The Supreme Court will hear arguments March 2 in Whole Woman's Health v. Hellerstedt, which challenges Texas anti-choice law HB 2. A ruling against abortion provider Whole Woman's Health would close at least 75 percent of Texas' clinics and likely enable anti-choice legislation across the country. Texas' brief to the Supreme Court utilized arguments that mirror talking points from right-wing media, including the claim that HB 2 would prevent another “Kermit Gosnell scandal,” in which illegal operations led to multiple deaths at a Philadelphia clinic.
FACT: Gosnell Committed Crimes Despite Restrictive Laws, And His Actions Bear No Resemblance To Legal Abortions Performed At Clinics Targeted By HB 2
MSNBC's Irin Carmon: Gosnell's Clinic Operated In Violation Of The Law And Women Went Only Because “They Felt They Had No Alternative.” While working as a staff writer for Salon, Irin Carmon -- now of MSNBC -- rebuked right-wing media attempts to politicize Gosnell's actions as evidence of widespread malfeasance by other abortion providers. Carmon wrote that Gosnell was not representative of other providers because it was his “willingness to break the law” that made him many women's last resort. She argued that it was “existing policies and public indifference to low-income communities” that forced women to seek out Gosnell despite multiple warnings from other, reputable abortion providers. According to Carmon, Gosnell's illegal practice was sustained only because women “felt they have no alternative.” [Salon, 4/12/13]
Tracy Weitz: Gosnell's Actions Have Nothing To Do With “The Way In Which Later Abortion Procedures Are Performed In The United States.” University of California reproductive health professor Tracy Weitz pointed out that the procedures Gosnell was accused of performing have “nothing to do with the way in which the standard of care and later abortion procedures are performed in the United States,” and that his actions are “nowhere in the medical literature.” [The Washington Examiner via Media Matters, 4/17/13]
Philadelphia Grand Jury: Breaking The Law Was Gosnell's “Competitive Edge.” According to the grand jury report in the Dr. Kermit Gosnell case, the grand jury found that “Gosnell's approach was simple: keep volume high, expenses low - and break the law. That was his competitive edge.” The grand jury report elaborated:
Pennsylvania, like other states, permits legal abortion within a regulatory framework. Physicians must, for example, provide counseling about the nature of the procedure. Minors must have parental or judicial consent. All women must wait 24 hours after first visiting the facility, in order to fully consider their decision. But Gosnell's compliance with such requirements was casual at best. At the Women's Medical Society, the only question that really mattered was whether you had the cash. Too young? No problem. Didn't want to wait? Gosnell provided same-day service. [Gosnell Grand Jury Report, 1/14/11]
MYTH: HB 2 Protects Women From Being Terrorized By “Future Dr. Gosnells”
State Of Texas: “In The Wake Of The Kermit Gosnell Scandal,” HB 2 Was Passed To “Improve The Standard Of Care For Abortion Patients.” Texas Solicitor General Scott Keller invoked Gosnell by name 11 times in a brief filed by the state of Texas with the Supreme Court in late January. According to Keller, Texas passed HB 2 “in the wake of the Kermit Gosnell scandal” in order to protect women and “improve the standard of care for abortion patients.” His insistence on protecting women from “future Dr. Gosnells” was a consistent feature of Texas' arguments in favor of HB 2 (emphasis added):
In the wake of the Kermit Gosnell scandal, Texas enacted house Bill 2 (HB2) to improve the standard of care for abortion patients.
The Pennsylvania grand jury that indicted Gosnell for killing an abortion patient and three infants born alive specifically recommended that abortion clinics be held to the standards of ambulatory surgical centers:
“If oversight agencies expect to prevent future Dr. Gosnells, they must find the fortitude to enact and enforce the necessary regulations. Rules must be more than words on paper. ... [A]bortion clinics ... should be explicitly regulated as ambulatory surgical facilities, so that they are inspected annually and held to the same standards as all other outpatient procedure centers.”
The facially apparent and expressly stated purpose of the challenged provisions is to ensure patient safety and raise standards of care, which are legitimate state interests. Reacting to the Gosnell scandal, Texas joined other States in adding new abortion-patient protections.
Nothing close to clear proof of unconstitutional purpose exists. In the wake of the Gosnell scandal, HB2 was enacted to “increase the health and safety” of abortion patients and provide them with “the highest standards of care.” [State of Texas, Brief for Respondents to the Supreme Court, 1/27/16]
Fox Contributors Argue HB 2's Restrictions Are “Completely Reasonable” Because “One Of The Women Who Died Wouldn't Have” If Gosnell “Had Met Some Of These Requirements.” On the June 26, 2013, edition of Fox News' America Live, Megyn Kelly hosted Fox contributors Kirsten Powers and Monica Crowley to discuss the failure of the Texas legislature to pass the earlier version of HB 2. During the segment, Powers argued that “what Texas is trying to do is exactly the same as what they did in Pennsylvania after the Gosnell tragedy.” Crowley further disputed the dangers associated with greater clinic restrictions, stating that HB 2 was “completely reasonable” and that “one of the women who died wouldn't have” if Gosnell had “met some of these [HB 2's] requirements.”
MEGYN KELLY (HOST): They [Texas Republicans] wanted to restrict abortions to just 20 -- I don't meant to say just, because a lot of people think, 20 weeks, that's halfway there -- but to 20 weeks. Whereas right now most of the states say 24 weeks or after, so it's a four-week -- you know moving the date back four weeks, and to tighten restrictions on clinics. Why was the Planned Parenthood, NARAL Pro Choice America crowd so upset?
KIRSTEN POWERS: Well, they opposed this in every state. Basically, what Texas is trying to do is exactly what happened in Pennsylvania after the Gosnell tragedy in terms of, not so much in the moving the date, but all of the stuff of making them into ambulatory service centers, saying that you have to have admitting privileges, because in the Gosnell case they actually found that -- independent investigation found -- that probably one of the women who died wouldn't have died had they had met some of these requirements.
KELLY: Better facilities?
POWERS: Yeah, so Planned Parenthood, they opposed this across the country. This is an ongoing battle that goes on all over the country.
CROWLEY: Everything in this bill is completely reasonable from the 20-week mark to upgrading these facilities to demanding that doctors have hospital privileges within a 30-mile radius in case anything goes wrong. This is a direct response to the horrors that we saw in the Gosnell case. [Fox News, America Live via Media Matters, 6/26/13]
Michelle Malkin: “Kermit Gosnell Is No Exception,” And HB 2 Protects Women From Another “Awful Kermit Gosnell House Of Horrors Situation.” Fox contributor Michelle Malkin also invoked Gosnell to justify the passage of highly restrictive anti-choice laws. Appearing in a segment during the July 8, 2013, edition of America Live, Malkin asserted that HB 2 was designed to protect “women and unborn children” from another “awful Kermit Gosnell house of horrors situation.” When questioned by host Alisyn Camerota on the intelligence of basing new restrictions on the actions of “one homicidal maniac,” Malkin argued that it wasn't “just a case of picking the Gosnell case and then demonizing every abortion clinic” because “Kermit Gosnell is no exception” (emphasis added):
ALISYN CAMEROTA (HOST): Obviously an incredibly heated topic and you can see that played out in front of the state house today where abortion opponents and supporters are sort of having a showdown in front of the state house. What are we expecting?
MICHELLE MALKIN: Well, I think what we can expect is more of the same: rude, uncivil and unhinged behavior on the part of many of these pro-abortion supporters, and a lot of them -- as many Texas natives have been pointing out -- are coming from outside of the state. Supported by the national pro-abortion organizations NARAL and Planned Parenthood, along with a lot of these Hollywood celebrities who've taken to Twitter -- and my Twitter aggregation and curation site, Twitchy.com, has been monitoring them for the last week or so -- where they've ratcheted up vulgar rhetoric against peaceful, pro-life supporters and pro-life legislators and of course a staunchly pro-life governor, Rick Perry, who are putting a test to these forces on the other side.
Do they really believe in ensuring that abortions are conducted in a safe manner? And I think that's what we have to remember, Alisyn, as these debates become more heated, not just in Texas but around the country where other state legislatures are trying to, in the wake of that awful Kermit Gosnell house of horrors situation, make sure that women and unborn children are protected.
CAMEROTA: But in terms of the Gosnell issue, Michelle, couldn't you argue that it's never a good idea to base policy on one homicidal maniac?
MALKIN: Well, I think the problem is that over the course of the last several decades is the pro-life forces who have tried to expose and report time and time again that Kermit Gosnell is no exception.That in fact, there are many barbaric practices that have gone whitewashed not just in Pennsylvania but in many states and of course including Texas itself. Very recently there were pro-life reporters and investigators, [inaudible] people who have worked in these abortion clinics who've been blowing the whistle on practices that have endangered women and obviously unborn children. So it's not just a case of picking the Gosnell case and then demonizing every abortion clinic, but as I said, will they abide by standards that will ensure safety? [Fox News, America Live via Media Matters, 7/8/13]
FACT: Restrictions Like Hospital Admitting Privileges and Ambulatory Surgical Center (ASC) Standards Are Medically Unnecessary And Dangerous
Medical Professionals: ASC Requirements Are Unnecessary Because A “Large Percentage Of Early Abortions Are Medication Abortions” Rather Than Surgical. In an amicus brief filed with the court in support of Whole Woman's Health, five of the leading organizations for medical professionals explained that the ASC requirements imposed by HB 2 were unnecessary. According to these medical professionals, because “an increasingly large percentage of early abortions are medication abortions rather than surgical abortions” there is no need for a “designated procedure space.” Additionally, they noted that even in rarer instances of surgical abortion, an operating room is not required to perform the procedure safely:
The physical plant requirements mandated by H.B. 2--such as the presence of an operating room-- are medically unnecessary for abortion procedures. As an initial matter, an increasingly large percentage of early abortions are medication abortions rather than surgical abortions. ... No designated procedure space is required for medication abortions because the procedure involves administering prescription pills that induce pregnancy termination, which then typically occurs at home.
Even surgical abortions, however, do not require an operating room. To conduct a first-trimester surgical abortion, the clinician has the patient recline on an examination table, taking the same position as for many gynecological exams. Few personnel are involved; little is required by way of equipment. The procedure is not commonly performed using general anesthesia, so designated space for related equipment storage is not generally required. ... Surgical abortions simply do not require the size, layout, or equipment of a full operating theater. In this respect, they are no different than many procedures used for the management of miscarriages, which are also commonly addressed in office settings. [Amicus brief of American College of Obstetricians and Gynecologists (ACOG), American Medical Association (AMA), American Academy of Family Physicians (AAFP), American Osteopathic Association (AOA), and American Academy of Pediatrics (AAP), 1/5/16]
ACOG: Abortion “Facility And Staffing” Legislation Impose “Medically Unnecessary” Requirements. In a November 2014 statement, the American College of Obstetricians and Gynecologists (ACOG) outlined its opposition to these restrictions on abortion facilities and staff, noting that such measures are “medically unnecessary” and “do not improve patient safety or quality of care”:
Facility and staffing requirements enacted in some states, under the guise of promoting patient safety, single out abortion from other outpatient procedures and impose medically unnecessary requirements designed to reduce access to abortion. Also known as TRAP laws, these measures have included needless requirements such as mandating that facilities meet the physical plant standards of hospitals; that staffing, drug, equipment, and medical records be maintained at unnecessary levels; that physicians performing abortions in the clinic setting obtain hospital admitting privileges, with no mechanism to ensure that hospitals will grant such privileges; that the same physician perform in-person counseling, ultrasonography, and the abortion procedure, resulting in difficulties for physicians who travel long distances to provide abortion care in rural states and for multi-day procedures; and that clinic physicians be board certified obstetrician-gynecologists despite the fact that clinicians in many medical specialties can provide safe abortion services. The College opposes such requirements because they improperly regulate medical care and do not improve patient safety or quality of care.
These laws make abortion more difficult and expensive to obtain, imposing new costs on the women who can least afford them. Compliance with some of the most onerous regulatory requirements has proved to be so difficult that some practices have closed. In states with few abortion providers, TRAP laws can make abortion essentially inaccessible. [American College of Obstetricians and Gynecologists, November 2014]
Texas Hospital Association Opposed Requirements For Admitting Privileges Because They're Unnecessary For Patients. The Texas Hospital Association (THA), representing 450 hospitals, issued a statement before HB 2 was passed in opposition to its hospital admitting privilege requirement for doctors who provide abortions. THA explained that such a requirement is unnecessary, since a patient suffering complications from an abortion simply needs to show up to an emergency room in a hospital to receive treatment (emphasis added):
THA agrees that women should receive high-quality care and that physicians should be held accountable for acts that violate their license. However, a requirement that physicians who perform one particular outpatient procedure, abortion, be privileged at a hospital is not the appropriate way to accomplish these goals. A hospital's granting privileges to a physician serves to assure the hospital that the physician has the appropriate qualifications to provide services to patients in the hospital. Thousands of physicians operate clinics and provide services in those clinics but do not have hospital admitting privileges. Requiring a hospital to grant admitting privileges to physicians who do not provide services inside the hospital is time-consuming and expensive for the hospital and does not serve the purpose for which privileges were intended; rather, the Texas Medical Board is the appropriate agency to address whether physicians are delivering appropriate care to patients, as the TMB regulates all physicians. Hospitals should not be required to assume responsibility for the qualifications of physicians who do not practice in the hospital.
Should a woman develop complications from an abortion or any other procedure performed outside the hospital and need emergency care, she should present to a hospital emergency department. Requiring that a doctor have privileges at a particular hospital does not guarantee that this physician will be at the hospital when the woman arrives. She will appropriately be treated by the physician staffing the emergency room when she presents there. If the emergency room physician needs to consult with the physician who performed the abortion, the treating physician can contact the doctor telephonically, which is often done in other emergency situations. [Texas Hospital Association, accessed 2/2/16]
ACOG And AMA: Hospital Admitting Privileges And Surgical Center Standards “Jeopardize The Health Of Women” And “Den[y] Them Access” To Safe Abortion. In a December 20, 2013, joint amicus brief for the United States Court of Appeals in Planned Parenthood v. Abbott, the ACOG and the American Medical Association (AMA) condemned regulations such as those that require abortion providers to have admitting privileges at hospitals, writing that these regulations “jeopardize the health of women” and deny them access to safe abortions:
The American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA) filed a joint amicus brief in the United States Court of Appeals for the Fifth Circuit in support of Planned Parenthood's challenge to Texas House Bill (HB) 2. ACOG and the AMA oppose HB 2 because it imposes government regulation on abortion care that jeopardizes the health of women in Texas and denies them access to the safest and most effective evidence-based protocols for medical abortions.
Abortion is a very safe procedure, and complications requiring hospital admission are extremely rare. There is no medical basis to require abortion providers to have local hospital admitting privileges. Emergency room physicians, hospital-based physicians, and on-call specialists already provide prompt and effective treatment to all patients with urgent medical needs, including women with abortion-related complications. Moreover, there is no medically sound reason for Texas to impose more stringent requirements on abortion facilities than it does on other medical facilities that perform procedures with similar, or even greater, risks. [American College of Obstetricians and Gynecologists, 12/20/13]
MYTH: Admitting Privileges And Ambulatory Surgical Center Requirements Are Medically Necessary
State of Texas: Whole Woman's Health “Ignored The Evidence” That “Admitting-Privileges And ASC Requirements Would Increase Patient Health And Safety And Promote Physician Professionalism.” Making the case for the court to uphold HB 2, the state of Texas' brief emphasized the medical necessity of highly restrictive measures such as admitting privileges and ambulatory surgical center requirements to protect women's health. According to Texas, these requirements in HB 2 “would increase patient health and safety and promote physician professionalism” if upheld by the court. In response to counterarguments by Whole Woman's Health, Texas alleged that anti-HB 2 findings were not well supported by “record evidence.” From the state of Texas' brief (emphasis added):
In so arguing, petitioners ignore the evidence admitted at trial that the admitting-privileges and ASC requirements would increase patient health and safety and promote physician professionalism.
Medical evidence admitted at trial established that this requirement furthers patient health. Dr. James Anderson testified that the admitting-privileges requirement ensures “the rigorous scrutiny of both a doctor's qualifications and his/her technical skills required for surgical procedures.” The requirement ensures additional examination of the physician's abilities and record.
Anderson also testified that the admitting-privileges requirement “improves doctor-patient continuity of care because hospital staff privileges mandate standards of accessibility and availability of the doctor.”... For example, if an abortion patient experiences complications and arrives at an emergency room on her own, the emergency-room physician will not have access to her medical records or history and may not be able to contact her abortion provider. As a study quoted by Anderson explained: “Treating patients without complete information poses an important challenge to patient safety, increasing the likelihood of medical errors, adverse events, duplication of laboratory tests and procedures, and increased health care costs.”
Trial evidence corroborates Simopoulos [v. Virginia]'s point that ASC standards ensure that abortion providers “can provide the highest quality of care and safety.” ... Dr. Mayra Jimenez Thompson explained:
“The pregnant uterus with higher risks should only be treated in an ASC or hospital setting where the necessary additional testing or surgery to assess and treat for complications can be safely accomplished.”
“In an ASC or hospital setting, the patient is monitored by a licensed medical practitioner and nursing staff who are trained to recognize these risks and complications.”
“ASCs are monitored for quality assurance, patient safety, and staff and facility compliance via their own internal administrative policies and requirements, as well as by three external mechanisms: state licensure, certification by the federal Center for Medicare Services, and/or accreditation by professional ASC associations or regulatory bodies, including the Joint Commision.” ...
And petitioner Whole Woman's Health acknowledged that its ASC clinic offers “more robust pain management options” for abortions than do non-ASC clinics. [State of Texas, Brief for Respondents to the Supreme Court, 1/27/16]
Fox Correspondent Trace Gallagher: HB 2 Requirements Exist Because “Texas Lawmakers” Are “Simply Looking Out For the Well-Being Of Women.” Fox News correspondent Trace Gallagher highlighted Texas lawmakers' argument that the requirements of HB 2 were intended to protect women from so-called unsafe abortion procedures. On the November 12, 2015, edition of Shepard Smith Reporting, Gallagher explained that HB 2 was meant to “help alleviate the dangers that are associated with abortion” because “Texas lawmakers argue they're simply looking out for the well-being of women, saying better equipment and more staffing helps alleviate the dangers that are associated with abortion.” [Fox News, Shepard Smith Reporting via Media Matters, 11/13/15]
Fox's Kirsten Powers: Restrictions On Abortion Clinics Are Meant To Keep Women Safe. Fox contributor Kirsten Powers appeared on the July 15 edition of Fox News' The O'Reilly Factor to discuss the Women's Health Protection Act, which would prohibit states from targeting abortion with unnecessary restrictions like waiting periods and specialized medical standards for clinics. Powers claimed that state laws restricting access to abortion “were put in place to make abortion clinics safe” (emphasis added):
BILL O'REILLY (HOST): So, there was a hearing today in Congress on this, [the Women's Health Protection Act], and how do you see it, Kirsten?
KIRSTEN POWERS: Well, first of all, it's obviously an election year stunt. This probably won't even pass the Senate, let alone the House, and this is something to get the women ginned up in the Democratic Party base, who, as you know, have been ginned up before in the so-called “War on Women,” and I think this is part of that strategy. I also think that this is destructive because most of the laws that I think that they would like to roll back are laws that were put in place to make abortion clinics safe. For example, like the Gosnell clinic in Pennsylvania. These types of laws were created to respond to what happened to what happened to women. There was a woman who died. There were multiple women who died there. [Fox News, The O'Reilly Factor via Media Matters 7/15/14]
FACT: HB 2 Has Already Forced Clinic Closures And Drastically Impacted Women's Access To Care
The Austin Chronicle: “The Destruction Inflicted By HB 2 Is Painfully Palpable” For Texas Women. In a January 29 article for The Austin Chronicle, news editor Mary Tuma detailed the severe consequences for women if the Supreme Court upholds HB 2. According to Tuma, clinic closures were a “direct result of the difficulty in obtaining admitting privileges” or an inability to “subsidize costly building changes” to meet ASC standards. She argued that “the destruction inflicted by HB 2 is painfully palpable” for Texas women as wait times have compelled many women to attempt self-inducing abortions. From The Austin Chronicle (emphasis added):
Nearly three years later, the destruction inflicted by HB 2 is painfully palpable.
While 41 abortion clinics existed in Texas prior to HB 2, only 19 remain today.The closures, a direct result of the difficulty in obtaining hospital admitting privileges for physicians and an inability to subsidize costly building changes, came in waves. Eight facilities shuttered or stopped offering abortion care after the bill passed. Another 11 clinics did so when it was enforced in November 2013. Over the next two years some clinics closed then reopened as oscillating court rulings pulled providers in different directions, while others shuttered for good. If the final ASC provision of the law goes into effect, as few as 10 clinics, concentrated in five major metro cities, are expected to serve all 5.4 million reproductive-age women in Texas. In Austin, only two abortion clinics - Planned Parenthood's South Austin Health Center, an ASC, and Austin Women's Medical Center - remain today out of the four in operation prior to the rollout of HB 2. Planned Parenthood will be the only center in Austin offering abortions if the ASC requirement is upheld.
“Clearly, we are trying to be prepared and take whatever steps we need to expand services to meet the demand for women,” says Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas. “But these restrictions are too onerous. There should be more than one provider to service our community in Austin; there should be the full network of health providers that existed before the law passed.” In a troubling preview of what may come, Planned Parenthood experienced a staggering 660% increase in callers seeking to schedule an abortion appointment when the ASC rule temporarily went into effect in October 2014.
More women would also be pushed from the first trimester of pregnancy to the second, raising the annual number of those later-term abortions from about 6,600 to nearly 12,400, a potentially dangerous prospect. “The increase in second-trimester abortion is concerning from a public health perspective. While they are very safe, they're associated with a higher risk of complications compared to early abortions and are more expensive,” says Dr. Daniel Grossman, a TxPEP co-investigator. [The Austin Chronicle, 1/29/16]
Texas Policy Evaluation Project (TxPEP): HB 2 Clinic Closure “Leaves Many Women Without Hope And Without Options.” In a new study, the Texas Policy Evaluation Project (TxPEP) interviewed a number of women whose access to abortion care was severely impeded as a result of HB 2. Through these interviews TxPEP found that women's health care “was delayed, and in some cases [women were] prevented altogether” from obtaining an abortion. Investigators also noted that the subjects not only “reported a lack of information and confusion” in the wake of clinic closures, but also that once they had located an affordable provider, many “faced substantial added travel and hotel costs when seeking abortion services.” [Texas Policy Evaluation Project, 1/19/16]
The New York Times: Texas Abortion Restrictions “Have Already Caused About Half Of The State's 41 Abortion Clinics To Close” And Will Relegate Services To Just Four Urban Areas. In a September 3 article,The New York Times explained that parts of Texas' restrictive law “have already caused about half of the state's 41 abortion clinics to close,” and “If the contested provisions take effect ... the number of clinics will again be halved,” and those remaining would be “clustered in four metropolitan areas”:
Other parts of the law have already caused about half of the state's 41 abortion clinics to close. If the contested provisions take effect, Wednesday's filing said, the number of clinics will again be halved.
The remaining clinics, the brief said, would be clustered in four metropolitan areas: Austin, Dallas-Fort Worth, Houston and San Antonio.
“There would be no licensed abortion facilities west of San Antonio,” the brief said. The only clinic south of San Antonio, in McAllen, it added, would have “extremely limited capacity.” [The New York Times, 9/3/15]
MYTH: HB 2 Won't Damage Clinic Capacity Or Negatively Impact Women's Access To Care
State Of Texas: HB 2 Doesn't Impose “Substantial Obstacle” To Care Because “85% Of Reproductive Age Women” Will Still Be “Living Within 150 Miles Of An Abortion Clinic.” According to Texas' brief to the court, upholding HB 2 would not pose a “substantial obstacle” to women's ability to access safe and affordable care. The state argued that “85% of reproductive age women” in Texas would still be “living within 150 miles of an abortion clinic,” concluding that Whole Woman's Health had not definitively proven than HB 2 would “limit the capacity” of clinics or “lend to a 'shortage' of abortion providers to meet demand.” From the state of Texas' brief (emphasis added):
Petitioners have no record evidence for their representations that HB2 would “limit the capacity” of operating abortion facilities, or lend to a “shortage” of abortion providers to meet demand. Petitioners' trial expert, Grossman, asserted that existing ASCs will not be able to provide more abortions than they previously had. But the court of appeals rightly held that “Grossman's opinion isipse dixit and the record lacks any actual evidence regarding the current or future capacity of the [remaining] clinics.” Petitioners' brief does not address that holding or the court of appeals' explanation that “Grossman based his opinion on a chain of unsupported inferences.”
And the court's conclusion was correct. Grossman's testimony counted clinics, but that does not reveal anything without evidence of capacity. Grossman did not conduct any research into the current or future capacity of existing ASC abortion clinics, or whether physicians from non-ASC abortion clinics would transfer to ASCs. Nor did petitioners even try to discover capacity evidence from most of the non-party abortion clinics.
Petitioners are wrong to say that HB2's “undisputed and predictable effect” is to close abortion clinics, and they are wrong to call this evidence of unconstitutional purpose. There is no evidence or finding that the admitting-privileges requirement has caused half of the State's abortion clinics to close. Much less is there evidence substantiating petitioners' claim that remaining abortion clinics will lack capacity to meet the demand for abortion. Abortion providers have been able to comply with both the admitting-privileges and ASC requirements, and the Legislature gave abortion clinics over 13 months to conform to the ASC requirement. The Legislature would not have provided this allowance if its purpose had been to close clinics. Whether clinics would close rather than comply with these requirements was not “predictable” when the Legislature enacted HB2.
With over 85% of reproductive-age Texas women living within 150 miles of an abortion clinic remaining open under HB2, the statute cannot be facially invalidated on the premise that travel distances to clinics create a “substantial obstacle” to abortion access in a large fraction of cases. [State of Texas, Brief for Respondents to the Supreme Court, 1/27/16]
Fox Contributor Claims Clinic Closure Risk Is “Hyperbole” And Mocks Idea Women Will “Flee to Tijuana” To Receive Abortions. During the June 26, 2013, edition of Fox News' America Live, Megyn Kelly asked Fox contributor Monica Crowley whether the concerns over clinic closures in Texas were valid. In response, Crowley criticized pro-choice advocates, arguing that such concerns were unfounded because “they always try to go right to hyperbole.” As an example, Crowley suggested the idea that “women are going to have to flee to Tijuana” to receive abortions was “ridiculous.” From America Live:
MEGYN KELLY (HOST): They claim, Monica, that something like 42 abortion clinics in the state of Texas right now and that they all have to be licensed as ambulatory surgery centers it will reduce the number of abortion clinics to five and people are gonna have to go to Mexico now if they want to get abortions.
MONICA CROWLEY: This is a standard argument that they always use -- the pro-abortion lobby -- they always try to go right to hyperbole, that “women are going to have to flee to Tijuana” because they're not going to be able to have access in Texas to abortion. It's all ridiculous. [Fox News, America Live via Media Matters, 6/26/13]