits abortion. Policies that lack a verifiable backbone put the “undue” in “undue burden.” Pro-choice members of the Texas Legislature now have a better defined standard from the Supreme Court for what their colleagues can do when it comes to regulating abortion indirectly through things like building and licensing requirements.

Howard hopes common ground can be found around measures that could limit the number of unwanted pregnancies in the state, like allowing doctors and clinics to dispense a full year of birth control at a time.

At the federal level, much of what happens over at least the next half-decade or so with regard to abortion rights will come down to November’s election. If Hillary Clinton is elected, she will likely shepherd a leftward shift for the court. Her statements after the Supreme Court decision show a strong departure from the “safe, legal and rare” doctrine popularized by her husband during his eight years in office.

“Today’s decision is a reminder of how much is at stake in this election. We need a president who will defend women’s health and rights and appoint Supreme Court justices who recognize Roe v. Wade as settled law. We must continue to protect access to safe and legal abortion – not just on paper, but in reality,” Clinton said.

If Donald Trump wins, he could be in position to facilitate the overturning of Roe v. Wade in its entirety. In John Roberts, Samuel Alito and Clarence Thomas, the court already has three potential votes for overturning the case. Ginsburg is 83, and Kennedy, no sure supporter of abortion rights, is 79.

For Kumar, no matter what happens, what’s next is clear.

“I’m going to be here providing care as long as I can. We know that women need care. We know that women need access to abortion. So I’m going to be here to make sure [abortion care] is accessible for them however that may be,” he says.

His opponents, those who pray for his hands to fall off, and those preparing a new round of legislation, will be there too.

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Stephen Young has written about Dallas news for the Observer since 2014. He's a Dallas native and a graduate of the University of North Texas.
Contact: Stephen Young