You know that law the U.S. Fifth Circuit Court of Appeals basically upheld earlier this month? The one that requires abortion providers in the state to meet ambulatory surgical center requirements, even for medical abortions that require no surgery? It wins the prize for most needlessly burdensome anti-choice legislation in the country.
That’s no small feat for a nation that saw hundreds of abortion-restrictive bills proposed on the state level in the first three months of 2015 alone. While many of those laws, including new ones for Texas, make uncomfortable, inconvenient and potentially dangerous demands of women seeking abortion, and others flat-out ban certain procedures or procedures done after a certain length of time, the ASC requirement goes after the clinics themselves. As if targeted restrictions were not enough to dissuade women and doctors from the still-legal medical procedure, the unnecessary and prohibitively expensive upgrades clinics would be required to undergo would likely shut down many clinics themselves, effectively making access to any type of abortion, at any period in pregnancy, for almost any type of Texas woman impossible to guarantee.
The official number of reproductive-age women living outside a 150-mile radius of the nearest remaining abortion clinics is about 900,000, or one-sixth of the state’s total population of child-bearing age females. But with only eight to 10 clinics left to serve tens of thousands of patients (in 2013, nearly 64,000 abortions were reported in Texas, with 14,232 in ambulatory surgical centers), it’s not hard to extrapolate, as federal district court Judge Lee Yeakel did last year in declaring the infamous associated legislation, HB 2, unconstitutional, that “…it was the intent of the State to reduce the number of providers licensed to perform abortions, thus creating a substantial obstacle for a woman seeking to access an abortion.” But the Fifth Circuit obviously disagrees, upholding most of HB 2 on appeal earlier this month, and finding that the plaintiffs (in this case many abortion providers and reproductive health groups) did not establish that “the law itself imposes an undue burden on at least a large fraction of women.” Thus ASC requirements will officially go into effect July 1, unless the Supreme Court takes it up on an emergency basis.
This week, University of Texas’ Texas Policy Evaluation Project (TxPEP) released a fact sheet about these ASC requirements, which it right off the bat places them in the category of “targeted regulation of abortion providers” (TRAP) laws. These regulations require abortion clinics to meet the same standards as ambulatory surgical care centers. But, as Amy Hagstrom Miller, operator of one of the five ASC abortion clinics currently operational in the state, told KUT in 2013, “Abortion is a procedure. It’s not really a surgery. There’s not any incisions, there’s not any stitches. The procedure itself takes maybe five or 10 minutes.” Meanwhile, ASCs are meant for more invasive outpatient surgery, like cataract or knee repairs. The facilities need to be able to fit gurneys in the hallways and have strict environmental controls necessary for keeping open surgery hygienic. Those upgrades could cost $750,000 to $3 million, a price outside many clinics’ budgets.
Proponents of abortion clinics as ASCs maintain that even if the abortion procedure itself is not a “surgery” per se, clinics need to meet those requirements in case the abortion takes a turn for the dire and emergency surgery is needed to preserve the mother’s health or life. Yet TexPEP cites a recent study of 6,000 abortions performed in California that found that only .05 percent of those procedures resulted in complications requiring treatment at a hospital. The other .85 percent of procedures that did have complications were able to be treated in the clinic itself. An even larger California study found that .16 percent of nearly 35,000 abortions had complications requiring hospitalization within the first six weeks of the procedure’s completion. TexPEP also found that in a review of 57 studies, there was no evidence that abortions performed in ASCs were any safer than those performed in clinics. Which sort of throws water on the whole “women’s health and safety” argument on which the State has based its case.
While Texas isn’t the only state in the nation to have passed ASC laws — TexPEP notes five other states: Michigan, Missouri, Pennsylvania, Tennessee and Virginia — it is the only state not to allow a waiver that would permit individual clinics from seeking exemptions if it can show a patient’s health and safety would not be endangered. “For a specific kind of requirement, for example the width of the hallway or size of the operating room, a facility that has been providing abortion but doesn’t meet that specific standard can apply for a waiver,” said Dr. Daniel Grossman, a co-investigator with TexPEP, adding that in practice this allows many clinics to stay open in other states.*
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Texas is also one of three states that require medical abortion (a.k.a. the “abortion pill”), which doesn’t even have the presumption of being a “procedure” much less a “surgery,” be administered in an ASC. One of those two other states, Missouri, must allow facilities providing only medical abortions to be exempt from this requirement pursuant to a court order. The same law in the other state, Virginia, is under review.
TexPEP found that based on the most current state data available (about mid-year 2014), ASCs provided less than a quarter of abortions in the state and did not seem to be increasing their patient load dramatically. “It’s very concerning that they won’t be able to ramp up their capacity,” said Grossman. “I think it’s going to be very hard for them to meet demand.”
For Grossman, the biggest takeaways from TexPEP’s latest report are the same issues that might cause SCOTUS to take notice of the appeal reproductive rights advocates are promising to bring. “I think it would be one thing if this law, even if it was extreme, if it was similar to a bunch of laws that have already been enforced in other states, but that’s not the case at all. This is a very extreme outlier,” he said, adding that “it will have such a big impact in terms of service delivery in the state.” For those wondering what type of evidence SCOTUS may consider, the TexPEP summary is a great place to start.
(*Updated 4:30 pm to include comments from Dr. Daniel Grossman)