Issues raised as the Supreme Court Considers Texas Abortion Law Part 4: Going too far?

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

Editor’s note. Parts One through Three can be read at here; here; and here.

supremecourt51One of the central concerns for particular members of the Supreme Court in Whole Woman’s Health v. Hellerstedt was that the closure of abortion clinics, particularly in the western and southern parts of Texas, brought on by the enforcement of new elements of HB2 they said, would lead to women having to travel hundreds of miles to get an abortion.

We have already discussed in Part Two how abortion clinics have been closing for years and that, although laws play a part, they close for various reasons, perhaps the chief being reduced demand. But even if legislation passed by Texas in earlier years [withdrawing family planning funds to groups performing abortions] somehow played a role in recent closures there, it is huge stretch to try to pin this distance problem on HB 2, the 2013 law currently being considered by the court.

Is travel a burden?

The justices which have appeared sympathetic to abortion in the past – Ginsburg, Breyer, Sotomayor, and Kagan – all seemed particularly concerned about the travel times that would come with the new law.

Justice Sotomayor raised the issue of travel time with plaintiff’s counsel Stephanie Toti. She expressed concern about women traveling 200 miles and having to spend a night at a hotel for their chemical abortions.

Justice Ginsburg interrupted Texas Solicitor Scott Keller’s opening remarks to ask how many women were located over 100 miles from the nearest clinic. Justice Kagan, citing material from abortion researcher Daniel Grossman’s District Court testimony, said, “[T]he statistics I gleaned from the record were that 900,000 women live further than 150 miles from a provider; 750,000, three-quarters of a million, further than 200 miles.”

But Keller noted that the objection about the distance and travel time had also been raised in Casey, the 1992 Supreme Court case which established the “undue burden” test. In that case, Keller pointed out, the lower court had determined that over 40% of women were going to have to travel at least an hour, and maybe as much as three hours to obtain an abortion, and there was even a 24 hour waiting period. The Casey court did not determine this was an undue burden.

Keller also pointed out that 90% of Texas women were in fact within 150 miles of an currently open clinic. Keller said that plaintiff’s “expert testimony” on the numbers of women affected failed to take account of the unique situations with regard to McAllen and El Paso.

While generally upholding the requirement that abortion clinics meet the standards of ambulatory surgical centers in a June 2015 decision, the 5th U.S. Circuit Court of Appeals exempted the clinic in McAllen from the standards because women from the Rio Grande Valley would have to travel more than 200 miles. For women living farther west, where there was no clinic in the area, it was not an immediate obstacle, given that there was New Mexico abortion clinic just a mile over the border from El Paso.

Abandoned by the Abortion Industry

Keller highlighted one critical detail that seemed not to have been included in the briefings upon which these justices were relying – that the reason there were wide swaths of Texas without clinics was that groups like Planned Parenthood had closed their clinics down and pulled out before these laws went into effect, or, in some cases, were even passed.

They could have brought a challenge to the law the way the abortion clinic in McAllen did, Keller pointed out. They could have sought, in essence, an exemption to the law precisely because of the impending lack of clinics in the area. But they chose not to do that.

Between 2010 and 2014, Planned Parenthood largely abandoned the area of west Texas, with the result that there were no clinics of any kind west of San Antonio (Planned Parenthood’s website now refers women looking for clinics in that section of the state to ones in New Mexico or Oklahoma, or even Colorado before mentioning a Texas clinic).

Planned Parenthood’s abortion clinic in Abilene closed in November of 2012 before the Texas legislature ever passed HB2. Abortion clinics run by Planned Parenthood in Midland and San Angelo closed in August of 2013 before the first provisions of HB2 now being considered by the court even took effect.

Though Midland and San Angelo are included in some media lists as having closed in response to HB2 (Houston’s ABC 13 Eyewitness News, 9/5/13), San Angelo made no mention of the new law in its notice of closing to customers (San Angelo Standard Times, 8/27/13).

Midland complained about a 50% drop in the number of patients that followed the legislature’s 2011 decision to end family planning contracts to abortion performing organizations (Odessa American, 8/16/13).

That the clinics could not or would not stay open without state funding is evidence that there were not enough paying customers to sustain operations. The conclusion is inescapable: such organizations were so committed to abortion that they would not repudiate it in order to receive state funds.

Leading women to dangerous self-abortions?

During the oral arguments, Justice Breyer tried to return to the issue of the safety of chemical abortions . He argued that if the clinics closings lead to at least 10,000 women traveling 150 miles to get abortions, wouldn’t that lead to more, rather than fewer complications? Or worse, to more women self-inducing an abortion and dying?

The threat that women will self-induce abortions if the state doesn’t somehow ensure maximum access, is an old scare tactic, but one that has been revived in a big way with recent legislative moves in Texas. Since the discussion and passage of HB 2, local and national media has been filled with stories of women crossing the border into Mexico, picking up pills at flea markets, trying herbal concoctions, and/or following recipes over the Internet.

A lot of those stories talk about the same drugs, feature the same basic narrative, and many even quote the same sources. That includes an abortionist from Harlingen, TX, named Lester Minto, and University of California – San Francisco and Texas Policy Evaluation Project (TxPEP) researcher Daniel Grossman.

We have written about Minto and the border town abortions before (NRL News Today, 7/17/13, 3/14/14, NRL News, September 2014) and recently deconstructed another widely misreported TxPEP study on self-induced abortion (NRL News Today, 11/20/15). Suffice it to say here that, once again, there is no hard evidence of any wholesale shift of women to self-induced chemical abortions since the passage of HB2.

Grossman’s TxPEP study found some women, particularly Hispanics, were more likely to admit having tried some way of self-aborting, often with a cheap drug like misoprostol. These numbers, though concerning, were small, and reached back much farther than the passage of Texas’ recent laws.

Top “reproductive health” blogs (RH Reality Check, 3/25/15) and activist “experts” like Grossman have been actively promoting or at least defending self-induction (Contraception, February 2013). Their enthusiasm makes it difficult not to see this latest concern for women’s health and safety very cynically.

Summing up

In this four-part series, we have looked at many of the major arguments and points of contention made against HB2 in the case of Whole Woman’s Health v. Hellerstedt. Without exception they are less substantive than might have initially appeared.

As Justice Alito pointed out at the very beginning, when it came down to it, there was “very little evidence in the record in this case with respect to why any particular clinic closed.” Indeed there was evidence that the closures of at least some clinics were not directly related to the passage or implementation of HB2 at all.

Have the laws passed by the Texas legislature had an effect? Well, giving assurance to women that unscrupulous scoundrels like Kermit Gosnell will not be allowed to operate in the Texas would seem to be admirable.

Some clinics may have indeed closed because their abortionists, not respected in their communities, could not obtain admitting privileges to their hospitals. Others closed because they could not afford to build a compliant ambulatory surgical center to replace the old, cramped, dilapidated building they were trying to use as a medical office. While these closures could be related to the law, you would think that if the abortion industry is genuinely concerned about the safety of women, they would applaud the laws.

Other elements of HB2 not being challenged in Whole Woman’s Health v. Hellerstedt also have had an effect. How many closed because they could not or would not comply with the federal government’s guidelines on chemical abortions? The data indicates a huge drop off in chemical abortions.

What about the ban on abortions after 20 weeks (which was never challenged by pro-abortionists), when the unborn child is capable of feeling pain? Might this have depressed demand by bringing home to people the humanity of the unborn child and the brutality of abortion?

What HB2 has done is to make people consider, once again, what abortion really is and how the abortion industry really operates, and maybe, just maybe, come to the conclusion that there are better answers than abortion. The requirements hardly reach the level of an “undue burden.”

Many factors have driven down demand, inevitably leading to clinic closures. But chief among them is that any element that gives a woman the occasion and opportunity to slow down, to not feel pressured into what is sold as an easy fix, that leads to her recognize her unborn child not as an undue burden, but as an unexpected blessing.

If Texas wins, women and their unborn children win.