Has Texas made abortions too hard to get? Supreme Court to decide.
How others see it
The question at the center of an abortion case before the Supreme Court Wednesday will resonate nationwide.
Melanie Stetson Freeman/The Christian Science Monitor
Since 2011, the Texas Legislature has passed a series of laws that make it more difficult for women to obtain an abortion. The Republican-controlled legislature is shifting government money away from abortion clinics and enacting new measures that, supporters say, make abortions safer. Critics say they only complicate the process and have resulted in the shuttering of more than half the state's clinics.
On Wednesday, the United States Supreme Court will examine whether one of those laws violates constitutional protections. With the high court showdown looming, the Monitor went to Texas to examine what these restrictions mean for Texas women.
AUSTIN, TEXAS – Valerie Peterson paid no attention to the fiery debates in Texas over restrictive abortion laws. She isn’t a lawyer, politician, or activist.
Instead, she is a woman and mother who wanted more than anything in the world to give birth to a healthy baby boy.
Sixteen weeks into her pregnancy, her doctor advised her that something was terribly wrong. He recommended that she end the pregnancy.
But when she attempted to do so, she ran headlong into a gantlet of Texas-mandated antiabortion restrictions and impositions that turned her grief into unbearable sorrow.
On Wednesday, the United States Supreme Court takes up a legal challenge to a Texas law that has made it increasingly difficult for Texas women in many different circumstances to exercise their constitutional right to end a pregnancy.
For Ms. Peterson, the cause of abortion rights is one she never anticipated claiming as her own. What she most wanted was to give birth. But she says the law’s cruelty to women prompted her to speak out.
“I would say emotionally it is an undue burden,” Peterson said in a recent interview at her kitchen table.
“It is a burden that now I have to carry for the rest of my life.”
In prior abortion decisions, the Supreme Court has said that state lawmakers have the power to give preference to a culture of life and enact regulations that may inconvenience women seeking an abortion.
But the high court also has said that states may not enact laws that put substantial obstacles in the way of women seeking an abortion.
What the court must now decide is whether the Texas restrictions are merely an inconvenience or are, instead, a substantial obstacle posing an undue burden to a woman’s right to end her pregnancy before fetal viability.
The case is potentially a landmark because it arises at a time when conservative lawmakers in a growing number of states are passing the same or similar regulations, making it harder for women to access abortion services.
Since 2010, an unprecedented 288 abortion restrictions have been passed at the state level, according to the Guttmacher Institute, a nonprofit group that tracks reproductive health issues.
“This is a watershed moment in the battle for reproductive rights,” says Nancy Northup, president of the New York-based Center for Reproductive Rights.
A Supreme Court decision will either rein in those laws or give a green light to even more restrictive antiabortion statutes, analysts say.
How many clinics are enough?
Specifically at issue in the Texas case is a 2013 law – House Bill 2 – that requires doctors at abortion clinics to receive admitting privileges at a local hospital. It also requires that abortion clinics comply with the standards of an ambulatory surgical center (ASC).
Some hospitals in Texas refuse to deal with doctors who perform abortions. Other hospitals impose requirements incompatible with the practice of an abortion clinic doctor.
Meanwhile, upgrades to meet ASC requirements could cost from $1.7 million to $2.6 million.
State lawmakers say the new requirements are aimed at improving the quality of health care for Texas women.
Critics charge that the measures are a pretext to prevent future abortions by driving clinics out of business. They add that abortions performed in non-ASC clinics are exceedingly safe, and substantially safer than childbirth. There is no medical necessity justifying the expensive upgrades and admitting privileges, they say.
There are currently 19 clinics in the state, down from more than 40 before the law. Should the high court uphold HB2, the number of clinics remaining in Texas would fall to 10.
Texas is the second-largest state in the US, both in size and population. The most populous state, California, has 160; the fourth-most populous, New York, has 94, according to the Guttmacher Institute.
With so many clinics now closed in Texas, wait times at the remaining clinics have grown. In some areas it can take as long as three weeks during certain periods to get an appointment, abortion providers say.
In addition, all of the remaining clinics would be located in urban areas. That would require women living in rural parts of the state to undertake long trips to reach a clinic.
“You are talking about burden on top of burden on top of burden,” says Yvonne Gutierrez, executive director of Planned Parenthood Texas Votes, a political action fund.
“When you add all these burdens together, especially with the miles you have to travel, child care you have to secure, days off work you likely cannot take, this is all an undue burden,” she says.
In defending the state law, Texas Solicitor General Scott Keller argues that the Texas legislature passed HB2 in response to the abuses of Philadelphia abortion provider Kermit Gosnell. The former physician is serving life in prison for killing an adult patient and three infants born alive in his abortion clinic.
In his brief to the high court, Mr. Keller says the new Texas law boosts medical standards and thus protects women’s health. It is not a substantial obstacle to abortion access, he says.
“At least one abortion clinic will remain open in every metropolitan area in Texas that currently has one,” Keller writes in his brief. “Over 90 percent of Texas women of reproductive age live within 150 miles of an operational clinic.”
Complaints about long distances to abortion clinics are overblown, says Abby Johnson, a former abortion clinic director who is now an antiabortion activist.
“If I live in a rural community and I get cancer, there is probably not going to be an oncology clinic in my town. I am going to have to drive to a larger city,” she says.
Ms. Johnson says that in addition to protecting the health of women, HB2 also protects unborn babies. “We are seeing a dramatic increase in lives being saved ... because of these common sense regulations,” she says.
The issue isn’t just confined to Texas. Admitting privileges requirements have been passed in nine other states. ASC standards have been enacted in six states including Texas.
Researchers in Texas have been working to document the law’s impact on access to abortions.
In one study released in mid-January, the Texas Policy Evaluation Project at the University of Texas interviewed 23 women whose attempts to obtain an abortion were complicated by HB2.
Two of the women were ultimately unable to obtain an abortion. Eight women waited more than a week for an abortion at a different clinic. And two were not seen until after their 12th week of pregnancy, even though they had contacted the clinic in their first trimester.
Both of the women who gave birth rather than having an abortion lived in areas of Texas that lost their only abortion clinic after enforcement of HB2 and did not have the means to travel to a clinic in a distant city.
As some Texas women become desperate, abortion advocates warn that they will likely resort to increasingly risky actions – including self-induced abortion.
Worries about self-induced abortions
Amy Hagstrom Miller, owner of Whole Woman’s Health, the abortion provider that is the lead petitioner in the Supreme Court case, tells the story of a woman who called her clinic in McAllen to schedule an abortion. It was the day after HB2 had taken effect, and the clinic was unable to provide abortions under the new law.
A clinic worker told the woman that she would need to travel 250 miles to a clinic in San Antonio, get initial counseling, and wait 24 hours for the procedure.
Ms. Miller said the woman responded: “I’m a working mother, I have a job, I have two children at home, and I absolutely can’t travel to San Antonio.” The woman added, “But I need this abortion, I can’t afford to have another child.”
Miller recalled the woman’s next words. “She said, ‘If I tell you what is in my medicine cabinet and what is under my sink, can you tell me how to do my own abortion?’ ”
Tina Hester, executive director of the nonprofit group Jane’s Due Process, said her group is hearing reports via its telephone hotline of teens trying to self-induce.
“I had one girl tell me that she drank like nine sports drinks in a row because somebody told her that would help her miscarry,” Ms. Hester says.
Sometimes it isn’t just the pregnant individual involved in an attempted home-abortion.
Allan Parker, president of the antiabortion Justice Foundation in San Antonio, says he was contacted in the case of a Laredo teenager whose parents reportedly gave their daughter some form of an abortion-inducing drug against her will.
When he asked the police to intervene, they initially refused, saying it was a family matter, he said. Five or six hours later, he convinced them to go to the house.
“By that time the girl’s will had been broken and she said, ‘I’m just going through with [the abortion]. I don’t want to get my parents in trouble with the law,’ ” Mr. Parker said, quoting the teen.
In one study of the issue, 13 of 779 Texas women surveyed by the Texas Policy Evaluation Project (1.7 percent) admitted that they had attempted to self-induce an abortion.
Methods range from home remedies involving herbs and teas to convincing someone to repeatedly punch the pregnant woman in the abdomen.
The most common method, according to researchers, is use of the drug misoprostol, which can be purchased without a prescription from pharmacies across the border in Mexico. In essence, it causes a drug-induced miscarriage.
The drug is now entering the US from Mexico and is increasingly available through a black market in certain parts of Texas and on the Internet, researchers say.
Miller says restrictive Texas laws do nothing to change the basic fact that 60,000 to 70,000 women each year in Texas will want access to a safe and legal abortion.
“The same amount of people still need abortion services. They just have fewer places to get them,” Miller says.
Texas lawmakers, she says, “have basically left women to fend for themselves.”
Valerie Peterson's story
That’s how Peterson, the Austin mom, felt after confronting the abortion restrictions in Texas.
Peterson was thrilled last July when she discovered she was pregnant. The mother of two teenage daughters was at a point in her life and her career where a new member of the family – a baby boy – was financially possible and greatly desired.
Then in October, her doctor said the baby was not developing properly and would likely result in a miscarriage or a stillbirth. He advised her to end the pregnancy.
She reluctantly agreed, and hoped the procedure could be completed quickly to allow her to begin the grieving process.
But when her doctor referred her to an abortion clinic, she was told it would take up to three weeks for an appointment. “I broke down crying,” she says. “I didn’t know how I was going to make it that long.”
She was also told she would need to make three separate trips to the clinic. The process would include a state-mandated sonogram and a required counseling session to advise her of alternatives to abortion – such as adoption.
“When I found that out there was another breakdown moment,” she says. “I told the [clinic worker] there is no way I could go through such a process. I’ve seen enough pictures of the baby to know that his condition was 100 percent incompatible with life.”
Eventually she gave up on Texas. Desperate and emotionally drained, she flew to Florida, where in the space of two days she was able to follow her doctor’s advice.
Four months later, she is still mourning the loss of her unborn son.
“When you talk about faith you have to lean on that mustard seed faith, that little bitty seed, to keep you going from day to day,” she says, quietly. “That’s what I’m doing right now.”
An unlikely activist
The ironic thing about Peterson’s decision to speak out for abortion rights in the Texas case is that she could just as easily be a spokesperson for the right-to-life movement.
Her first pregnancy came when she was a junior in high school. The then 17-year-old was told she couldn’t go to college because she was pregnant. She was told she’d have to drop out of school and work full time to support her baby. She was told abortion was the answer.
“I confided in a teacher at my high school, who said, ‘Oh no, you can go to college. There are colleges for you. I will help you.’ And she did,” Peterson says. “She helped me find a school where I could take my daughter with me. And, actually, when I graduated she gave me my first job.”
Peterson had another advantage. She said her parents, although disappointed, were supportive of her decision to become a teenage mother.
She worked her way through college, had another child, and still graduated in four years. Peterson went on to graduate school and earned a doctorate degree.
Now, she is a school administrator and mentor who reaches out to teenage girls needing advice. She tells them what she was told by her mentor – you can go to college, you can be successful in life. She tells them to set goals and work hard every day to reach those goals to build a better life for them and their babies.
Peterson is under no illusion that the path she took around the Texas abortion restrictions is an acceptable option for Texas women.
“Fortunately, I had the resources to book a last-minute ticket to Orlando,” she says. The trip involved the cost of airfare, the procedure, a hotel room for several nights, meals, loss of time at work, and a rental car. The total cost: $5,500.
Moreover, the Florida Legislature is now considering a bill like Texas's HB2.
Peterson says there is a disconnect between the Texas laws and the lives that women actually lead. “Most women don’t wake up in the morning and say, ‘Oh, I’ll go have an abortion,’” she says. “There are some circumstances surrounding that decision. I think that we, as women, have the best idea of how to do what’s best for us.”
For Peterson, the issue is more fundamental than sophisticated legal arguments or constitutional line-drawing by the high court.
“I just keep thinking about the emotional part of it. That’s been the hardest part for me,” she says. “It is very cruel and unfair that there would be a system in place to put a woman in a position to make the choice I had to make and not be able to stay in her own state and get the medical care she needed.”
The case is Whole Woman’s Health v. Hellerstedt (15-274). A decision is expected by late June.
Part 1, Sunday: In Texas, a side of abortion debate few ever see
Part 2, Monday: In crusade to end abortion, crisis centers evoke compassion, controversy
Part 3, today: How difficult is it to get an abortion in Texas?