Speaking of Women's Rights: Justice Kennedy and the Undue Burden

Tuesday, December 15, 2015

Justice Kennedy and the Undue Burden

By Catherine Roseman

Next year the U.S. Supreme Court, or more precisely swing vote Justice Anthony Kennedy, will decide whether to defend safe, legal, and equitable access to abortion in the United States or to restrict its availability to wealthy women in blue states.

In its 2016 session, the Court will hear Whole Woman’s Health v. Cole, a case that challenges the constitutionality of HB2, an omnibus anti-abortion bill passed in Texas in 2013. Wendy Davis blocked the first vote on this bill with her famous 11-hour filibuster in pink tennis shoes, but shortly thereafter then-Governor Rick Perry called a special legislative session and the bill passed. HB2 includes many provisions that restrict abortion access, including limiting the ability to administer medication abortion to physicians, banning telemedicine abortion, and banning abortion past 20 weeks gestation.

Two provisions will be considered by the Court: ambulatory surgical center (ASC) requirements, which mandate that any clinic providing abortions be built to strict hospital-like standards; and admitting privileges, which require that doctors providing abortions be able to admit patients to a hospital within 30 miles of their practices. Both of these provisions reflect an increasingly common legislative strategy called Targeted Regulation of Abortion Providers (TRAP) to limit abortion access. Enacted under the weak guise of protecting women’s health, these laws are medically unnecessary and put women at greater risk for complications. Abortion is one of the safest medical procedures in the United States: fewer than 1% of all patients who undergo it have complications that require hospitalization.

Under the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, states may impose a range of requirements on women seeking abortion, but they may not impose obstacles so great as to place an “undue burden” on women. The Court ruled that states are free to regulate abortion to protect women’s health, but not in order to hamper their access to abortion. In Whole Woman’s Health, the Court is expected to examine whether the admitting privileges and ASC requirements of HB2 constitute an undue burden on women seeking abortion.

Before HB2, there were 41 abortion clinics in Texas; there are now 17, which are almost all located in major cities. If the Court upholds both the admitting privileges and ASC requirements, there will be 10 clinics in the entire state of Texas. The average county in Texas is 111 miles from a clinic, nearly double the national average of 59 miles. Women in west Texas counties must travel an average of 250 miles. A fifth of all counties in Texas are over 100 miles further from a clinic today than then they were in 2012, before HB2 was enacted.

Seven additional clinics will close if the Court upholds HB2. These seven closures would not drastically change the travel distance for an abortion beyond the large increases wrought by the initial spate round of closures, but it would increase the average cost by 15% to an average of $701 per procedure (including travel costs but not accounting for expenses incurred through lost wages and childcare). This is because those seven clinics offer less expensive procedures than the clinics that are already licensed as ASCs. Converting a freestanding clinic to an ASC can cost over $1 million upfront and increase yearly operating costs anywhere from $600,000 to $1 million.

Furthermore, as the number of clinics decreases, the time patients must wait for an appointment increases. As women move later into their pregnancies, they pay more for the procedure. Some end up past Texas’ 20-weeks gestation limit and cannot obtain a procedure safely and legally. A recent study by the Texas Policy Evaluation Project at the University of Texas at Austin concluded that anywhere from 100,000 to 240,000 Texas women have attempted to self-induce abortion without medical assistance. The methods commonly used to self-induce are taking misoprostol, which is the second of two drugs used in a typical, legal medication abortion regimen in the U.S. (Texas women can obtain it in Mexico or on the black market); or attempting to use herbs, alcohol, illicit drugs or even a punch in the abdomen. Misoprostol is often an effective and safe method, but some of the others are neither effective nor safe.

The burden that HB2 places on Texas women is not only undue, it is unjust and unsafe. The purported purpose of HB2 is to protect women, but it does exactly the opposite. Because of dwindling clinic numbers, women are forced to travel long distances and take extra time off work, arrange and pay for childcare (a common factor given that 61% of women obtaining abortions already have at least one child), have the procedure later in their pregnancy than they wanted (appointment wait times in Texas have increased from average of 5 days to 20-30 days) or resort to unpredictable, unsafe and/or illegal methods of self-induced abortion. HB2 blatantly places undue burden on women seeking abortion. The real question is, to what extent will Justice Kennedy enable Texas (and other states) to continue to use TRAP laws to oppress a woman’s right to choose safe and legal abortion?

Catherine Roseman is an Administrative Assistant in the Healthcare Division at Planned Parenthood Federation of America. The views expressed in this piece are solely her own.

Photo courtesy of RH Reality Check.