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Whole Woman’s Health v. Hellerstedt: Quantifying The Case’s Potential Impact On Abortion Access And Women’s Health

By TxPEP investigator Daniel Grossman

Featured in Health Affairs Blog, March 1, 2016

Editor’s note: The post below discusses Whole Woman’s Health v. Hellerstedt, which will be argued before the Supreme Court tomorrow. The Court today decided another important health-related case, holding in Gobeille v. Liberty Mutual Insurance Co. that ERISA prevented Vermont from requiring self-insured employee health plans to report claims information and other data to the state’s all-payer claims database. Read Bill Sage’s recent Health Affairs Blog post for a discussion of the issues at stake in Gobeille.

In April 2013, there were 41 facilities providing abortion services in Texas, and now there are 18. Depending on what the US Supreme Court decides in Whole Woman’s Health v. Hellerstedt, there could be as few as nine or 10 facilities left in the state. Regardless of one’s views on abortion, one ought, at the very least, to be curious about the effect of this shift on women and families in Texas.

In the summer of 2013, the Texas Legislature passed House Bill 2 (HB2), one of the most restrictive abortion laws in the country. Among the provisions included in the law is a requirement that physicians performing abortions must obtain admitting privileges at a hospital within 30 miles of the facility. That can be quite difficult, according to Texas providers we have interviewed. Sometimes the hospital never responds to a request for the privileging application. Sometimes the hospital requires gynecologists to submit a case log of recent surgeries, but physicians who primarily perform outpatient care cannot meet this requirement. Hospitals often require another physician to act as backup and publicly support the applying physician’s application, which has been difficult in smaller cities.

The next round of clinic closures, if they occur, will be due to another provision in HB2 requiring all facilities to meet the standards of ambulatory surgical centers (ASCs), which include requirements about things like the procedure room size, corridor width, closet space, and nursing staffing. The ASC provision was briefly enforced in October 2014 when the Fifth Circuit Court of Appeals overturned a lower court ruling blocking the law; this led to the closure of nine of 19 facilities. After the US Supreme Court issued an order staying the Appeals Court decision later in October 2014, eight of those facilities reopened. The Supreme Court will consider both the admitting privileges and ASC requirements in Whole Woman’s Health v. Hellerstedt.

Potential Harm

Medical groups, including the American College of Obstetricians and Gynecologists and the American Medical Association, are opposed to HB2, explicitly affirming that these provisions will not improve the safety of abortion care. But beyond the lack of benefit, there is potential for real harm from HB2. While it may be difficult to predict the effect of health care policy on future service delivery, in this situation, there is mounting evidence that severely restricting the supply of abortion care in Texas will have serious implications for the health of women in the state — particularly on poor women who do not have the resources to travel out of state for care.

After the admitting privilege requirement went into effect in November 2013, clinics started to close, reducing geographic access to care. With the closure of almost all of the clinics in small and medium sized towns, women in these areas had to travel farther. For example, the number of Texan women of reproductive age living in a county over 100 miles from the nearest abortion provider in Texas more than doubled to just over one million when the admitting privilege requirement of HB2 went into effect in November 2013

We can also look to a natural experiment unfolding in the Dallas-Ft. Worth area. Since November 2013, we have used a “secret shopper” methodology to track the wait time to get an appointment for a woman seeking abortion at six weeks gestation at all open abortion clinics in the state. Throughout most of 2014 and early 2015, the wait times in Dallas and Ft. Worth was stable at about five days on average (see Figure 1).

In June 2015, a large-volume provider that did not meet ASC facility standards closed in response to the Fifth Circuit Court of Appeals’ ruling that would have allowed the ASC requirement to go into effect. In the following months, the wait times at the four remaining facilities in Dallas and Ft. Worth increased to as much as 20 days. In December 2015 the wait time was as long as 28 days, with clinics saying it might be another two-week wait after the initial consultation visit (which is required by another state law imposed in 2011) before the abortion appointment.

The Consequences Of Limiting Capacity

The extended wait times in Dallas and Ft. Worth foreshadow another obstacle to obtaining safe abortion: limited capacity of the remaining facilities. What is happening in these two cities is likely to take place to the same or greater degree elsewhere in the state if all non-ASC clinics are forced to close.

Consider Houston, for example. About 30 percent more abortions are performed in Houston than in Dallas-Ft. Worth. If the four non-ASC clinics are forced to close in Houston, this will leave only two ASCs providing services, and there are no public plans for a new ASC to begin offering abortion care there. With half as many facilities as currently providing abortion services in Dallas-Ft. Worth and a higher demand for services, it seems very likely that women seeking care in Houston will face long wait times if HB2 is allowed to go into effect.

The constraints on access to abortion are already having an impact on Texan women. The number of abortions performed in Texas in the first six months after HB2 went into effect fell by 13 percent compared to the same period in the prior year — a decline more than four times the average decrease in the previous five years. It is unlikely that the decline in abortion post-HB2 was due to improved contraceptive use given the drastic reduction in grant funding for family planning services that occurred in Texas in 2011-2013, coupled with the exclusion of dedicated women’s health providers from the fee-for-service family planning program.

While some women may be traveling out of state, the falling abortion rate in Texas undoubtedly represents some number of women who are unable to get the abortion they want. We have documented cases of women who wanted an abortion but when nearby clinics closed, they were unable to overcome the financial and logistical obstacles to travel farther to access care. Some of these women even had appointments scheduled, but clinics closed before they could have the abortion. In light of the poor health and social outcomes associated with denial of desired abortions, it is especially concerning that women may be forced to continue unwanted pregnancies to term.

There are other ways that HB2 may adversely affect women’s health. The prolonged wait times, as well as delays associated with arranging transport and time off work for women living far from open facilities, may push some women later in pregnancy before they can obtain an abortion. In the first six months after HB2 went into effect, there was a small but significant increase in second-trimester abortion; longer follow-up data are needed to confirm this trend. While later abortion is very safe, it is associated with ahigher risk of complications compared to early abortion; it is also more expensive for women, and there are fewer providers. In addition, reports of women attempting abortion self-induction in Texas, often with herbs or misoprostol, but sometimes with physical means like getting punched in the abdomen, are alarming. Like previous research, women in Texas commonly report attempting abortion self-induction because of barriers they face accessing clinic-based care, raising concerns that this practice will only become more common with even fewer clinics in the state.

As the Supreme Court weighs the evidence about the constitutionality of HB2, the State of Texas may argue that the vast majority of women in the state will experience no undue burden from the closure of abortion clinics since most women will still live relatively close to a facility. This view is shortsighted and ignores the evidence indicating the limited capacity of the current 18 facilities in the state, let alone the nine or 10 that will remain if the Supreme Court allows HB2 to go into effect.

Figure 1

Wait Times Chart

Figure Legend: Red dots indicate average wait time in days to first appointment at open facilities providing abortion in Dallas and Ft. Worth at time of each monthly call. Bars indicate the range of wait times among facilities. *In July 2015, one facility at the time of the call was unable to schedule appointments and told the caller to call back.

Author’s Note

The research cited in this post was supported by a grant from the Susan Thompson Buffett Foundation.

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