Texans are being asked to return to their Capitol building on Sunday in a continued show of solidarity for reproductive rights, after a "people's filibuster" took a committee hearing over the ten-hour mark in the wee hours of the morning Friday.
Old people, we are told, resent a generation that doesn’t appreciate their hard work on reproductive rights.
Men, we are told, can’t be bothered with whether women have access to abortion.
Texas, we are told, is a hopelessly red state full of bumpkins and rednecks that should be allowed to secede so the United States can cut its losses.
But Thursday, Texans of all stripes, from teenagers to septuagenarians who remember what the reproductive rights landscape was like before Roe v. Wade, signed up to testify against an omnibus abortion bill that would ban abortion after 20 weeks, shutter all but five abortion clinics in the state, require physicians who provide abortions to have hospital admitting privileges, and make legal medical abortion all but impossible to acquire and prescribe.
They drove in: six hours from the Rio Grande Valley, three hours from Houston and Dallas, an hour and a half from San Antonio. Many were abortion providers and OB-GYNs. Many were lawyers. Many were college students. Many were parents. Seven hundred people in all reportedly signed up to testify, according to a statement made just before midnight by one of the committee members.
But as the night wore on into morning, State Affairs Chair Rep. Byron Cook (R-Corsicana) grew tired of all the democracy. He adjourned the meeting just before 4:00 a.m. and left the legislation pending. Three women, representing a total of nine more minutes of remaining testimony, watched without recourse as Cook rose from his chair and exited through the hearing room’s back door.
The vast majority of those who bore witness at the nearly 11-hour hearing were white, city-dwelling, English-speaking, cisgender women, and it is vital to remember that white, city-dwelling, English-speaking, cisgender women are not the Texans who will be most affected by this legislation.
The Texans who will be most likely to be denied abortions, who would travel over the border to Mexican pharmacies, who would have no choice but to carry unwanted pregnancies to term because they could not travel to one of four remaining Texas cities with an abortion provider, are those who are already unable to take time off work, arrange child care, and drive hundreds of miles to sit in a cold, sterile room—either for an abortion or for three minutes of air time in front of a Capitol committee.
When I remember Thursday night—and I will remember the citizens’ filibuster for years to come, because it fills me with pride—I will particularly remember the testimony of a woman named Lesli Simms, who in the wee hours of the morning chastised Rep. Cook, who just after midnight first tried to silence hundreds of people who had come to the Capitol to speak by ending public testimony. In his opinion, criticisms of HB 60 were getting a little too “repetitive.”
“My presence isn’t repetitive,” said Simms, gesturing to the Texans lined up behind her anxious to get a few words in. “Their presence isn’t repetitive. I’m a Black woman, and I’m coming back.”
As for when to come back, organizers of the citizens’ filibuster are asking Texans to return to the Capitol on Sunday, when the Texas House of Representatives will take up this legislation on the floor. In the meantime, the State Affairs Committee is meeting Friday afternoon in a closed hearing—without public testimony—to officially vote on Thursday night’s proposed legislation. It will almost certainly be recommended favorably to the house at large. [Per the update above, it was.]
The “A Woman’s Right to Know” pamphlet, published by the state, has not been updated since 2003. The pamphlet includes the medically dubious link between abortion care and breast cancer, among other medical inaccuracies common in anti-choice literature.
Reproductive rights advocates are calling for changes to information forced on pregnant people seeking abortion services, thanks to a Texas mandate.
Texas lawmakers passed the Texas Woman’s Right to Know Act in 2003, which requires abortion providers to inform pregnant people of the medical risks associated with abortion care, as well as the probable gestational age of the fetus and the medical risks of carrying a pregnancy to term.
The “A Woman’s Right to Know” pamphlet, published by the state, has not been updated or revised since it was first made public in 2003. The pamphlet includes the medically dubious link between abortion care and breast cancer, among other medical inaccuracies common in anti-choice literature.
The Texas Department of State Health Services (DSHS) in June published a revised draft version of the pamphlet. The draft version of “A Woman’s Right to Know” was published online, and proposed revisions are available for public comment until Friday.
Like This Story?
Your $10 tax-deductible contribution helps support our research, reporting, and analysis.
John Seago, spokesperson for the anti-choice Texas Right to Life, told KUT that the pamphlet was created so pregnant people have accurate information before they consent to receiving abortion care.
“This is a booklet that’s not going to be put in the hands of experts, it’s not going to be put in the hands of OB-GYNs or scientists–it’s going to be put in the hands of women who will range in education, will range in background, and we want this booklet to be user-friendly enough that anyone can read this booklet and be informed,” he said.
Reproductive rights advocates charge that the information in the pamphlet presented an anti-abortion bias and includes factually incorrect information.
State lawmakers and activists held a press conference Wednesday outside the DSHS offices in Austin and delivered nearly 5,000 Texans’ comments to the agency.
Kryston Skinner, an organizer with the Texas Equal Access Fund, spoke during the press conference about her experience having an abortion in Texas, and how the state-mandated pamphlet made her feel stigmatized.
Skinner told Rewire that the pamphlet “causes fear” in pregnant people who are unaware that the pamphlet is rife with misinformation. “It’s obviously a deterrent,” Skinner said. “There is no other reason for the state to force a medical professional to provide misinformation to their patients.”
State Rep. Donna Howard (D-Austin) said in a statement that the pamphlet is the “latest shameful example” of Texas lawmakers playing politics with reproductive health care. “As a former registered nurse, I find it outrageous that the state requires health professionals to provide misleading and coercive information to patients,” Howard said.
Howard, vice chair of the Texas House Women’s Health Caucus, vowed to propose legislation that would rid the booklet of its many inaccuracies if DSHS fails to take the thousands of comments into account, according to the Austin Chronicle.
Lawmakers in several states have passed laws mandating that states provide written materials to pregnant people seeking abortion services. These so-called informed consent laws often require that the material include inaccurate or misleading information pushed by legislators and organizations that oppose legal abortion care.
The American Congress of Obstetricians and Gynecologists (ACOG) sent a letter to DSHS that said the organization has “significant concerns with some of the material and how it is presented.”
Among the most controversial statements made in the pamphlet is the claim that “doctors and scientists are actively studying the complex biology of breast cancer to understand whether abortion may affect the risk of breast cancer.”
Texas Right to Life said in a statement that the organization wants the DSHS include “stronger language” about the supposed correlation between abortion and breast cancer. The organization wants the pamphlet to explicitly cite “the numerous studies that indicate undergoing an elective abortion contributes to the incidence of breast cancer in women.”
Rep. Sarah Davis (R-West University Place) said in a statement that the state should provide the “most accurate science available” to pregnant people seeking an abortion. “As a breast cancer survivor, I am disappointed that DSHS has published revisions to the ‘A Woman’s Right to Know’ booklet that remain scientifically and medically inaccurate,” Davis said.
Monday's decision striking two provisions of Texas' HB 2 doesn't just threaten similar laws nationwide; it could be the basis for finally stemming the onslaught of anti-science abortion restrictions in the states.
Read more of our coverage of Whole Woman’s Health v. Hellerstedt here.
Abortion rights advocates have insisted, since the beginning of the fight over targeted regulation of abortion providers (TRAP) laws, that despite anti-choice lawmakers’ claims to the contrary, the evidence proved these restrictions harmed rather than advanced patient safety. On Monday, the U.S. Supreme Court finally listened.
Monday’s decision in Whole Woman’s Health v. Hellerstedt—which struck as unconstitutional Texas’ requirements in HB 2 that all doctors performing abortions in the state have admitting privileges at a nearby hospital and that all clinics meet the same requirements as stand-alone surgical centers—is not just a win for advocates and patients in Texas. It produced an opinion that has the potential to turn back the seemingly endless wave of restrictions from the states and to reinforce abortion as a fundamental right.
First things first. Whole Woman’s Health is a data-heavy opinion, and there is probably no better justice to pen one than Justice Stephen Breyer. The man seems to live for statistical analysis. He may offer up rambling hypotheticals during oral arguments, but his written opinions are more often than not grounded in data.
Like This Story?
Your $10 tax-deductible contribution helps support our research, reporting, and analysis.
The reason this matters is that both the conservatives on the Roberts Court and their supporters in the Fifth Circuit have tried their damnedest for years to sidestep piles and piles of facts. Such as the fact that in 2013, the year Gov. Rick Perry (R) signed HB 2 into law, the number of Texans who traveled out of state to have an abortion increased to 681, a jump Rewirereported as amounting to more than the previous four years combined. Conservatives also tried to explain away the fact that prior to the implementation of HB 2, there were 41 facilities providing abortion services in the state; by the end of 2013, 16 of those facilities had either stopped providing abortion services or closed altogether. And they tried to manipulate the legal standard governing how courts review abortion restrictions to do so. Justice Breyer, his liberal colleagues, and even noted abortion rights skeptic Justice Anthony Kennedy finally put a stop to all that nonsense. Here’s how.
When upholding the Texas abortion restrictions, the Fifth Circuit relied heavily on a line of reasoning in Gonzales v. Carhart, the 2007 Supreme Court case that upheld the so-called federal partial-birth abortion act. As part of that decision, the Court ruled that when there is a question of scientific or medical uncertainty, legislators could essentially pick a side they agree with and draft laws accordingly. We’ve all witnessed what happened next. Anti-choice lawmakers in the states went bananas concocting abortion restrictions with not much more than a hand-wave that those restrictions were grounded in science and designed to advance patient safety. The Fifth Circuit Court of Appeals took that ruling one step further in the fight over HB 2 and ruled that once legislators announce their justification for an abortion restriction, there was little, if anything, the federal courts could do to second-guess that reasoning.
Not so, the Court ruled Monday. “The statement [by the Fifth Circuit] that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law,” Breyer wrote. “Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings” holding that the “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”
Justice Breyer put that last part in italics just to drive home that yes, when it comes to the fundamental right to abortion, the federal courts are not simply rubber stamps for state lawmakers.
With that point made clear, Breyer then laid out—basically in a listicle—the number of places the Fifth Circuit got its review of the data wrong as to the effect of admitting privileges on the availability of reproductive care. It’s an impressive list that goes on for pages and includes “[a] collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications including those complications requiring hospital admission—was less than one-quarter of 1%” as “[e]xpert testimony to the effect that complications rarely require hospital admission, much less immediate transfer to a hospital from an outpatient clinic.”
There’s more, but Breyer summed it up nicely: “In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding.”
Moving on to those claims made by attorneys for the State of Texas that the ACS provisions in particular advanced patient safety, Justice Breyer dropped some more data bombs. “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home,” Breyer wrote.
Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. The mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion. Medical treatment after an incomplete miscarriage often involves a procedure identical to that involved in a nonmedical abortion, but it often takes place outside a hospital or surgical center. And Texas partly or wholly grandfathers (or waives in whole or in part the surgical-center requirement for) about two-thirds of the facilities to which the surgical-center standards apply. But it neither grandfathers nor provides waivers for any of the facilities that perform abortions.
How good does it feel to hear the Supreme Court call shenanigans on lawmakers who insist the best way to protect the health and safety of patients is by making comprehensive reproductive health care impossible to access? Probably as good as it feels to hear the Supreme Court shut down in the same opinion all the nonsense from abortion rights opponents claiming rogue provider Dr. Kermit Gosnell is proof positive that all abortion providers are dangerous predators that require the kind of regulation advanced in HB 2. “Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior,” Breyer wrote. “Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years.”
Breyer went on: “Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually. The record contains nothing to suggest that H. B. 2 would be more effective than pre-existing Texas law at deterring wrongdoers like Gosnell from criminal behavior.”
Immediately, Monday’s decision means that similar TRAP restrictions in other Fifth Circuit states like Louisiana are likely to be found unconstitutional. In states like Missouri or Kansas, it’s too soon to tell how the decision will affect those kinds of laws, but advocates are no doubt looking into that issue right now given the opening Monday’s decision creates.
And importantly, it makes it much more difficult for anti-abortion lawmakers to advance additional restrictions like “dismemberment bans” without being able to scientifically prove those laws actually advance patient care. These are laws that would effectively criminalize surgical abortions pre-viabilty, and are anti-abortion lawmakers’ latest attempts to cut off access to abortion while claiming to advance patient safety.
This is why Whole Woman’s Health v. Hellerstedt has the potential to reach far beyond TRAP laws in the fight for comprehensive reproductive health care. Finally, we’ve got a Supreme Court decision that demands facts over rhetoric and data over belief, and doesn’t fall into the “difficult decision that people disagree on” false equivalence. Monday’s decision is a clear, data-driven defense of the importance of access to comprehensive reproductive health care and an affirmation of abortion as a fundamental right. And that kind of defense has been a long time coming.