Mention Texas and most people immediately think of right-wing politicians in cowboy boots and hats. But there's a new image coming from Texas in recent weeks: women standing up against oppressive conservative policies. Despite the best efforts of pro-choicers (remember Wendy Davis) to filibuster and kill a bill designed to shut down most abortion clinics in the state, dogged anti-choice Republicans passed it anyway in a second special legislative session designed solely to pass the law. Most conservatives thought the story would end there, but it didn't.
Women and pro-choicers got a measure of hope on Monday when a federal court judge in Texas shot down one of the most onerous provisions of the law that would require doctors at clinics to have admitting privileges at a nearby hospital. As the judge rightly said, this provision constitutes "a substantial obstacle in the path of a woman seeking an abortion". Common sense is finally prevailing in Texas. If this ruling hadn't happened, 13 clinics would have to shut down immediately.
But there's more to this law and ruling than many realize. Texas is a test case for what conservatives are trying to do across the country to restrict abortions. The right wing is pushing multiple initiatives, and in the Texas law alone, there are three more provisions that haven't been struck down. The judge upheld the regulation that makes it more onerous for patients to take an abortion drug, adding expense and time for patients. The regulation requiring abortion clinics to meet ambulatory surgical standards and the ban on abortions after 20 weeks have yet to be challenged in court, partly because the former won't go into effect for another year.
Texas is a big state with a huge chunk of the country's population of reproductive age women, but this ruling affects more than the state itself. This "ugly foursome" of regulations are part of a general package of regulations designed to whittle legal abortion access out of existence, a package that is being pushed by anti-choice organizations in various states. This court ruling suggests some of the limits to that anti-abortion strategy, but also, unfortunately, some of the ways that the anti-choice movement can make abortion more painful, more expensive, and more difficult to get for the women they wish to punish for wanting abortion in the first place.
The strategy that the anti-choice movement is focusing on now is to pass laws that are purportedly to protect women's health, but in actuality are there for the purpose of shutting down abortion clinics and driving abortion back onto the black market. The reason to frame anti-abortion legislation as being for "women's health" is an obvious one: the misogyny of the anti-choice movement is bad for its reputation, and they'd very much like the public to believe the hatred of women isn't driving this. However, as this case shows, the sticking point is that proposed "health" regulations actually make women less healthy by removing access to safe abortion. It's hard to argue for health regulations that make people less healthy.
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That's why similar regulations in other states have fared poorly in the courts. The supreme court in 1992 found that states cannot put an "undue burden" on a woman's access to abortion. Abortion providers don't need hospital admitting privileges, because abortion is an outpatient procedure that doesn't require doctors sending patients to hospitals. In the less than .3% of abortions where complications do require a hospital visit, the emergency room doctor has plenty of authority to admit the patient for an overnight stay, if necessary. This decision just reaffirms that anti-choicers will not have an easy time convincing judges that these laws serve any other purpose but to ban abortion without outright banning it.
That's the good news. The bad news is that the judge's decision on medication abortion may very well spell danger for an increasingly popular form of very early term abortion. Currently, 17% of abortions are performed using RU486, which drives anti-choicers nutty. Medication abortions are cheaper and more discreet, and because it's just a matter of handing a woman two pills, clinics that aren't equipped for surgical abortion can still prescribe RU486. But the decision in Texas upholding the new regulations on medication abortion will make it more expensive, more difficult to obtain, and quite possibly more dangerous.
The regulation the court signed off on requires a woman to take more of the drug to endure more doctors visits than the medical establishment deems necessary. It's basically forcing women to suffer more side effects and more hassle, and pay more than twice as much for the privilege. It's just a matter of doling out more abuse to women for no other reason than to satisfy the anti-choice desire to see them punished for seeking abortion.
To make it worse, affordable abortion drugs are available on the black market, imported from Mexico, but they are less effective and most women buying them are unsure about the dose. Doubling the price of a legal medication abortion is going to drive more women to the black market methods. Since the court blessed this particular piece of legislation in Texas, we can expect an explosion in conservative states adopting similar regulations – and seeing a similar escalation in the trade of black market abortion drugs.
So this is where we're at with this latest court decision out of Texas: anti-choicers may have to rethink their strategy of trying to regulate clinics out of existence. On the other hand, they now have reason to pursue a strategy that makes medication abortion more painful, stressful, and expensive. They may not be able to get rid of legal abortion, but they can make it more punishing.