It’s wrong for Texas to criminalize abortions

Women holding signs line the second floor of the Capitol Rotunda on July 27, 2017 after the House passed a bill requiring more reporting on abortion complications by health care providers. Photo by Bob Daemmrich for the Texas Tribune

Once again, Texas finds itself in court defending its abortion restrictions. Lawyers for the state argued this week for Senate Bill 8, yet another unduly burdensome abortion law. The challenged measure criminalizes the performance of dilation and evacuation (D&E) abortions. To date, every court to hear cases involving similar bans in Alabama, Arkansas, Kansas and Oklahoma has blocked its enforcement. In Louisiana, the state has agreed to hold off on imposing this restriction.

This measure continues Texas’ long-standing practice of attacking the fundamental framework of Roe v. Wade. In 1973, the U.S. Supreme Court held that the 14th Amendment’s privacy protections also broadly encompass a woman’s right to choose whether to terminate her pregnancy. While the court recognized this right, it also recognized the right of states to regulate second-trimester abortion procedures in ways that are reasonably related to maternal health. Texas has abused this right, continuing to systematically chip away at the rights of women who choose to seek safe and legal abortions.

Unfortunately, as a practical matter, the state’s effort to strip women of their right to choose is working. It takes years to stop the damage of these laws.

For example, it took three years before challenged portions of House Bill 2 reached the U.S. Supreme Court and were eventually overturned. The disputed restrictions required abortion clinics to meet regulatory standards for hospitals and required abortion providers to have hospital admitting privileges.

In that time, the state saw a 59 percent reduction in abortion clinics and an increase in wait times for women seeking abortions. Simultaneously, there was an uptick in second-trimester abortions in the state, and they have remained high since then.

Although first-trimester abortions are preferable to those in the second-trimester because of the increased risk of complications with later-term abortions, certain proven second-trimester procedures can mitigate these added risks. The most common of those is D&E, which has been identified by the American Congress of Obstetricians and Gynecologists as medically preferred because it results in the fewest complications. Texas lawmakers want to ban this procedure, barring certain exceptions.

This is not what lawmakers ought to do. It will make abortions even more challenging for Texas women. If a woman must delay her abortion because of longer wait times, she might be forced to seek a second-trimester abortion — and now she may also have to navigate the barriers the new law would impose. Beyond the patient access issues, the law will reduce the number of doctors who perform second-trimester abortions. In fact, one doctor testified that he would be nervous about his ability to not violate the law. Essentially, doctors will be forced to choose between performing the safest known second-trimester abortion procedure and facing criminal penalties, or providing riskier medical care. It is unconscionable to put doctors in that position.

The new law will also exacerbate the state’s already shocking maternal mortality rates. Forcing doctors to perform rarer, more complicated second-trimester abortion procedures will jeopardize the health of their patients. Texas has the highest maternal mortality rate in the developed world, and it is puzzling to watch our lawmakers knowingly intensify the problem.

Ultimately, this law will disproportionately affect the poor and women of color in Texas. Those with resources and privilege can seek safe, timely and medically appropriate abortions outside our state borders, while women without such means will be left to deal with the risks imposed by the new law. What remaining options do those women have? They may bypass the health care system and perform potentially dangerous self-induced abortions, similar to what many women did following the passage of HB 2. Or they may feel obligated to carry their pregnancies to term and ultimately place those children in Texas’ broken foster care system. In short, Senate Bill 8 is absolutely terrible for Texas women and does not protect their health.

If the motivation behind these restrictions is really about women’s health care, why not focus on improving existing disparities rather than creating new ones?

Disclosure: The University of Texas has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

Shavonne Henderson

Assistant director of policy research, Institute for Urban Policy Research and Analysis, UT-Austin

Richa Gupta

Research associate, Institute for Urban Policy Research and Analysis, UT-Austin