Issues raised as the Supreme Court Considers Texas Abortion Law–Part 2: A Dying Business

By Randall K. O’Bannon, Ph.D., NRL Director of Education & Research

Editor’s note. In last Wednesday’s oral arguments before the Supreme Court in Whole Woman’s Health v. Hellerstedt, litigants made several key contentions they say demonstrate that HB 2 resulted in an “undue burden” on women seeking abortions in Texas.

At issue in the challenge to portions of HB 2 are two requirements: that abortionists have admitting privileges at a nearby hospital and that abortion clinics meet the standards of an ambulatory surgical center (ASC).

Yesterday, Dr. O’Bannon did a masterful view addressing arguments made by the Center for Reproductive Rights’ Stephanie Toti, lead counsel for the plaintiffs, and U.S. Solicitor General Donald Verrilli.

In Part Two, Dr. O’Bannon picks up where he left off, debunking the notion that after passage of HB 2, clinics no longer had the “capacity” to meet the demand for abortion.

supreme-court99reYesterday, we looked at arguments and evidence presented to the court by Ms. Toti and Solicitor General Verrilli that asserted that the 2013 Texas law was responsible for the closing of about twenty clinics, leaving the remaining clinics with greater demand than they could possibly handle.

But, as we explained, the data on the timing, the number, and the reasons behind the clinics closings was nowhere near as clear cut as the abortion industry’s defenders wanted the High Court to believe.

And the discussion of the capacity of legally compliant clinics to handle the caseloads hinged on an assumption that data in Texas and national data has proven false – that demand for abortion remains constant.

Abortion clinics close for many reasons – scandal, poor management, failure to meet basic safety standards, etc. But one of the biggest reasons is simply that there isn’t enough business to keep them all in operation and profitable.

Failing to account for diminished demand

Toti, lead counsel for the plaintiffs in Whole Woman’s Health v. Hellerstedt, argued the new law was responsible for the closing of more than 20 clinics. Under questioning from the justices, she admitted that some of these clinics closed prior to the enforcement of the law. And she agreed with Justice Samuel Alito that at least one of the clinics on her list had closed for other reasons.

But this is only part of the story. There were supposed to be 41 clinics in Texas before the law was passed, according to Toti.

Yet in a 2006 factsheet, the Guttmacher Institute wrote there had been 65 “abortion providers” as recently as 2000. Thus, the inescapable conclusion is that the number of clinics was already in steep decline before HB2 was ever passed.

Moreover Guttmacher, a pro-abortion think tank, has demonstrated a significant long-term national downward trend in the number of abortionists. By 2011, after peaking at 2,918 in its 1982 count, the number of “providers” has dropped by more than 40%, to just 1,720. The two developments obviously are related. To some degree, the closing of clinics in Texas merely mirrors the larger trend of closing abortion clinics nationwide.

A recent study from Bloomberg Businessweek shows the national decline continuing. The story said that nationwide 162 clinics had shut their doors or stopped providing abortions since 2011. Even though 21 new clinics opened in that time frame, closures still vastly outpaced openings. The question is why.

Many reasons for closures

Bloomberg found that these clinics have closed for a variety of reasons. Some they do attribute to the passage of new laws and regulations. Others, however, closed because of what Bloomberg termed “unfit providers.”  The classic example here would be Kermit Gosnell, whose butchery prompted much of the legislation now being passed and litigated.

Bloomberg admits that several closed because there was “no doctor available.” The abortion industry has scrambled to recruit and train new abortionists for years, but has not had success in getting these out in the field. This is one important reason behind the push for web-cam abortion– which require a minimal number of trained staff–and intense efforts to allow nurses, midwives, and physician assistants to perform abortion.

What else? “Business decisions” also played a role in some closures, which could be anything from financial mismanagement to a determination that there was simply not enough demand to hire in an abortionist or keep a clinic open.

What Toti and the abortion industry did not want to admit to the Supreme Court is that one of the basic reasons behind the closure of clinics is that there is reduced demand for their services.

And, as NRL News Today has shown in many stories, there is evidence of that diminishing demand in Texas and nationally.

Insufficient abortions for clinics to stay in business

Guttmacher says there were over 110,000 abortions performed in Texas in 1981. By 2011–long before passage of HB 2– the number was down to 73,200 . [1]

The reduction in the number of abortions, both yearly and cumulatively, could not help but affect clinic business. There is no way that an industry could lose more than a third of its “customers “and still keep all its clinics open, particularly those dependent on abortion. To repeat, this indisputable fact typically gets overlooked.

In a business with numbers of aging abortionists working out of older, smaller, more dilapidated buildings or storefronts that need extensive repair and remodeling, the passage of the law, the rolling out of its various provisions, simply presented a prime opportunity for these abortionists to retire and the clinic to shut down.

In one sense, that the law passed when it did and went into effect when it did gave clinics a strategic time and target date for already inevitable closures made it possible for the abortion industry and its academic abettors to blame the law. But as we have seen, looked at more broadly, many factors were responsible and these closings were simply the result of several trends coming to a head.

Abortion is, after all, a dying business.

May it please the Court….

What we have seen thus far is that there is no cut-and-dried evidence to support the assertion that HB 2 caused clinics to close in Texas.

Clinics closed before and after the law passed and was put in force, and for many different reasons. Declining numbers are an indication that demand for abortion continues to drop. That some of these clinics were old and that there were safety and sanitation issues was reason enough both for clinics to close and for legislators to be concerned .

The abortion industry has been transforming itself for years, some of it because of pro-life legislation, but also in response to changing business conditions. They are hardly passive actors in this latest trend, closing smaller less profitable clinics in smaller cities and more remote areas and pointing patients towards large, modern, up to code mega-clinics in the big cities. These huge mega-clinics are more than capable of handling the caseloads.

What the abortion industry does not want to see is anything that draws attention to its failings; that shows abortion to be the dangerous, bloody reality that it is; or that in any way inhibits their ability to promote and profit from abortion on demand.

They will try to cow the courts and the media with charts and numbers and statistics, but the reality remains. Abortion was never a solution to women’s problems, and fewer women are buying it anymore.

In Part Three, we will look further at the evidence and arguments the Supreme Court heard in Whole Woman’s Health v Hellerstedt. We’ll look at claims that the law has changed the timing and type of abortions women are having (that women are having later abortions) and what might be the consequences of long travel times.

[1] The number Grossman cites, which the Supreme Court seems to discuss, comes from the Texas state health department. That number, 68,298 for 2012, is the one reported to the U.S. Centers for Disease Control (CDC), which does its own abortion surveillance.

Those numbers are generally smaller, but track trends from Guttmacher fairly closely. The state health department for Texas showed 63,849 abortions for 2013, a further decline reflecting similar declines in other states.

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