By Randall K. O’Bannon, Ph.D. NRL Director of Education & Research
In reading through the transcript of the oral arguments made before the Supreme Court in last Wednesday’s case of Whole Woman’s Health v. Hellerstedt, there are several pivotal contentions challengers made in seeking to overturn HB 2, the 2013 omnibus Texas pro-life law. We will consider one today, the second on Wednesday, with the completion scheduled for Thursday.
# 1. Is the new law is responsible for the closure of many of the state’s abortion clinics, and does the closing of these clinics represents an “undue burden” on a woman seeking to abort her child?
Counting clinics at the court
As NRL News Today readers know, the plaintiffs challenged two requirements: that abortionists have admitting privileges at a nearby hospital and that abortion clinics meet the standards of an ambulatory surgical center (ASC). Whether and how much these provisions were responsible for clinic closures, and whether these closures resulted in an “undue burden” on women seeking abortions, quickly became the focus of discussion on the court.
Just minutes into the oral arguments, the Center for Reproductive Rights’ Stephanie Toti, lead counsel for the plaintiffs, made mention of “new” evidence of clinic closures directly tied to the enforcement of the law’s requirement that abortionists have admitting privileges to local hospitals.
Justice Samuel Alito noted “there is very little specific evidence in the record in this case with respect to why any particular clinic closed.” This is very important.
Blaming the admitting privileges requirement
Toti argued that the “timing” of the closures, more than 20 clinics closing within a short period of time, was evidence of the connection. Toti told Justice Stephen Breyer that “Eight closed prior to initial enforcement of the admitting privileges requirement, and 11 closed the day that the admitting privileges requirement first took effect.”
Alito again asked Toti whether she had direct evidence that the law closed the clinics. Toti said she did for 12, but Alito asked if she did, why didn’t she put that evidence in the record. Alito said that “as to some of them, there is – there’s information that they closed for reasons that had nothing to do with this law.”
Alito was specific where Toti wasn’t. Alito asked Toti whether the Planned Parenthood clinic in Bryan was one of those she was counting. Toti said “Yes, Your Honor.” Alito then cited a Huffington Post news report that said that clinic was closed as a result of the 2011 Texas Women’s Health Program bill, a different law, not being considered in this case, which cut funding to family planning clinics involved in abortions.
Toti said she would supply citations for those clinic closings for the record later.
Effect of ASC requirement
Justice Elena Kagan then stepped in. She began discussing the effect of the other provision of the law, the requirement that abortion clinics meet the standards of ASCs.
As challenges worked their way through the courts, that provision was first enforced, and then stayed two weeks later. Kagan said “over a dozen facilities shut their doors” when it was in effect, but reopened once it was enjoined. She called it “almost like a perfect controlled experiment as to the effect of the law.”
Justice Anthony Kennedy shifted the conversation. He asked about capacity, whether the remaining clinics would be able to handle the caseload of clinics that had closed. This cut through the clutter to the heart of the matter. The number of clinics that did or did not close was of little consequence if the remaining clinics could do the work of those that were shut down
Toti began by stating that she thought there was “sufficient evidence in the record… that the remaining clinics, which would number fewer than ten, don’t have the capacity to meet the statewide demand.”
So, where was the “evidence”? We find out the nature and source of this evidence from Donald Verrilli, the Obama administration’s solicitor general, who joined Toti in challenging HB 2.
Verrilli argued that the ASC requirement reduced capacity (because some closed) and the remaining abortion clinics couldn’t meet demand. Prior to the law, Verrilli said, there were about 65,000 to 70,000 abortions a year and that “the ASC facilities that will be able to remain open performed about 14,000 a year.”
But where did Verrilli get this information? “That’s what the record tells you. It’s Dr. Grossman’s expert testimony.”
Grossman and his “evidence”
Though we do not have direct access to the formal court briefing documents, we do know who Dr. Grossman is and we do have access to the “expert testimony” of Dr. Daniel Grossman given to U.S. District Court back in August of 2014. His testimony there appears to make the same claims and use the same language to which the lawyers and justices refer.
Daniel Grossman is a rising star in the abortion academic establishment, an abortionist who is an assistant clinical professor at the University of California, San Francisco (UCSF), known as America’s abortion academy. In addition to serving as a Vice President for Research at Ibis Reproductive Health, a group promoting worldwide expansion of abortion, being on the editorial board of Contraception, one of the country’s premier abortion research journals, and serving as a liaison to the Planned Parenthood National Medical Committee, Grossman also happens to be a “co-investigator” at the Texas Policy and Evaluation Project (TxPEP), a group specifically formed in the last five years to develop research to challenge pro-life laws in Texas.
It is in this last capacity that Grossman and his colleagues developed the data to which the justices are referring.
Grossman on closures
In his testimony to the District Court, Grossman does indeed claim that there were 41 “facilities” performing abortion as of April 30, 2013, and said that some twenty clinics ceased operations or stopped abortion performance by the time his report was written. (These are the numbers that Toti and the Justices discussed in court last week.)
As Justice Breyer said, Grossman’s testimony shows eight clinics closed or stopped performing abortion from May 1,2013 (just before the law was passed) to October 31, 2013 (right before the admitting privileges provision went into effect), with 11 closing once the admitting privileges requirement went into effect. (About these last 11 closures, Grossman said only that they occurred between November 1, 2013, the implementation date, and his next data end point, April 30, 2014, though press accounts did indeed show many occurring the day the law took effect.)
But Justice Alito, and later Chief Justice John Roberts, were totally on mark in questioning the claim that the law was the cause of these closures. Grossman says the decline “appears to be related to changes in State law,” which he said includes HB2. But the “changes” he spoke of also included the state’s 2011 restructuring of its funding for “family planning” services.
Furthermore, Grossman admitted in his testimony that “I am not here offering any opinion on the cause of the decline in the number of abortion facilities” during that study period running from November of 2012 to April 2014.
As noted above, Justice Alito pointed out that according to a news account, one of the clinics to which Toti pointed to as having closed, in fact, closed not because of HB2, but because of the earlier Texas law which cut family planning funds to abortion performing organizations. And, unlike Toti, it is notable that even Grossman, the plaintiffs’ expert, is hesitant to directly chalk all these closures up to the new admitting privileges requirement.
Grossman on “capacity”
Grossman’s testimony to the District Court was given prior to the time that the ASC provision went into effect. So he could provide no hard historical numbers on closures or consequences that followed when that provision temporarily was in place. But he does speculate about the capacity of ASC compliant clinics to meet the Texas caseload. 
How does he do that? Grossman takes abortion statistics he gained from anonymous phone calls made to Texas clinics over three six month periods (11/1/12 – 4/30/13, 5/1/13 – 10/31/13, 11/1/13 – 4/30/14) and compares them to official state statistics for 2012.
From this he draws conclusions about trends in the number, type, and location of abortions. And from those, he projects, among other things, what he considers “capacity” for these ASCs.
Grossman noted that the numbers of abortions performed at ASCs in each of this three study periods declined, from 9,378 to 8,867 to 6,786. The total of abortions fell 13% during this year and a half, from 35,415 in 11/12-4/13, to 30,800 in 11/13-4/14. However the numbers of first trimester abortions increased during that same time frame from 20,698 to 23,531.
What Grossman concluded from that data was that this was “indicative of [ASC’s] inability to increase capacity in the face of growing demand.” It is then that Grossman makes the observation that Verrilli references–that “My opinion is that these existing ASCs as a group will not be able to go from providing approximately 14,000 abortions annually, as they currently are, to providing the 60,000 to 70,000 abortions that are done each year in Texas once all of the non-ASC clinics are forced to close.”
Countering the capacity argument
Grossman doesn’t tell us the number of ASCs in each study period in his testimony. But in news stories from the time in which reporters asked him about his data on clinics affected by the new rules, it is mentioned that there were just six in the state meeting the ASC requirement (Texas Tribune, 7/23/14).
If so, and if 14,000 abortions a year is supposed to be their combined capacity, that would imply an average maximum caseload of about 2,300 per ASC (14,000 divided by 6).
Verrilli tells the Court, obviously looking at Grossman’s data, that the existing ASCs performed about 20% of the abortions in the study (Grossman’s research had ASCs performing 26.4% of Texas abortions in his first six month study period and 22% in his last). Verrilli told the justices “these facilities aren’t going to be able to increase by four or five times,” which appears supported by Grossman’s claim that ASCs were at capacity in late 2013 to early 2014 and unable to handle the additional caseload other clinics picked up with the closures.
However this assumes a number of things not necessarily supported by the data. For example, the most basic: Is 2,300 to 2,400 the maximum caseload of an ASC?
Going back to data from Grossman’s testimony, this does not appear to be the case. In his original data tracking abortions performed in Texas between November of 2012 and April of 2014, Grossman says that ASCs performed 9,378 abortions in the first six months he studied (11/1/12-4/30/13) and nearly that many (8,867) in the six months following (5/1/14-10/31/14) the imposition of the admitting privileges requirement.
Unless there were veteran abortionists who retired or significant closures of ASC abortion clinics between the first and the last of Grossman’s study periods, it would mean that the earlier results showed an average annual caseload for six clinics was closer to 3,000 than 2,300.
Note, though, that an October 2015 report by Grossman and his colleagues at TxPEP admitted that the actual clinic caseloads in Texas were even higher, with clinics in major metropolitan areas reporting average annual abortions per facility at 3,744 (Austin), 4,415 (Dallas-Ft.Worth), 3,861 (Houston), and 4,428 (San Antonio).
Even this is not capacity. Scott Keller, Solicitor General for Texas, told the justices that the ASC run by Planned Parenthood in Houston estimated it could perform 9,000 annually.
The number of ASCs is also higher now than it was then, perhaps due to the Planned Parenthood’s building of new megaclinics. Keller pointed out that Planned Parenthood operates five ASCs in Texas and noted that there were another four ASCs operated by others and a clinic in McAllen, Texas that lower courts had exempted from that requirement!
So while one might try to make the case that six compliant ASC clinics with caseloads of 2,400 each could not suddenly handle a caseload four or five times that large, that’s not the real situation in Texas. It’s much different situation of when, in fact, there are ten operational clinics with caseloads ranging from 4,000 to 9,000 a year, which should indeed be able to handle “demand” for somewhere between 60,000 and 70,000 abortions a year.
This, of course, assumes that demand remains constant. Tomorrow we see that the data actually indicates otherwise: the number of abortions is decreasing nationwide as well as in Texas.
 Courts blocked, reinstituted that provision, then blocked it again.