What Wendy Stands For

Last month, the Texas legislature tried to pass SB5, which would have limited abortion and regulated abortion clinics.  Senator Wendy Davis (D-Fort Worth) filibustered, as it was the last day of the session.  I followed by proxy the events through Facebook.  I had pro-life friends at the senate, and pro-choice friends livestreaming it long into the night.  Depending on the side, it was filibuster by mob or a devious bill and trampling parliamentary procedure (including allegations of time-stamp changing).  By the end of the night, the result was in: the vote in favor of passing the bill didn’t count, because the legislative session had ended two minutes before.

I was unable to watch for myself, so I observed through my friends.  My pro-choice friends were defiant, but also hurt.  From their perspective, the bill was clearly a GOP ploy to restrict abortion and Wendy Davis stood as a beacon of hope, the bulwark protecting women’s health.  #StandwithWendy was everywhere.  But what exactly was Wendy standing for?  Who was she standing for?  And what was she standing against?

There’s no doubt that the bill was intended to limit abortion: it would forbid most (but not all) abortions from taking place after 20 weeks,[1] or after five months of pregnancy.  Women would probably have at least three months to decide whether to abort or not (since they may not be aware of their pregnancy at first), and after that point only for the life of the mother (broadly defined) or severe fetal abnormality could an abortion be performed.

According to the CDC’s latest Abortion Surveillance report, 1.3% of abortions occur at 21 weeks or later nationwide.[2]  In Texas, 99.4% of abortions reportedly occurred before 20 weeks, and nearly three-quarters of all abortions were performed in the first eight weeks.[3]  While some pro-choice advocates may want abortion available without restriction until birth, the gestational restriction won’t result in many fewer abortions.  If this is what’s bothering opponents, the response is disproportionate.  Moreover, opinion polls continue to show that restrictions like the 20-week ban enjoy wide popular support.

The bill also places requirements on doctors administering drugs to induce abortion.  There are quite a number of them, but they include mainly that it has to be a doctor prescribing and administering the medication, the same contact details, providing the pharmacy label to the woman (i.e., the same thing pharmacies include with prescriptions), and follow-up care.[4]  From a patient’s perspective, it seems that responsible doctors do at least most of these things anyway, and there’s no real cost to handing over the paper that came with the drugs or having a paper with contact information in case something goes wrong.  Since the pro-choice lobby assures us that abortion is very safe,[5] this seems very little to ask.

Under the bill, abortion providers would also have to have admitting privileges at hospitals with OB/GYN services within 30 miles.[6]  As Texas is very spread out, this initially looked problematic.  So, I looked for abortion providers in Texas (“find an abortion provider” and then selected by state).  A search engine brought up abortion-service locating sites, and combining the National Abortion Federation and Abortion.com lists,[7] I came up with a list of 22 locations providing abortion services.  Although there are other clinics in Texas, at most 5 of the clinics I found would, according to abortion supporters, stay open.  Given that Texas women seeking information about abortion are likely to come across these same clinics, analysis of this subset of clinics provides useful data.

Using Google Maps, I determined that all of these 22 facilities are within 30 miles of a hospital.[8]  A few are in smaller cities where the hospitals appear to be private and religious, and could deny admitting privileges to abortion providers, but only a few.  It’s likely, therefore, that the majority of Texas abortion providers are within 30 miles of a secular hospital.  It’s also possible, and perhaps likely, that doctors who perform abortions already have admitting privileges at local hospitals, as they may provide other services in their private practices or be attached to a hospital.

After finding hospitals for those clinics in cities I didn’t recognize (i.e., not Austin, Dallas, San Antonio, etc.), I zoomed out on the map to find that even the smaller towns with clinics were not far from other cities, especially by Texas standards.  A common objection to the bill has been that it will make it harder for rural women to access abortion.[9]  As it stands it may already be relatively hard for rural women to get abortions.  However, there may be something to the argument that if only five clinics remain in the state, it will affect rural women disproportionately (as they would have to travel farther and possibly wait longer, using up time and money).  Whatever the effects of closure would be, the cause is clearly not the admitting privileges requirement for most of them.

If it is true that at least 17 of the 22 clinics researched must close, the reason for these closures must lie in the remaining provision of the bill, which requires abortion facilities to meet standards for ambulatory surgical centers by September 1, 2014.[10]  Admittedly, these changes, mostly facility upgrades, will cost money, and may increase operating costs.  I was concerned that these might be placing these costs upon facilities only providing medical abortion, but of the clinics researched, I was able to confirm that most provide surgical abortion (see Appendix).

Rather than defend abortion clinics against operating costs that other day surgeries have to pay, opponents of the bill need to consider some things.

If the purpose of legalizing abortion was to make it safer by regulation, what’s the problem?  These standards haven’t been plucked from thin air; they are required for other facilities providing outpatient surgery.  If it’s a procedure like any other, it’s not logical that it isn’t held to the same standards.  Why is abortion so special, and what about being special means women’s reproductive health should be held to a lower standard of patient care?  Aren’t women worth it?

Clinics will have to adjust their services or adjust their clinics; they would have over a year to do so, and those that are part of major affiliates may have the resources anyway.[11]  If it’s really about providing quality healthcare to women, isn’t it worth the investment?  I wouldn’t be particularly happy to visit a surgery that wasn’t fully equipped just because most people who use it don’t need special care.  In health services, we want to discourage risk-taking.  Abortion shouldn’t get a pass just because some people are passionate about its politics.

So what exactly was Wendy standing for?  Whatever her intentions, Wendy Davis wasn’t standing for women or women’s health, because women’s health should be taken as seriously as any other medical area.  She wasn’t standing for Texas voters, who mostly agree with the time restrictions and elected majorities that would pass the bill.  She wasn’t preserving vast numbers of abortions now being performed after 20 weeks.  This wasn’t one woman against “the man”; it was an industry against the will of the people.  To stand with Wendy Davis is to stand with the clinics, to stand against surgical abortion being taken as seriously as other surgical procedures, and to stand against women’s reproductive health being treated equally well as other areas of health.

Appendix: Texas Abortion Providers Offering Surgical Abortion

*Nadja Wolfe is a student at William and Mary School of Law and a CLI Contributor.

[1] See S.B. 5, 2013 Leg., 83d Session (Tx. 2013), available at http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=831&Bill=SB5 (hereinafter SB5).

[2] Centers for Disease Control and Prevention, Morbidity and Mortality Weekly Report: Abortion Surveillance—United States, 2009 at 25 (2012), available at http://www.cdc.gov/mmwr/pdf/ss/ss6108.pdf.

[3] Id.

[4] Id.

[5] National Abortion Federation, Safety of Abortion, http://www.prochoice.org/about_abortion/facts/safety_of_abortion.html. But see [incomplete cite/]

[6] SB5.

[7] National Abortion Federation, Search Results for Texas, http://www.prochoice.org/Pregnant/find/tx.html; Abortion.com, Texas Abortion Clinics, http://www.abortion.com/abortion_clinics_state.php?country=United%20States&state=Texas.

[8] I only counted hospitals that appeared to be general, rather than specialized.

[9] See, e.g., Andrea Grimes, “Here’s the Abortion Testimony Texas Republicans Refused to Hear,” RH Reality Check (June 24, 2013) (see particularly quoted testimony of Andrea Grimes and Katherine Marie Waters).

[10] S.B. 5.

[11] E.g. Planned Parenthood.  See generally, Katherine Clarke, “Planned Parenthood buys its NY HQ for $34.8M,” The Real Deal (Jan. 24, 2012), http://therealdeal.com/blog/2012/01/24/planned-parenthood-buys-its-ny-hq-for-38-4m/.