What Now? What Next?
With clinics already closing, Texas' extreme abortion restrictions head to the courts
A day before the Texas Senate debated and ultimately passed House Bill 2, the sweeping and controversial abortion-regulations measure Gov. Rick Perry signed into law last week, Lt. Gov. David Dewhurst stood among a crowd of lawmakers and advocates pressed into the cramped Senate press room and welcomed failed GOP presidential contender and former U.S. Sen. Rick Santorum. This is "a very historic moment for us," Dewhurst said, a legislative win for women's health and for the "preborn." For "the life of me," he said, "I can't understand why people would object" to the bill, which seeks to increase protections for women seeking abortion while protecting the unborn. If he were to take a child in for a tonsillectomy, he would expect the standards for care contained in HB 2. Why shouldn't it be the same for women seeking abortion care? Dewhurst asked.
Santorum in turn chastised bill opponents and the media for not understanding what lawmakers are trying to accomplish. "Listening and watching the reports in the media ... makes it sound like these are some extreme measures," he said, "some radical ideas." Radical is the notion that women shouldn't be afforded "safety standards commensurate with every other surgical procedure done in the state of Texas," and that the law shouldn't "protect a child who would otherwise be born alive." The move to enact these measures is a "movement of love," Santorum insisted, but the media has overlooked that in favor of questioning what the bill "may" do instead of talking "about what the bill does," he said. "The bill is what it says it is."
On its face, the new law bans abortion after 20 weeks except in very narrow circumstances, requires abortion clinics to transform into costly ambulatory surgical centers, requires abortion-performing doctors to obtain hospital-admitting privileges within 30 miles of each facility where they perform the procedure, and mandates that doctors administering pharmaceutical abortions adhere to the original Food and Drug Administration protocol designed for the drug when it was first approved more than a decade ago.
At the ceremonial signing last Thursday, Perry said the law would give "voice to the unborn" and "improve the quality of care women receive, ensuring that any procedure they undergo is performed in clean, sanitary, and safe conditions, by capable personnel" – a law to cure the supposedly squalid state of abortion care in Texas, which bill supporters claim is populated with "reckless doctors performing abortions in horrific conditions," as Perry put it.
By contrast, bill opponents describe it as a backdoor attempt to ban virtually all abortion by imposing on already tightly regulated providers a new set of onerous and unnecessary restrictions that will be almost impossible to comply with, not only for monetary reasons – building an ASC is a costly venture likely unattainable by small, community-based clinics that provide the majority of care in Texas – but also for more practical reasons – because doctors who provide abortion care are far less likely to be given hospital-admitting privileges for a procedure that is only very rarely performed in a hospital setting.
Just hours after HB 2 was signed, Planned Parenthood Gulf Coast announced that it would be closing its facility in Bryan as a result of the new regulations. "While we believe the excessive and medically unnecessary requirements imposed on clinics providing early abortion are unconstitutional, we have made the difficult and practical decision to close Planned Parenthood Center for Choice in Bryan at this time rather than face the prospect of having to do so in the foreseeable future," Melaney Linton, PPGC president, wrote in an emailed statement.
Although the measures are now law, whether they'll survive judicial scrutiny and take effect this fall remains unclear. Separate measures that contain each of the restrictions in HB 2 have been passed in other states, and most of those have been enjoined or otherwise blocked by state or federal courts. Can these latest iterations survive legal challenge, or will they be considered an "undue burden" to the legally protected right for women to access safe and legal abortion care?
Suppression by Regulation
For 24 years, Amy Hagstrom Miller has been in the abortion care and women's health business – or what she calls "the identity-examination, self-esteem boosting, stigma-eradication business." After working in Minnesota and New York, Hagstrom Miller moved to Texas in 2000 and founded Whole Woman's Health in 2003, purchasing existing practices from retiring physicians. She currently runs five Texas clinics and sees more than 15,000 women annually for family planning, reproductive health, and abortion care services.
On HB 2, she does not mince words. "This one is the perfect storm," she says, and it has a single purpose: to eliminate access to abortion care in Texas. The combination of the ASC facility requirement and the mandate that all abortion-performing doctors have hospital privileges will likely achieve that result, by forcing the closure of nearly all existing providers in the state – even potentially some of the six abortion facilities currently licensed as ASCs, she says.
Hagstrom Miller employs more than a dozen doctors – most without hospital privileges – and runs both state-regulated abortion clinics and an ASC, located in San Antonio. She argues that forcing abortion clinics to transform themselves into ASCs, which have very specific and expensive physical plant requirements (she's gotten construction quotes between $300-350 per square foot for a 5,000-square-foot facility) will in no way improve safety or ensure greater quality of care for women. ASCs are designed for actual surgery, where incisions are made, multiple doctors are working together in an operating suite, and where patients are anesthetized – hence the need for large operating rooms and wider hallways, for example.
Abortion, she notes, is not a surgical procedure, but a medical one. There's no incision, the patient is not asleep; the procedure is most commonly performed by a single doctor in roughly 10 minutes. At the end, a patient can dress herself and walk to the recovery area. Requiring the physical structure of an abortion clinic to transform into an ASC is not going to change the nature of the procedure. "So it's not like the procedure is going to be safer, it's going to be the same," she says. "You just have to do it in this building that's completely over-medicalized for the simplicity of abortion."
Supporters of the bill insist that the ASC facility provision will mandate a higher level of quality assurance that will ensure the safety of the woman seeking the procedure. A woman undergoing abortion "deserves the same health and safety regulations to protect her health as anyone undergoing a procedure in an outpatient surgery center," Sen. Donna Campbell, R-New Braunfels, insists in a video posted to Perry's official website. The law is designed to raise clinic standards, she has repeatedly said.
Hagstrom Miller says the law will not raise standards. The state's abortion clinic regulations already contain detailed protocols specific to the procedure – including infection control plans, complication tracking, and staffing requirements. In contrast, ASC regulations are far more general. "They're much less specific to abortion care and much more generic for surgery in general," she says.
Moreover, while the ASC provision isn't slated to take effect until September 2014, she argues that is hardly enough time for the state's community-based providers to raise the cash needed and to have construction completed. In 2003, lawmakers passed a similar regulation, requiring all abortions that are performed at 16 weeks and beyond to take place in an ASC. At the time the law took effect, in 2004, there were no ASCs that performed abortions – and that remained true until 2006, when the first provider came online (Planned Parenthood opened an ASC in Austin in 2007, one in Houston in 2010, and a third in Fort Worth this year). Hagstrom Miller's facility wasn't up and running until 2010. In essence, she says, for a roughly two-year period, the measure had the effect of banning all abortion in Texas after 16 weeks. According to an article published in 2011 in The New England Journal of Medicine, abortion after 16 weeks declined 88% in the year the regulation went into effect, but the number of women seeking abortion care outside Texas nearly quadrupled. (Over the same time period, there was no significant decline in the number of abortions performed prior to 16 weeks.)
Today there are just six ASCs that perform abortions, out of more than 400 ASCs statewide. The likely net effect of the new requirement that all providers become ASCs will be that the state's 36 licensed abortion clinics will close, leaving open (at most) six ASCs providing abortion care, and leaving most women without any effective access to services. That's simply not true, says Sen. Robert Deuell, R-Greenville, also a physician, a staunch defender of the ASC regulation, which he carried as a stand-alone measure during the regular session. During a committee hearing on the matter Deuell acted incensed when a witness testifying against the bill expressed concern that licensed facilities would disappear. "Do you take the position that women will not be safer under my bill?" he asked the witness, a retired minister. "I can respectfully say that anyone who is opposing this bill is basically stating that they do not think that women who make the decision to have an abortion should have the very, very best in medical care."
Deuell has repeatedly noted that there is nothing that would prevent any of the state's existing ASCs from providing abortion care at their facilities, but Hagstrom Miller says experience has taught her otherwise. In anticipation of the 16-week law taking effect in 2004, Hagstrom Miller says she called every ASC in the state, looking for space she could lease after-hours or on the weekends; she'd even bring her own staff, she told providers. In each case her overtures were refused. They were just "terrified to allow an abortion provider to use their premises because they're worried about targeted protesting ... having picketers and pro-lifers go after them," she said – and there's no reason to think that has changed.
Politicians Playing Doctor
Even more immediately damaging to the network of care, Hagstrom Miller and others say, is the expected impact of the provision requiring all abortion-performing doctors in the state to have hospital-admitting privileges within 30 miles of each facility where they perform the procedure. Bill supporters claim this provision ensures a continuity of care for women seeking abortion – particularly in the event that a complication arises during the procedure that would require a hospital stay. Current providers say it's not as though women experiencing complications are stranded. In an emergency, women are seen in a hospital emergency room, regardless whether they have a doctor with privileges. In 10 years, Hagstrom Miller says, she's had a total of two Austin patients with complications who ended up at a hospital ER where they received care and were released; neither was actually admitted to the hospital. And the provision makes it appear that doctors who don't have admitting privileges are outside the norm for medicine, but that's not necessarily true; HB 2 makes abortion doctors the only doctors in the state required to have admitting privileges.
Figuring out exactly how many doctors in Texas have admitting privileges isn't an easy task. The Texas Medical Association says it doesn't track that information; a survey of its membership revealed that 82% of respondents do have privileges to care for patients at a hospital – but that does not necessarily mean they have admitting privileges, TMA cautions. Moreover, only between 3 and 5% of the group's more than 47,000 members actually responded to the survey. On the Senate floor, Hegar insisted that a majority of Texas abortion doctors have admitting privileges, but never did say where he obtained that information. (According to Hegar's office, that's information that staffers collected by calling and inquiring with doctors across the state.)
Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas, which runs the Austin ASC, says PPGT is still trying to determine which of its doctors, spread across North and Central Texas, have privileges and where – and she questions how Hegar could say for sure that the provision won't be a barrier to care. "I don't know that anybody knows" how many doctors currently have privileges, and where, she said. "I don't know anybody who's quantified it."
And for those who don't have privileges, obtaining them won't necessarily be easy. The Texas Hospital Association, which represents more than 430 hospitals and health care systems across the state, opposed HB 2's privileges provision precisely because abortion doctors are unlikely to secure admission privileges. According to a primer prepared by THA, in order to extend privileges to a given doctor, the hospital at which the doctor is applying must "actually perform the services for which the physician is seeking privileges," reads the THA document. "For example, a neurosurgeon who applies for neurosurgery privileges at a hospital that does not perform neurosurgery will not be granted those privileges." Similarly, a hospital that does not provide elective abortion care – and the vast majority do not, THA's associate general counsel told lawmakers during a committee hearing – would not admit a doctor who performs elective abortions. In short, the practice of granting privileges is done in order for a hospital to "control what the physician does inside the hospital and does not guarantee oversight of services provided outside the hospital," according to the THA.
At present, providers, including Hagstrom Miller, are mapping where their doctors work – many work at multiple locations across the state – where the closest hospitals are, and are preparing to apply for privileges there – if that's even possible. A further caveat to the admitting-privileges provision of the law is that the hospital must provide obstetric services; according to the Department of State Health Services, 74 Texas counties have hospitals that do not provide women's services. "Clearly, these are requirements that, on some level, just don't work," says Wheat. HB 2, she says, is yet another example of politicians playing doctor: "When laws are not drafted by medical professionals or health-policy advocates they are often hard," if not impossible, "to implement."
Of course, that's assuming the requirements were designed for their stated purpose of patient safety – rather than to make it as difficult as possible either to provide or access abortion care.
Lone Star Extremity
Taken together, the regulatory provisions of HB 2 clearly create major burdens on women seeking access to safe and legal care – perhaps, the legally defined "undue burden" that would eliminate access to abortion very early in pregnancy. As such, they would also violate the U.S. Supreme Court rulings that have defined the constitutional protections for reproductive freedom, says Julie Rikelman, litigation director for the Center for Reproductive Rights. "This is probably the most extreme bill we've seen for years now, and we've had a few very extreme years, so that's saying a lot," she said. After 25 years of relative calm, attacks on reproductive rights have been spiking since 2011, according to reports from the Guttmacher Institute. That year, a total of 135 provisions affecting reproductive rights were enacted in 36 states; of those provisions, 92 directly restricted access to abortion care. The attacks have not diminished in 2013: at mid-year, 43 abortion-restricting provisions had already passed – not including those just enacted in Texas.
So, although Lt. Gov. David Dewhurst boasted to supporters attending the signing of HB 2 that its passage was another example of, "once again, Texas ... leading the way," that isn't exactly the case. Each of the provisions contained in HB 2 has already been enacted in at least one other state – and in all but one case, those provisions have either been blocked by the courts or are awaiting a legal ruling expected to do just that. Twenty-week abortion bans have passed, and subsequently been blocked by courts, in Arizona, Idaho, and Georgia. (Other states have tried to impose even lower thresholds, including North Dakota, where lawmakers enacted a ban at six weeks that they are currently defending in court – and then declined to fund a program to provide milk or juice for low-income children in schools. On July 22, a federal judge there ruled that the law is unconstitutional. A bill proposing an identical ban was filed in Texas last week by Rep. Phil King, R-Weatherford.)
Hospital-admitting privilege requirements have been enacted – and blocked – in Mississippi, Alabama, and Wisconsin (a decision is pending in North Dakota). A law that would require abortion to be performed in ASC-like facilities has been blocked in Kansas (at least one other challenge to such a measure, in Missouri, ended in a negotiated settlement that would grandfather current facilities but require any new abortion facilities to meet the ASC standard). And the mandate that pharmaceutical abortion follow a specific protocol has been enacted and blocked in North Dakota and Oklahoma; in Ohio the provision was upheld in part by the 6th U.S. Circuit Court of Appeals, reports the CRR.
It is more accurate to describe Texas as currently the state with the tightest regulations, overall, on abortion care – with the majority of regulations put in place over the last decade. In addition to the 2003 ASC requirement, lawmakers that year also passed the "informed consent" law, mandating the "Woman's Right to Know" pamphlet be given to all women seeking abortion, 24 hours before the procedure could be performed; in 2005, the state removed money from the family-planning budget to start an "Alternatives to Abortion" program, which funds unregulated crisis pregnancy centers in order to "promote" childbirth to women facing unplanned pregnancies. Lawmakers have instituted more detailed reporting requirements on abortion procedures, have mandated that abortion facilities be subject to yearly, unannounced inspections (interestingly, Texas ASCs are only subject to scheduled inspections that take place once every three to six years), and they've required that parents be notified and give consent when a minor seeks abortion.
In 2011, in an attempt to defund Planned Parenthood, lawmakers stripped two-thirds of the family-planning budget – meaning that more than 130,000 women lost access to birth control – and passed an ultrasound-before-abortion measure, billed as an extension of the informed consent law instituted nearly a decade before. "Texas is already so extremely heavily regulated in terms of abortion restrictions," says Rikelman. "This will certainly cement its position as the most extremely regulated state."
Courts Will Have Their Say
Whether the new restrictions are legal is another matter. To Allan Parker, president of the Justice Foundation, which represents women "harmed by abortion," the restrictions fall squarely within the state's right to ban the procedure where it finds a "compelling state interest" to do so, in this case at 20 weeks (allegedly when a fetus can feel pain), he told lawmakers at a committee hearing on the bill earlier this month. He said he did not believe that access would be affected by the restrictions and therefore the provisions would ultimately be deemed constitutional.
Rikelman says the law presents a "substantial burden" to women seeking access to abortion, and is likely to be considered unconstitutional. The impact of the ASC requirement alone could leave the state with just six providers, clustered along the I-35 corridor. "It's going to make it virtually impossible for women in big parts of the state to access services," she says. According to research being done at UT's Texas Policy Evaluation Project, 80% of the state's population lives outside the metropolitan areas where the ASCs will be located, leaving thousands of women without any meaningful access. To obtain care, women from El Paso would have to travel more than 1,000 miles, round-trip – at least twice, to satisfy the 24-hour waiting period, unless they spend extra to stay overnight in San Antonio – the closest city with an ASC (notably, 53% of women of childbearing age in El Paso are currently in need of subsidized birth control). In the Lower Rio Grande Valley, women would have to travel up to 500 miles round-trip, twice (65% of women of childbearing age in the Valley are currently in need of subsidized birth control).
Add in the remaining restrictions and the barriers to access only grow, Rikelman says. "Facts are obviously very important [to the courts], and the facts here show the extreme nature of the restrictions," she says. "I think it will be really important, as people think about what this law does, to think about how all the different restrictions work together." Consider, she says, the new mandate for pharmaceutical abortion: Under the new law, a woman seeking access to drugs that offer early pregnancy termination will have to abide by a protocol for using the drug that was designed by the U.S. Food and Drug Administration more than a decade ago, and that will require her to make four trips to an ASC to obtain the service. "How does that make any sense?" Rikelman asks. "That just doesn't ... and again, it's going to be very problematic for access. ... Not only is medication abortion very safe and effective, but it's [an] option for women very early in pregnancy, and allows for greater access to the service."
Hagstrom Miller also points out that if a clinic provides only pharmaceutical abortion in addition to family-planning services, it would still be required to transform into an elaborate ASC. In the face of such restrictions, the ability to serve women in the very first weeks of pregnancy "before you have any fetal development" will disappear, forcing women instead to carry unwanted pregnancies longer and to overcome additional barriers to obtain termination, she says. "I think it's important to acknowledge that abortion is really complicated – complex, morally and ethically, in our society," she notes. "But medically speaking, it is both simple and safe."
Indeed, of 861,697 abortions performed in Texas between 2001 and 2011, there were just five deaths, according to the Department of State Health Services. At mid-year 2013, out of a rough estimate of 36,000 abortions, just 68 complications have been reported.
Nonetheless, anti-choice activists insist that all abortion is dangerous and in need of the tight restrictions embodied in HB 2: Take, for example, the 2011 Oklahoma law that constrains – as does Texas' new law – how doctors can administer pharmaceutical abortion. The state Supreme Court found the law unconstitutional, but supporters have appealed to the U.S. Supreme Court, which has asked for more information before accepting the case.
In a friend-of-the-court brief, the San Antonio-based, "pro-life" Trinity Legal Center argues that the Court should accept the case and uphold the Oklahoma law because medication abortion is dangerous, and doctors fail to present women with the truth about its risks, warranting a law that confines use to the old FDA protocol. To bolster the Center's case, the brief incorporates dramatic testimony of several people "harmed" by medication abortion, including Round Rock resident Abby Johnson, the former director of the Bryan Planned Parenthood abortion clinic turned anti-choice activist with Americans United for Life.
In her affidavit, Johnson says that when she turned to PP in 2003 for a medication abortion, she was misled about the risks and side effects. She took the medication at home as directed and became violently ill, bleeding profusely for weeks. Years later when she talked to her Planned Parenthood employers about the "risks" associated with medication abortion, she said she was told by her supervisor that the clinic couldn't give out complete information about medication abortion because that would just "scare" patients away, Johnson claims.
Like Dewhurst, Johnson contrasted her experience with medication abortion with her experience with tonsillectomy. Prior to having her tonsils out, she wrote, she was told about the risks associated with the surgery, including death. "But as he was calming my fears, I remember him saying, 'Don't worry, none of this has ever happened before to any of my patients.' That made me feel better," she wrote. "But the same cannot be said of abortion ... particularly medication abortion. Women have died from medication abortion. Thousands of women have had very serious complications. I saw many of them with my own eyes. ... I was one of them."
Yet Johnson's personal anecdotes do not coincide with the actual, statistical risks – indeed, it is far more likely that she would die from a tonsillectomy than from a medication abortion. According to the FDA, there were 1.5 million medication abortions administered from September 2000 through April 30, 2011; for the entire time period there were 14 deaths, a rate of 0.9 per 100,000 abortions. Although U.S. tonsillectomy mortality rates are difficult to determine, an Israeli study cataloged by the National Institutes of Health reflects that 1 in 12,000 tonsillectomy patients dies; with roughly 1.6 million tonsillectomies performed on children over just a three-year period (most tonsillectomies are performed on kids and teens), that's a rate of 8 deaths per 100,000, or as many as 132 deaths a year.
Though a challenge to the Texas law has not yet been filed, it most certainly will be – Hagstrom Miller says she is working with CRR on a lawsuit – and likely before the bulk of the provisions can take effect. Even if a district court in Austin blocks the measure, it would move to the 5th U.S. Circuit Court of Appeals – a notoriously conservative venue. Nonetheless, Rikelman says the trend in the courts is to find these measures unconstitutional, and HB 2 "is full of provisions that federal courts have said are unconstitutional."
Sen. Glenn Hegar, R-Katy, who carried HB 2 through the Senate, remains convinced the law is not only legal, but righteous. "This will literally change the lives of millions of Texans," he told supporters at Thursday's signing. "Today is an important day."