Just one day before provisions of a new Texas anti-abortion law were set to take effect and close at least 24 clinics in the state, a federal judge blocked a portion of the law and brought into focus the emerging front-line battle over abortion rights in the United States.
the omnibus anti-abortion bill that Republicans rammed through after three special sessions this summer, contains a number of restrictions on abortion rights and access, including hospital admitting requirements for abortion practitioners, a Food and Drug Administration (FDA) protocol requirement for medication abortions, and a ban on abortions after 20 weeks. Shortly after its passage, some provisions of the law were challenged in a trial that lasted nearly three days and was full of medical testimony as to the effect of the law. Specifically, Planned Parenthood and a number of plaintiffs challenged the law’s hospital admitting privileges requirement and the provision that medication abortions follow FDA protocol. While both of these aspects of the law regulate abortion providers and their medical practices, and both were buttressed by the state with claims of concern for pregnant women and valuing fetal life , only one—the state’s admitting privilege requirement—was found unconstitutional. And the difference came down to brick-and-mortar clinic access.
Why the focus on clinic access? Judge Yeakel’s opinion offers some insight. In part, the answer lies with the federal court’s reluctance to push back against overtly misogynistic lawmaking as well as the success of a multi-pronged attack by anti-choice activists on the foundations of Roe v. Wade. And the result is a jurisprudential slide away from the fundamental privacy rights of women to the power of the state to police reproduction.
“Today there is no issue that divides the people of this country more than abortion,” the court wrote. “It is the most divisive issue to face this country since slavery.” This opening salvo sets the stage for explaining, and excusing, just how much burden is enough to bear for those who need abortion access in Texas. “Sincere and caring persons of good will are found on both sides of the issue, but neither side with ever change the position of the other,” the court continued. “Legislatures and courts will continue to be confounded by the issue for the foreseeable future. No ruling of this court will sway the opinion regarding abortion held by anyone.”
From there, the court explains its reasoning as to why the admitting privileges portion of the law should fall, and why the regulations on medication abortion should stand. As to the admitting privileges provision, the court concludes that there is no rational relationship between improved patient outcomes and hospital admitting privileges, and even if there were the admitting privileges component would still fail as an undue burden, because the clinics would close. The court makes brief reference to the difficulties clinics have in recruiting practitioners thanks to the chilling effect of anti-choice activities on the practice of medicine. Finally, the court notes that federal courts in Alabama, Mississippi, and Wisconsin have come to similar conclusions in blocking admitting requirements where the effect of the law is to close facilities that serve pregnant patients. The analysis here is sober and straightforward: With no link between improved patient outcomes and ample evidence the Texas legislature had no rational explanation for including the requirement, other than to substantially burden abortion access and close clinics, that portion of the law is unconstitutional.
But, as to the issue of regulating medication abortion, the analysis shifts, and in that shift illuminates one of the deeply divisive points of abortion rights law: Federal courts have supported, and continue to support, the anti-choice belief that shame and judgment are part of the burden a person should bear in accessing abortion services. The opinion makes this clear by detailing the fact that there is no real dispute as to the safety of off-label use of abortion-inducing medication. Indeed, as the court rightly notes, off-label use is so safe it’s become standard practice.
Since FDA protocol released in 2000 abortion-performing physicians have since developed a medication-abortion protocol using mifepristone that, although varying significantly from the FDA protocol, has become the de facto standard of care in Texas. This court finds that, when performed in accordance with the off-label protocol, medication abortion is a safe and effective procedure, as is medication abortion with the FDA protocol. The variable risk of a significant adverse event is so low it becomes hard to quantify.
In fact, the court notes, there’s a significant absence of evidence as to the safety of FDA protocol, which means that while lawmakers may insist patient safety is driving this restriction, that’s a claim that can’t be taken at face value. “Reliable data on medication abortions following solely the FDA protocol is sparse, as physicians overwhelmingly moved away from the FDA protocol soon after it was approved,” noted the court.
So if the real issue is not patient safety, what is it? It’s about placing burden
and shame. The court continues:
Moreover, the court finds that the FDA protocol is assuredly more imposing and unpleasant for the woman, requiring at least one additional visit to a clinic and allowing less control over the timing and convenience of the medically induced miscarriage. It also requires more of the physician’s time, as the physician must administer the second dose. … Taken as a whole, the FDA protocol is clearly more burdensome to a woman than the off-label protocol.
But even with those added expenses and inconveniences, the court concludes there is no undue burden because they fall under the “incidental effects” of the law. And those “incidental effects,” combined with the availability of medication abortions following FDA protocols, means that even though access to care is critically curtailed under this restriction, the court will let it stand. “Most importantly,” the court wrote, “when ‘reasonable alternative procedure[s]’ exist, the government’s broad discretion to regulate medical practice allows regulation even it it means subjugating patient-preference. Individuals do not have a constitutional right to a preferred medical option, so long as a safe, medically accepted, and actual alternative exists.”
In almost the same breath, the court acknowledged that the FDA protocols do not reflect the standard of care in Texas, subjecting patients to additional judgment, expenses, and burdens in accessing care, while making it more burdensome for doctors to provide that care. But other protocols, like coercive mandatory ultrasounds complete with scripts for doctors to follow, inform the court’s thinking here and appear to be fully ingrained in our jurisprudence.
That the decision to uphold the FDA protocol requirement is more about lawmaker judgments in making medication abortion an unworkable choice is most clearly reflected in the “exception” the court crafts for allowing off-label medication abortions in the cases of medical emergencies. Because there are some instances when a surgical abortion may not be medically sound, the court ruled the “medication-abortion provisions may not be enforced against any physician who determines, in appropriate medical judgment, to perform a medication-abortion using the off-label protocol for the preservation of the life or health of the mother.”
Outlawing medicine, it appears, is returning to Texas.
“The court may not and will not decide whether there should be abortions in Texas,” it concluded before launching its analysis of the challenged provisions. But, in so many ways, that’s exactly what the court has done. Of course there should be abortions in Texas, just like there should be hysterectomies or comprehensive pre- and post-natal care—comprehensive reproductive health care should be available to those who need it. But the court’s introductory remarks are clear: There’s a moral judgment at play in HB 2, it’s just that the court won’t be the one to say that moral judgment is dangerous, wrong, and misguided.
If the lower court’s ruling settles anything, it is that the real fight over the legacy of Roe v. Wade is not going to be about fetal viability; it will be about clinic access. Among the provisions not challenged in HB 2 is the state’s ban on abortions after 20 weeks—a pre-viability ban that should, if the precedent stands, be unconstitutional out of the gates. But at least 13 states already have 20-week bans on the books, which suggests pre-viability bans in some form are here to stay. And, as attorneys for Arizona noted in their petition to the Roberts Court to revisit viability as the constitutional standard for judging most abortion restrictions, this is a standard “on a collision course with itself,” according to former Supreme Court Justice Sandra Day O’Connor, because it fails to respect “that the State’s interest in protecting potential human life exists throughout the pregnancy.” That means that the legal battle over HB 2, the lower court’s ruling, and predicted appeal illustrate that the success or failure of efforts to undermine Roe by challenging the viability standard is not the true test of the strength of abortion rights in this country. The true test of the strength, and relevance, of Roe is the success or failure of efforts to cut off access. And
Texas is proving to be the ultimate test case.