Two thoughts came immediately to mind as I finished reading the State of Texas’ brief responding to reproductive rights advocates’ request for the Supreme Court to step back into the fight over Texas’ clinic closure law: The Texas Attorney General’s office really does not seem to care about poor people, and it doesn’t seem that concerned about the Roberts Court jumping into the fight over targeted restrictions on abortion providers (TRAP) laws either.
Neither of those observations bode well for Texas patients.
The battle over HB 2 may be the most high-profile abortion rights fight currently in this country. Beginning with Wendy Davis’ epic filibuster and the protests that followed, the hollow and unsupported claims by conservatives that restricting access to reproductive health care advances patient safety, Texas’ struggle has for good or for bad come to symbolize the plight of reproductive rights in this country. The Supreme Court has already intervened twice in the fight over HB 2’s constitutionality, so smart money is on Whole Woman’s Health v. Cole being the next big abortion rights case on the Court’s docket.
Meanwhile, abortion rights jurisprudence has slid dramatically rightward since Roe v. Wade and Planned Parenthood v. Casey, so much so that the Roberts Court, should it take up the fight over TRAP laws, would be considering the question of whether or not states can constitutionally close all the abortion clinics within their borders. In other words, does closing every clinic in a state, or maybe leaving just one clinic open, create an undue burden on a patient’s right to terminate their pregnancy?
Roe has collapsed and Texas is in chaos.
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The answer to that question seems obvious, right? How can a patient exercise their right to terminate a pregnancy if they cannot access a provider or a facility to do so? But, does your right to vote mean anything if there are no polling places for you to cast it?
One partial answer in the context of abortion rights is to self-terminate a pregnancy. I’ll get back to that terrifying prospect in a moment.
With such a fundamentally important question before the Roberts Court, and the significant likelihood the justices will take up the case, you would think the Texas Attorney General’s Office could muster up a little zing in its brief defending HB 2 and the Fifth Circuit’s decision to allow it to take effect. Instead, what the State of Texas offered up is a collective shrug, or a non-statement, at the state of abortion rights access in their state, especially for poor people.
“While some abortion providers may choose to close rather than comply,” the state’s brief reads, “petitioners [Whole Woman’s Health] did not even attempt to prove that remaining facilities will lack the capacity to perform the number of abortions sought—or that some of the other 423 ambulatory surgical centers in Texas will not begin performing abortions.”
The bulk of Texas’ defense of HB 2’s admitting privileges and ambulatory surgical center requirements is that, after two years and countless court hearings later, there is no evidence that patient care is harmed with these requirements in effect. That’s it. In its brief, there is no recounting of the purported health benefits forcing doctors to have admitting privileges extends to patients. There is no data presented discussing the benefit of ambulatory surgical center requirements on patient care. And there is certainly no information to support the State of Texas’ claims that patient health has improved since HB 2’s implementation.
An amicus brief filed by the National Abortion Federation (NAF) in support of the petition to the Roberts Court to take up the case puts that lack of evidence claim in context.
“Texas is the second-largest state in the U.S., both by population and geographic area, and home to approximately 5.4 million women of reproductive age,” the NAF brief reads. “Texas also has the highest proportion of citizens without medical insurance of any state in the nation, and consistently rates near the bottom of national health care access rankings.”
The brief continues:
The state’s abysmal health care record has led to poor outcomes for pregnant women and staggering racial disparities in care. For example, the State Task Force on Maternal Mortality and Morbidity reported last year that while there were 24.4 pregnancy-related deaths per 100,000 overall births in Texas in 2011, among African-American women there were 67.3 such deaths per 100,000 live births. The Task Force concluded that pregnancy- related deaths are on the rise, and that between 20% and 50% are preventable.
In other words, what the State of Texas describes as “no evidence of harm” is, really, a refusal to see the individuals being harmed by HB 2.
According to the legal record from the lower court proceedings in the fight over HB 2 cited by NAF, in the six months after the admitting privileges requirement of HB 2 was implemented, 13.9 percent of abortion procedures in Texas were provided at 12 weeks of pregnancy or later, compared to 10.7 percent in 2012. One clinic informed NAF that some patients were waiting for three weeks just to obtain a first visit, with many forced to travel out-of-state to Louisiana to seek care.
The same day the State of Texas submitted its brief to the Roberts Court, the Texas Policy Evaluation Project at the University of Texas at Austin released a report on the growing wait times for patients needing abortion care in the state. Since HB 2’s enactment, approximately half the abortion clinics have closed. The report measured wait times in major metropolitan areas in the state from November 2014 to present. In Dallas, the wait time to schedule a procedure grew from about five days to more than 20. Wait times in Ft. Worth grew to more than 25 days to schedule an abortion. “The long wait time at some of the [abortion clinics that meet ambulatory surgical center standards] suggests that these facilities are not meeting the existing demand for services,” the researchers wrote in the report.
The result of the increased wait time means patients are being pushed into more expensive, later abortion procedures or going without care. (HB 2 also bans abortions at 20 weeks, a provision that so far has gone unchallenged by advocates.)
Monday’s report is not part of the legal record challenging HB 2, but it does help highlight how the State of Texas’ argument—that those abortion providers remaining in the state could meet the demand of all Texas patients—ten providers to accommodate millions of patients “strains credulity,” as NAF argued.
There is also the possibility that some patients will be forced into self-terminating pregnancies. The evidence exists that this is already happening at alarming rates, especially for poor patients and those who do not live in urban centers and/or cannot travel the distance to get a provider.
Those patients are nowhere to be found in the State of Texas’ brief.
The Supreme Court will decide later this fall if it will take up the HB 2 challenge. If it does, and I believe it will, it will be the first time the Roberts Court has heard a challenge to an abortion restriction since it upheld the so-called federal Partial Birth Abortion Ban in 2007’s Gonzales v. Carhart. By the looks of the State of Texas’ brief, Attorney General Ken Paxton’s office doesn’t seem to care one way or another if they do.