Setting the Record Straight on Texas’s Abortion-Safety Law

The Supreme Court recently heard oral arguments on a challenge to Texas’s abortion-safety law HB2. As is characteristic of pro-abortion arguments, the courtroom witnessed several obfuscations, misrepresentations, and outright falsehoods paraded as self-evident truths and garbed in their proponents’ sanctimonious self-assurance. But a clear-eyed assessment of the facts will clear the record.

Texas state legislators understood this bill’s purpose to be ensuring women’s health and safety in abortion transactions. Three key provisions of the bill aim at this object: the requirement that abortion doctors have admitting privileges to hospitals within thirty miles; the requirement that abortion facilities meet the standards of ambulatory surgical centers (ASCs); and the requirement that patients seeking drug-induced abortions take their pills over the course of two days at the ASC and receive them from a doctor.

In the wake of revelations about Kermit Gosnell’s abortion “house of horrors,” Texas legislators believed it not only their right but also their duty to insist on standards of care for Texas women seeking abortions. It is true that, if pressed, most of these same legislators would be hesitant to admit that a general right to abortion is tucked away in the “penumbras” of the Constitution. (Texans are rather stubborn when it comes to their insistence on reading the Constitution in the proper light.) Yet the legislative record indicates that they were willing to grant, arguendo, the shadowy interpretation of the Roe-Casey tradition.

In other words, they understood themselves to be operating within the framework of Casey’s undue burden standard. According to this standard, legislators can regulate pre-viability abortions for the health and safety of the woman, provided the regulation does not create a substantial obstacle to the abortion right. As the Casey Court put it, “what is at stake is the woman’s right to make the ultimate decision.” HB2 in no way occludes this right.

In Defense of HB2

The oral arguments revealed a twofold tactic of the pro-abortion counsel and justices. First, it is alleged that HB2 constitutes an undue burden on abortion-seekers traveling from rural areas, because it has forced closure of several facilities. Second, it is alleged that HB2 doesn’t actually conduce to women’s health and safety, but to the opposite. Both allegations are false.

Counsel for Whole Women’s Health (WWH) argued that HB2 was the direct cause of twenty facility closures. This is demonstrably untrue. There have been several facility closures in Texas since 2012 not attributable to HB2. Two closed several months before HB2 was signed; five more closed in the fall of 2013 after it was signed but before the admitting privileges requirement took effect; and three more subsequently closed but not due to HB2, since doctors at these facilities had admitting privileges.

For their part, Chief Justice Roberts and Justice Alito pressed the WWH counsel for the evidence that HB2 was the cause of these closures. Her answer, that the “timing” of the closures was the evidence, is circumstantial at best. Barring some further evidence to the contrary, it is at least as plausible to believe that Texas’s defunding Planned Parenthood of $30 million led to the closure of these facilities.

WWH counsel, buttressed by questions from Justices Kagan and Sotomayor, argued that the distance women in rural areas would have to travel constitutes a substantial obstacle. But Casey did not recognize long travel distances as substantial obstacles. Even if we suppose that a rural facility were to shut down because of the ASC requirement, it does not follow that the state is shutting down facilities, i.e., constructing “substantial obstacles.” It is the abortion providers who are choosing to shutter rather than provide a high standard of care for women.

Failing in this argument, pro-abortion proponents then claimed that the current number of facilities in Texas do not have the capacity to meet the annual market demand. But this is entirely speculative, and constitutes no reason for the Court to intervene and substitute its judgment for that of the Texas legislature.

Protecting Women’s Health

Justice Breyer alleged that there is not even one instance of a woman having complications from her abortion whose situation was benefited by her doctor having admitting privileges. Justice Breyer was apparently unaware of the expert testimony given in the legislative hearings. This included the expert testimony of doctors like Dr. Mikael Love, who has treated women with various post-abortive complications. In his opinion, the admitting privileges requirement benefits women by establishing something taken for granted in other medical fields—that it should be the patient’s own doctor who treats the patient’s complications.

The pro-abortion counsel and Justice Sotomayor contended that there is absolutely no evidence or testimony to support Texas’s claim that it is beneficial to women seeking drug-induced abortion to take their pills at the facility over the course of two days. This too is false. This is the FDA standard of treatment for abortion drugs, and Texas is simply requiring abortionists to follow FDA protocol. Previously a nurse could dole out drugs without the doctor even being in the country. Now the drugs must be given by a doctor and taken in the doctor’s presence, to ensure proper use. This also prevents seepage, for patients cannot take them home and give them to an underage friend or a victim of abuse.

Also noted in the expert testimony was a 2009 Finnish study of drug-induced abortions that found a 20-percent complication rate. Because of the reporting requirements in Finland’s socialized medicine system, the study does not suffer from underreporting of complications, which is endemic in the United States. Due to underreporting, we don’t know how many women undergo complications. But in 2013, two brave Texas women came forward to testify about their excruciatingly painful and traumatic experiences taking these drugs, and to express their support for better regulation of the process.

 The Stakes in the HB2 Case

In the Clinton years, when “safe, legal, and rare” was the operative slogan, being publicly pro-abortion at least ostensibly came with a blush. Now the big-money abortion industry, masquerading under Orwellian monikers like “Whole Woman’s Health,” shamelessly calls foul against HB2’s requirements for a higher standard of care amid its own sundry failures to uphold the most basic standards of safety. Doubtless neglecting to properly sterilize equipment, properly train staff in safe practices, replace expired drugs, and fix rodent-sized holes in the flooring will help with overhead costs. But such dark irony is more proper to a Monty Python skit or an episode of South Park. This is real life, and the health of real women is at stake.

The Court is a vote away from unraveling years of incremental pro-life legislation that seeks to better inform and protect women. Already it has been shown how tremendous was the loss to the country and the Constitution of Justice Scalia’s passing. Perhaps more than any other case before the Court this term, Hellerstedt underscores the stakes of his replacement.