Media Highlight New Research Confirming HB 2 Imposes An "Undue Burden" On Abortion Access

Media Highlight New Research Confirming HB 2 Imposes An "Undue Burden" On Abortion Access

››› ››› SHARON KANN

In oral arguments for Whole Woman's Health v. Hellerstedt, pro-choice groups called on the Supreme Court to strike down Texas' extreme anti-choice law, HB 2. Right-wing media and conservative lawmakers have long argued the bill's restrictions are aimed at protecting women's health and will not force clinic closures. In response, media in Texas have highlighted new research from the Texas Policy Evaluation Project (TxPEP) confirming HB 2 is dangerous, forces clinic closures, and places an "undue burden" on abortion access.

New Study Finds That After HB 2 Women Traveled Farther, Paid More, And Had Overall Less Access To Abortion

Texas Policy Evaluation Project: New Research Shows Forced Clinic Closures "Resulted In Significant Burdens For Women" Attempting To Access Abortion Care. On March 17, the Texas Policy Evaluation Project (TxPEP) released its latest study documenting the impact of HB 2 on women's health and abortion access. The new study surveyed "398 women seeking abortions at ten Texas abortion facilities" following the enactment of HB 2 to determine the financial impacts of clinic closures. Researchers found that clinic closures decreased access and increased travel distances and out-of-pocket costs, demonstrating HB 2 "resulted in significant burdens for women" attempting to access abortion care:

New research from the Texas Policy Evaluation Project (TxPEP) shows that the closure of over half of abortion clinics in Texas after the introduction of House Bill 2 (HB2)--one of the most restrictive abortion laws in the country--has resulted in significant burdens for women, including increased travel distances, high out-of-pocket costs, overnight stays, and decreased access to medication abortion. For women in the study whose nearest abortion clinic closed after HB2, the average distance to the nearest provider increased fourfold. The paper, entitled "The impact of clinic closures on women obtaining abortion services after implementation of a restrictive law in Texas," was published online today in the American Journal of Public Health.

Researchers analyzed surveys from 398 women seeking abortions at ten Texas abortion facilities between May and August 2014. The analysis shows that women whose nearest clinic had closed after HB2, which was the case for 38 percent of study participants, lived farther from open clinics and traveled longer distances to obtain services compared to women whose nearest clinic remained open. After HB2, the average one-way distance to the nearest abortion provider among women whose nearest clinic closed was 70 miles, compared to an average one-way distance to the nearest clinic of 17 miles before HB2 was passed. Some women confronted extreme travel burdens due to clinic closures, with 25 percent of women whose nearest clinic closed living more than 139 miles from the nearest facility and 10 percent living more than 256 miles away. [Texas Policy Evaluation Project, 3/17/16]

The Texas Law, HB 2, Has Led To The Closure Of More Than 20 Facilities Providing Abortions. Following HB 2's implementation, the number of abortion clinics in Texas dropped from over 40 to 19. If the Supreme Court upholds the law, "all but 10 abortion clinics in a state with 5.4 million women of reproductive age" would be shuttered, according to the Center for Reproductive Rights. The law has led to "higher costs, longer delays and extra steps for women seeking abortion care, and in the process punishes women for their decision to exercise their constitutional right to end a pregnancy." [Center for Reproductive Rights, 2/16/16]

Media Highlight How New Research Proves HB 2 Imposes An "Undue Burden" On Abortion Access

Texas Observer: New TxPEP Study "Puts Data Behind Concerns Raised" About The Harmful "Effects Of HB 2's Restrictions." Texas Observer reporter Alexa Garcia-Ditta explained in a March 17 article that new research from the Texas Policy Evaluation Project (TxPEP) proves that after HB 2, "Texas abortion patients traveled farther for services and experienced higher out-of-pocket costs." Researchers found that "32 percent of women whose nearest clinic closed reported spending more than $100 in out-of-pocket expenses to access abortion" in addition to the cost of the procedure itself. According to Garcia-Ditta, the study "puts data behind concerns raised" by critics about the harmful "potential effects of HB 2's restrictions" on Texas women's abortion access:

A new report released Thursday shows Texas abortion patients traveled farther for services and experienced higher out-of-pocket costs following the closure of more than half of the state's legal abortion providers in 2014. The closures came after the implementation of parts of Texas' omnibus anti-abortion law, HB 2, which is currently being challenged at the U.S. Supreme Court.

[...]

This latest study, published in the American Journal of Public Health, puts data behind concerns raised by mainstream medical organizations, reproductive rights organizations and abortion providers about the potential effects of HB 2's restrictions. Critics of the law have said that low- and middle-income Texans have more difficulty arranging and funding longer trips to clinics and wait longer for appointments.

Researchers found that 32 percent of women whose nearest clinic closed reported spending more than $100 in out-of-pocket expenses to access abortion because of extra necessities, such as transportation, overnight accommodations, child care, and also lost wages from taking time off work. Those expenses were added to the cost of the procedure itself.

In the course of defending the law in court, the state of Texas has disputed arguments that HB 2 places an "undue burden" on abortion patients. [Texas Observer3/17/16]

Vocativ: New TxPEP Study "Literally Maps Out The Impact" Of Clinic Closures And Demonstrates Why Case Challenging HB 2 Is The "Most Important Abortion Case In Decades." In a March 17 article for Vocativ, Tracy Clark-Flory reported that TxPEP's latest study shows how HB 2 "has dramatically increased travel distances and the need for overnight stays to obtain an abortion." According to Clark-Flory, although substantial research has documented the number of clinic closures in Texas, TxPEP's new study is unique because it "literally maps out the impact of those closures" to demonstrate that the "average distance to the nearest provider increased fourfold" following HB 2's implementation. Noting the value of TxPEP's work, Clark-Flory concluded that the study "comes at a critical time" and makes clear that the case challenging HB 2 is "the most important abortion case in decades." [Vocativ, 3/17/16]

The Austin Chronicle: TxPEP Study Shows "Women Are Now Facing A Combination Of Substantial Barriers" To Abortion Access After HB 2. In a March 17 article, The Austin Chronicle's Mary Tuma highlighted the results of the newest TxPEP study, writing that researchers initially found that many women "now live an average of 70 miles one-way for care, instead of the 17-mile distance before HB 2." Even more alarming, "25% of women surveyed" were found to be "139 miles from the nearest clinic," while "10% live 256 miles away from abortion care." The financial burden of these distances was even greater when considering the costs of "child care, transportation, and overnight lodging, and ... lost wages from taking time off work." As Tuma concluded, these findings "are yet another alarming indication of HB 2's impact on abortion access" and ought to "factor into the Supreme Court's decision":

Published online in the American Journal of Public Health, the study surveyed 398 women seeking abortions at 10 abortion facilities between May and Aug. 2014. When nearby clinics shut down, the average distance to the closest provider increased fourfold, researchers found. These women now live an average of 70 miles one-way for care, instead of the 17-mile distance before HB 2 was made law in 2013. But when researchers looked closer at the distance women on the ground are actually traveling, they discovered patients are making an even longer drive - the group of women without a close provider trekked 85 miles one-way for abortion care, while women whose nearest clinic stayed open traveled an average of 22 miles. Other women were placed even further out of reach; 25% of women surveyed need to travel 139 miles from the nearest clinic and 10% live 256 miles away from abortion care. Researchers note the national average for a one-way trip to an abortion facility is 30 miles.

The study also revealed that 32% of women without a nearby clinic lost more than $100 out-of-pocket while traveling to get abortion care, due to costs such as child care, transportation, and overnight lodging, and to lost wages from taking time off work. Women far from abortion care (versus women who still had a nearby clinic) were three times more likely to make an overnight trip, and nearly 40% of those women had to schedule a surgical procedure instead of their preferred method, a medication abortion. The four-part law is not all clinic regulation - it also bans an updated protocol for medication abortion, forcing women to pay more and take the second dosage (misoprostol) at a doctor's office instead of at home. This is on top of the extra trip women must make for their state-mandated 24-hour pre-abortion sonogram; the regulations taken together can cause some women to make up to four trips to a clinic. [The Austin Chronicle, 3/17/16]

ThinkProgress: Results Of TxPEP Study "Paint A Grim Picture Of The Disastrous Consequences" Of The Clinic Closures Forced By HB 2. In a March 17 article for ThinkProgress, Alex Zielinski wrote that "according to researchers in Texas" it seems clear that HB 2 placed an "undue burden" on women's access to abortion care. According to Zielinski, TxPEP researchers "used concrete data to paint a picture of just how burdensome HB 2 is to Texas women" and the results "paint a grim picture of the disastrous consequences" when clinics are forced to close. "For many women," Zielinski noted, the increased distance they had to travel "could be the determining factor in whether or not they go through with ending an unwanted pregnancy":

The TxPEP researchers paint a grim picture of the disastrous consequences of the law.

In 2012, there were 36 abortion clinics in Texas. After HB2 became state law in 2013, 14 clinics were immediately forced to close. Now, there are only 10 left in the second largest state in the country.

Of the nearly 400 Texas women seeking abortions that TxPEP surveyed in 2014, a year after the law passed, 25 percent lived more than 139 miles from an abortion clinic. Those who used to live near one of the clinics HB2 forced to close had to drive an average of 85 miles for the procedure. The national average for a trip to get an abortion is 30 miles.

For many women, this distance alone could be the determining factor in whether or not they go through with ending an unwanted pregnancy. Hours' worth of driving -- in some cases, just to swallow a pill -- means women would likely have to take at least a day off paid work, find childcare if they have children, and have the funds to cover gas costs. That is, if they have a car in the first place. [ThinkProgress, 3/17/16]

Huffington Post: HB 2 "Has Completely Crushed The State's Abortion Clinics," And New Study Shows Why. On March 17, The Huffington Post published an article exploring the negative impacts of HB 2 on Texas women. According to reporter Catherine Pearson, the TxPEP research demonstrates that following implementation of HB 2, women traveled farther, paid more, and received less-desirable procedures. For example, because clinic closures force women to travel farther for abortions, "37 percent of women whose nearest clinic closed didn't get a medication abortion, even though it was what they wanted." According to Pearson, mounting evidence, including TxPEP's new research, reveals that HB 2 "has completely crushed the state's abortion clinics." [The Huffington Post, 3/17/16]

Yet The State Of Texas Has Invoked Conservative Media Myth That HB 2 Is A Reasonable Restriction That Won't Force Clinic Closures

State of Texas:  HB 2 Doesn't Impose "Substantial Obstacle" To Care Because "Over 90% Of Texas Women Will Live Within 150 Miles Of An Operational 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 "90% of Texas women of reproductive age" would still be living "within 150 miles of an operational abortion clinic," concluding that abortion provider Whole Woman's Health had not definitively proved than HB 2 would cause the remaining clinics to "lack capacity to meet the demand for abortion" (emphasis added and citations removed):

Similarly, petitioners misleadingly represent that HB2 "would close more than 75% of Texas abortion facilities." Again, petitioners cannot point to evidence, much less a finding, supporting this blanket causation assertion. Petitioners also imply causation when they say that "more than 40" abortion clinics were operating "[b]efore HB2." Of course, Grossman's declaration states that only 33 were operating when the admitting-privileges requirement took effect. But, as noted, Grossman did not opine on causation in any event.

[...]

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 HB 2.

[...]

First, an abortion law cannot be facially invalidated unless a plaintiff proves, at an absolute minimum, that it imposes an undue burden "in a large fraction of relevant case." Petitioners cannot satisfy this "heavy burden" because an abortion clinic will remain operational in each metropolitan area where petitioners allege one would close if the Court affirms. Over 90% of Texas women of reproductive age will live within 150 miles of an operational abortion clinic. [State of Texas, Brief for Respondents to the Supreme Court, 1/27/16]

Texas Solicitor General: No Undue Burden On Women's Access To Abortion Because Care Will Still Be Accessible In "A Large Fraction Of Cases In Texas." During oral arguments, Texas solicitor general Scott Keller claimed that HB 2 did not impose an "undue burden" on women's access to abortion because care was still accessible in "a large fraction of cases." Justice Ruth Bader Ginsburg questioned the validity of Keller's argument on the basis that it did not meet the standards established by the Supreme Court in Planned Parenthood v. Casey -- in which an "undue burden" is determined not by looking at "all the women who are getting abortions" but instead by focusing only on "the ones who are burdened." In response, Keller suggested there were no burdens on women's access at all because "each metropolitan area will have a clinic, even after the law goes into effect."  From the Supreme Court's transcript of oral arguments (emphasis added):

JUSTICE RUTH BADER GINSBURG: May I ask you one question? You earlier in your argument, you were quoting how many women are within a reasonable range of the clinic. But don't we know from Casey that the focus must be on the ones who are burdened and not the ones who aren't burdened? There -- there is -- and the district court said, you know, this is not a problem for women who have means to travel, that those women will have access to abortion, anyway. So -- in Texas or out of Texas.

So Casey was quite precise in this, when it's talking about husbands and notification. You don't look to all the women who are getting abortions. You look only to the -- to the -- the women for whom this is a problem. And so the only women we would be looking at is not all of the women who are -- who live in Austin or in Dallas, but the women who have the problem who don't live near a clinic.

[...]

JUSTICE GINSBURG: But this is about -- what it's about is that a woman has a fundamental right to make this choice for herself. That's what we sought as the starting premise. And then this is certainly about -- Casey -- Casey made that plain, that is -- the focus is on the woman, and it has to be on the segment of women who are affected.

MR. SCOTT KELLER: Yes. And -- and the right held by women to make that ultimate decision is not burdened in, at a minimum, a large fraction of cases in Texas, when each metropolitan area will still have a clinic, even after the law goes into effect, and future as-applied challenges could address any possible concerns about West Texas or otherwise. [Supreme Court of the United States, Oral Arguments, Whole Woman's Health v. Hellerstedt, 3/2/16]

And Right-Wing Media Have Long Claimed HB 2 Is About Women's Health, Not Closing Clinics

Fox Contributor Monica Crowley: "Ridiculous" "Hyperbole" That Access In Texas To Abortion Care Would Be Reduced, Forcing Women To Go Elsewhere For The Procedure. During the June 26, 2013, edition of Fox News' America Live, Fox contributor Monica Crowley suggested that the idea that access in Texas to abortion would be reduced, forcing women to go elsewhere for the procedure was "ridiculous," and likened it to "hyperbole." 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 going to have to go to Mexico now if they want to get abortions.

MONICA CROWLEY: No, this is a standard argument that they always use -- the pro-abortion lobby -- they always try to go right to hyperbole, that somehow 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 Live6/26/13]

Michelle Malkin Claims Texas' Abortion Legislation Requiring Clinics To Meet Surgical Center Standards "Ensure[s] Safety." On the July 8, 2013, edition of Fox News' America Live, conservative commentator Michelle Malkin claimed Texas' legislation was simply about abortion providers having to "abide by standards that will ensure safety" and "make sure that women and unborn children are protected." [Fox News, America Live, 7/8/13]

Fox's Senior Judicial Analyst Argued That "The Practical Effect Of [HB 2] Was To Reduce" The Number Of Clinics In Texas "That Could Perform Abortions." During the October 15, 2014, edition of America's Newsroom, Fox News senior judicial analyst Andrew Napolitano insisted that HB 2 was about patient safety by emphasizing the bill was focused on "the credentials of the physicians who performed the abortions." [Fox News, America's Newsroom, 10/15/14]

Fox's Manny Alvarez: Texas Clinics Are Only Closing Because Providers "Do Not Want To Adhere To These New Rules," Not Because HB 2 Poses Undue Burden. In a June 29, 2015, article following the Supreme Court's decision to hear arguments about the constitutionality of HB 2, Fox News senior managing editor for health news Manny Alvarez claimed that restrictions on Texas clinics are "mainly focused on enforcing safety." He alleged that HB 2 wasn't forcing clinics to close, but rather that providers simply did "not want to adhere to these rules." Alvarez concluded that if HB 2 did force clinic closures, it's merely evidence why there is a need for "more regulated, safe facilities":

Given the severity of that case and many others, I don't understand this Supreme Court ruling, I really do not. I believe that if you are going to perform any kind of medical procedure on any type of patient you must have medical standards that ensure quality medicine and focus on patient safety. Just because some clinics do not want to adhere to these rules does not mean our country's patients must suffer. The opposition argued that the new regulations would have forced a major wave of clinic closures, leaving some areas across the state without any centers. That should not have been a reason to block this rule, but rather a reason for the state to address its needs and construct more regulated, safe facilities. [FoxNews.com, 6/29/15]

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