Sizing Up Strategies as Texas Abortion Rights Get Their Day at the Supreme Court

Wednesday, the U.S. Supreme Court is going to get a taste of the fight that's been ringing in Texans' ears for almost three years — the battle over the passage and implementation of House Bill 2, Texas' latest in a long line of laws that have severely limited access to abortion in the state.

As passed, HB 2 did three things: It restricted abortion to the first 20 weeks of pregnancy, required that all doctors providing an abortion have admitting privileges at a hospital close to the clinic at which he or she performs the procedure and, most onerously, required that any clinic in which an abortion is performed be certified as an ambulatory surgical center — essentially a mini hospital.

The 20-week ban and the admitting privileges requirement, with one exception, are now settled law. More than half the clinics open in Texas before any portion of the law went into effect in 2013 have closed because of the admitting privileges requirement, leaving 19 clinics open in the state. Should the Supreme Court lift the stay that is currently keeping the surgical center requirement from being enforced, fewer than 10 clinics would remain open.

Proponents of HB 2, if one takes them at their word, believe the law is designed to ensure the safety of women seeking abortions. It is not intended, they say, to restrict access to abortion or unfairly burden women seeking an abortion.

 "I think the [Texas] Legislature fully understands that the U.S. Supreme Court tied their hands [with its decision in Roe v. Wade, the case that legalized abortion across the United States]. The legislatures in Texas and other states may not ban most abortions. The intent and, I think, the effect of [HB 2] is to assure that abortions are not done in a manner that puts the health of women at risk," Joe Pojman, the executive director of the Texas Alliance for Life says.

The differences between a non-surgical center and a surgical center providing abortions are not that striking. Planned Parenthood's southern Dallas surgical center, opened in 2014 in direct response to HB 2, has wider hallways and a special air circulation system. It's got special custodial closets, too, but that doesn't make it appreciably safer than any other clinic providing abortion, Dr. Hal Lawrence, the CEO of the American Congress of Obstetricians and Gynecologists says.

"Abortion is already an incredibly safe procedure and these restrictions will not make it any safer," Lawrence says. "We have data and statistics to support this. The mortality rate is less than 1 in 100,000 for a pregnancy termination — much safer than actual childbirth. The risk of a major complication is similarly low."

Because fewer clinics means longer wait times for women seeking abortions — in Dallas wait times went from an average of five days to about 20 days following the Routh Street Women's Clinic's closure in June 2015 — Texas women are having abortions later in their pregnancies. While still very safe, Lawrence says that later abortions are more dangerous. They're more expensive, too. A first-trimester abortion costs about $500. A second trimester abortion can cost over $3,000.

The law also brings increased travel times — a woman in Abilene already faces a trip to Fort Worth to get an abortion — and Texas' mandatory 24-hour waiting period between consultation and procedure. Representatives of the plaintiff in the case, a group of health clinics called Whole Women's Health, say the state is already placing an undue burden on women before the surgical center requirement even becomes effective.

"Even with the injunction, we're seeing many women unable to make it over the barriers that exist right now. We're not talking about driving 10 minutes or being delayed by a day or two," Amy Hagstrom Miller, the founder of Whole Women's Health says. "Take for example our clinic in Fort Worth: Prior to HB 2 going into effect, the Dallas-Fort Worth area had 10 licensed abortion facilities that were caring for women in those communities. Post-HB 2, the Dallas-Fort Worth area is down to four clinics that are open, and we're serving an even larger area of the state because all of the clinics in Lubbock, Midland, Waco, Killeen and College Station — all of those cities closed their clinics. Because of this law, they were forced to. So what we're seeing is women who're unable to access appointments, we've got appointment delays that are 20-30 days."

Further closures would exacerbate those issues, so what the court will decide is whether the weight applied by HB 2's surgical center requirement meets what's known as the "undue burden" standard created in the Supreme Court's last big abortion decision, Planned Parenthood v. Casey.

In that case, a split court ruled that states acted within their rights when they placed restrictions on abortion. Those restrictions could even be burdensome on the woman seeking an abortion, but not unduly so. The court struck down a provision of a Pennsylvania law that required married women seeking abortions to inform their spouses that they were doing so, but upheld other sections of the law requiring parental consent for minors and a 24-hour waiting period. This Texas case is the first big test of that standard.

"Under the undue burden standard, can a state close the vast majority of its clinics for no medically justifiable reason? That is the question," David Brown, a co-counsel for Whole Women's Health says. "Does the undue burden standard articulated in Casey protect a real right? An adult woman's right to decide for herself in consultation with her doctor, or does it just protect her right on paper?"

 Brown says that he doesn't expect that there will be too much argument next week over whether or not the surgical center requirement promotes women's safety. When U.S. District Judge Lee Yeakel ruled against HB 2, he dismissed the state's medical evidence as not credible. When the state appealed Yeakel's decision successfully to the 5th U.S. Circuit Court of Appeals, they didn't win because the three judge panel that decided the case disagreed with the lower court about whether or not women's health was improved by fancier clinics. Instead, the state won its appeal because the 5th Circuit ruled, essentially, that that didn't matter. The burdens imposed by HB 2, the hundreds of miles of driving and overnight stays it requires of some women, were not undue, the court ruled.

Handicapping the eventual decision in the case isn't that difficult. All parties agree that any decision will come down to the vote of Associate Justice Anthony Kennedy, just as it would've before the death of Associate Justice Antonin Scalia earlier in February. The difference now is that, should Kennedy side with the state of Texas, the end result will likely be a 4-4 tie rather than a 5-4 decision for the defense. That would leave the 5th Circuit decision upholding the law in place, and still result in clinics closing, but the decision would not set a precedent for future cases. The same issues, Brown says, would likely end up in front of the court at a later date. If Kennedy sides with the plaintiffs and the justices split 5-3, Texas' 19 clinics would remain open, but still be subject to the future whims of the Legislature.