In its most recent legislative session, the Texas legislature was mostly busy trying to make it difficult for transgender people to go to the bathroom in public buildings. Although it failed in that particular, bigoted endeavor—the business lobby saved the day by telling the cautionary tale from North Carolina—it did pass several new anti-abortion laws designed to make it even more difficult for women to exercise their constitutional right to terminate a pregnancy before a certain point without undue burden from the government.
The most restrictive of these new laws—and the most obviously unconstitutional—was just permanently enjoined by a federal court. In Whole Woman’s Health v. Paxton, the court held that Texas cannot enforce its new ban on the most common method of second-trimester abortion—dilation and evacuation (D&E) without in utero demise—because doing so imposed an undue burden on the abortion right.
What’s interesting about this case is not that the State of Texas lost. The law didn’t have a chance of being upheld given the Supreme Court’s abortion jurisprudence. What’s interesting is that the State of Texas apparently learned nothing from its most recent go-round with the Supreme Court on abortion, in which the Court struck down two abortion restrictions that were designed to drive abortion clinics out of business by imposing unnecessary requirements on doctors and clinics. In that case, Whole Woman’s Health v. Hellerstedt, the Supreme Court ruled by a vote of 5-3 (Justice Scalia passed away before the opinion was issued) that the Texas laws imposed too significant a burden on women’s access to abortion without any sufficient medical benefits to justify it. (The case is analyzed in more detail here.) That case was defended by the Texas Attorney General at a cost of over $1 million and with a possible award of attorneys’ fees to the plaintiffs of several million more. The recent case, by the time appeals are exhausted, will run up similar tabs. As will yet another case, confusingly also captioned Whole Woman’s Health v. Hellerstedt, in which a federal court has enjoined a Texas law requiring that aborted fetuses be given a proper burial.
The costs of defending unconstitutional abortion laws go far beyond money, however. Texas has the worst record on sexual and reproductive health in the entire country—on some measures, in the entire developed world. Yet, the anti-abortion crusaders continue unabated, pushing for and passing laws that have little or no effect on abortion, but make unintended pregnancy both more likely and more dangerous. They ignore science, public health, and even public opinion in their quest to run every abortion provider out of the state. It’s time for the madness to stop.
Reproductive Health in Texas: A Snapshot
Before launching into an analysis of the most recent case, let’s consider what it’s like to be a woman of childbearing age in the State of Texas. Consider these well-documented data points:
- Texas has the highest proportion of uninsured individuals in the country and the highest proportion of uninsured adult women (2.4 million total).
- Texas has the second lowest income ceiling for Medicaid eligibility and does not permit childless adults to enroll.
- More women in Texas need subsidized reproductive health care than in any state other than California, yet Texas meets less of the need than most other states.
- In 2011, Texas took several steps to cut family planning services and funding, motivated largely by the desire to put Planned Parenthood out of business in Texas. It instituted the Women’s Health Program, which banned Planned Parenthood from participating, even though Planned Parenthood had been serving 4/10 women in the program statewide. The new program violated federal law, causing Texas to lose $9 in federal money for every $1 of state money spent. Texas then reallocated 2/3 of its state family planning budget to other efforts.
- Texas has highly restrictive rules on abortion access, including mandatory counseling, a waiting period, mandatory ultrasounds, a prohibition on telemedicine, and a new law that bans private insurance companies from including abortion care in a policy without a separate rider that charges the full cost of the anticipated care for the insured group.
- Texas does not require schools to offer sex education and, if they choose to offer it, it must focus primarily on abstinence, despite multiple studies showing that this style of sex education produces worse outcomes than comprehensive sex education. The rate of sexual activity among teens is 52% in Texas, but only 46% nationwide.
- Texas has the fifth highest teen pregnancy rate in the country, and the highest rate of repeat teen births. The latter statistic is explained in part by the fact that minors in Texas who give birth can consent to any and all medical care for their babies but cannot consent to their own prescription birth control.
- Texas has more unplanned pregnancies than the national average, 74% of which were publicly funded at a cost of $2.9 billion.
- Texas has higher rates of chlamydia and gonorrhea than the national average and ranks in the top 10 for new diagnoses of HIV.
- Last, but not least: Texas has the highest maternal mortality rate in the developed world, and the rate doubled between 2011, when the Women’s Health Program was introduced, and 2014.
Anti-Abortion Restrictions and the Texas Legislature
The data points listed above are in large part of the product of initiatives by the Texas Legislature. The measures designed to drive abortion clinics out of business and drive Planned Parenthood out of Texas have resulted in a substantial decline in contraceptive access and prenatal care, as many women in Texas, particularly those who rely on publicly funded services, now have no access to health care. Yet, rather than trying to reverse the tragic course on which it has set the state’s women, the legislature spent its last term banging the same drum: Make abortion as hard to obtain as possible.
The law at issue in Whole Woman’s Health v. Paxton, codified as Tex. Health & Safety Code § 171.151, makes it a crime for health care providers to perform a particular method of second-trimester abortion called “standard D&E” without ensuring that fetal demise occurs in utero before the evacuation phase. In this type of abortion, the most commonly performed second-trimester abortion, the physician dilates the patient’s cervix and, with a variety of instruments evacuates the contents of the uterus in pieces small enough to be removed safely. All abortions result in fetal demise, obviously. But with different methods, that might occur at different points. In a so-called “intact D&E,” a method now banned by federal law, the evacuation phase is partially completed with the fetus intact. In the “standard D&E,” the fetus is dismembered before the evacuation begins, but it is not part of standard procedure to ensure fetal demise before that process begins because that would require in many cases a separate, invasive, and risky medical procedure with no offsetting benefit.
The Texas law, which makes up terminology that is not found in any medical literature, says that its restriction on “dismemberment abortion” provides for the “humane termination of fetal life” and is therefore a “proper mechanism by which the State of Texas may express profound respect for the life of the unborn.” Plaintiffs in this case, doctors who perform second-trimester abortions, argue, on the other hand, that eliminating the most common method of termination “is a substantial obstacle to a woman’s exercise of her right to choose a lawful previability second-trimester abortion.”
The federal district court who heard this case sided with the plaintiffs after a trial and issued a permanent injunction that prevents the State of Texas from enforcing this law (unless and until it wins on appeal or gets an appellate court to stay the order pending appeal). To understand why the plaintiffs won—and why the district court did not think it was even a close or difficult case—we must take a trip down memory lane and review the US Supreme Court’s abortion jurisprudence.
The Constitutional Right to Seek an Abortion: From Roe to Casey to Carhart to Whole Woman’s Health
The history of abortion access in the United States has not been linear. Before the Supreme Court’s 1973 ruling in Roe v. Wade, abortion was largely criminalized by American states. There had been a significant movement to liberalize abortion laws before Roe, but that ruling took the number of states that legalized abortion from about one-third to 50 overnight. In Roe, Justice Blackmun wrote for the majority and declared that the Fourteenth Amendment’s Due Process Clause protected a woman’s right to terminate a pregnancy, at least up to a certain point. Roe embraced the trimester framework, under which states could not regulate abortion during the first trimester; could regulate it only to preserve the woman’s health during the second; and could regulate or restrict it completely, unless abortion was necessary to save the life or health of the woman, during the third trimester because its interest in protecting fetal life becomes compelling when the fetus reaches the point of viability—that is, the point when the fetus could survive outside the womb. This ruling had the obvious effect of invalidating a large number of laws banning or restrictively regulating abortion—or preventing those laws from being applied to certain situations.
Roe did not end discussion of the abortion issue. People’s beliefs about abortion were and are deeply held. Anti-abortion activism has been strong in the decades that followed Roe. It has taken different forms along the way—feverish and sometimes violent in the 1980s, ruthlessly strategic in the 1990s and 2000s, and, now, involving blunt and often unconstitutional attacks by state legislatures on the very core of the abortion right.
The Supreme Court has been a regular referee in the abortion wars. It heard many cases in the 1980s in which it curtailed the broad right it had announced in Roe. Among the curtailments were rulings that upheld a federal law excluding Medicaid coverage for abortion, for example, and a state law disallowing the use of public buildings (e.g., hospitals) for abortion even if the procedure was paid for privately. The end of the decade saw the passage of state laws restricting abortion in ways that were quite obviously in violation of, or at least in tension with, the holding in Roe. Anti-abortion activists hoped that a newly composed Supreme Court would simply overturn the ruling—and return the issue of abortion to the states, which had shown increasingly conservative tendencies on the issue.
The Supreme Court would eventually decide two cases that are highly relevant to the recent Texas challenge. In 1992, in Planned Parenthood v. Casey, the Court reaffirmed the basic principle of Roe, but revised the framework for analyzing the constitutionality of abortion restrictions. Under the standard announced in Casey, the state’s interest in protecting fetal life attaches at the outset, rather than only when the fetus reaches viability. Before viability, the state can regulate abortion as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy. After viability, the state can restrict abortion entirely if it maintains an exception to preserve the life or health of the mother. Applying the new standard, the Court upheld provisions of the law mandating pre-abortion counseling and a waiting period, as well as a provision requiring parental consent for minors (with a judicial bypass option), but struck down a provision requiring married women to notify their husbands before obtaining an abortion.
After Casey, anti-abortion activists pushed the limits, seeking to queue up more tests of Roe’s vitality. State legislatures passed direct and indirect restrictions on abortion. The indirect restrictions restricted abortion access by making it more difficult for doctors to provide abortion care. Together, these so-called TRAP laws—targeted regulation of abortion providers—have driven abortion clinics out of business. In Texas, after the 2011 family planning changes and passage of TRAP laws, forty percent of clinics providing abortion care in the state were forced to close.
In 2016, however, the Supreme Court struck down two of Texas’s TRAP provisions—one that required abortion providers to have admitting privileges at a hospital within 30 miles of the clinic and one that required abortion clinics to be built and outfitted like ambulatory surgical centers. In that case, Whole Woman’s Health v. Hellerstadt, the Supreme Court found no evidence of Texas’s claim that these laws protected women’s health and concluded that they imposed an undue burden on women’s right to seek an abortion. This ruling effectively invalidated TRAP laws across the country.
States have had more success, however, with direct restrictions. Many states, including Texas, have laws on the books that are in obvious tension with Roe/Casey but have not been challenged or not been struck down. The Supreme Court has expressly upheld one such restriction that started on the state level, but was eventually adopted by Congress as well. The federal Partial-Birth Abortion Ban Act of 2003 (PBABA) imposes civil and criminal penalties on a physician who knowingly performs what opponents call a “partial-birth” abortion, but what the medical community calls an “intact dilation and evacuation” (intact D&E) or a “dilation and extraction” (D&X). The gist of this procedure is that fetal life is terminated after the fetus has partially left the uterus. This is a second-trimester method of abortion, after the window for less invasive procedures has closed.
In Gonzales v. Carhart, the Supreme Court upheld this law against a facial constitutional challenge. This was the first time the Court had upheld a ban on a method of abortion and also the first time it had upheld an abortion restriction that did not include an exception to preserve a woman’s health (only her life). The Court had invalidated a relatively similar law passed by the Nebraska legislature just a few years earlier in Stenberg v. Carhart, but the Gonzales Court found the federal version more narrowly drawn, based on careful congressional findings, and not unconstitutionally vague.
The Gonzales ruling was troubling for a variety of reasons, not least of which was that it relied on a concern about women’s likely regret that was not supported by any available evidence. Justice Kennedy simply took it as “self-evident” that “a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.” But if we put aside the misplaced and paternalistic focus on women’s regret—all critically analyzed in Justice Ginsburg’s powerful dissent—we see the core ruling and its relevance to the recent Texas case. In Stenberg v. Carhart, the Court credited Congress’s finding that an intact D&E abortion is never medically necessary. Doctors could always, Congress claimed and the Court believed, perform the standard D&E procedure. Thus, removing one method of abortion did not impose an undue burden on women seeking a pre-viability abortion because doctors would still have one common and safe method at their disposal.
The Court also reasoned that the government could ban a method of abortion as a means of conveying their respect for fetal life because it had has a legitimate concern over the lack of information women will likely receive from their physicians about D&E and intact D&E. Physicians, the Court explained, may prefer not to tell women the “precise details” of a procedure that is already “so fraught with emotional consequences.”
Whole Woman’s Health v. Paxton
In this recent ruling, Judge Lee Yeakel, the same judge who struck down Texas’s TRAP laws in Whole Woman’s Health v. Hellerstedt only to be flipped by the Fifth Circuit and ultimately vindicated by the US Supreme Court, found Texas’s ban on standard D&E without in utero demise to be unconstitutional. He issued a temporary injunction that prevented the law from taking effect on September 1, 2017, and, after a full trial, issued a permanent injunction.
After a careful review of the Supreme Court’s abortion jurisprudence, the court focused on basic principles from the Roe/Casey/Stenberg/Whole Woman’s Health series of cases. First, a state may not prohibit a woman from making the ultimate decision to terminate her pregnancy. Second, a statute that furthers a legitimate state interest but “has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Third, whether “an obstacle is substantial—and a burden is therefore undue—must be judged in relation to the benefits that the law provides.”
Judge Yeakel, appointed to the bench by President George W. Bush, first noted that the Supreme Court has already addressed the validity of bans on second-trimester abortion procedures. In Stenberg, he notes, the Court explained that to the extent the Nebraska law might reach pre-viability standard D&E procedures before fetal demise, the law imposed an undue burden on women seeking such an abortion. And part of the Court’s reason for invalidating the Nebraska law but upholding the federal law on intact D&E abortions was that the federal version was narrower and did not also ban pre-viability standard D&E abortions. Moreover, it was the continued availability of standard D&E abortions that lessened the burden of the federal ban. As the Supreme Court in Gonzales explained, the “conclusion that the [law] does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited procedure. As we have noted, the [law] does not proscribe [the standard] D&E.” By leaving available “a commonly used and generally accepted method,” Congress did not “construct a substantial obstacle to the abortion right.” It is this alternative that Texas is now trying to ban. Judge Yeakel thus concluded that “based on existing precedent alone,” the Texas ban “must fail.”
The district court also took note of litigation involving similar fetal-demise laws in other states. Without exception, every federal court to consider a challenge to such a law has enjoined its enforcement based primarily if not exclusively on the rulings in Stenberg and Gonzales.
Finally, the district court in the Texas case considered the state’s interest in the ban and the concomitant burden on women. The Texas legislature, in its haste, made no legislative findings to accompany the law. In court, the state argued that it expresses respect for the dignity of the unborn and protects the integrity of the medical profession. The court assumed without deciding that those are legitimate state interests. But neither is sufficient to justify the burden imposed on women. The court also rejected the state’s argument that providers could still perform second-trimester abortions by using an additional procedure to ensure fetal demise before evacuation. Three procedures were suggested to accomplish this result, but, in each case, the court concluded that it was medically unnecessary, risky to the patient, and could only be performed by physicians with highly specialized training that most abortion providers do not have. All told, the court concluded that “requiring a woman to undergo an unwanted, risky, invasive, and experimental procedure in exchange for exercising her right to choose an abortion, substantially burdens that right.” It thus concluded that the plaintiffs had proved that the law creates an undue burden for a large fraction of women seeking a second-trimester abortion. The law is an “inappropriate use” of the state’s ability to regulate the medical profession and an unacceptable way to express the state’s respect for the life of the unborn.
Most abortions in Texas, as elsewhere, are performed during the first trimester. Of the abortions performed in the year 2015, 92% were performed by the twelfth week of pregnancy. And 85% of those were by the eighth week. State legislatures target second-trimester abortions, though they represent a small portion of the total, because the rhetorical power is greater and more inflammatory. Nearly seven in ten people support Roe v. Wade and a woman’s right to seek an pre-viability abortion—and that includes 53% of people who identify as Republican. Whenever performed, abortion is a safe procedure. Not a single woman in 2015 died from having an abortion, while too many to count died from complications of childbirth. Perhaps in in its next session, the Texas legislature could focus on reducing unwanted pregnancy, arming teenagers with the knowledge to protect themselves from STIs and teen pregnancy, expanding healthcare access to more women, and, at the very least, helping women survive childbirth. Those would all be ways that the legislature could express its profound respect for the born as well as the unborn.