Abortion war in Texas tests high court standard
WASHINGTON — The trips Linda Prine makes regularly from New York to Las Cruces, N.M., are quicker and less stressful than the ones some of her patients endure in order to get an abortion.
Many drive three to five hours from the Texas Panhandle, where all the abortion clinics have closed. A few drive eight to 10 hours from Dallas or Fort Worth, where waits of several weeks are common.
The distances and durations are due to a state law that opponents say has forced more than half the state's abortion clinics to close and now threatens all but 10 of those remaining — threatening even longer drives and waiting lists.
"They are almost traumatized by the experience they’ve had to go through," says Prine, founder of the Reproductive Health Access Project. “Most of my patients are crying.”
In Texas, going the distance for an abortion
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On Wednesday, a suddenly short-staffed Supreme Court will hear the most significant challenge in a generation to the ever-rising number of state abortion restrictions. Clinics in Texas, a dwindling breed under the 2013 law, are fighting requirements that doctors must have admitting privileges at local hospitals and clinics must meet the same operating standards as surgical centers.
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Texas legislators and the nation's leading abortion opponents say those rules are necessary to protect women's health, even if they result in leaving just 10 clinics in a state with 5.4 million women of reproductive age. The nation's leading abortion rights groups and major medical associations say the rules don't serve public health but represent a roadblock for women seeking abortions — the very type of burden the high court's landmark 1992 ruling in Planned Parenthood v. Casey was intended to prohibit.
The death on Feb. 13 of Justice Antonin Scalia changed the calculus on both sides somewhat. It makes a sweeping victory for opponents of abortion virtually impossible, given the likely position of the court's four liberal justices. A 4-4 vote would leave the law in place in Texas, but it would set no national precedent, and court battles would continue from Alabama to Wisconsin.
"If the court splits, then devastating for Texas, but the issue will remain for another day," says Nancy Northup, president of the Center for Reproductive Rights, which is challenging the law on behalf of Whole Woman's Health and other abortion providers.
What Scalia's death doesn't change is the hope among abortion rights advocates that Justice Anthony Kennedy will provide a crucial fifth vote against the abortion restrictions as exactly the type of undue burden he ruled out of bounds in Casey. That, however, may be wishful thinking. Kennedy has done that just once before, ruling that women did not need to inform their spouses before getting an abortion. He has upheld all other restrictions that have come before the court.
Both sides are expected to hold demonstrations Wednesday morning outside the court, as was the case in January 2014 when it considered a Massachusetts law establishing buffer zones within 35 feet of abortion clinics. The court ruled unanimously that the law violated protesters' free speech rights.
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The last case involving the medical procedure itself was decided in 2007, when the justices upheld a federal law banning late-term — so-called "partial birth" — abortions. Kennedy wrote the 5-4 opinion, famously asserting that "some women come to regret their choice to abort the infant life they once created and sustained."
About 80 briefs have been submitted to the court, with those opposed to the law slightly outnumbering those in favor. Several of the briefs are notable for relating the personal stories of women who have had abortions, from successful lawyers and professionals defending the decisions they made early in life to others who say they came to regret the procedures.
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In Texas, the debate has focused more on day-to-day hardships endured by women — many of them poor or Hispanic — who face difficulties obtaining abortions because of widespread clinic closures.
If the law is allowed to stand, the 10 remaining clinics will be centered in four metropolitan areas — Houston, Dallas-Fort Worth, Austin and San Antonio. One additional clinic near the Mexican border in McAllen will be allowed to stay open, but with new restrictions that could leave only one 75-year-old retired doctor able to perform abortions. The only clinics in El Paso would close, sending more women across the border into New Mexico.
Nan Kirkpatrick, executive director of Texas Equal Access Fund, which provides small grants to help low-income women afford abortions, says many cannot pay for gas, hotel rooms and child care or take time off from work to travel hundreds of miles. "It's already pretty bad, and it's just going to get worse," she says.
Those who do make it from rural parts of the state to one of the population centers often run into long waits. The longest — 15 to 20 days — are in the Dallas-Fort Worth area, according to data compiled monthly by the Texas Policy Evaluation Project. Southwestern Women's Surgery Center in Dallas went to a six-day schedule, but women wait two to four weeks for their procedures.
"We're seeing double the amount of patients that we ever had to see," says Tenesha Duncan, the clinic's administrator. Those forced to wait often move into their second trimester, which she calls “further along than people want to be."
Whether the Texas law is completely to blame for the clinic shutdowns is a matter of debate. One brief filed by anti-abortion faculty members from 80 colleges and universities contends the law's impact has been greatly exaggerated.
"Many of the plaintiffs’ claims are demonstrably false; others are unsupported by any evidence in the record," the brief, submitted by former Texas solicitor general Jonathan Mitchell, says.