Will SCOTUS Take Up Texas Law That Would Increase Second Trimester Abortions?
A new report shows that abortions performed in the second trimester would actually increase if HB 2 is not struck down. (Photo: AFP/Getty Images)
The Supreme Court began its new session Monday (Oct. 5) morning. Will the highest court in the country hear the case of Whole Woman’s Health v. Lakey, a suit challenging the constitutionality of the most restrictive abortion legislation nationwide, Texas’ House Bill 2?
It’s the question at the top of court-watchers’ minds.
HB 2, as it’s known, already passed the Texas state House of Representatives and was signed into law by Texas Governor Greg Abbott. Critics of HB 2, however, believe that the Texas law violates the U.S. Constitution by placing an undue burden on women seeking an abortion, and argue that the law is restrictive to the point of illegality and violates the right to abortion guaranteed by the Supreme Court’s 1973 ruling in Roe v. Wade.
The specifics of HB 2 include:
A ban on all abortions performed 20 weeks post-fertilization (with limited exceptions).
Requirement for physicians performing an abortion to have admitting privileges at a hospital located no more than 30 miles from where the abortion is performed that also provides OB-GYN services
Requirement for the physician performing the abortion to provide the woman receiving the abortion with a phone number by which the physician can be reached 24 hours a day.
Implementation of new reporting requirements for physicians, including their calculation of the post-fertilization age of the aborted fetus.
Related: The Horrifying Reality of Abortion Before It Was Legal in America
But here’s the thing: If the lawsuit regarding the constitutionality of HB 2 is not heard before the Supreme Court and the bill stands, the number of abortions performed in the second trimester (before 20 weeks) could actually double, according to a new report out from the Texas Policy Evaluation Project (TxPEP) at the University of Texas at Austin.
Why Would Abortions Increase?
The new report shows that if HB 2 is allowed to stand and all abortion clinics in the state that do not meet ambulatory surgical center building standards close, the number of abortions performed per facility in Austin would increase from about 3,700 to about 7,500. In Houston, this rate would increase from 3,900 to 11,000. This influx of number of procedures per clinic, the report found, would then result in a dramatic increase in wait times for a woman seeking abortion care to be able to obtain an abortion. This, in turn, would result in more abortions being performed after 12 weeks.
If wait times were to increase to 20 days, a “not unreasonable” estimate based on the TxPEP research, Texas could find itself needing to perform about 5,700 more second trimester abortions a year — all because of the increased wait times that would result from the enforcement of HB 2. While second trimester abortions are very safe, they do have higher risk of complications and are significantly more expensive to perform.
“This new report shows us that restrictions are forcing abortion later in pregnancy, if a woman can access a procedure at all,” Cecile Richards, president of Planned Parenthood Action Fund, said in a statement. “While abortion is an extremely safe procedure, it is safest earlier in pregnancy. This is making women undergo a more invasive procedure later in pregnancy, for political — and not medical — reasons.”
Related: Senate Blocks Federal 20-Week Abortion Ban Bill
The Long and Winding Journey of HB 2
If the Supreme Court agrees to hear the case of Whole Woman’s Health v. Lakey, it would be the last stop on a long trip to legally ensure that abortion is safe and accessible for women in Texas and, in effect, nationwide. In April 2014 the case was filed in Texas, challenging the admitting privileges and ambulatory surgical center building requirement specifications of HB 2 as applied to two specific abortion clinics in Texas: Whole Woman’s Health in McAllen and Reproductive Services in El Paso. The plaintiffs argued that HB 2 constitutes “undue burden” when it comes to abortion care — a medical practice constitutionally guaranteed under the Supreme Court’s ruling in Roe v. Wade.
The case has already toured the legal system. In April 2014, a federal district court ruled that the ambulatory surgical center requirement of HB 2 was unconstitutional. Then, in October 2014, the Fifth Circuit Court of Appeals overturned the federal court’s ruling, allowing both the building requirements and admitting privilege requirements to go into effect. Less than two weeks later, the Supreme Court vacated the Fifth Circuit’s decision, blocking the contested HB 2 provision. But in June of this year, the Fifth Circuit again upheld the HB 2 requirements.
If the Supreme Court chooses not to hear the HB 2 case and its restrictions go into effect, 5.4 million women of reproductive age in Texas will be left with only 10 health centers in the state that provide safe, legal abortion, down from the approximately 40 health centers that existed before HB 2 came into effect. The court is expected to make a decision on whether it will hear the case sometime this fall.
HB 2 also includes new restrictions on medication abortion, the safest form of abortion in early pregnancy. A recent study found a new protocol of dosage and home administration of medication abortion to be up to 98.8 percent effective.
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