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T H E A U S T I N C H R O N I C L E
JULY 25, 2014
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Back to Court
Representing more than a dozen abortion
providers, the Center for Reproductive
Rights (CRR), the ACLU, Planned
Parenthood, and a local law firm filed suit
in September 2013 to block the provisions
governing admission privileges and phar-
maceutical abortions. While Austin-based
U.S. District Judge Lee Yeakel deemed the
hospital privilege provision unconstitution-
al and without a “rational basis,” enjoining
the law on Oct. 28 (a day before it was set to
take effect), the state appealed to the notori-
ously conservative 5th Circuit Court of
Appeals, which stayed the injunction two
days later and eventually reversed Yeakel.
(Women’s health legislation in Texas – from
the state’s pre-abortion sonogram law to the
ousting of Planned Parenthood from the
Women’s Health Program to the omnibus
HB 2 – has been persistently subject to vol-
leying between a federal district judge, the
state, and the 5th Circuit.)
The three-judge panel upheld the law in
March, finding no constitutional problem
and dismissing the hardship to women. The
three female justices argued plaintiffs failed
to establish undue burden, calling their find-
ings “vague and imprecise.” The justices
wrote that “there is no showing whatsoever
that any woman will lack reasonable access
to a clinic within Texas.” They concluded the
law fails to negatively impact enough women
to be considered burdensome. It “will not
affect a significant (much less ‘large’) frac-
tion of such women, and it imposes on other
women in Texas less of a burden than the
waiting-period provision upheld in
Casey
.”
Judge Edith Jones infamously remarked on
the issue of travel time for displaced Rio
Grande Valley women, “You know how long
that takes in Texas at 75 miles an hour?
That’s a particularly flat highway.”
CRR has petitioned for a rehearing before
the full court. If the court agrees, the plain-
tiffs would await a new decision; if it
declines, the Center can appeal to the U.S.
Supreme Court. While abortion providers
wait for a response from the appeals court,
they mounted a second suit in April to chal-
lenge the ASC requirement and the require-
ment of hospital-admitting privileges, in an
attempt to protect two clinics in under-
served communities – the Whole Woman’s
Health clinic in McAllen and Reproductive
Services El Paso. (Planned Parenthood is
not a party in this lawsuit.) Arguing the
admission requirement is medically unjus-
tified and places an undue burden on
women, plaintiffs point to the low number
of emergency situations among patients –
of the roughly 30,000 abortion care patients
seen at the El Paso and McAllen clinics, just
two needed hospital admission.
The case, scheduled to be heard by Judge
Yeakel beginning Aug. 4, is even stronger
today, plaintiffs say, as they now possess
demonstrable proof of harm. “In the first
case, defendants kept saying this isn’t
going to affect any clinics, it’s speculative to
assume it’s going to shut anything down,
and you can’t be sure it’s going to cause a
burden,” Esha Bhandari, CRR staff attorney
Hours were spent deconstructing misin-
formation and allaying fears, say clinic
operators. Much of the uncertainty lingers.
“They are so confused and scared,” says
Miller of her patients. “Several patients in
South and West Texas aren’t actually sure if
abortion is still legal. Even though there’s
this constitutionally protected right that
exists on paper, there is no way for them to
access it. We’ve had to back up and spend
time informing people of some pretty basic
legal facts.”
Dramatic Impact
Researchers with the Texas Policy Evalu-
ation Project (TxPEP), an ongoing five-year
analysis of the impact of legislative-led
measures involving women’s health con-
ducted by the University of Texas Popula-
tion Research Center, Ibis Reproductive
Health, and the University of Alabama-
Birmingham, describe the effects of HB 2 as
a “public health threat,” that leaves 22,800
women – or, one in three women – without
abortion care in the next year. In their most
recent findings, released earlier this week,
researchers discovered a much-anticipated
result of HB 2: a declining abortion rate – at
least, in
legal
abortions. When comparing
November 2012-April 2013 to the same time
period in 2013-14, they discovered a 13%
drop in the number of legal abortions per-
formed. In an even sharper decline, the
number of pharmaceutical abortions fell a
stunning 70% within that time frame. While
the researchers cannot prove causality
between the state restrictions and the fall-
ing abortion rate, the timing is “suggestive
of a link,” they write. Projecting the impact
of the law’s ASC requirement in an August
2013 study, researchers estimated travel
time and distance for women in five
unserved communities – Beaumont/Port
Arthur; Corpus Christi/Kingsville; El Paso;
Midland/Odessa; and the lower Rio Grande
Valley. They found women would be forced
to travel from 90 minutes up to 16 hours for
the procedure.
For instance, any number of the 275,672
reproductive-age women in the lower Valley
will need to travel 230-250 miles to San
Antonio, the closest ASC provider, while
from El Paso, 182,399 women would be
required to travel 560 miles. Overall,
researchers found that the number of
women living more than 50 miles from an
abortion clinic increased from 816,000 in
May 2013 to 1,680,000 in April 2014. When
the ASC requirement goes into effect, that
figure will increase to nearly 2 million.
Similarly, the number of reproductive-age
women in Texas living more than 200 miles
from a clinic providing abortion in Texas
increased from 10,000 in April 2013 to
290,000 in April 2014. That number will
more than double when the ASC require-
ment takes effect.
And, that is, of course, assuming women
can afford the time away from work, school,
or child care; find access to reliable trans-
portation; and, if seeking pharmaceutical
abortion, coordinate the now four manda-
tory trips to the clinic (factoring in the
24-hour pre-abortion ultrasound law
requirement). Due to these barriers,
researchers reiterate, the law dispropor-
tionally impacts low-income, rural, and
minority women.
“It’s the places removed from metropoli-
tan cities that are getting hammered by this
law,” Joe Potter, UT sociology professor and
principal researcher with TxPEP, told the
Chronicle
, pointing to West and East Texas
and the RGV. “They were places that
weren’t that well served to begin with, and
now they aren’t served at all. The inequity
of the impact is what’s so dramatic.”
The lack of providers will be a “logistical
nightmare” for women and clinics – travel-
ing delays care and necessitates additional
costs. Researchers conclude HB 2 will
result in increased rates of unintended
pregnancy, unwanted births, a rise in self-
induced abortion, and the use of clandes-
tine or black-market providers, a near-cer-
tainty that “deeply” concerns the health
research team. Self-induction is already
apparent – in 2012, researchers found that
after previous legislative restrictions, 7% of
women reported taking something on their
own in order to terminate their pregnancies
before visiting an abortion clinic; the pro-
portion was even higher (12%) among
women residing along the Mexican border.
Considering the constricting limits to abor-
tion access, researchers predict the poten-
tially fatal resort will become “common-
place” in Texas.
A ‘Human Rights Crisis’
These effects will be exacerbated by the
already weakened women’s health care
landscape in Texas, catalyzed by the $74
million (two-thirds) 2011 cut to family-
planning funds by the Republican-
dominated Legislature. Those cuts affected
150,000 women, and have resulted in the
closure of nearly 80 state-funded family-
planning clinics –
none of which provided
abortion
, as state and federal law bars abor-
tion clinics from receiving taxpayer dol-
lars. Remaining clinics have restricted
access to the most effective contraceptive
methods because of higher costs, and have
begun charging for formerly free services.
“Disadvantaged women must choose
between obtaining contraception and meet-
ing other immediate economic needs,”
TxPEP researchers write.
Further damaging the network, conserva-
tive state officials restructured the Women’s
Health Program in 2012 in order to kick out
Planned Parenthood, leaving 50,000 low-
income women – half the program’s partici-
pants – without access to basic reproductive
health services. The destruction hit hardest
in already impoverished areas like the Rio
Grande Valley; a 2013 report (which does
not address the abortion-access issue) from
the Center for Reproductive Rights
described the women’s health situation in
the Valley as a “human rights crisis.” Now,
as a result of HB 2, no abortion provider
exists there, inexorably weakening the
already threadbare health network.
It would seem the state, with its dimin-
ishing preventative care outlets, would see
the value in keeping afloat comprehensive
abortion care clinics that also offer preven-
tative services (i.e., birth control, annual
exams, etc.) much like Miller’s Austin loca-
tion, if the goal were truly to ensure the
health and well-being of women, and to
prevent unplanned pregnancy and thus,
abortions. But as reproductive rights activ-
ists contend, that is not the intention.
“Disadvantaged women must choose between obtaining
contraception and meeting other immediate economic needs.”
– Texas Policy Evaluation Project
Sarah Wheat, vice president of
community affairs for Planned
Parenthood of greater Texas
j a n a b i r c h u m