One of my staff in McAllen told me a patient called her and said, ‘Let me read you all of the things that are in my kitchen cupboard, and tell me what I should use [to abort the pregnancy].
The Supreme Court eventually stepped in, allowing the clinics to reopen—but on June 9, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit once again put the women of Texas at risk by upholding almost all of HB 2. Under the law, which is set to go into effect at the end of June, any doctor performing an abortion must have admitting privileges to a hospital within 30 miles—a significant hurdle for women and clinics in remote areas, and in a state where many hospitals are religiously affiliated. Abortion clinics must also meet the standards of ambulatory surgical centers—a costly and and absurd requirement that is inexplicably being applied to medication abortion, which is markedly not a surgical procedure.
Whole Women’s Health is fighting the Fifth Circuit’s decision, but Hagstrom Miller says “we don’t expect to get relief from them.” More likely is that she will be forced to appeal to the Supreme Court and ask them to reinstate the injunctions that would enable the clinics to stay open. If the Supreme Court doesn’t step in—and soon—Texas could be left with just eight open abortion clinics come the end of the month, in a state with about 5.4 million women of reproductive age across 261,232 miles. (To put this in perspective, Texas had 46 abortion clinics in 2011. If that happens, almost a million Texas women would have to travel more than 150 miles to have an abortion, according expert testimony in the case. This statistic highlights the undue burden the new law would place on all Texas women, but specifically low-income women who may not be able to afford the extra costs associated with; travel, time off, and, if they are already mothers, childcare. It’s a painful irony, considering that states with the strictest anti-abortion laws do the least to support women’s health, according to a report by Ibis Reproductive Health and the Center for Reproductive Rights.
In their ruling, the judges who upheld the law wrote: “Texas’ stated purpose for enacting HB 2 was to provide the highest quality of care to women seeking abortions and to protect the health and welfare of women seeking abortions. There is no question that this is a legitimate purpose that supports regulating physicians and the facilities in which they perform abortions.” Pro-choice advocates disagree. “The people who wrote these laws don’t have medical degrees,” says Rochelle Tafolla, a spokeswoman for Planned Parenthood Gulf Coast. She continued, “This is all about putting these regulations to restrict access.”
The people who wrote these laws don’t have medical degrees. This is all about putting these regulations to restrict access.
If the brief shutdown in October taught us anything, it’s that limiting women’s access to care places them in difficult if not desperate situations, potentially harming their well being and certainly denying them their legal right to make their own reproductive decisions. At a Planned Parenthood in Houston, call volume from patients seeking an abortion increased 170 percent when the law was in effect, with women in non-metropolitan areas who had abortions scheduled at shuttered clinics scrambling to find an alternative. The organization’s Austin clinics received seven times as many calls during the same time period, and in North Texas, call volume increased to four times its typical frequency.
Last fall, “it was an overnight closure,” says Tafolla. “Patients either showed up or received a phone call saying we won’t be open tomorrow. The visible impact for our staff was women who were waiting here who were very upset, who were very nervous, who were very scared and not really understanding why their doctor couldn’t keep their appointment.” Due to the state’s already restrictive 24-hour waiting period where women are required to undergo an ultrasound by the same doctor who will perform their abortion a full day later, some women were staying in hotels, just hours away from having their abortions performed in compliance with the ultrasound law. It was unclear when the clinics would be able to open again, and “women were saying, ‘I can’t wait any longer,’” says Tafolla. “One woman in particular called and said, ‘I have to go home. I left my child in the care of someone else and I need to get back to them…I have to start [the ultrasound and abortion process] all over again.’”
For the clinic’s staff, having to turn away women was devastating. “One staff member, it was particularly heartbreaking, because she said, ‘I so desperately wanted to help this woman, and I couldn’t. It’s completely out of our hands,’” says Tafolla.
At the Whole Women’s Health centers, it was a similar scene. Doctors went into the clinic where they had been scheduled to see patients, and were instead forced to tell the women standing in front of them, “I can’t help you.” They did what they could to assist them in setting up and travelling to appointments in other parts of the state—efforts were even made to raise money for women who could not afford the extra cost—but for many women, it wasn’t enough. “More women than not fell through the cracks,” says Hagstrom Miller. “I still think about them. Absolutely.”
The constant changing of what is and isn’t legal in terms of reproductive rights in Texas is also confusing for the doctors performing abortions. Hagstrom Miller says that many of the doctors in her provider network are working mothers themselves, and the back and forth on whether or not they can legally perform abortions puts them in a tense situation—not to mention, wondering whether or not they’ll be employed next month.
It doesn’t help that the requirements under HB 2 are so vague, even the Fifth Circuit seems unable to explain them. The Whole Women’s Health clinic in McAllen, TX, for instance, has been allowed to remain open despite the fact that it doesn’t meet all HB 2 requirements—but even Hagstrom Miller is unclear as to what is being mandated, calling the regulations “ridiculously arbitrary.” For one thing, she says the Fifth Circuit “just randomly picked one physician that they decided to waive the admitting privileges requirement for. They told me that in order to remain open, I can only use that one physician.” The doctor she’s referring to is a man in his mid 70s who doesn’t live in the Rio Grande Valley, where the clinic is located, and he’s not currently practicing there. “Who is the Fifth Circuit to tell any medical clinic what doctor they can or can’t use? What if he gets sick or he wants to retire? Do we have to retire the clinic?” It’s worth noting that the physician approved by the Fifth Circuit had the same competency as the three other board-certified OBGYNs who were not approved.
Judges also waived the requirement that the McAllen clinic meet surgical center standards, but demanded that Hagstrom Miller comply with unclear administrative requirements. A clinic in El Paso, TX did not receive the same exemptions as the McAllen clinic. The logic (which is really illogic), says Hagstrom Miller, is that women in that area can cross state lines to New Mexico to receive an abortion. “The regulations [the Fifth Circuit] is so committed to adhering to in Texas don’t necessarily even exist in other states,” she says. “It shows us that this has nothing to do with safety; it has to do with blocking women from having an abortion.”
Three days after the Fifth Circuit’s ruling, Texas Governor Greg Abbott signed another anti-abortion bill into law. The bill, HB 3994, requires Texans younger than 18 to have their parents’ permission to receive an abortion—which puts abused and neglected teens specifically at risk. In 2013, more than 9,000 sexual assault victims in Texas were between the ages of 10 and 19, and in 45 percent of all cases the offender was a family member, according to Department of Public Safety data.
“Gov. Abbott had the power to stop vulnerable Texans from being put in danger, but instead he put politics before Texans’ health and safety,” said Heather Busby, executive director of NARAL Pro-Choice Texas, in a released statement.
Texas already has a ban on abortions after 20 weeks of pregnancy, except when the mother’s life is in danger or the fetus has a lethal abnormality. If HB 2 is allowed to stand, Roe v. Wade will be virtually non-existent for many women in the state. Forget the clinics for a moment, and think just about the burden being placed on Texas women: In order to receive an abortion, she must be 18 years of age or have a note from her parents. Then, she must find the nearest clinic, which could soon be hundreds of miles away. Next hoop to jump through: She has to schedule an abortion with that clinic, but must arrive 24 hours in advance to have her mandatory ultrasound, and the doctor who performs that ultrasound must also be available to perform the abortion procedure the next day. If she has a job, she must take time off work not just for both of these steps, and if she has children, she has to arrange childcare. If she does, in fact, live a great distance away, she’ll also need available funds to pay for transportation and accommodations. This is what we call giving a woman the right to choose? No wonder that 55 percent of women in Texas report at least one barrier to reproductive health care, with the cost of services being the top roadblock.
Closing the clinics won’t just hurt women seeking abortions, but also those who rely on reproductive health centers for gynecological cancer screenings, annual checkups, and birth control, as well as STD testing for both women and men. As Tafolla notes, when the clinics were forced to shut down last fall, all patients who relied on it for health services were at a loss. “Clinics in rural areas providing a wide variety of services, those were shutting down,” she says. “And now some of the abortion providers that also provide family care could also shut down. So women are losing out and men are losing out on a variety of services, not just those in need of an abortion.”
Hagstrom Miller intends to keep fighting, but even she says she’s unsure about the future of the McAllen clinic—the only clinic in a rural area that would be allowed to remain open under the new law. “People say, ‘Oh yay, McAllen gets to stay open,’” she says. “But [these regulations] are totally absurd. They are based on nothing. And, so when I look at the future, there’s no question Whole Women’s Health is committed to taking this case all the way to the Supreme Court.”