Thanks to Texas, You Can Say Good-bye to Abortion

I can still vividly remember watching the minutes tick down to midnight. Like over 10,000 other people, I was fixed, staring into my computer screen, watching a live feed of the Texas legislature as Democrats on the floor used last second political maneuvers to hold off a vote that had been filibustered for hours and needed just a few last moments in order to be blocked for session. Alone on my couch, I cheered in agreement when State Senator Leticia Van de Putte demanded to know, “At what point must a female senator raise her hand, or her voice, to be recognized over the male colleagues in the room?” And I felt a rush of butterflies in my stomach as I heard the roar from the gallery that grew longer and louder as the seconds expired and the omnibus abortion bill failed to pass. 

I imagined those same voices again last week when the Fifth Circuit announced that almost all of HB2—the same restrictions on medication abortion, a 20-week gestational ban, and hospital-admitting privileges and ambulatory surgical-center requirements all repackaged and passed a few weeks later in a second special session—would now be allowed to go into effect in 22 days. While the passage of HB2 was a rollercoaster of filibusters, victories, special sessions and defeats, the implementation of the law has been just as rocky. What Texas anti-abortion advocates have closed via expensive and medically unnecessary building regulations and impossible to obtain hospital-admitting privileges, abortion-rights activists, and abortion providers have reclaimed here and there through legal challenges. The process created a patchwork of disappearing, closing, reopening, and reclosing abortion clinics based primarily on location, injunctions, or lawsuits against hospitals who strip providers of privileges simply because they don’t want to deal with the abortion issue in the first place.

Before the restrictions of HB2 went into effect, Texas had 41 abortion providers to offer services for a population of over 27 million people. Now, the state will be left with just eight legal abortion providers, with seven of the eight located in the large metro areas of Houston, Austin, San Antonio, and Dallas-Fort Worth. A lone clinic in the Rio Grande Valley will be allowed to operate outside the rules stating all clinics must be ambulatory surgical centers (ASC)—except that the courts will only allow one doctor to provide services without requiring admitting privileges. The ruling’s exception is so narrow the clinic thinks it may need to close its doors despite being granted its small reprieve.

Allowing HB2 to go into effect is devastating to the people of Texas who may someday face a situation where they want or need to end a pregnancy for whatever reason, yet cannot because a clinic is too far away to access, or too busy to get them in before a gestational cut off. Yet its effects will go far beyond the Texas border. It will ripple into Louisiana, where clinics in Shreveport, the northwest corner of the state, told me in October that they had already started seeing even more Texas patients when the law first went into effect. It will spread into Oklahoma, where now there is a 72-hour waiting period in effect that didn’t exist when Texas first drafted their law. Both states also have their own admitting-privileges bills working through the courts that could close most of their local clinics, making the drive to find a provider a multi-state journey that few will have the time or resources to undergo. Patients will need to keep moving north into Kansas, or east into Mississippi, Alabama, or even Florida. Or they will go west into New Mexico and Colorado, just to access safe, legal abortion care.

And that is exactly the point of the laws. Close all of the clinics until you are left with just a handful that operate only in major metro areas and set them at an impossible patient to provider ratio.  Layer on a 24-, 48-, or 72-hour waiting period to stall a pregnant person’s first appointment, and place the waiting period to be contingent on an ultrasound to ensure that person has to make two trips. Then implement a gestational ban like a 20-week “fetal pain” bill or a procedural ban like the newest D&E restriction to narrow the window in which that person can even obtain an abortion so there is only an eight-week-long span inside which a pregnancy can be terminated.

Then, when one doctor retires, or one clinic shuts down, and the rest are booked out a month in advance, tell the pregnant person she is out of options and will have to just give birth instead. Or, if she tries to end the pregnancy through illegal means, arrest her and send her to jail.

When I was a child, I used to love to go into the closet in my grandmother’s basement and pull out a game called Kerplunk. You poked a number of long, thin sticks through the middle of a clear plastic tube until they created an interwoven lattice, then poured marbles over the top. Each player would slowly pull out a stick, and as they were removed, marbles would fall to the floor. First there would be no effect, then a marble or two would skitter into the bottom as the sticks left behind produced larger and larger gaps. The tension would mount incredibly as everyone waited for the inevitable cascade. Finally, the wrong stick would be pulled and an avalanche of marbles would fall, usually pouring out the tube, out of the tray and roll all over the basement carpet.

Is the Fifth Circuit’s HB2 ruling the last stick to be pulled before the marbles all drop? Texas providers have petitioned the Supreme Court for an emergency injunction to keep clinics open until an appeal. If the courts grant it, and agree to hear an appeal, the lattice may still hold, at least for a little while. If not, and the new rules shutter all but a handful of Texas clinics by the end of the month, expect the repercussions to be felt all throughout the Midwest, West, and South.