Texas's Ruling on Abortion Law: A Silver Lining to a Storm Cloud

AP Photo/Tamir Kalifa, File

When the court ruling came down on Texas’s law restricting abortions, media outlets didn’t hold back. The Huffington Post went with the headline “Texas Abortion Restrictions Declared Unconstitutional by Federal Judge” while CNN blared “Judge Blocks Parts of Abortion Law.” Let’s just be clear: The law still bans abortions after 20 weeks and the state is still in the process of creating codes so that next year abortion clinics will have to meet the same building code standards as hospitals that perform invasive surgery. The lawsuit instead, focused on two other provisions of the law—one requiring doctors performing abortions to have admitting privileges at hospitals, the other requiring anyone using abortion-inducing pills to follow an outdated medical regime, approved by the Food and Drug Administration in 2000.

U.S. District Judge Lee Yeakal’s ruling, knocking down the admitting privileges requirement, while approving the outdated FDA protocol, helps to highlight what have both been ongoing trends in the abortion-rights battle. The law takes a two-pronged approach, making it harder to keep clinics open (because of the new code requirements) and then requiring that women appear at those clinics for an extra visit to administer pills that could otherwise be taken at home. The measure was first made famous when state Senator Wendy Davis successfully filibustered it during a special session, drawing a national audience during the 13-hour effort. The victory was short-lived; the legislature then turned around and passed it in a second special session.

This incremental line of attack on abortion rights remains successful. Since the FDA produced a protocol for oral abortion drugs in 2000, creating the recommendations for how to administer the drugs, doctors and researchers have worked to improve on the protocol. The new regime, endorsed by the American College of Obstetricians and Gynecologists, has become the norm because it uses lower doses of drugs and requires women to come in for the first dose but then take the second without doctor supervision. Under Texas law, doctors must now follow the older standard, meaning heavier doses and a risk of side effects. Medication abortions can only be administered up to seven weeks into a pregnancy, instead of nine weeks. The court largely concurred, with only minor exceptions.

Most significantly, though, women will now have to come into the doctor’s office for the second dose. Women in Texas must already show up for one appointment to get a sonogram, then wait 24 hours before coming in for another appointment to get their first dose. There’s usually a follow-up with the doctor as well. In addition to being unpleasant (the second dose prompts bleeding and cramping most people would rather experience in private), the FDA protocol means another day spent at the doctor’s. Particularly for low-income women, the requirement of several doctors appointments means several days of missing work, arranging childcare for any other children, and other challenges.

That difficulty is compounded by the fact that clinics are already closing.  In 2011, the state made enormous funding cuts to the state’s Women’s Health Program and specifically de-funded Planned Parenthood’s non-abortion services, like pap smears and contraception. According to the Texas Tribune, nine abortion clinics have closed since January and another facility stopped performing abortions. Once the new building codes go into effect next year, only six of the state’s remaining 38 abortion facilities will meet the requirements to stay open.  Meanwhile, medication-induced abortion may become even harder to get; Oklahoma passed a law that as written, banned medication abortion. While a court on Tuesday struck the law down, the case is headed to the Supreme Court.

But not all anti-abortion rights tactics have been successful, and the Texas case helps reveal where the pro-life attacks are failing. Requiring doctors at abortion clinics to have admitting privileges at hospitals, according to Elizabeth Nash, the state-issues manager at the Guttmacher Institute, which studies women’s health, has become “shiny new toy in the anti-abortion arsenal.” But everywhere it’s been introduced—North Dakota, Wisconsin, Alabama, and Mississippi—it’s been struck down. Yeakal, the Texas judge, had a similar position. Not only did the requirement not improve patient care, he ruled, but it created an “undue burden” on women seeking abortion. In his opinion, Yeakal pointed to the 24 counties in the Rio Grande Valley that would no longer have any abortion providers, since no one currently had admitting privileges.

For abortion-rights advocates, the judge’s decision gives a glimmer of hope. But the case is headed to the Fifth Circuit, which approved the state’s pre-abortion sonogram requirement.

In the meantime, as access to safe abortion decreases, there’s increasing concern more women will start to look for dangerous alternatives. The Texas Public Policy Evaluation Project, which studies abortion access, has found that while there’s no evidence that Texas abortion clinics are unsafe, the biggest safety factor has come women trying to terminate pregnancies themselves. Nationally, 1.2 percent of women who arrive at abortion clinics have first tried to end the pregnancy themselves. But according to the Public Policy Evaluation Project, in Texas, it’s 7 percent, and along the Texas-Mexico border, it’s a terrifying 12 percent of women.

With cases still going through the courts, there’s plenty of fear things could get worse.

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