“My reading indicated that medical abortions are up nationwide, but down significantly in Texas,” Kennedy said. “This may not be medically wise.”
Kennedy's qualm isn't obvious, but it appears to signal that he's concerned Texas's law is limiting women's access to abortions early in their pregnancies.
Medical abortions, induced with prescription pills, aren't necessarily safer than surgical abortions — both carry low risk. But the country's rising use of the pills, as surgical abortions simultaneously fall, can be viewed as a good sign by those who want to prevent more second-trimester terminations and still want abortion, in general, to be legal and accessible.
Falling use of the pills, at a faster rate than falling use of the surgical procedure, meanwhile, could indicate women are delaying their abortions — by choice or because a state-enacted hurdle slowed them.
While the majority of abortions in the United States happen in the first trimester, medical and surgical, the pill method happens extremely rarely in the second trimester. That's because risk climbs for incomplete miscarriage after about nine weeks, and, in that event, a woman who opted for the pills would have to return to her doctor to complete the procedure.
As the rate of abortions falls nationwide, the use of the pills, mostly taken before nine weeks gestation, are growing: The method surged 10 percent between 2011 and 2012, CDC data show, suggesting more abortions are happening earlier in pregnancies.
Kennedy was right about Texas breaking from the national trend: Between 2012 and 2013, the most recent report years from the Texas Department of Health and Human Services, the number of abortions in the state dipped. Surgical procedures fell 5 percent — and medical abortions plummeted 22 percent.
The justices seemed to split Wednesday over two provisions of the 2013 Texas law at the center of the Supreme Court case. One requires doctors who perform the procedure to have admitting privileges at a nearby hospital. The other states all clinics must meet the standards for “ambulatory surgical centers” — an update that calls for, among other things, hallways that stretch eight feet wide.
Texas officials and antiabortion activists say the rules are designed to protect women’s health. They argued to the court Wednesday that women should be supplied the same care they'd receive at a hospital. They also argued that, should the requirements shut clinics down, the remaining providers would still be able to meet the needs of Texas women.
Abortion providers and two national physician groups, on the other hand, say the regulations are medically unnecessary and place an “undue burden” on patients, who now drive up to 150 miles to reach the nearest provider. The new requirements, they argue, caused more than half of the state's clinics to close. Some clinics would have had to tear down walls to become ambulatory surgical centers. Others were denied admitting privileges at hospitals that oppose abortion.
Kennedy has previously voted in favor of abortion restrictions. But in 1992’s Planned Parenthood vs. Casey, which struck down a law requiring a woman to get her husband’s permission before seeking an abortion, he sided with the liberal justices in a plurality opinion:
“An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
On Wednesday, as lawyers for the clinics argued the new law placed an "undue burden" on patients, Kennedy appeared concerned about how the abortion climate has shifted in Texas. He asked whether the law encouraged women to get surgical procedures rather than drug-induced abortions, a switch that may indicate some patients are waiting longer to end their pregnancies.
Medical abortions trail surgical abortions by a large margin in the United States. In 2012, the most recent data available from the CDC, 69.4 percent of abortions in the United States were surgical in the first trimester, 8.7 percent were surgical in the second-trimester, and 20 percent were medical in the first trimester. (The researchers labeled the leftover 1.9 percent as "uncommon" methods.)
Some women prefer the medical method because they can take the pills at home. The pain, however, can be worse. Compared to the surgical procedure, which typically takes between 5 and 7 minutes (and often comes with a shot of sedatives), the medical method involves heavy bleeding and extended cramping.
Later abortions are also costlier, harder to find and slightly riskier for the patient. They also start pushing moral boundaries for, again, those who believe abortion should be performed in a safe environment but personally condemn the procedure.
It’s hard to say if Texas's law affected this outcome, since the data stops after the year it passed. Some clinics closed in preparation of the new rules. Some closed on the day it was enacted.
A study from the journal Contraception, though, examines what happened in the law's first six months: There was a 13 percent decline in abortions in Texas, compared to the same period the previous year, and a slight increase of late, second-trimester abortions.
Whether the drop-off in medical abortions “may not be medically wise,” as Kennedy asserted, remains to be seen. Researchers anticipate more answers in the 2014 data, which probably won’t drop until after the Supreme Court case is decided in June.