Reopen the doors! (…for Now)
Finally, some good news for Texans.
On October 14, the US Supreme Court reinstated the injunction on HB2, allowing 13 Texas abortion clinics shuttered by the omnibus anti–abortion law made famous by the Wendy Davis filibuster to reopen, pending full review by the Fifth Circuit Court of Appeals.
“Tonight I let out a shout of joy like I have not done in months!” proclaimed CEO and president of Whole Woman’s Health, Amy Hagstrom Miller, via the health-care group’s Facebook page. “This last year has been filled with heartbreak and injustice – from having to say no to women who need us, to closing our clinics, to laying off staff and physicians.”
The specific components of HB2 that are currently suspended include: a requirement that all facilities performing abortion meet the standards of an ambulatory surgical center (an unnecessary, multimillion-dollar “upgrade” for most clinics) and a requirement that doctors have admitting privileges at local hospitals (both unnecessary and nearly impossible to get for a doctor who does not routinely admit patients).
Whole Woman’s – the only abortion provider in the expansive Rio Grande Valley – had reopened their clinic in McAllen, Texas, just two weeks before an October 2 ruling forced them to turn away patients in need. They are reopening yet again, despite the uncertainty of the Fifth Circuit Court of Appeals, where provisions similar to those in HB2 have been previously upheld. Beyond this decision (expected in December or January), the Supreme Court would be the next and final stop. The nine justices on our country’s highest court could very well decide during their current session whether the residents of our second largest state will be vying for the attention of a handful of providers – all located in its eastern, urban region.
Women in the Valley are disproportionately uninsured, and HB2 threatens not only their access to abortion, but it has closed clinics where they receive basic care such as pap smears, mammograms, ultrasounds, contraceptives, etc.
Andrea Ferrigno, Corporate Vice President at Whole Woman’s Health, explained why she and her staff choose to live with the heartbreak – and upheaval:
“For me, it is a matter of justice – and righteousness. The very fact that the people [who] swore to serve and act in the best interest of the public are the ones responsible for the abuse Texans are subjected to is what keeps me doing what I do. If not us, who? The government? The church? Of course not; we have to look out for each other.”
Across the state, activists and organizers are expressing relief and optimism tempered with sentiments similar to Ferrigno’s.
“We’re definitely heartened to have the Supreme Court overturn the stay, because it means Texans won’t be thrown into a total crisis of access,” said Heather Busby, executive director of NARAL Pro-Choice Texas. “It was a nice surprise, and we’re cautiously optimistic that justice will prevail when it comes to this draconian law.”
Astrid Dominguez, advocacy coordinator for the ACLU of Texas’s Lower Rio Grande Valley Office, broke down the components of the law that have made following the saga of revolving clinic doors challenging for onlookers.
“The Supreme Court has temporarily blocked the [ambulatory surgical center (ACS)] provision of HB2 from being enforced while litigation proceeds,” said Dominguez. “Although this is good news, other provisions of HB2 had already made it harder for women to receive the health services they need. Texas had 41 clinics as of April 2013; if all the provisions of HB2 are implemented, we will probably be looking at eight clinics for a state of over 26 million people.”
Like many of those who campaign, lead organizations and advocate across the state, Dominguez is from the community she works so hard for. Born in Brownsville, Texas, she has been a border resident her whole life – living, working and going to school in both the United States and Mexico. She knows the disproportionate effect that HB2 and similar laws have had on those in the Valley.
This lack of access hurts poor and rural women the most, including those in the Rio Grande Valley. Two counties in the Valley, Cameron and Hidalgo, are the poorest counties in the United States. Women in the Valley are disproportionately uninsured, and HB2 threatens not only their access to abortion, but it has closed clinics where they receive basic care such as pap smears, mammograms, ultrasounds, contraceptives, etc. If as a result of HB2 the last clinic in the Valley is forced to close [again], the nearest provider will be in San Antonio. Only someone who has never stepped foot in the Valley could say that traveling 250 miles north for medical care isn’t a problem for women in our region. Because of the extreme poverty, many women in the Valley face financial barriers that make travel impossible.
The Rio Grande Valley is also home to many mixed-status families, meaning that their household includes some people who are citizens and others whose visas restrict travel or who don’t have documents at all. Even someone who scrapes together the resources to travel to San Antonio can’t get there without passing through a checkpoint. For an out-of-status woman, this is a risk she cannot take, leaving her with virtually no health-care options.
The logistical challenges of travel are something Lenzi Sheible, president of Fund Texas Choice, knows well. Her all-volunteer organization facilitates transportation for potential patients who are up against the 20-week abortion deadline imposed by the legislature.
“Forcing people to travel is an intimidation tactic.”
“I hate that [the October 14 decision] is what counts as a victory,” said Sheible. “I’m happy that the Supreme Court is at least marginally aware of what’s going on in Texas, but I’m not celebrating yet . . . [I]f the Fifth Circuit rules in favor of HB2 – which it did last time – then the clinics will just have to close again. I’m tired of this emotional rollercoaster. I just want abortion to be safe, legal and accessible to everyone.”
Sheible hears first-hand the urgency and devastation caused by the systematic closure of clinics – which she sees as a deliberate barrier to care.
“Forcing people to travel is an intimidation tactic,” she said. “The clinics that [have been] allowed to reopen are still, for the most part, located in major urban centers. Even if the Supreme Court’s ruling stands, you will still be able to fit the areas of several states in between the clinics of Texas.”
So, Why Fight Then?
If the landscape is vast and bleak, why is Texas worth paying attention to? Why all the time, energy, and expenditure of valuable resources? Simple: The work being done there by activists and organizers is beyond inspiring.
I approach reproductive justice like I do immigration or education: They are among the most critical challenges my community faces.
Rubén Garza is a regional field organizer for the Texas Freedom Network. Like many of the millennials I met when I visited the Valley, he is informed, motivated and seemingly undeterred by the scope of the work that will be required to end stigma and create an infrastructure of access to reproductive health care in his community.
“I first learned about the politics of abortion as a teenager during the early years of the Bush administration,” said Garza. “While I didn’t understand the full scope of RJ [reproductive justice] then, and really still have much to learn, I was pro-choice even at an early age . . . I approach reproductive justice like I do immigration or education: They are among the most critical challenges my community faces, and I devote most of my professional and personal time working to improve my community’s experiences in those regards.”
Sofia Peña, a young mother, student and aspiring social worker, expresses a similar dedication to her community. Born and raised in the Valley, she has watched many of her peers leave the region.
“I stayed [initially] because my family is here,” said Peña, who had considered leaving for a more progressive city. “Something else that motivated me [to stay] is that I’m a queer person and so is my mom.
“HB2 is among the worst legislative mandates I’ve experienced in regards to undermining a person’s autonomy and legally protected individual rights.”
Peña realized that if everyone who was able to simply left, there wouldn’t be anyone fighting for her home. Since she didn’t have to worry about discrimination in her immediate family, she knew it was safer for her to stay than for many. She’s glad she made that choice and has been present to witness a shift in the Valley on issues like LGBTQ rights. “I have a lot of love and a lot of trust in my community – my peers are really amazing,” she said.
Two sides of the same coin, Peña focuses on building connections in small groups and providing informational support in areas where trust and communication can be barriers, while Garza works to combat the laws passed in his state’s Capital.
“HB2 is among the worst legislative mandates I’ve experienced in regards to undermining a person’s autonomy and legally protected individual rights – and I was socialized in the post-9/11 era that brought us gems like the Patriot Act,” said Garza. “It is an intrusive law that is based on inaccurate, at best, and usually fabricated information from religious conservative radicals who claim to hate government intervention in private matters, but have no qualms interfering with the health and family choices of others.”
Garza spoke of that hypocrisy with a passion common in the Valley, where privacy surrounding family issues can lead to a mischaracterization of the region as overwhelmingly conservative. Garza has watched his peers shrug off the caricatures drawn by politicians and national “advocates” as they work to end abortion stigma and protest oppressive laws.
“I have little hope for the future of reproductive justice in Texas and the United States if current legislative and court trends do not shift,” said Garza. “This is why I work so diligently with students across Texas to transform the cultural and political landscape for future generations. We have had enough!
Whose Burden, Exactly?
Enough. It’s a word everyone uses in Texas. Enough distance; enough frustration; enough discrimination. Enough of an undue burden.
It’s increasingly important to talk about the burden of seeking abortion, with nearly 90 percent of Americans living in counties with no provider.
We hear that reference a lot these days: “undue burden.” It’s a phrase from 1992’s Planned Parenthood v. Casey decision, which says that laws can be deemed Constitutional so long as the intent isn’t to “place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” The subjectivity created by this precedent has resulted in the nationwide patchwork of laws where a person’s zip code largely determines their access to care. The Fifth Circuit’s Judge Edith Jones infamously quipped earlier this year that the “peculiarly flat and not-congested highway” connecting the valley to San Antonio made it easy to drive fast – so that four hours or so in each direction isn’t so bad, really, after all.
While it’s increasingly important to talk about the burden of seeking abortion with nearly 90 percent of Americans living in counties with no provider, we often hear that burden described in dollar amounts and miles traveled. The burden becomes a list of statistics and legal landscapes. As the burden grows, it comes easy for those in urban areas or income brackets that secure them access to mentally check off underserved regions and the people who live there as casualties of the anti-choice legislative takeover of the past few years. Or they’re used as cautionary tales to “excite the base” in blue areas. Or they become punchlines for pundits and politicians.
Peña doesn’t see the home-by-home, community-by-community way the work is done in the Valley as daunting. “There is a sense of urgency, obviously,” she said. “But I’ve always been the kind of person who concentrates on human connection and healing.”
The task of reversing the clinic closure trend, passing proactive legislation and finding ways to care for those with limited access simply seems too daunting to tackle even for many empathetic, engaged people. How do we save individual lives right now, today, while also working to end stigma, change culture and rebuild the infrastructure of care decimated over the past decade? We could start by taking a lesson from local activists who see the smaller and larger pictures simultaneously.
“I think we realize down here that it’s bigger than us, and we’re just doing what we can,” Peña explained. “A lot of us work really hard; there’s a point at which you’re not going to complain anymore.”
Peña doesn’t see the home-by-home, community-by-community way the work is done in the valley as daunting. “There is a sense of urgency, obviously,” she said. “But I’ve always been the kind of person who concentrates on human connection and healing; I’ve seen the power of community my whole life.”
Ana R. DeFrates, Director of Texas Latina Advocacy Network Policy & Advocacy at the National Latina Institute for Reproductive Health (NLIRH), works with those on the ground who are doing that day-to-day outreach and support. She describes the 1.3 million people living in the Lower Rio Grande Valley’s four counties as the “hardest hit” by the closing, reopening, closing, reopening clinic merry-go-round imposed by the legislature and the courts. She also describes them as the most determined.
“I think what strikes me most about the valley and the women we meet is their resilience,” said DeFrates. “Despite all the formidable barriers to health care that exist, people there are galvanized and continue to organize.”
That resilience is almost tangible. I attended a community meeting in Mission, Texas where the hostesses were warm and polite despite my embarrassingly nonexistent Spanish-speaking skills. Lucy Félix, the Texas Latina Advocacy Network Senior Field Coordinator for NLIRH, was there to share information about a clinic that provides free mammograms and other services available to the community. The men played a supporting role – passing around food and sign-in sheets. The children watched their mothers, aunts and sisters lead – and then were rewarded with BINGO for their patience.
“After taking away basic health care and family planning services, they want to take away some people’s only legal method of obtaining an abortion too?”
These get-togethers are a natural part of life in the valley, where information is still communicated person-to-person via established trust and respected wisdom. With not just abortion care, but other basic reproductive health and family planning services like annual exams, birth control and STI treatment being defunded and shut down, the word-of-mouth pipeline has become increasingly important. The one clinic reopening in McAllen still leaves a stretch of 200 miles without providers.
Melissa Arjona, a reproductive justice activist based in the valley, has watched her community suddenly become a focal point in a national discussion that offers very little understanding of the people and what their needs actually are.
“A lot is at stake,” said Arjona. “This area is already very impoverished, and the funding cuts to the women’s health programs in 2011 had already left a lot of people in the RGV without basic care. Planned Parenthood in the RGV recently had to change its name and disassociate from Planned Parenthood in order to get some of that funding back; they used to have health clinics set up where people living in colonias could at least get basic screenings, and all of that ended a couple of years ago.”
Activists like Arjona have been working tirelessly for years – long before last year’s unruly mob at the Capital. Fighting bad legislation is just the most recent addition to their exhaustive to-do list. Arjona was volunteering as a clinic escort (shielding patients from screaming picketers and graphic signs) the day the McAllen clinic was forced to close its briefly reopened doors. The clinic staff came to work so they could explain to patients why they now had to travel more than 200 miles to San Antonio – if they could find a way to get there.
“It was devastating to see all the women have to process the fact that, suddenly, they need to drive to San Antonio for something that was available the day before,” said Arjona. “It also makes us angry that such an injustice could be allowed to happen.”
Ferrigno echoed Aronja’s frustration at the multi-faceted attacks on the patients she serves:
Adding HB2 on top of all of [the reduction in funding] is criminal. After taking away basic health care and family planning services, they want to take away some people’s only legal method of obtaining an abortion too?
If you are an undocumented immigrant, or in an abusive relationship, or are poor – and some cities in the RGV have poverty rates that are over 30 percent – legal abortion access is now completely off-limits to you.
Then there are the ugly stereotypes – especially for undocumented immigrants but, really, for any Latina who’s struggling financially – of Mexicans coming to this country to have “anchor babies” and mooch off the government. The reality is that people are doing the best they can in a state that refuses to provide comprehensive sex ed, affordable family planning, and now, without legal abortion services. For undocumented immigrants, all of this is happening in the midst of a Border Patrol surge in the RGV. People were already too scared or unable to seek basic health care and HB2 is just making it even harder.
Can’t Women Just Hop on Over the Border?
I have strong ties to Texas – having worked alongside dozens of activists and organizations as a reproductive justice advocate, but I’m not from there. This means people feel comfortable asking me questions they would never pose to the residents of border towns, for fear of sounding insensitive.
“Aren’t the drugs, like, available in Mexico?”
People ask me this fairly routinely – as though the pharmacies on the Mexican side of the border or the flea markets are a plausible solution to the millions of Texans without access to physicians. Mexican pharmacies aren’t staffed with doctors or nurses. Sure, they’ll sell you whatever you ask for, but that typically doesn’t include the instructions for usage.
“We see litigation and advocacy working in conjunction with each other.”
The information about mifepristone and misoprostol (the drugs routinely used across the globe for medication abortion) can be found online at websites for the World Health Organization and Women Help Women. But that information only helps someone who’s holding the medication in their hands and, since inducing your own miscarriage is a felony in every single state, obtaining the medications without a physician is legally risky. There may not be a test your doctor or the district attorney can force on you to prove you’re guilty of the felony, but it’s a crime nonetheless.
Astrid Dominguez was surprised to hear how often hopping on over the border to grab some miso is suggested to me. “A woman would have to travel through a border checkpoint to buy the drugs,” she said. “This question also raises deeper concerns about the intent of the law. If the purpose of HB2 is to ‘make Texas women safer,’ why are we forcing women to resort to self-inducing with drugs she obtained illicitly? That’s an incredibly callous attitude.”
I agree on all counts. Still, I’d been asked enough times to be curious: How easy is it, exactly, to get the drugs?
So, I crossed the border during my time in the valley to check out the landscape in Progreso – a tourist town developed to serve the snowbirds who choose Texas over Florida and need a place to fill prescriptions, see a dentist and buy souvenirs. One pharmacy was particularly eye-catching, with a cartoonish dancing “pharmacist” à la Mickey Mouse at Disney World or Elmo in Times Square. The promotion tactic worked, of course: He beckoned me inside.
With a little translation help, I asked outright for misoprostol and was handed a box with enough pills to induce two miscarriages. The only question was: “It’s $38.00; did you want to buy?” It really was that simple. Activists tell me that some of the pharmacies run out occasionally, but Mexico doesn’t have US-style conscience clauses, allowing pharmacists to turn away patients based on religious beliefs, so the act of purchasing the medication is pretty uneventful and done without fear of stigma. A prescription is only required to bring medications back across the border – an American law.
As I waited in the line of cars returning to Texas, I surveyed the security cameras and the agents fully decked out in intimidating gear. People handed their passports to Border Patrol as the interiors of their cars were scanned. “What were you doing in Progreso today?” isn’t the most probing question, but it checked my privilege. My US passport and all-American features mean I’d have to be acting extraordinarily paranoid or bizarre to elicit further inquiry. “Having lunch and souvenir shopping” seemed to fully satisfy the agent.
Why Care About Texas?
Texas isn’t the only state where access is a logistical nightmare. Five states – Arkansas, North Dakota, Mississippi, Missouri and South Dakota – each only have one abortion provider, and they don’t border countries with dozens of pharmacies lined up for tourists.
“These laws are passing around the country,” said Esha Bhandari, staff attorney at the Center For Reproductive Rights (CRR), the organization doing the heavy legal lifting to fight the court battles against these unconstitutional restrictions. “It’s a disappointing trend.”
What’s happening in Texas may already be happening in your state: Because of the way our court system is patched together, decisions in lower courts affect more than one state or region. With that in mind, CRR is active across the country with a strategic prioritization of resources.
“We focus on Texas because it’s a very large state with a lot of women who are affected,” said Bhandari. “With 5.4 million women of reproductive age, we felt it was important to fight back against [HB2] . . . We also think it’s important to have a very focused and public fight against the law to create a public record about the sham reasons why it was passed. Those reasons aren’t valid; [HB2] isn’t improving women’s health, and we wanted to really prove that.”
Bhandari sees the work CRR does as a companion to the human rights advocacy of activists like Arjona, Garza and Peña and organizations like NLIRH and Whole Woman’s: “We see litigation and advocacy working in conjunction with each other,” said Bhandari.
Texans are certainly fighting on all fronts – and not just for themselves. Despite the condescending ways in which their organizing has been dismissed, activists and advocates see their work in the broader context of the national fight for true reproductive justice.
“I think it’s important to pay attention to what worked and what didn’t work in Texas since, unfortunately, we are a model for bad legislation and Texas is a step forward in a national effort to make abortion care as close to illegal as possible,” cautioned Ferrigno.
Yet in true Texas style, Ferrigno followed her words of warning with positivity, passion and determination: “We can’t give in. This is about us: about our future, about our health, about our families, about the ability of every woman to make decisions about her body. . . . Abortion is legal, and it is our Constitutional right. Nobody should get in the way [of] access to it or to other services.”