The Supreme Court on Monday ruled that regulations Texas imposed on abortion clinics and doctors in 2013 created an unconstitutional “undue burden” on women seeking out the procedure, in what is largely regarded as the most important case on reproductive rights in more than two decades.
Today’s ruling breaks with a steady decay of abortion rights since 1973’s landmark Roe v. Wade decision, which found a constitutional right to an abortion. The ruling is particularly noteworthy because while antiabortion lawmakers have focused on regulating the procedure itself -- banning certain methods, for example, or requiring waiting periods -- this time they argued they were taking steps to protect the health of women seeking abortions. The regulations, at 129 pages long, prescribed the width of hallways in clinics, the minimum distance to a hospital and the type of air-conditioning system that must be used, among other things.
The rules led 22 of Texas’s 41 clinics to close, even after a lower court in 2014 blocked some of the regulations pending review. These closings disproportionately affected young, low-income women of color from rural areas, according to Amy Hagstrom Miller, chief executive of Whole Woman’s Health, which runs three clinics in Texas and is the lead plaintiff in the case. If the court had ruled the Texas regulations were constitutional, Miller and other experts estimate the state would be left with only nine operating clinics, all in major metropolitan areas.
Although the regulations have now been struck down, they will cast a long shadow. Not just in Texas but also in states across the country that have analogous laws. Those laws are not automatically overturned as a result of today’s ruling — all have minor, but legally significant, differences from the Texas law — but today’s decision could serve as precedent in many of the active legal challenges in those states.
This map shows which states have regulations targeting abortion facilities and physicians. The most stringent ones — those most similar to Texas’s and most vulnerable to challenge — are in five states, according to Elizabeth Nash, who studies state policy at the Guttmacher Institute, an abortion rights think tank. Those states — Michigan, Missouri, Pennsylvania, Tennessee and Virginia — are shown in the darker blue below.
Two major portions of the law were at issue in the Supreme Court case. One required abortion clinics to meet the structural and staffing requirements of an “ambulatory surgical center,” requiring renovations and operating costs that most clinics said were impossible to afford. The other required doctors to have admitting privileges at local hospitals. This rule forced closures of clinics because they were too far from a hospital or because the local hospitals did not give out admitting privileges as a policy. Some abortion doctors are not eligible for admitting privileges at hospitals because abortion is considered too safe a procedure to need routine use of a hospital’s facilities.
Proponents of these regulations argued they would protect women’s health. The facility and physician requirements ensured a woman had adequate access to emergency medical care, for example, should a complication arise during the procedure. The state’s brief to the court presented no clear evidence that these provisions decreased the severity of complications, though.
Nancy Northup, president of the Center for Reproductive Rights, calls the effect of the clinic closing “an abortion access crisis.” The 19 remaining Texas clinics are almost exclusively in the state’s eastern metropolitan areas, which Miller says leaves some Western Texas women as far as 300 miles from the nearest clinic, the distance from Washington, D.C., to Connecticut, according to Miller. In the wake of the clinic closures, one Texas woman, Lenzi Sheible, co-founded an organization — Fund Texas Choice — to transport pregnant women to abortion clinics.
But it’s not just women far from clinics who have experienced the effects of the closures.
Consider the Dallas-Fort Worth metro area. Before the law’s implementation, it was home to 10 abortion facilities. Now it’s down to four, with shuttered clinics closing primarily because of the admitting-privileges requirement, according to Stephanie Toti, the lead attorney for the clinics in the case. And because rural clinics around it have closed, these four clinics are absorbing the demand from northwest Texas and Oklahoma as well.
The result: the wait time for the procedure has shot up. Before the law’s implementation, a woman was estimated to have had to wait fewer than four days to get an appointment, according to the Texas Policy Evaluation Project run by Ibis Reproductive Health, a women’s health research group, and the University of Texas at Austin. Today, nearly a third of Texan women seeking abortions do so in the Dallas-Fort Worth metro area. There, they have to wait an average of 16 days and as many as 23, with Austin’s wait not far behind. The group projects that these delays are causing an 86 percent increase in the proportion of abortions in the second trimester.
The later-term procedure dramatically increases the cost of abortions. When a woman crosses a certain threshold, such as the 14-week mark, she requires a different procedure for the abortion, according to Nash, of the Guttmacher Institute, and these later procedures are more expensive. An early-term abortion can be as low as $400, while one at 20 weeks gestation, Texas’s limit, costs at least $1,200.
There are still other issues that come along with waiting. There’s an increased risk of complications, according to the Centers for Disease Control and Prevention. Miller, of Whole Woman's Health, can cite examples of women who are pushed over the 20-week line, making it illegal for her to get the abortion in Texas.
The law's legacy
Although the Texas law has been struck down, its effects will still be felt for some time.
After a clinic closes, it’s expensive and difficult to reopen. “We can’t reopen clinics overnight,” Miller said. “We’ve had to give our leases up, we’ve had to sell our facilities, the equipment. Our staff have been laid off. Our physicians have gotten new jobs."
"While we may be able to win on paper at the beginning," she added "… it will take time to rebuild the infrastructure.”
According to Toti, it can take “up to a year” to go through the inspections required to become licensed as an abortion clinic in the state. But before they even get to licensing, the clinics have to find a location, assemble a staff and buy equipment. All in all, Nash calls it a “multi-year process.”
But the time cost is not the only obstacle. To get a facility up and running, Nash calculates it to cost at least several hundred thousand dollars, but she does not“think a million dollars is out of the question.” Miller says she knows of no organization that planned to open a clinic with a favorable ruling.
“We’ve seen this on the family-planning-clinic side,” said Nash. When Texas has historically cut and then restored funding to these clinics, the facilities have been slow to reopen, with many never doing so.
The consensus among among abortion rights advocates seem to be: While it’s likely abortion clinics will begin to open in Texas over the coming months and years, as demand greatly exceeds supply, it won’t be fast. The effects of the now-invalidated law will endure.