Pro-choice advocates won a huge victory on Monday when the Supreme Court struck down two major anti-abortion laws in Texas in Whole Woman’s Health v. Hellerstedt. Those laws, part of an omnibus anti-abortion bill called HB 2, were responsible for closing about half of all abortion clinics in Texas.
Before HB 2 passed in 2013, Texas had 41 open clinics. Today there are 19. If the Court had ruled to uphold the restrictions, that number would have shrunk to nine. So it’s no surprise that lead plaintiff Amy Hagstrom Miller, CEO and founder of Whole Woman’s Health, said she was "beyond elated" by the ruling.
But, Hagstrom Miller said in a recent interview with Vox, a victory at the Supreme Court is really just the beginning for abortion providers in Texas. Not only are other restrictions, like a 20-week abortion ban and limits on medication abortion, still in place in Texas but HB 2 has also done lasting damage to abortion access that could take years to repair, if it can be repaired at all.
The closed clinics can’t just reopen overnight, and some might never reopen
"People often say, ‘Are you going to reopen if you win?’ And it’s not just a matter of will or gumption," Hagstrom Miller said. "Philosophically, my answer would be, ‘Hell yeah.’" But economically and logistically, she said, it’s a different ballgame.
Closing an abortion clinic is a huge logistical hassle, and so is reopening one. There are utility bills to pay, equipment and supplies to either liquidate or repurchase, vendors to negotiate with, and security and malpractice insurance to either cancel or rearrange.
When a clinic closes, it loses its license to perform abortions from the state. And the owner usually has to give up the lease on the building that the clinic operated in. "You can’t pay a lease for three years if you don’t have any income," Hagstrom Miller said. (Many clinics closed immediately after HB 2 passed, about three years ago, because they knew they couldn’t comply with the new restrictions.)
Most importantly, the staff and doctors have to be laid off after a clinic closes, and most of them end up taking other jobs elsewhere if the clinic doesn’t reopen soon. So even without the added burden of needing to find a doctor with admitting privileges, it can be difficult to reassemble the staff necessary to operate the clinic at full capacity.
Two of the five clinics that Whole Woman’s Health operates in Texas were forced to close by HB 2, and Hagstrom Miller estimates that reopening them will cost hundreds of thousands of dollars.
Hagstrom Miller gave up the lease on her clinic in Beaumont that closed. She had decided to let go of her Austin lease too, she said — but then she raised the money to keep it after she learned that anti-abortion advocates were trying to purchase the space and turn it into a crisis pregnancy center. Crisis pregnancy centers discourage women from seeking abortion, and often do so using medically inaccurate information.
The former clinic in Austin has since been converted into a co-working space for pro-choice groups. Still, most providers who had to close their clinics have long since given up their leases, Hagstrom Miller said. So not only would they have to raise the money to rent a new space along with all the other costs of reopening but they’d also have to find a pro-choice landlord willing to rent to them. That can be challenging in more rural, conservative areas of the state.
Then they have to deal with getting a new license to operate from the state of Texas — which might not be feeling generous toward abortion providers after losing such a high-profile case. Hagstrom Miller said that it took almost a year, and the intervention of lawyers, for one clinic in El Paso to get relicensed by the state after it was first forced to close by one court order, then allowed to reopen by another.
All of this means that it could take years for Texas to get back to its full capacity of 40 or so abortion clinics. And it might never quite get there.
The actual experience of having an abortion will still be altered for many women
About nine of the remaining 19 clinics in Texas are ambulatory surgical centers (ASCs), and the other 10 are regular outpatient clinics. Clinics look like a normal doctor’s office, but ASCs look more like hospitals with surgical bays. Even though the ASC requirement has been struck down, that doesn’t change the fact that almost half of the state’s abortion providers are still currently housed in surgical centers.
Hagstrom Miller talked about how going to an ASC is a fundamentally different (and likely more intimidating) experience for women than just going to a regular clinic. Both settings provide equally high-quality care, she said, but ASCs are required to take medically unnecessary steps that make the procedure seem more alienating for the women having it.
ASCs are regulated under the assumption that the people who go there are going to have surgery — that they will be anesthetized and cut open, and that they will need to recover accordingly. But that’s not how abortion works. A standard abortion doesn’t involve any cutting, even though it’s often called a "surgical" abortion; everything is done through the opening of the cervix. Sterile instruments are used, but there’s no need to perform the procedure in a sterile operating room.
"The same room you have a Pap smear in is completely adequate for abortion," Hagstrom Miller said. "If you want sedation you can have it, but it's not required." But when patients at an ASC see the surgical theater where their procedure is about to take place, she said, their first question is usually: "Are you going to cut me?"
Hagstrom Miller said the non-ASC Whole Woman’s Health clinics have a homey atmosphere with little touches, like fleece blankets and herbal tea, that are designed to make patients more comfortable. But in the ASC setting, none of those comforts are permitted — because of rules that don’t apply to a patient’s actual experience with abortion.
Patients have to be transported in a wheelchair and on a stretcher, even though they are perfectly capable of walking on their own. They can’t have herbal tea, even though they haven’t undergone the general anesthesia that would prohibit them from drinking it afterward. They get scratchy hospital blankets instead of nice purple fleece ones because of unnecessarily strict sterility standards. There are "literal barriers" like a surgical mask and gown, Hagstrom Miller said, between the doctor and the patient — barriers that don’t have to be there. And no art is allowed on the walls, although the staff try to warm up the place using painted stencils of inspirational quotes.
Texas law still requires abortions after 16 weeks to be performed in an ASC, Hagstrom Miller said, and it remains to be seen whether that law will withstand additional challenges.
Regardless, the fight for abortion access in Texas is anything but over, despite a decisive Supreme Court ruling in favor of the pro-choice side. Now comes the long and difficult process of rebuilding lost capacity, and of working to support and serve all of the women who will need an abortion in the meantime.