The XX Factor

Abortion Rights Could Become a Scarcity in Texas, and Elsewhere

Students from the University of Texas at an abortion-rights rally.

Photo by Jana Birchum/Getty Images

It’s been two years of court battles over HB2, a Texas law that was clearly designed to close most abortion clinics in Texas through pointless red tape. That law was upheld by the 5th U.S. Circuit Court of Appeals, which is notorious as one of the nation’s most conservative courts. The law’s opponents say that this will close down all but seven (or eight, depending on how you’re counting) abortion clinics in the entire state. In 2011, the last year the Guttmacher Institute has statistics for, 73,000 women had abortions in Texas. That means that each clinic would have to perform more than 9,000 a year to keep up with demand, or more than one an hour, every hour, for every day of the year. In other words, it’s impossible.  

HB2 has been an emblem of legal bad faith from the moment it was conceived. Proponents claim that the regulations, which require abortion clinics to meet ambulatory surgical center standards—even if they only hand out abortion pills—are there to protect women’s safety. It’s unlikely that anyone sincerely believes that, since abortion is already 14 times safer than childbirth. In addition, the first wave of clinic shutdowns in Texas has already led to women choosing to forgo safe abortions in favor of buying abortion pills on the black market. All this is known and well-documented. But anti-choicers pushed for this law anyway, because legitimate safety concerns were never actually at issue.

This bad faith is baked into the court’s decision. As my colleague Mark Stern reports, the court signed off on forcibly shutting down an El Paso clinic on the grounds that women could go to New Mexico for abortions. If you really believe that abortions are unsafe unless performed in a clinic with a “full anesthesia machine,” why would you send women to a state that, by your own measure, is treating women’s health recklessly? (Driving for hours during this stressful time is, it’s worth noting, not an unrisky activity.)

There’s almost no way for this not to go to the Supreme Court soon. The 7th U.S. Circuit Court of Appeals has struck down similar regulations, creating a tension that the Supreme Court will likely feel obliged to resolve. If Texas wins at that level, expect its strategy to become standard in red states. Abortion will become a scarce resource, accessible by those who have the ability to pay and to work around onerous scheduling issues while everyone else scrounges the Internet for black-market abortion pills.