On Monday, the Supreme Court stepped in with a 5-4 vote to stay a June 9 Fifth Circuit Court ruling that would have shuttered all but nine abortion clinics in Texas by requiring unnecessary, multimillion-dollar, hospital-like facility upgrades. The stay remains in place pending the court’s decision on whether or not to take up the original case, at which point the stay would be extended until a ruling comes down.
The omnibus anti-abortion law HB2 – made famous by the successful filibuster of its companion bill SB5 by pink shoe-clad Senator Wendy Davis and the “unruly mob” of protesters in the capitol two years ago – requires a number of “targeted regulation of abortion provider” (TRAP) provisions justified by politicians for “health and safety” reasons. Even though first-trimester abortion has a complication rate of less than 0.05%, should the Supreme Court not take up the case or ultimately decide in favor of the state of Texas, the law’s ambulatory surgical center provision (ASC) would go into effect, requiring providers to add what advocates consider to be a multimillion-dollar “tax” on abortion care through forced remodeling and staffing changes to become hospital-grade facilities.
In addition to the ASC provision suspended by SCOTUS, HB2 includes the already implemented and currently unchallenged ban on abortion after 20 weeks, requires doctors performing abortions to have admitting privileges at a local hospital, and limits the prescription of medication abortion – commonly known as the “abortion pill,” which allows patients to miscarry at home through a prescription and is typically cheaper than an in-office termination.
Texas already requires patients to navigate an expensive, logistically challenging landscape of waiting periods; misinformation counseling, with inaccurate “warnings” about the effects of abortion; parental notification; and forced ultrasounds at least 24 hours before the procedure (for patients living within 100 miles of their provider). Because of the clinic closures following the implementation of these currently enforced HB2 provisions, the number of legal abortion providers in Texas has already been reduced from 41 to 18, leaving no providers in the vast, rural western portion of the state and only one clinic in the Rio Grande Valley along the Mexican border.
Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, one of the plaintiffs in the Supreme Court lawsuit to overturn the ASC provision of HB2, called her McAllen clinic to let them know that their doors – which have been closed three times over the past two years as HB2 has wound its way through the court system – would remain open and their patients in the underserved Rio Grande Valley would continue receiving care.
“I just can’t stop smiling since I heard the news an hour ago – all this work, all this time and all this uncertainty for my team and the women that we serve,” Hagstrom Miller said in a conference call with reporters on Monday. “Always knowing that we stand on the right side of history, yet always being careful not to hope too much. But today we did it. We kept Texas’ clinics open.”
She said she could hear her staff cheering as she relayed the news.
“Let me be clear: These restrictions have nothing to do with protecting women. HB2 is antichoice legislators’ thinly veiled attempt to make abortion unavailable and unaffordable by closing down clinics,” said Hagstrom Miller. “Today’s ruling only reinforces the fact that requiring every abortion clinic to turn into a surgical center is both excessive and medically unnecessarily.”
“As my staff just said to me when I called them an hour ago – we will be here no matter what; we get knocked down and still we rise. We are in it for the long haul, and today is a really good day!”
Nancy Northrup, CEO of the Center for Reproductive Rights, which represents Whole Woman’s Health, the other independent abortion providers petitioning the Supreme Court for a full hearing of the law, also praised the injunction.
“The justices have preserved Texas women’s few remaining options for safe and legal abortion care for the moment. Now it’s time to put a stop to these clinic shutdown laws once and for all,” Northup said in Monday’s call with the press. “Our Constitution rightly protects women from laws that would create barriers to safe and legal abortion care, but Texas politicians have tried to sneak around the Constitution with sham regulations designed to close clinics’ doors.”
Even if the Supreme Court opts to hear the case in full to determine the Constitutionality of the ASC provisions of HB2 and rules in favor of the plaintiffs, that decision (which would likely be delivered next June) would simply uphold the status quo by limiting additional damage to the rights of the 27 million people residing in Texas. Poor and rural residents would be left with their current, nearly insurmountable logistical challenges to accessing the full slate of reproductive health care.
“This decision came just in time, and it’s a huge relief that we won’t be down to only eight or nine clinics on July 1; HB2 has already devastated access to timely, quality abortion care in Texas,” Heather Busby, president of NARAL Pro-Choice Texas told Truthout in an interview in which she expressed both optimism that the Supreme Court would hear the case and a frustration at the “undue burden” experienced every day in her state.
Busby said that the law is clearly taking a heavy toll on abortion seekers.
“We’re already seeing the lack of clinic access affect the most vulnerable people in the state: those who live in rural areas, people without access to resources like money and transportation, and young people who do not have strong support systems, she said. “When you combine the shrinking number of clinics, the burden of a waiting period from the forced sonogram law, and all the other barriers like lost time from work or school, childcare, transportation, and the cost of all these things plus the rising cost of medical care, Texas already has a serious problem with timely abortion access.”
That serious problem prompted the formation of West Fund, an El Paso-based member of the National Network of Abortion Funds, which serves those living in the roughly 500-mile stretch of the state west of the San Antonio-Austin -Dallas-Fort Worth corridor.
Alyssah Roth, president of West Fund, told Truthout that the unique attributes of West Texas mean specific challenges for residents in her part of the state: isolation from the rest of the state, extreme poverty in El Paso (the eighth poorest US city), cultural religiousness and the 1,254-mile Mexican border.
“The cultural religiousness in West Texas … effects how we talk about sexuality and pregnancy in our communities and also effects our sex education,” Roth said. “Because we aren’t taught to learn about or appreciate our bodies, many people often aren’t connected to changes that may indicate something like pregnancy, which means that some people don’t realize they are pregnant until they are so far along that they need to travel a long distance [to a clinic not bound by such strict gestational limits].”
The Fifth Circuit’s ruling included a brief mention of the border, but declined to consider how “undue burden” might be affected by those living in its vicinity. From the stayed decision: “We note that this analysis would likely be different in the context of an international border, and we disclaim any suggestion that the analysis here applies to a city across an international border from a United States city in question.”
The Supreme Court would likely need to address this further should they take up the case, as the access of millions of people are affected by proximity to another country.
“When we think about restrictions to abortion access, we also need to consider how those restrictions affect undocumented people, such as when they have to cross state lines and border checkpoints,” explained Roth.
One need not attempt to cross an international checkpoint into Mexico to be detained.
Because the border has been used by public officials as a reason to install in-state check points on the Texas side, anyone traveling along, near or through the area to access a clinic – by car or even bus – can be stopped and asked for proof of citizenship.
Busby described how access has changed since HB2 was signed for residents of one West Texas city with a population of 124,000.
“For someone in a town like Midland, Texas – a city that had a clinic before HB2 passed – the nearest abortion clinic is more than 300 miles away,” said Busby. “If the final provisions of HB2 go into effect, or more restrictions are passed and go into effect in the future, these barriers will be insurmountable for a huge percentage of the population, not just those living in poverty, but working families will be hard hit.”
Like Roth, Busby referenced multiple factors that exacerbate the growing health crisis in her state and its disproportionate affect on West Texas.
“This [the passing of HB2], of course, follows on the heels of losing more than 80 family planning clinics statewide since 2011,” said Busby. “Many people in Texas have no means to prevent a pregnancy. There is no justice in that. And it absolutely jeopardizes health and safety. So, this Supreme Court stay is a breather, but it’s not the greatest solace. It’s not a magic fix for a broken system.”
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