In a decision that resulted in somewhat mixed headlines on Monday, a federal judge struck down part of Texas’ controversial anti-abortion law, HB 2. That’s the package of abortion restrictions that state Sen. Wendy Davis attempted to block with a dramatic 11-hour filibuster over the summer. Despite Davis’ efforts, the GOP-controlled Texas legislature went on to enact HB 2 anyway, and women’s health groups prepared a legal challenge.
In response to that legal challenge, U.S. District Judge Lee Yeakel permanently blocked one part of HB 2. Yeakel determined that the law’s admitting privileges requirement — an unnecessary, burdensome regulation that doesn’t actually do anything to protect women’s health — is unconstitutional because it goes too far to restrict access to clinics. That’s a big win for reproductive rights advocates, since it will ensure that many clinics will be able to stay open. But the rest of the decision doesn’t look so good for reproductive rights advocates in the state. Here’s what you need to know:
First of all, the lawsuit didn’t include every single provision in the new law. Some of it is still taking effect.
The legal challenge was in reference to two portions of HB 2: a provision requiring abortion clinics to obtain admitting privileges from local hospitals, and a provision restricting the administration of the abortion pill. HB 2 is bigger than that. The omnibus law also includes new regulations requiring abortion clinics to meet the same standards as ambulatory surgical centers — which typically involves costly and unnecessary updates, like widening doorways — which aren’t set to take effect until 2014. There’s a possibility that another lawsuit will be filed to attempt to block that provision as its deadline draws nearer.
The fourth major provision in HB 2 is a ban on abortion procedures after 20 weeks of pregnancy — a so-called “fetal pain” law that’s based on the junk science that fetuses begin to feel pain at that point. Since that wasn’t included in the lawsuit, the 20-week ban takes effect this week as scheduled.
The federal judge gave a mixed opinion on the abortion pill provision.
After Yeakel handed his decision down on Monday, some news outlets reported that he had struck down the restriction on medication abortions. Others said he had upheld it. In fact, the judge issued a largely ambiguous ruling.
Yeakel decided that the restriction, which requires doctors to use an outdated and less effective method of administering the abortion pill, isn’t unconstitutional. He did acknowledge it could present additional burdens for women seeking that type of abortion — but he decided that Texas is allowed to impose that type of burden as long as the state hasn’t made the abortion procedure totally inaccessible. Yeakel concluded that doctors may choose to disregard the restriction in cases when their patient’s health or life is at risk, but essentially upheld it in all other cases.
Now, thanks to this part of the law, women in Texas may need to make up to four trips to a clinic to get an abortion.
Since Texas’ new law requires abortion providers to follow the FDA’s outdated method of administering the abortion pill, women will ultimately have to make more trips to the clinic. In order to get a first-trimester nonsurgical abortion in Texas, women already have to go to the clinic twice: once for a mandatory ultrasound, and again to receive the first dose of medication. Before, women were allowed to return to their home to take the second dose of drugs involved in a medication abortion. The drugs are perfectly safe for women to take on their own, but since they cause uncomfortable cramping and bleeding, many women prefer to go through that in the privacy of their own home.
But starting on Tuesday, most women in Texas will no longer have that option anymore. The outdated FDA guidelines require them to make even more follow-up appointments, even though medical experts now agree that’s totally unnecessary. Now, they’ll also be forced to return to the clinic for the second dose, as well as for a follow-up appointment two weeks later.
This type of restriction on the abortion pill ultimately harms the poorest women.
The new restrictions will affect every woman who’s seeking to end an early pregnancy with a nonsurgical option. But they will disproportionately burden low-income women in the state, who often struggle to make the trip to a clinic in the first place. Remember, abortion access involves much more than simply whether the procedure is legal — it also involves scraping together the money to pay for the procedure, taking time off work, potentially arranging for childcare, and figuring out the transportation to get to the nearest clinic. That may prove to be insurmountable for poorer women if they’re required to make four different trips.
And on top of that, requiring doctors to use the old FDA protocol could ultimately end up driving up the cost of the abortion pill itself. Since the outdated guidelines require doctors to administer larger doses of the abortion-inducing drug — even though we now know that smaller doses are just as effective — that could end up making the procedure even more expensive for the patients who already struggle to afford it.
Attacks on medication abortion tend to fly under the radar, but don’t be fooled. They’re a big deal.
Imposing unnecessary restrictions on medication abortion is becoming a popular anti-choice tactic. By the Guttmacher Institute’s count, four other states besides Texas have also attempted to restrict abortion by requiring doctors to use the old FDA regulations, and an additional nine states have imposed a different type of medically unnecessary regulations on the abortion pill. It makes sense that abortion opponents are making strides in this area — after all, on the surface, it simply seems to like common sense to require abortion providers to follow FDA guidelines. It fits neatly into the anti-choice community’s rallying cry that abortion needs to be furthered regulated in order to “protect women.” And it’s a complicated issue that doesn’t immediately raise alarm.
In reality, however, it’s incredibly common for medical practice to evolve past FDA standards. Restrictions on the abortion pill are yet another example of abortion being held to a different, higher standard than the rest of the health care industry. They’re also another example of access to abortion being severely compromised without banning the procedure outright. Even if Texas isn’t outlawing all abortions or shutting down every single clinics, the additional hurdles it’s imposed to abortion access still threaten to harm women in the Lone Star State.
There are more legal challenges awaiting this policy.
In Texas specifically, the federal judge’s decision has already been appealed. That’s not very good news for reproductive rights supporters. It will be appealed to the U.S. Court of Appeals for the Fifth Circuit, which has a record of upholding abortion restrictions.
And by way of a different state, this issue is actually headed for the Supreme Court. The highest court in the country is scheduled to consider a case that originated in Oklahoma during its current term. There’s a possibility that the Court will dismiss that case without actually wading into the policy at hand. But there’s also a possibility that this will represent the Roberts Court’s first major ruling on abortion rights.