Texas Is Permanently Shutting Abortion Clinics and the Supreme Court Can’t Do Anything About It

Regardless of what the judicial system does with Texas’s antiabortion law, its on-the-ground effects are unlikely to be reversed.

AUSTIN, TX - JUNE 25: State Sen. Wendy Davis (D-Ft. Worth) (3L) holds up two fingers against the anti-abortion bill SB5, which was up for a vote on the last day of the legislative special session June 25, 2013 in Austin, Texas. A combination of Sen. Davis' 13-hour filibuster and protests by reproductive rights advocates helped to ultimately defeat the controversial abortion legislation at midnight. (Photo by Erich Schlegel/Getty Images)
National Journal
Sophie Novack
May 5, 2014, 1 a.m.

When Texas Gov. Rick Perry signed a sweep­ing anti-abor­tion law in 2013, he did so know­ing the meas­ure faced an un­cer­tain fu­ture. In­deed, the law is already wind­ing its way through the leg­al sys­tem, and if its op­pon­ents have their way, Texas’s re­pro­duct­ive leg­al code will land in the hands of the Su­preme Court.

But such a de­cision is likely a year or years a way, and back in the Lone Star State, the fi­nal ju­di­cial score won’t much mat­ter.

The law has already had tre­mend­ous suc­cess in clos­ing abor­tion clin­ics and re­strict­ing abor­tion ac­cess in Texas. And those suc­cesses ap­pear all but cer­tain to stick — with or without the Su­preme Court’s ap­prov­al of the law that cre­ated them.

There were more than 40 clin­ics that provided abor­tions in Texas in 2011. There are now 20 still open, and after the law’s last steps of im­ple­ment­a­tion are taken in Septem­ber, all but six are ex­pec­ted to close. Most of the closed clin­ics will nev­er re­open, their op­er­at­ors say.

Few busi­nesses could sur­vive a years-long hi­berna­tion, and that’s all the more true for clin­ics, pro­viders say. The ad­ded dif­fi­culty of find­ing qual­i­fied doc­tors, get­ting new li­cences, and nav­ig­at­ing state health de­part­ment reg­u­la­tions is a hurdle high­er than most closed clin­ics are likely to clear — es­pe­cially in a state where a siz­able por­tion of the pub­lic is vehe­mently op­posed to abor­tion and un­will­ing to aid it in any way.

“I can’t find any­one to de­liv­er wa­ter or re­sur­face the park­ing lot, be­cause they’re against abor­tion. I can’t get someone to fix a leak in the roof,” said Amy Hag­strom Miller, CEO of Whole Wo­men’s Health.

In March, the U.S. Court of Ap­peals for the 5th Cir­cuit — which cov­ers Texas, Mis­sis­sippi, and Louisi­ana — up­held the law as con­sti­tu­tion­al. Ad­di­tion­ally, the court de­clined a re­quest to keep two of the law’s pro­vi­sions, both of which were in­stru­ment­al in the clin­ic clos­ures, from tak­ing ef­fect be­fore the leg­al struggle over the law is com­pleted.

The clin­ic clos­ures will in­crease as the law phases in a set of re­quire­ments for abor­tion fa­cil­it­ies. The first set, which in­cluded a re­quire­ment that doc­tors per­form­ing the pro­ced­ure have ad­mit­ting priv­ileges at a hos­pit­al with­in 30 miles, went in­to ef­fect last Novem­ber, prompt­ing many clin­ics to close. The fi­nal set of re­stric­tions — that all abor­tions, in­clud­ing drug-in­duced, be per­formed in am­bu­lat­ory sur­gic­al cen­ters — takes ef­fect in Septem­ber.

Hag­strom Miller’s com­pany had five abor­tion fa­cil­it­ies and one am­bu­lat­ory sur­gic­al cen­ter in Texas in 2013. Two closed as a res­ult of the ad­mit­ting-priv­ilege re­quire­ment in March, and it’s likely that only the sur­gic­al cen­ter in San Ant­o­nio will re­main by Septem­ber.

“The op­pos­i­tion has been ex­tremely stra­tegic,” Hag­strom Miller said. “This law is per­fectly craf­ted.”

Am­bu­lat­ory sur­gic­al cen­ters are fa­cil­it­ies that con­duct out­pa­tient or same-day sur­gic­al pro­ced­ures, and must meet spe­cif­ic re­quire­ments re­gard­ing in­fra­struc­ture, pro­ced­ures, and equip­ment. The cen­ters cost far more to run than abor­tion clin­ics, and would cost sev­er­al mil­lion dol­lars to build from the ground up.

Hag­strom Miller also said it has been im­possible to find hos­pit­als that will agree to give ad­mit­ting priv­ileges to abor­tion pro­viders, or am­bu­lat­ory sur­gic­al cen­ters that will sell or lease their fa­cil­it­ies. Leas­ing or buy­ing the space it­self is ex­pens­ive and dif­fi­cult, and Hag­strom Miller cur­rently has mort­gages on three build­ings, which she will have to sell. She pur­chased those un­der a dif­fer­ent name, and did con­struc­tion without as­so­ci­at­ing them with Whole Wo­man’s Health out of con­cern that she wouldn’t get per­mit­ting or might at­tract protests.

The an­ti­abor­tion co­ali­tion that backs the law sees all of this as sound pub­lic policy, ar­guing that the law’s re­stric­tions were put in place to pro­tect wo­men seek­ing med­ic­al care, and if the cen­ters can’t meet them, then they should be closed and stay closed.

“If the state is passing reg­u­la­tions that are sim­il­ar or equi­val­ent to those that all oth­er med­ic­al fa­cil­it­ies provide, and some [clin­ics] close be­cause they’re not meet­ing stand­ards that oth­er med­ic­al fa­cil­it­ies have to meet, I don’t see a prob­lem with that,” said Dan Mc­Conch­ie, vice pres­id­ent for gov­ern­ment af­fairs at Amer­ic­ans United for Life, an ad­vocacy group that worked on parts of the Texas le­gis­la­tion.

The six re­main­ing abor­tion clin­ics come Septem­ber will be clustered in ma­jor cit­ies, which op­pon­ents of the law ar­gue un­fairly dis­ad­vant­ages wo­men in rur­al areas — par­tic­u­larly the Rio Grande Val­ley — who tend to be poorer and less able to travel long dis­tances for an abor­tion. Those clin­ics that re­main will be serving more wo­men with few­er doc­tors, lead­ing to longer wait times and delayed pro­ced­ures, the op­pon­ents say.

The leg­al struggle over the law con­tin­ues, but in Texas, the law’s chal­lengers are look­ing bey­ond their state’s bor­ders. Fol­low­ing a broad Re­pub­lic­an con­quest of state­houses in 2010, a wave of state-level an­ti­abor­tion laws have been passed — in­clud­ing in states whose cir­cuit courts abor­tion rights groups hope will be more sym­path­et­ic to their ar­gu­ments.

As chal­lenges to those laws work their way up the leg­al sys­tem, op­pon­ents of the Texas law are hop­ing for a cir­cuit-court rul­ing that is in­com­pat­ible with the 5th Cir­cuit ap­peals de­cision. Such a con­tra­dic­tion would open the pos­sib­il­ity of the en­tire is­sue be­ing el­ev­ated to the Su­preme Court, where — de­pend­ing on the scope of the de­cision — Texas’s law could either be up­held or struck down.

But the U.S. ju­di­cial sys­tem is a de­lib­er­at­ive one, and with the re­quest for a stay denied, the Texas law is un­likely to be voided any­time soon.

“[A de­cision] is a ways away,” said Jen­nifer Dalven, dir­ect­or of the Re­pro­duct­ive Free­dom Pro­ject at the Amer­ic­an Civil Liber­ties Uni­on, which was part of the suit filed against the Texas le­gis­la­tion. “I dont think it would be next year; more likely in the year after that.”

What We're Following See More »
GOP Budget Chiefs Won’t Invite Administration to Testify
2 days ago

The administration will release its 2017 budget blueprint tomorrow, but the House and Senate budget committees won’t be inviting anyone from the White House to come talk about it. “The chairmen of the House and Senate Budget committees released a joint statement saying it simply wasn’t worth their time” to hear from OMB Director Shaun Donovan. Accusing the members of pulling a “Donald Trump,” White House spokesman Josh Earnest said the move “raises some questions about how confident they are about the kinds of arguments that they could make.”

Snowstorm Could Impact Primary Turnout
1 days ago

A snowstorm is supposed to hit New Hampshire today and “linger into Primary Tuesday.” GOP consultant Ron Kaufman said lower turnout should help candidates who have spent a lot of time in the state tending to retail politicking. Donald Trump “has acknowledged that he needs to step up his ground-game, and a heavy snowfall could depress his figures relative to more organized candidates.”

A Shake-Up in the Offing in the Clinton Camp?
1 days ago

Anticipating a primary loss in New Hampshire on Tuesday, Hillary and Bill Clinton “are considering staffing and strategy changes” to their campaign. Sources tell Politico that the Clintons are likely to layer over top officials with experienced talent, rather than fire their staff en masse.

Trump Is Still Ahead, but Who’s in Second?
1 days ago

We may not be talking about New Hampshire primary polls for another three-and-a-half years, so here goes:

  • American Research Group’s tracking poll has Donald Trump in the lead with 30% support, followed by Marco Rubio and John Kasich tying for second place at 16%. On the Democratic side, Bernie Sanders leads Hillary Clinton 53%-41%.
  • The 7 News/UMass Lowell tracking poll has Trump way out front with 34%, followed by Rubio and Ted Cruz with 13% apiece. Among the Democrats, Sanders is in front 56%-40%.
  • A Gravis poll puts Trump ahead with 28%, followed by Kasich with 17% and Rubio with 15%.
CNN Calls the Primary for Sanders and Trump
14 hours ago

Well that didn’t take long. CNN has already declared Bernie Sanders and Donald Trump the winners of the New Hampshire primary, leaving the rest of the candidates to fight for the scraps. Five minutes later, the Associated Press echoed CNN’s call.