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All but Illegal

As the final provisions of HB 2 loom, Texas abortion clinics brace for closure

By Mary Tuma, Fri., July 25, 2014

Reproductive health leaders estimate fewer than 10 abortion clinics will survive after September.
Reproductive health leaders estimate fewer than 10 abortion clinics will survive after September.
Courtesy of Whole Woman's Health

On a balmy Saturday evening, July 12, reproductive rights activists, many with tears in their eyes, took turns recounting aloud their experiences fighting one of the most draconian abortion laws in the country. Roughly 30 people donned orange (symbolizing the pro-choice movement) or black to gather at the Capitol, mourning the one-year anniversary of the passage of House Bill 2. The modest vigil, organized by local activists, provided a space to reflect on the wins and losses in solidarity with fellow advocates. While less widely publicized than the previous week's celebration, attended by hundreds, of the one-year anniversary of the filibuster against the bill by state Sen. and now gubernatorial candidate Wendy Davis, D-Fort Worth, it was certainly heartfelt.

"The moment I realized the politicians didn't care about the truth; didn't care about our health; didn't care if we lived or died – it was both horrifying and liberating," said Geraldine Mongold, one of the thousands who crowded the Capitol last summer to protest HB 2. "It freed me from being congenial – from being awed by their authority, and reminded me that this Capitol and this government belong to me."

The mixture of grief and hope among the participants reflected the range of emotions felt by those who are now coming to grips with the bleak post-HB 2 reality. The first part of the Republican-backed omnibus legislation, which took effect last Nov. 1, bans abortion after 20 weeks of pregnancy, forces women receiving pharmaceutical abortion to follow outdated and more expensive protocols, and requires physicians to have admitting privileges at a hospital within 30 miles of the clinic where the abortion is performed. The law has triggered a wave of clinic closures, eliminated abortion care in large areas of the state, and produced severe disruption for vulnerable patients.

The numbers alone are chilling – in 2012 there were 44 abortion clinics in Texas; as providers braced for HB 2, the number dropped to 34. After the law was initiated, by November 2013, 24 clinics remained. Today, the number fluctuates between 20 and 24, as a few clinics have closed and then reopened. However, the number is expected to dwindle to fewer than 10 on Sept. 1 – when the final requirement imposed by HB 2 takes effect, forcing clinics to make costly building changes in accord with ambulatory surgical center (ASC) standards. Only five Texas cities – Dallas, Fort Worth, San Antonio, Austin, and Houston – have clinics guaranteed to remain open. This in a growing state of 26 million people.

With about 75% of the population living outside those metro cities, and, according to the Department of State Health Services, some 70,000 abortions performed annually in Texas, reproductive health leaders say that the state's abortion care landscape, already heavily beleaguered by restricted women's health funding, will become a logistical nightmare and a (greater) public health crisis.

Crafted to Close the Clinics

By September, after more than a decade as a trusted Austin abortion care provider, the Whole Woman's Health clinic at the intersection of I-35 and U.S. 183 will close its doors. Over that time, the clinic has offered full spectrum, holistic family planning and preventative health services – annual exams, pap smears, birth control, emergency contraception, and counseling, in addition to abortion care (for roughly half of patients served) – to some 60,000 women.

"Barring some miracle in the courts, we really have no choice; the state is forcing us to close," says Amy Hagstrom Miller, founder and CEO of Whole Woman's Health. Miller's network of five reproductive health clinics in Texas is slowly disintegrating under the weight of restrictions imposed by HB 2. Following the hospital-admitting privileges section of the law, Whole Woman's Health clinics in Beaumont and McAllen ceased operations in March, and the Fort Worth location is not an ASC; the only surviving ASC-compliant clinic will be in San Antonio.

While the rhetorical defense of the law, declaimed by bill authors, conservative public officials, and anti-choice supporters on the chamber floors last summer, was based on strengthening women's health and safety (albeit without medical evidence), reproductive health leaders describe the legislation as a thinly veiled attempt to close clinics by drowning them in unnecessary costs and nonsensical regulations. Overseeing both ASC and non-ASC centers, Miller attests the requirements hold no basis in science or medical fact and provide no improvement to women's safety. In fact, the rule will have the reverse effect – it will threaten the health of women due to the inevitable shortage of providers.

"There is no medical reason for these physical plant requirements; they have nothing to do with safety," says Miller. "They are solely a barrier and a political football." Health leaders point to the double standard set by HB 2 – while abortion care centers must comply with ASC rules, Texas law does not require any other outpatient procedure to be performed at an ASC. For instance, it permits more complex and life-threatening procedures like plastic surgery and outpatient birthing (childbirth carries 14 times the risk of abortion) to be performed in non-ASC centers. Miller is far from the only voice against the measure – major medical organizations such as the Amer­i­can Congress of Obstetricians and Gyne­col­ogists call the requirements "overreaching" and "unsupported by scientific evidence." The facility changes – which include widening hallways, increasing ceiling heights, implementing HVAC system requirements, and adding bathrooms, janitorial closets, and parking spaces – can cost anywhere from $750,000 to $3 million in construction fees, a price far out of reach for largely independent, locally affiliated abortion providers.

Despite receiving a record-breaking, nearly 20,000 public comments, most of them negative, regarding the ASC rule, the Depart­ment of State Health Services declined to change the regulation, concluding no comment "provides any basis to believe that abortion providers would be unable to make [the] adjustments and ... comply with the rule." They noted that "some licensed abortion facilities may not be financially capable of complying" with the new regulations, nevertheless, the agency cannot "accurately estimate the impact of the adopted rules on licensees." While DSHS "recognized these potential consequences," they also considered the state's "vital interest in preserving potential life and improving patient safety," ultimately concluding the ASC standards would "not unduly burden a woman's right to an abortion."

Amy Hagstrom Miller, founder and CEO of Whole Woman's Health
Amy Hagstrom Miller, founder and CEO of Whole Woman's Health
Courtesy of Whole Woman's Health

While Miller calls the ASC requirements "ridiculous" and blatantly politically motivated, she has sought funding to adapt. Although Planned Parenthood recently announced the creation of a new ASC-compliant center in Dallas, as well as one in San Antonio, in preparation for the controversial rule, the mostly smaller, independent abortion providers don't have access to the same resources. Miller has reached out to several banks and funding organizations to help underwrite the millions in building costs – but no one is jumping to sign a check. "Texas abortion provision is not an investment that people are interested in at this point in time," says Miller. "It's seen as a dicey, high-risk move – every time the Legislature meets, a new barrier is passed. So it's not something banks or funders feel good about." Additionally, says Miller, there's no way to show in a business model that their centers could even afford the hefty loan. "We don't have the revenue to sustain that kind of lease payment," she said. "It's impossible."

Abortion clinic closure brought on by a burdensome financial hurdle is precisely the outcome anti-choice politicians sought with the ASC rule, says Miller. Their wish is becoming a stark reality. Across Texas, an estimated 14 non-ASC centers will share the same fate as the Whole Woman's clinic in Austin, leaving as few as six abortion care centers to serve a population of 5.4 million reproductive-age Texas women. "This law is perfectly crafted to shut clinics down," says Miller. "And the people that wrote it understood exactly what they were doing."

Fear and Confusion

Austin is home to three locally owned, independent abortion care clinics and one Planned Parenthood clinic, which is licensed as an ASC. When the ASC requirement goes into effect Sept. 1, only the Planned Par­ent­hood South Austin Health Center on Ben White Boulevard is expected to survive, leaving just one abortion provider to serve the entire city.

The center was constructed as abortion opponents were raising the possibility of a law that would require women seeking an abortion after 16 weeks of pregnancy to undergo the procedure at an ASC, and planned with the intention of withstanding harsher abortion restrictions. That 2004 legislation reduced by 88% the number of abortions performed in Texas at or after 16 weeks (already relatively rare), from 3,642 in 2003 to 446 in 2004, but the number of residents who left the state for a late-term abortion almost quadrupled, a 2011 study found.

A decade later, the center will survive the onerous ASC regulations. However, clinic operators must brace for an influx of displaced patients from not only across Austin but also the whole region, and the likelihood of longer wait times to see a physician and delays in procedures. "We are enormously concerned with the reduction in the number of health care providers," says Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas, as she walks the halls of the soon-to-be lone abortion clinic in Austin. "It's hard to anticipate what things might look like come September, but we want patients to know they can still count on us."

Already seeing a rise in clients from neighboring under- or unserved cities, the South Austin Health Center has been steadily grappling with the impact of HB 2; last year, it temporarily stopped abortion services for six weeks following the admissions privileges rule. The disruption left patients confused, angry, and anxious, says Wheat. Even after reopening, the center continued to receive calls from distressed patients asking if they could still schedule an appointment and wondering if the health provider would be open the following month. The center wasn't alone in facing patient panic and tear-filled anxiety – the scenario was repeated all over Texas. More than a dozen clinics from Waco to El Paso reported an immediate effect on patients forced to reschedule abortion procedures carefully planned weeks in advance. All this in the name of "greater safety" for women.

Hours were spent deconstructing misinformation 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 Eval­u­a­tion Project (TxPEP), an ongoing five-year analysis of the impact of legis­lative-led measures involving women's health conducted by the University of Texas Popula­tion 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 performed. 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 falling 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 requirement takes effect.

And, that is, of course, assuming women can afford the time away from work, school, or child care; find access to reliable transportation; and, if seeking pharmaceutical abortion, coordinate the now four mandatory trips to the clinic (factoring in the 24-hour pre-abortion ultrasound law requirement). Due to these barriers, researchers reiterate, the law disproportionally impacts low-income, rural, and minority women.

Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas
Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas
Photo by Jana Birchum

"It's the places removed from metropolitan 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 – traveling 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 clandestine or black-market providers, a near-certainty 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 proportion was even higher (12%) among women residing along the Mexican border. Considering the constricting limits to abortion access, researchers predict the potentially fatal resort will become "commonplace" 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 abortion clinics from receiving taxpayer dollars. 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 meeting other immediate economic needs," TxPEP researchers write.

Further damaging the network, conservative 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 participants – 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 diminishing preventative care outlets, would see the value in keeping afloat comprehensive abortion care clinics that also offer preventative services (i.e., birth control, annual exams, etc.) much like Miller's Austin location, 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 activists contend, that is not the intention.

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 pharmaceutical abortions. While Austin-based U.S. District Judge Lee Yeakel deemed the hospital privilege provision unconstitutional 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 notoriously 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 volleying 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 findings "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') fraction 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 plaintiffs 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 challenge the ASC requirement and the requirement of hospital-admitting privileges, in an attempt to protect two clinics in underserved 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 unjustified 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 involved with both Texas cases told the Chronicle. "It's sad to say, now we do know it does shut down clinics, and we have heard increased reports of attempted self-induction in the Rio Grande Valley, for example. We've seen the impact – it's not speculative anymore. There are real hardships that the regulations have imposed. And in this case, the effects are going to be even more dramatic because it will drop the number of clinics to somewhere below 10."

The Texas abortion restriction law, HB 2, appears to have served as a model for similarly severe laws currently sweeping the South – but it's especially egregious due to this state's vast geographic area and population, says Bhandari. "For Texas to pass a law like this with such a devastating impact on such a huge number of women is really disturbing, so it's really important to fight back in a place like Texas, because it affects so many women's lives."

In the event the plaintiffs do not prevail, clinic leaders, patients, and reproductive rights activists must work within a decimated health care network in which abortion itself may not be explicitly outlawed – but reliable access will pose such a substantial and unprecedented hurdle for the majority of the population it will have the effect, for most Texas women, of abortion once again being illegal.

"We are returning to this pre-Roe environment, where women are self-inducing and traveling over the border. A black market is going to emerge because the need is still there," predicts Miller. "My biggest concern is wondering what women are going to do. This law didn't do anything to prevent the need for abortion, it just cut off women's access to safe, trained providers. The same number of women in Texas are going to face unplanned pregnancy, but now without a safe, professional option to turn to.

"I fear that we're not only going to face a public health crisis, but the decimating of a system for providing safe care that is next to impossible to rebuild."

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