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
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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.”

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