Issues raised as the Supreme Court Considers Texas Abortion Law

Part 3: Did the law result in later abortions and fewer chemical abortions?

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

SupremeCourt30We discussed earlier how those challenging the new Texas abortion law at the Supreme Court tried to blame that law for the closure of some twenty abortion clinics in the state, closures that would, they said, make it impossible for the remaining clinics to meet the demand for abortion. Those claims were not substantiated, we noted earlier, since abortion clinics have closed in Texas and elsewhere for many reasons, including the critical factor that fewer women were seeking abortions.

This was not the only tack opponents of the law tried, however. After saying that the closure of clinics would strain capacity in the industry, plaintiffs’ attorneys said that this would result in more women being pushed into later, more dangerous second-trimester abortions or these women would employ more dangerous do-it-yourself methods.

Pushed into the second trimester?

Early on, Justice Sonia Sotomayor tried to bring up a question about the requirement of HB 2 that abortion pills be taken at the clinic. Plaintiffs’ lawyer Stephanie Toti, perhaps recognizing the section of the law on chemical abortions had not been challenged in this case, shifted the conversation to abortion in general, chemical and surgical. Toti claimed that the problem was that the law meant “women [seeking abortion] are going to be delayed [to] later in pregnancy.”

Toti again went to evidence that appears to come, again, from the testimony of University of California-San Francisco researcher and abortionist Daniel Grossman. Toti said there was evidence in the record of “an increase in both the number and proportion of abortions being performed in the second trimester” in the six months following the imposition of the requirement that abortionists have admitting privileges at a nearby hospital.

“So by delaying women’s access to abortion,” Toti said, “these requirements are actually increasing the risks that women face.”

Questionable numbers

In Grossman’s August 2014 testimony to the U.S. District Court, he did indeed show a slight increase in the number of second-trimester abortions in the six month period following the implementation of admitting privileges requirement (4,278 for 11/1/13-4/30/14) as compared to the six month period before it (4,190 for 5/1/13-10/31/13). Grossman calls this increase “small but significant,” but it is very hard to draw much from this limited data, especially considered in the context of other data.

To start with, there is the comparable six month period from the previous year (11/1/12-4/30/13), before the admitting privileges requirement went into effect. Grossman indicates there were in fact more second trimester abortions (4,768) than in either of the subsequent six month periods!

It is also worth noting that Grossman’s method of counting, calling abortion clinics directly as a sympathetic researcher, generally found higher numbers and rates of later abortion than did the state of Texas’ data collection, before and after the admitting privileges requirement went into place.

The state health department recorded 7,321 second trimester abortions in 2012. Even in his lowest recorded six month period, occurring before the admitting privileges took effect, Grossman recorded 4,190 second trimester abortions, which would translate to 8,380 a year. And if this had been combined with the previous six month period (also before the admitting privileges requirement), there would have been almost 9,000 of these abortions in a year’s time!

Whether this disproves Grossman’s thesis or merely calls into question his numbers, it makes it difficult to employ this data to support any definitive conclusion that the admitting privileges led to any increase in second trimester abortions.

Numbers in context

Grossman notes elsewhere in his testimony that there are “seasonal variations” in abortions; more are done in Texas at the beginning of the year and then declining steadily through the year and then picking up in November and December. If so, it is possible that the “small but significant” increase in second trimester abortions after November 1, 2013 is consistent with a seasonal pattern that may not tell us much about the law’s particular effect on long term trends.

Again, as noted previously, even as the long term trends show a decrease in the number of abortions, there is no obvious increase in second trimester abortion either in Texas or nationally (see Table 8 of the U.S. Centers for Disease Control’s Abortion Surveillance for 2012).

The absence of any significant uptick in second-trimester abortions is telling, given the surge in pro-life legislation about which Grossman, Guttmacher, and their media allies have raised such alarm (e.g., Guttmacher Policy Review, Winter 2014).

A shift away from chemical abortions

There was, though, according to Grossman’s figures, an overall drop in the number of abortions over each of his three six-month periods and a drop of nearly two thousand abortions between his last two spanning the 11/1/13 imposition of the admitting privileges requirement.

Grossman, Toti, U.S. Solicitor General Daniel Verrilli, and various justices tried to attribute this drop to admitting privileges provision. But that argument falls apart when one considers that the area where abortions really, really fell after 11/1/13. Chemical abortions, suddenly plunged from 9,079 for the six months running 5/1/13 to 10/31/13, to 2,991 the next six months (11/1/13 to 4/30/14).

How HB 2 addressed use of RU-486 in Texas

In addition to the regulations legislators put in place regarding admitting privileges and the requirement that abortion clinics meet the standards of ambulatory surgical centers, there was indeed a part of HB 2 that put limits on chemical abortions. That section of HB2 required that physicians prescribing the chemical abortifacient mifepristone (RU-486) and its accompanying prostaglandin misoprostol adhere to original protocol set up by the U.S. Food and Drug Administration (FDA) when it approved the drug in September of 2000.

By limiting the use to women no more than 49 days after her last menstrual period and not allowing abortionists to use a cheaper (but less safe) combination of the two drugs, the Texas law had the effect of reducing the eligible customer base as well as increasing the costs of the chemical abortion procedure and the time commitment involved. The requirement that a physician first examine the patient effectively blocked the practice of web-cam abortions, which allows the abortionist at some regional office to prescribe and release the drugs remotely to patients who may be a hundred miles away or more.

Statistical Impact

The drop-off that occurred after November 1, 2013, was probably not due, in any significant way, to the admitting privileges requirement that went into effect that is one of the main elements of contention in this case. It is more likely attributable to the safeguards imposed on the prescription of chemical abortions, which are not part of the official challenge. And the statistics bear this out.

There were more than nine thousand chemical abortions in each of the six month periods measured before the law went into effect, 9,948 for 11/1/12-4/30/13 and 9,079 for 5/1/13-10/31/13.

Following the laws imposition, there was a 67% drop virtually overnight– just 2,991 in the six months (11/1/13-4/30/14)

That overall abortions dropped by fewer than 2,000 from the six months before and after the first stage of the law took effect is an indication that clinics largely picked up the slack with surgical abortions. Here again, the numbers bear that out.

First-trimester surgical abortions averaged right around 20,000 for the two six month periods before the law, but jumped to 23,531 in the six months after.

This tells us two things which Grossman chose not to highlight in his testimony. First, that there were enough abortionists with admitting privileges to handle the increased surgical caseload. Second, that clinics had the capacity to do more surgical abortions, which, as procedures, require doctors with more training and facilities with more special equipment. Both those elements were under dispute earlier (see part 1).

The purpose of regulating chemical abortions

In October of 2013, opponents of HB2 lost a lawsuit (Planned Parenthood v. Abbott) in federal district court challenging the law’s limits on chemical abortions. They chose not to contest that ruling in this case, but several justices obviously wanted to re-litigate the matter.

When Toti was speaking of the Court’s “undue burden” test from the 1992 Casey decision (that any regulation of abortion could not pose an “undue burden” on the woman seeking the abortion), Justice Sotomayor brought up “medical abortion.”

Sotomayor complained that the new law could mean a woman traveling 200 miles and spending two days to obtain her abortion. “[I]s there any benefit from taking the pills at the facility as opposed to taking the pills at home?” she asked.

Toti said there was no evidence of any medical benefit in the record. Scott Keller, the Texas solicitor general, addressed this later when responding to a question from Justice Ruth Bader Ginsburg. Ginsburg asked Keller, “[W]hat is the benefit of the medical, the two pills that you take, what is the benefit of having [to go to] an ambulatory surgical center to take the two pills when there’s no – no surgical procedure at all involved?”

Keller answered Ginsburg, pointing out that there were sometimes complications, that sometimes the chemical method failed, resulting in women returning for surgical abortions. When Ginsburg tried to press Keller further, saying that problems were more likely to arise near a woman’s home, rather than at the clinic, Keller reminded Ginsburg that the protocol for chemical abortion she wanted to discuss was from a different part of HB2 that was not being litigated at this point.

Undeterred, Ginsburg persisted. She challenged Keller to explain why women having chemical abortions should have to go to ASCs and see abortionists who had admitting privileges within 30 miles of their practice.

Keller pointed out that complications, including “failed abortions,” would often need to be handled surgically. And most patients would indeed be living within 50 miles of the clinic, Keller noted. In addition, Keller said, “it is beneficial to have continuity of care, to check for clinical competence, to prevent miscommunication and patient abandonment to have the admitting privileges requirement.”

The safety of chemical abortions versus surgical abortions

After Keller had explained, again, that this matter was not before the court, Justice Anthony Kennedy stayed on the subject but raised a slightly different question. He inquired about the law’s effect in reducing the numbers of chemical abortions and increasing surgical abortions in Texas, while the opposite was occurring nationwide. Kennedy ventured that “this may not be medically wise.”

Keller told Kennedy that “given the greater complication rates from drug-induced abortions, the legislature would be permitted to act in that way.”

Each abortion method comes with different risks. But as Keller points out, when chemical abortions fail, and they do (2-8% of the time at 49 days LMP, greater if used later), or there are complications such as bleeding or retained fetal tissue, surgery may be necessary, adding that risk to the mix.

In any case, if and when there are complications, whether from surgical or chemical abortions, it will be beneficial for the patient to have medical help that is familiar with these procedures and the treatment of their complications.

And if these women face complications beyond the clinical competence of their abortionist or something that requires special equipment, it will be important for them to be able to get into a hospital with the requisite emergency treatment facilities and equipment.

And this is precisely what these provisions of HB2 were designed to do.