The 5th Circuit Court of Appeals recently decided Whole Woman’s Heath v. Cole. The ruling upholds most of a new Texas abortion law, HB 2, passed by the Texas legislature in 2013. The bill would require abortion facilities to maintain the same staffing and building standards as surgical centers, would defund medical abortions, and would require (with one exception) that abortion doctors have admitting privileges at hospitals within thirty miles of their clinics. Unless some other action is taken, the law will take effect within a month. Elizabeth Nash and Dr. Joe Pojman offer pro and con assessments of the bill in this report.
Dr. Joe Pojman notes that the Supreme Court has made it impossible for states to ban most abortions. However, states can assure that abortions are not done in “a way that puts the health and safety of women at risk.” Pojman says that the point of HB 2 is to raise the level of care provided by abortion clinics. There are ambulatory surgical centers at the abortion clinics in the largest cities in Texas. If HB 2 takes effect, other states may try to copy its provisions.
Pojman dismisses charges that HB 2 limits women’s constitutional rights. He says that a woman considering an abortion should not be offered anything less than the level of care available at ambulatory surgical centers. He also does not believe that the law will have a pronounced effect in limiting the availability of abortion services. Compliance with the new standards may raise the costs for some providers, particularly those who need to build new facilities. Pojman says that dilation and curettage are the most commonly performed abortion procedures in Texas and that these are the same ones used for a woman who miscarries. He opines that abortion clinics performing D&C procedures should have the same standards of cleanliness as a surgical center.
States can shape abortion procedures notwithstanding the rulings of the Supreme Court, Pojman says. Texas and other states have passed laws requiring that women be provided with information and, if they wish, to see sonogram images of their fetus. Texas recently passed legislation requiring clinic staff and volunteers to be able to identify women who may be victims of sex trafficking.
Elizabeth Nash believes that “Texas has really become emblematic of what’s happening across the country.” HB 2 adopted a number of restrictions all at the same time. The bill has restrictions on clinics, restrictions on medical abortions, a requirement that doctors have admitting privileges at hospitals, and setting a twenty-week limit after the date of fertilization for abortions. Nash says that many states are adopting similar laws. “Between 2011 and now, we’ve seen over 260 abortion restrictions become law in 31 states.”
As to the claim that HB 2 will improve abortion safety, Nash responds that Texas clinics have provided safe abortions for years. Nash suggests that, given the safety record in Texas, the only apparent reason for adopting the new restrictions is to reduce the number of clinics. Less than .05% of abortion patients require hospital care after their abortion procedures. The new law will merely close clinics and restrict access.
Nash says that it is “a very real concern” that the new law will increase the business costs for Texas abortion clinics, and thus the cost of abortions. Many patients are low-income women who have no insurance to help pay for the procedures. A clinic that has to spend $400,000 to remodel or $1 million to rebuild will have to deal with those costs somehow.
Nash believes that states can shape the abortion law in spite of conflicting political ideologies. There are issues on which everyone can agree, given that the Supreme Court has ruled out the banning of abortions by state legislatures. About half of pregnancies are unintended, so perhaps a place to start would be to reduce that number.
The clinics have requested a stay on the implementation of the law to seek Supreme Court review.
Elizabeth Nash is the Senior State Issues Associate in the Guttmacher Institute’s Washington DC office. She coordinates the efforts of the state team, which analyzes legislative, regulatory and judicial actions on reproductive health issues and develops Guttmacher’s monthly State Policies in Brief series and update of state policy developments. Dr. Joe Pojman is the Executive Director of the Texas Alliance for Life, a statewide pro-life organization based in Austin. He is frequently asked to write and speak on pro-life issues and has done numerous interviews for print, radio, and TV media, including Fox News, CNN, ABC News, New York Times, Christian Science Monitor, and many broadcast news outlets around Texas. The Legal Broadcast Network is a featured network of the Sequence Media Group.