Analysis Law and Policy

In Fight Over Abortion Access in Texas, a New Focus Emerges

Jessica Mason Pieklo

The future of the fight over abortion rights will not be determined by viability or fetal rights. It will be determined by brick-and-mortar clinic access.

Just one day before provisions of a new Texas anti-abortion law were set to take effect and close at least 24 clinics in the state, a federal judge blocked a portion of the law and brought into focus the emerging front-line battle over abortion rights in the United States.

HB 2, the omnibus anti-abortion bill that Republicans rammed through after three special sessions this summer, contains a number of restrictions on abortion rights and access, including hospital admitting requirements for abortion practitioners, a Food and Drug Administration (FDA) protocol requirement for medication abortions, and a ban on abortions after 20 weeks. Shortly after its passage, some provisions of the law were challenged in a trial that lasted nearly three days and was full of medical testimony as to the effect of the law. Specifically, Planned Parenthood and a number of plaintiffs challenged the law’s hospital admitting privileges requirement and the provision that medication abortions follow FDA protocol. While both of these aspects of the law regulate abortion providers and their medical practices, and both were buttressed by the state with claims of concern for pregnant women and valuing fetal life, only one—the state’s admitting privilege requirement—was found unconstitutional. And the difference came down to brick-and-mortar clinic access.

Why the focus on clinic access? Judge Yeakel’s opinion offers some insight. In part, the answer lies with the federal court’s reluctance to push back against overtly misogynistic lawmaking as well as the success of a multi-pronged attack by anti-choice activists on the foundations of Roe v. Wade. And the result is a jurisprudential slide away from the fundamental privacy rights of women to the power of the state to police reproduction.

“Today there is no issue that divides the people of this country more than abortion,” the court wrote. “It is the most divisive issue to face this country since slavery.” This opening salvo sets the stage for explaining, and excusing, just how much burden is enough to bear for those who need abortion access in Texas. “Sincere and caring persons of good will are found on both sides of the issue, but neither side with ever change the position of the other,” the court continued. “Legislatures and courts will continue to be confounded by the issue for the foreseeable future. No ruling of this court will sway the opinion regarding abortion held by anyone.”

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

From there, the court explains its reasoning as to why the admitting privileges portion of the law should fall, and why the regulations on medication abortion should stand. As to the admitting privileges provision, the court concludes that there is no rational relationship between improved patient outcomes and hospital admitting privileges, and even if there were the admitting privileges component would still fail as an undue burden, because the clinics would close. The court makes brief reference to the difficulties clinics have in recruiting practitioners thanks to the chilling effect of anti-choice activities on the practice of medicine. Finally, the court notes that federal courts in Alabama, Mississippi, and Wisconsin have come to similar conclusions in blocking admitting requirements where the effect of the law is to close facilities that serve pregnant patients. The analysis here is sober and straightforward: With no link between improved patient outcomes and ample evidence the Texas legislature had no rational explanation for including the requirement, other than to substantially burden abortion access and close clinics, that portion of the law is unconstitutional.

But, as to the issue of regulating medication abortion, the analysis shifts, and in that shift illuminates one of the deeply divisive points of abortion rights law: Federal courts have supported, and continue to support, the anti-choice belief that shame and judgment are part of the burden a person should bear in accessing abortion services. The opinion makes this clear by detailing the fact that there is no real dispute as to the safety of off-label use of abortion-inducing medication. Indeed, as the court rightly notes, off-label use is so safe it’s become standard practice.

Since FDA protocol released in 2000 abortion-performing physicians have since developed a medication-abortion protocol using mifepristone that, although varying significantly from the FDA protocol, has become the de facto standard of care in Texas. This court finds that, when performed in accordance with the off-label protocol, medication abortion is a safe and effective procedure, as is medication abortion with the FDA protocol. The variable risk of a significant adverse event is so low it becomes hard to quantify.

In fact, the court notes, there’s a significant absence of evidence as to the safety of FDA protocol, which means that while lawmakers may insist patient safety is driving this restriction, that’s a claim that can’t be taken at face value. “Reliable data on medication abortions following solely the FDA protocol is sparse, as physicians overwhelmingly moved away from the FDA protocol soon after it was approved,” noted the court.

So if the real issue is not patient safety, what is it? It’s about placing burden and shame. The court continues:

Moreover, the court finds that the FDA protocol is assuredly more imposing and unpleasant for the woman, requiring at least one additional visit to a clinic and allowing less control over the timing and convenience of the medically induced miscarriage. It also requires more of the physician’s time, as the physician must administer the second dose. … Taken as a whole, the FDA protocol is clearly more burdensome to a woman than the off-label protocol.

But even with those added expenses and inconveniences, the court concludes there is no undue burden because they fall under the “incidental effects” of the law. And those “incidental effects,” combined with the availability of medication abortions following FDA protocols, means that even though access to care is critically curtailed under this restriction, the court will let it stand. “Most importantly,” the court wrote, “when ‘reasonable alternative procedure[s]’ exist, the government’s broad discretion to regulate medical practice allows regulation even it it means subjugating patient-preference. Individuals do not have a constitutional right to a preferred medical option, so long as a safe, medically accepted, and actual alternative exists.”

In almost the same breath, the court acknowledged that the FDA protocols do not reflect the standard of care in Texas, subjecting patients to additional judgment, expenses, and burdens in accessing care, while making it more burdensome for doctors to provide that care. But other protocols, like coercive mandatory ultrasounds complete with scripts for doctors to follow, inform the court’s thinking here and appear to be fully ingrained in our jurisprudence.

That the decision to uphold the FDA protocol requirement is more about lawmaker judgments in making medication abortion an unworkable choice is most clearly reflected in the “exception” the court crafts for allowing off-label medication abortions in the cases of medical emergencies. Because there are some instances when a surgical abortion may not be medically sound, the court ruled the “medication-abortion provisions may not be enforced against any physician who determines, in appropriate medical judgment, to perform a medication-abortion using the off-label protocol for the preservation of the life or health of the mother.”

Outlawing medicine, it appears, is returning to Texas.

“The court may not and will not decide whether there should be abortions in Texas,” it concluded before launching its analysis of the challenged provisions. But, in so many ways, that’s exactly what the court has done. Of course there should be abortions in Texas, just like there should be hysterectomies or comprehensive pre- and post-natal care—comprehensive reproductive health care should be available to those who need it. But the court’s introductory remarks are clear: There’s a moral judgment at play in HB 2, it’s just that the court won’t be the one to say that moral judgment is dangerous, wrong, and misguided.

If the lower court’s ruling settles anything, it is that the real fight over the legacy of Roe v. Wade is not going to be about fetal viability; it will be about clinic access. Among the provisions not challenged in HB 2 is the state’s ban on abortions after 20 weeks—a pre-viability ban that should, if the precedent stands, be unconstitutional out of the gates. But at least 13 states already have 20-week bans on the books, which suggests pre-viability bans in some form are here to stay. And, as attorneys for Arizona noted in their petition to the Roberts Court to revisit viability as the constitutional standard for judging most abortion restrictions, this is a standard “on a collision course with itself,” according to former Supreme Court Justice Sandra Day O’Connor, because it fails to respect “that the State’s interest in protecting potential human life exists throughout the pregnancy.” That means that the legal battle over HB 2, the lower court’s ruling, and predicted appeal illustrate that the success or failure of efforts to undermine Roe by challenging the viability standard is not the true test of the strength of abortion rights in this country. The true test of the strength, and relevance, of Roe is the success or failure of efforts to cut off access. And Texas is proving to be the ultimate test case.

News Abortion

Parental Notification Law Struck Down in Alaska

Michelle D. Anderson

"The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions," said Janet Crepps, senior counsel at the Center for Reproductive Rights. "This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm."

The Alaska Supreme Court has struck down a state law requiring physicians to give the parents, guardians, or custodians of teenage minors a two-day notice before performing an abortion.

The court ruled that the parental notification law, which applies to teenagers younger than 18, violated the Alaska Constitution’s equal protection guarantee and could not be enforced.

The ruling stems from an Anchorage Superior Court decision that involved the case of Planned Parenthood of the Great Northwest and the Hawaiian Islands and physicians Dr. Jan Whitefield and Dr. Susan Lemagie against the State of Alaska and the notification law’s sponsors.

In the lower court ruling, a judge denied Planned Parenthood’s requested preliminary injunction against the law as a whole and went on to uphold the majority of the notification law.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Planned Parenthood and the physicians had appealed that superior court ruling and asked for a reversal on both equal protection and privacy grounds.

Meanwhile, the State of Alaska and the notification law’s sponsors appealed the court’s decision to strike some of its provisions and the court’s ruling.

The notification law came about after an initiative approved by voters in August 2010. The law applied to “unemancipated, unmarried minors” younger than 18 seeking to terminate a pregnancy and only makes exceptions in documented cases of abuse and medical emergencies, such as one in which the pregnant person’s life is in danger.

Justice Daniel E. Winfree wrote in the majority opinion that the anti-choice law created “considerable tension between a minor’s fundamental privacy right to reproductive choice and how the State may advance its compelling interests.”

He said the law was discriminatory and that it could unjustifiably burden “the fundamental privacy rights only of minors seeking pregnancy termination, rather than [equally] to all pregnant minors.”

Chief Justice Craig Stowers dissented, arguing that the majority’s opinion “unjustifiably” departed from the Alaska Supreme Court’s prior approval of parental notification.

Stowers said the opinion “misapplies our equal protection case law by comparing two groups that are not similarly situated, and fails to consider how other states have handled similar questions related to parental notification laws.”

Center for Reproductive Rights (CRR) officials praised the court’s ruling, saying that Alaska’s vulnerable teenagers will now be relieved of additional burdensome hurdles in accessing abortion care. Attorneys from the American Civil Liberties Union, CRR, and Planned Parenthood represented plaintiffs in the case.

Janet Crepps, senior counsel at CRR, said in a statement that the “decision provides important protection to the safety and well-being of young women who need to end a pregnancy.”

“The reality is that some young women face desperate circumstances and potentially violent consequences if they are forced to bring their parents into their reproductive health decisions. This law would have deprived these vulnerable women of their constitutional rights and put them at risk of serious harm,” Crepps said.

CRR officials also noted that most young women seeking abortion care involve a parent, but some do not because they live an abusive or unsafe home.

The American Medical Association, the American College of Obstetricians and Gynecologists, and the Society for Adolescent Medicine have said minors’ access to confidential reproductive health services should be protected, according to CRR.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “the provisions of the law in question were not about keeping anybody safe”:

As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”