Undue Burdens on Abortion

By: Lauren Roemke

The Supreme Court has made it clear that women have a constitutional right to abortion, and that states can not pass laws that create an undue burden for women exercising that right (Planned Parenthood v. Casey). In an attempt to circumvent the constitution, anti-choice politicians in Texas passed a law known as HB2 in 2013. While the stated aim of HB2 was to “protect women’s health,” its restrictions effectively transformed legal abortion into a mere theoretical right in Texas (http://www.reproductiverights.org/case/whole-womans-health-v-hellerstedt). Two of the law’s most notable requirements are that doctors who provide abortion services must obtain admitting privileges at local hospitals and every health care facility offering abortion care must make costly changes to conform with the same building requirements as ambulatory surgical centers (ASC)(http://www.theatlantic.com/health/archive/2016/03/what-happens-when-the-clinics-close/471969/). Supporters of HB2 cite botched abortions and reckless doctors as evidence of the need for these greater requirements. Opponents of the law argue that abortions are already very safe and the tales of botched abortions are an overblown propaganda tactic (http://www.theatlantic.com/health/archive/2016/03/what-happens-when-the-clinics-close/471969/). On March 2nd, the Supreme Court heard oral arguments for the case Whole Woman’s Health v. Hellerdstadt, which challenges the constitutionality of HB2. The Court’s decision will have widespread implications. According to the Guttmacher Institute, states have adopted 288 different abortion restrictions since the 2010 mid-term elections (https://www.guttmacher.org/article/2016/01/2015-year-end-state-policy-roundup?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Guttmacher+%28New+from+the+Guttmacher+Institute%29). At oral argument, Justice Kennedy, considered the crucial vote in the case, said, “The undue burden test is weighed against what the state’s interest is.” The weaker the state’s justification for the law, he suggested, the greater burden it imposes (http://www.nytimes.com/2016/03/03/us/politics/supreme-court-abortion-texas.html?_r=0). As explored below, these new requirements impose an undue burden because they are not only medically unnecessary, but also jeopardize women’s health.

Medically Unnecessary

The new requirements for abortion centers are medically unnecessary because abortion is already one of the safest medical procedures and the new requirements fail to provide additional benefits. Data do not support the state’s briefs that suggest abortion clinics are a lawless frontier in which reckless doctors operate on frightened young women and dump them in hospital ER’s if anything goes wrong (http://www.theatlantic.com/health/archive/2016/03/what-happens-when-the-clinics-close/471969/). Instead, abortion procedures have a mortality rate 14 times lower than that associated with childbirth (the likely outcome if a woman does not obtain an abortion) and less than half the mortality rate of a colonoscopy (a comparable outpatient procedure that is not subject to hospital admitting and building code requirements)( http://www.austinchronicle.com/news/2016-01-29/roes-end/). In effect, the requirements unfairly single out women’s health care providers and serve to drive them out of practice. In addition to being medically unnecessary, the American Medical Association, the American College of Obstetrician & Gynecologists, and the American Academy of Family Physicians wrote, “There is incontrovertible evidence that [the Hb2’s ASC and privileges requirements] are impeding women’s access to quality abortion care” (http://www.austinchronicle.com/news/2016-01-29/roes-end/).

Jeopardizes Women’s Health

HB2’s new requirements jeopardize women’s health by creating longer wait times, which increases the risk of complications from legal abortions and the number of self-induced abortions. About half of Texas’s abortion clinics closed when the admitting privileges requirement went into effect. If the final ASC provision of the law goes into effect, as few as 10 clinics, concentrated in five major metro cities, are expected to serve all 5.4 million reproductive age women in Texas (http://www.reproductiverights.org/case/whole-womans-health-v-hellerstedt). According to research by the Texas Policy Evaluation Project (TXPEP), wait times at clinics increased from five days or fewer to sometimes as much as 20 days after the first requirement went into effect. Planned Parenthood experienced a 660% increase in callers seeking to schedule an abortion appointment when the ASC rule temporarily went into effect in October 2014 (http://www.austinchronicle.com/news/2016-01-29/roes-end/). Due to these delays, women have to get later term abortions, which have a higher risk of complications and are more expensive. Studies have shown that the number of second-trimester abortions have risen in Texas since the law went into effect (http://www.austinchronicle.com/news/2016-01-29/roes-end/). The decreased number of clinics and increased cost of later term abortions are particularly significant given that more than 40% of women that receive abortions are poor and 61% already have at least one child (https://www.guttmacher.org/fact-sheet/induced-abortion-united-states). The strain of increased travel time and the cost of childcare, lodging, and time off work makes access to abortion procedures all the more infeasible. The decline in availability of legal abortions drives many women to perform self-induced abortions. Amy Miller recounts a phone call to her clinic. Temporarily closed, the clinic referred the caller to the nearest licensed facility, 250 miles away in San Antonio. The caller responded, “I cannot take that much time off work and afford childcare to travel to San Antonio... So how about I tell you what I have in my cupboards, under my sink, and in my medicine cabinet, and you tell me what to use and how to use it in order to do my own abortion” (https://www.guttmacher.org/fact-sheet/induced-abortion-united-states). According to studies by TXPEP self-induced abortions are more common in Texas than in other parts of the country (http://www.utexas.edu/cola/txpep/releases/self-induction-release.php). Reproductive health advocates warn that if the Supreme Court fails to block the final part of the law, the number of women who are forced to self-induce will inevitably rise.

Constitutional Rights

Theoretical rights without practical availability are no rights at all. The constitutionally protected right to abortion isn’t meaningful if there isn’t access to clinics. HB2 and similar laws around the country work to eliminate access to safe abortions. In terms of the significance of Whole Woman’s Health, lead attorney Stephanie Toti summarizes, “The justices will determine whether women will continue to have access to safe and legal abortion or whether we’re going to turn the clock back 40 years and force more women to take matters into their own hands” (http://www.austinchronicle.com/news/2016-01-29/roes-end/). Although abortion continues to be a divisive issue, effectively eliminating a previously constitutionally protected right should give all Americans cause for concern.

To Find Out More:

• http://www.trappeddocumentary.com