On Wednesday, the U.S. Supreme Court will hear arguments in a case bound to set a precedent for abortion laws: Whole Woman's Health v. Hellerstedt, which will determine whether a 2013 Texas anti-abortion law that shuttered half the state's abortion clinics is unconstitutional.
The case will center largely on whether the law makes it significantly harder, with little to no payoff in terms of patient safety, for women to get an abortion. And if you're asking the people who actually studied the impact that this law will have — and has already had — on women across Texas, the answer is a resounding yes.
Passed during the 2013 legislative session despite Wendy Davis's famous 11-hour filibuster, the law required that abortion clinics shut down unless they meet certain strict standards. The last of the provisions, which the Supreme Court has blocked from being enforced until it hears this case, would require that abortion clinics be classified as "ambulatory surgical centers." Should SCOTUS let it through, it will wipe out all but about ten clinics across a state home to more than nine million women.
The questions that the justices will be faced with answering will likely be along these lines: Do they think it's a problem to make a woman who lives in the Rio Grande Valley drive to New Mexico or four hours to San Antonio — wherever the nearest abortion clinic is — and pay for a hotel because she can't make a round trip in one day, and has to miss work while she's at it? Is it an undue burden to, indirectly, force a woman to keep the baby because she cannot afford or find a way to do all of the above? Last summer, the Fifth Circuit Court of Appeals ruled that the law wasn't a problem...because it didn't affect a large enough fraction of women. (That fraction being roughly 1 million people, by the way.)
But that was before researchers at the University of Texas-based Texas Policy Evaluation Project set out to study the impact of the law on women seeking abortion. While the state has argued that the ramped-up standards enforced on abortion providers were designed to make abortions "safer" for women, Dr. Daniel Grossman, a gynecologist and obstetrician who worked on the UT studies, argues that the opposite has happened.
"I feel like we've been looking at this from a variety of different ways, and pretty much every way you look at this, we see evidence of extreme burdens being placed on women," he said.
The first way they looked at it was increased wait times. Last fall, they found that, if all but eight abortion clinics closed, women would wait on average 20 days compared to one to five days for their initial doctor's appointment — which researchers estimated could increase the number of second-trimester abortions by 10 to 20 percent. Then, in January, they released results of interviews with 23 women who have tried to get an abortion while dealing with the new restrictions of HB2. It was the first study that actually detailed the increased hardships some women seeking abortion in the state now face.
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According to the findings, at least four of the women in the Lower Rio Grande Valley had to drive four hours each way to get to San Antonio and spent $75 on gas. They started their journeys at 3 a.m. to avoid paying for a hotel; another six reported spending anywhere from $60 to $200 on their hotel stays. For women who had to take off work to do this, some abortions were delayed even longer when, if the women were turned away from a closed clinic or the clinic needed to reschedule the appointment, the next available appointment didn't provide enough advanced notice.
Though one financially strapped woman in El Paso began researching abortion options three weeks after her pregnancy, she was not ultimately provided care until she was 12 weeks pregnant — which also meant the price of the abortion went up $200. To pay for it, she had to take out a loan. Five women reported considering self-aborting because of constraints like these. Two simply never ended up having the abortion at all. "Some women just can't overcome all of these obstacles," Grossman said.
Meanwhile, not only has the state dismissed researchers' arguments, but some state officials have actually gone after some of the researchers who participated who are also on the government's payroll. After TxPEP released another study about the consequences of the state defunding Planned Parenthood, Rick Allgeyer, director of research for the Texas Health and Human Services Commission, who contributed to the report, actually stepped down, facing backlash from state legislators and the HHSC for his involvement. (Senator Jane Nelson said it was "inappropriate" for a state employee to contribute to a study that was "biased and unsound.")
But with Justice Antonin Scalia out of the picture, the anti-abortion law might have a better chance of being killed. Scalia was one of the most outspoken pro-life, anti-gay-marriage justices on the bench. He openly opposed the landmark abortion case Roe v. Wade., and in a 2011 interview, called it "an absurdity." "You want a right to abortion?" he said. "There's nothing in the constitution about that."
However, even with Scalia gone, a 4-4 tie would potentially do no good for Texas women. In that case, the court would do one of two things: It either decides to rehear the case in a year with a newly appointed justice on board, or simply refers to the Fifth Circuit Court's ruling, affecting not just the fate of women in Texas but also that of women facing similar restrictive abortion laws in Mississippi and Louisiana. As Nancy Northup, the president and CEO of the Center for Reproductive Rights, which is representing the plaintiffs in the case, told the Wall Street Journal, "If this is not an undue burden — what Texas has imposed on women in that state — then nothing is."