New Data Still Fails to Establish Abortion Industry Claims that 2013 Texas Law Caused Closure of More than 20 Clinics

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

dallas morning news logoLess than a month ago, a lawyer for the abortion industry was before the Supreme Court arguing in Whole Woman’s Health v. Hellerstedt that Texas’ 2013 abortion law had been responsible for the closing of more than twenty clinics in the state.

Challenged to prove her point, the Center for Reproductive Right’s Stephanie Toti stumbled. She eventually was forced to admit she had failed to provide direct evidence linking the any closures to particular elements of the law the justices were considering.

It was a moment that a Dallas Morning News headline labeled a “fumble” and a columnist for the paper identified as “a very odd miscue on a very big stage” (DMN, 3/21/16)

Sharon Grigsby lamented that

Toti’s response to Alito’s question strikes me as unnecessarily vague and weaker than it needed to have been — if only her team had completed and presented the additional research…. But why not have the data at hand and be able to answer the question of why, specifically, each clinic closed? In fact, it seems that the stories behind individual closings would have been powerful.

The Dallas Morning News has taken it upon itself to remedy that “fumble,” collecting and publishing data on recent clinic closures. The goal was to try to show that the 2013 law was indeed the culprit. Though the Dallas Morning News obviously wants the public to believe they have remedied the “miscue,” it is not so easy a case to make.

Sure, clinics have closed and the law may have played a part. But clarity on the cause of the closures is not what the published data from the Dallas Morning News has provided

A bit of background

In 2013, the state of Texas passed a law, HB2, which mandated several changes in the state’s abortion laws.

HB2 did not allow abortions after 20 weeks, when the unborn child is capable of feeling pain, and it required that abortionists largely adhere to protocol established by the U.S. Food & Drug Administration (FDA) for chemical abortions with mifepristone (RU-486) and misoprostol. These two provisions were not challenged in Whole Woman’s Health v. Hellerstedt.

What was before the justices were two other safety provisions put in place by the Texas legislature. They required that abortionists have admitting privileges at local hospitals and that clinics meet the standards required of ambulatory surgical centers (ASCs).

The law was passed in July of 2013. The admitting privileges, the enforcement of the chemical abortion protocol, and the limit on abortions performed after 20 weeks all went into effect later that year on November 1.

The ASC requirement was scheduled to go into effect on September 1, 2014, but various court rulings eventually put that section of the law on hold pending the ultimate ruling of the Supreme Court.

On March 3, the High Court considered and discussed testimony about the number of clinics existing before and after implementation of different aspects of the law as well as the number and types of abortions performed in that time frame.

Statistics did in fact show clinics closing and abortions declining once the law took effect. But as NRL News Today explained in a four-part series, it is a matter of considerable dispute as to which provisions of the law were responsible and whether the 2013 law was the only or main factor in the decline.

More detail, less certainty

Written by Brittney Maynard, the Dallas Morning News’ special report on clinic closings was big on promises but fell short on details.

The Dallas Morning News counted 23 clinics that had stopped performing abortions since the law passed in July of 2013. Of these, DMN says its research determined that 18 had closed (or at least stopped performing abortions) because of the 2013 law. [1]

Maynard determined this by surveying administrators from the closed clinics. But even this is less revealing than it seems.

Seven of the clinics closed before the law went into effect, six of these operated by Planned Parenthood. Maynard says Planned Parenthood and other clinic told her “the law was a factor” in their decisions to close, but exactly how this was so is murky.

Three Planned Parenthood clinics–in Bryan, Midland, and San Angelo–kept abortion and family planning services separate. In 2011, when Texas cut family planning funds to organizations that performed abortions, Planned Parenthood told Maynard that it did not affect abortion services directly. But these same officials then told Maynard that the affiliate decided to close the abortion clinics in 2013 when the family planning operations lost funding and had to close.

Maynard counts this as related to HB2. And a spokesperson for the Planned Parenthood Gulf Coast affiliate dutifully blames the new regulations. But note, by its own admission, it appears that these closures were more closely connected to the earlier funding cuts than to any particular provision of the 2013 law the Supreme Court is currently considering.

Maynard also mentions three clinics that were only offering chemical, or in her words, “‘non-surgical” abortions. Two of these in San Antonio transferred operations to another clinic in the city and appear not to be counted among the 18 closures Maynard attributes directly to the law. The third, however, from Stafford, stopped offering the chemical abortions altogether. And it appears she did count that one.

The latter is much more significant than Maynard lets on.

If the Stafford clinic closed because of the provision of HB2 regulating chemical abortions (requiring that abortionists follow the original protocol mandated by the FDA rather than the admitting privileges or ASC requirements), its closure could be attributed to HB2, but not to the provisions being considered by the Supreme Court.

Expert testimony cited by defenders of the abortion industry found that the enormous drop that followed the imposition of HB2’s first provisions was almost entirely chemical abortions. Surgical abortions actually increased once the admitting privileges and ASC requirements were put in place. But chemical abortions dropped 67% during that same time frame.

This is a clear indication that it was the imposition of the FDA protocol, rather than the other provisions, that had the most immediate impact.

If so, the use of data on clinic closings and declining abortions to try to convince the Supreme Court to void the sections of the law on admitting privileges and ASCs is unwarranted and out of place, since the unchallenged requirement on chemical abortion seems the more likely cause.

That protocol would stay in place even if the Court struck down the admitting privileges and the ASC requirements.

Maynard mentions one clinic where the ASC provision of HB 2 appears to have had some impact, at least indirectly. She relates the story of the Routh Street Women’s Clinic in Dallas, which had a physician with admitting privileges to a local hospital which enabled it to stay open after the 11/1/13 date when the first provisions of the law went into effect. That clinic eventually closed when the ASC requirement was upheld by the 5th Circuit Court in June of 2015.

The Supreme Court halted the implementation of that provision later in the month, pending its decision in the current case. But the clinic administrator decided to close anyway, given uncertainty about the final outcome and the physical impossibility of upgrading her location.

Full details and narratives on the other closures are missing in the Dallas Morning News article. Some closures, like Routh Street, appear to be related to the law. However connecting others, such as the closing of Bryan, Midland, and San Angelo Planned Parenthood clinics, is a considerable stretch.

Even when it does connect a closure to the law, as it did with the Stafford Planned Parenthood, the Dallas Morning News fails to make a critically important distinction between provisions of the law the Supreme Court was examining, such as the admitting privileges and the ASC requirements, and those it was not, such as the enforcement of the FDA chemical abortion protocol.

Multiple factors in the closures

New data from the Texas Department of State Health Services show a continued decline in the number of abortions in Texas, from 63,168 in 2013 to 54,191 in 2014. Experts quoted by the Dallas Morning News attribute this in some way to the new law. A more complete explanation, however, notes that this decrease of almost 9,000 abortions is part of a longer term trend in which the number of abortions has dropped thirty percent in Texas in the last five years.

Abortions have been dropping in the U.S. for the past two and a half decades, with significant declines seen in recent years. Pro-life laws, such as those passed by Texas, as well as right-to-know laws, parental involvement laws, ultrasound requirement laws, partial-birth abortion laws, and others surely played a part.

However a huge part of the reduction (which the abortion industry and its apologists are loathe to admit) is simply reduced demand. And it is no accident that this has occurred as the public has becomes more informed about the humanity of the child, the nature of abortion, and the unsavory character of the abortion industry. As attitudes change, and women become more aware of life-preserving alternatives that are better for both them and their children, there are fewer abortions.

And fewer abortions inevitably means fewer clinics.

Just as there are many reasons why women choose abortions, or choose not to abort, there are many reasons why abortion clinics close. Abortionists retire, a giant new megaclinic opens down the road, putting old small time operations out of business, scandal closes a clinic, demand falls, the clinic is financially mismanaged, etc. Laws, too, play a role, sometimes exposing and accelerating these deficiencies.

As we have seen here, even in the Dallas Morning News analysis, it can be a combination of many of these factors.

So, in the end, we are delighted that there were 9,000 fewer abortions, 9,000 more lives saved, in Texas in 2014 than there were in 2013. There are many reasons for that, as we have outlined here and in our four-part series.

Courtesy of the Dallas Morning News, we now have a bit more information about some of these closures. Certain elements of HB2 may have played a part in some of those closings, but there were clearly other factors beyond the provisions that were the focus of the court and the Dallas Morning News report.

We are still lacking any hard proof that the admitting privileges and ASC requirements were directly responsible for all the clinic closings that Toti and the Dallas Morning News laid at the feet of the new law. And those details, Justice Alito pointed out, were critical to the abortion industry’s claim that those particular provisions of HB2 closed nearly half of the state’s abortion clinics and created an “undue burden” for women seeking to exercise their “right” to abortion.

[1] The others closed because the abortionist retired, abortion services were transferred to another clinic in the chain, or for unknown reasons. Unmentioned was the opening during this time of at least one new abortion clinic (in San Antonio) which was compliant with new state regulations.