Women Won Abortion Rights In Texas—But They Still Can't Access Care

Dr. Rubino is on her way to the recently re-opened Whole Woman's Health facility in the south-central Texas city, where she will spend the day providing abortion care to women who've had to contend with a host of state-imposed obstacles just to get there. "As soon as I get to work today, I'm going to have a patient who's going to be from Corpus Christi or McAllen," she says. Corpus Christi is about 150 miles away. McAllen is 230.

To anyone who has been following the situation in Texas from a distance, it may come as a surprise that things are still so dire. A year ago today, in the landmark ruling Whole Woman's Health v. Hellerstedt, the Supreme Court struck down the state's notorious anti-abortion law, HB2, which had imposed a slew of stringent, medically unnecessary requirements on abortion providers, forcing over half of the clinics in the state to shut their doors. The effects of HB2 are well documented, and an obvious public health crisis: Texas women had to travel four times farther to reach a clinic, associated costs skyrocketed, and the legal abortion rate plummeted. (Research has found that as many as 240,000 women in the state have attempted to perform a DIY abortion with no medical assistance.) Poor women and women of color were particularly burdened.

The decision in Hellerstedt was a huge ideological victory: a vital affirmation that access to safe and legal abortion is constitutionally protected in the US, and a sharp rebuke to Republicans who were insidiously working to erode that right. It's had an immense practical impact as well—immediately after the decision came down, similar restrictions designed to block abortion access fell in five states, and it also provides reproductive rights advocates with a powerful tool for challenging laws in the future.

For many women in Texas, however, reality is trailing behind legal precedent. Before the restrictions took effect, there were 41 clinics operating in the state. At the nadir of the abortion access crisis, there were just 17. Today, there are 21.

"Since that decision, we haven't gotten anywhere close to the level of abortion access we had prior to the law closing so many clinics," said Nan Little Kirkpatrick, the executive director of the Texas Equal Access Fund, which provides financial assistance to low-income women who need abortions. "The decision was right and just, but it did not flip a switch to reopen the clinics we lost in 2013 and 2014."

Although the abortion providers that were forced to close by HB2 are now technically free to reopen their doors, there are numerous technical and political barriers to them doing so. "It's very difficult to go from closing your doors back to reopening," explains Amanda Allen, the senior state legislative counsel at the Center for Reproductive Rights. The 20-plus clinics that shut down weren't just waiting in pristine shape for three years, like the setting for a particularly bleak retelling of Sleeping Beauty, for the Supreme Court to overturn the Texas legislature's unconstitutional malediction. Providers were forced to give up their leases and sell their equipment, and some of the doctors who worked there had to move away.

As the arduous process of restoring abortion access across the state continues, women in Texas are now caught in a bizarre state of limbo, fighting for justice many people think they've already received. "Because over half the abortion clinics had already closed, abortion care in Texas is still not accessible," said Aimee Arrambide of Fund Texas Choice, another abortion fund in the state. "The number of Fund Texas Choice clients has exponentially increased, and our clients are having to wait longer and travel farther to access care." According to Gina Lawrence, the director of media and communications of West Fund, women in west Texas are still traveling an average of 400 miles, round-trip, to terminate unwanted pregnancies.

"We know that the Supreme Court decision was the beginning and not the end," says Allen of the Center for Reproductive Rights. "We knew that it was going to take a lot of time and a lot of work to get access back to where it was in Texas."

Just four days after the Supreme Court ruling, the Texas Department of Health and Human Services quietly introduced a rule that would require aborted fetuses to be buried or cremated. It was a notable, and very revealing, shift in strategy. With HB2, lawmakers had pretended they were acting out of concern for the health and safety of abortion patients: They were placing wildly onerous regulations on clinics, they claimed, because they wanted to ensure that women were getting safe, high-quality treatment. The fetal burial rule had no such justification; in fact, the words "woman" or "women" don't appear anywhere in it.

"We saw the anti-abortion advocates and legislators very quickly drop the pretense that they cared about women's health, and I think that's very telling," says Allen. "They really showed their true colors, which is that they were never really concerned with women's health or safety."

The Center for Reproductive Rights has successfully challenged the fetal burial rule; in January, a federal judge blocked them from taking place, noting that the restrictions it would impose on women are likely unconstitutional. This did not deter Texas Gov. Greg Abbott from signing into law a vicious, sweeping anti-abortion bill in early June. In addition to requiring funerary services for fetal and embryonic tissue, the legislation, Senate Bill 8, also effectively bans abortion after 12 weeks, with no exception for victims of rape or incest. (It will take effect in February, though it's likely to face significant legal challenges before then.)

"Since early July of last year, it's been clear that Texas has not been backing down from anti-abortion extremism and in fact is doubling down on its efforts to block access to abortion and other reproductive healthcare services," says Allen.

Dr. Rubino, who is also a fellow with Physicians for Reproductive Health, describes feeling a sense of calm and purpose after the Supreme Court decision. "We started talking about promoting bills and legislation that's more proactive, protecting the rights we already have, and that gave me this sense of hope going forward," she tells me. Almost immediately, her optimism was tested as she realized that most of the clinics in the state wouldn't be able to reopen right away, and she became aware of the emerging fetal burial rule, among other anti-abortion legislation pending in the legislature.

But she remains undeterred, as do the other providers and advocates in the state. They will work to open more clinics, she says, to challenge anti-abortion laws in court, and to expand access however possible. "We can easily feel defeated for sure, because of the landscape we're in," Dr. Rubino affirms. "We have to remember that the Supreme Court reminded us only last summer that we have this right—safe, legal access—so now we have to keep going. We have to keep trying to fight back."