Extreme abortion restrictions in conservative states do not affect all people equally.
Last week, the full U.S. Court of Appeals for the Fifth Circuit upheld Texas' ban on the most common second-trimester abortion method. Losing access to this procedure will profoundly affect people seeking abortions in Texas.
The state's ban on the use of the method, known as dilation and evacuation, or D&E, effectively acts as 15-week ban, since it is used in nearly all second-trimester abortions, and clinics have said they won't be able to use other methods.
The state already bans abortions at the 22-week mark, as the state contends — against scientific evidence — that a fetus feels pain at that point. Coupled with the D&E ban, abortion becomes out of reach for many, well before the fetus is viable outside the womb. A pre-viability ban is a direct challenge to Roe vs. Wade, which has guaranteed the right to abortions before fetal viability for 50 years.
In upholding the law, the Court of Appeals disregarded evidence as to the safety and ubiquity of D&E, instead agreeing with the state's amorphous moral assertion that banning a common medical procedure provides "a greater deal of dignity" — for the fetus.
In contrast to this vague idea stands the facts about D&E: The procedure can be performed in an outpatient clinic, takes roughly 30 minutes to complete, and requires no incisions. Further, it is very safe, a fact that has been well-documented for decades. The American College of Obstetricians and Gynecologists states that D&E is medically preferred because "it results in the fewest complications for women compared to alternative procedures."
Making second-trimester abortions more difficult, if not entirely impossible, to come by will harm people seeking abortion in Texas. It puts abortion out of reach for people who discover they are pregnant later. A recent study found two types of people who fell into that group.
First, people who have not previously given birth are more likely to learn they are pregnant later, as they may not be familiar with the signs of pregnancy. Next, people using hormonal contraception, which includes birth control pills and contraceptive skin patches, may find out they are pregnant later in pregnancy because they did not believe they were at risk of getting pregnant. Hormonal contraception users also may not have regular menstrual periods any longer because of contraceptive use. These factors may lead people not to learn they are pregnant until the end of the first trimester or into the second trimester.
Another study found people who were unhoused or in an unstable housing situation were more likely to present to clinics later in pregnancy, at roughly the 13-week mark. If someone finds out they are pregnant at 13 weeks, they may not be able to obtain an abortion immediately, particularly given Texas's other abortion restrictions.
Texas already requires a 24-hour waiting period, requiring patients to make two trips to the clinic. Patients must also have an ultrasound within 24 hours before the procedure is performed. Telemedicine is prohibited for medication abortion. Parental consent for people under 18 is mandatory. These multiple restrictions all stand in the way of someone speedily accessing an abortion.
If people can't get a second-trimester abortion in Texas, they'll need to go elsewhere, and that's not equally easy for everyone. As Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America points out, this will disproportionately affect "people who already struggle to access health care because of systemic barriers put in their way," including people with low incomes, people of color, and people living in rural communities.
The Guttmacher Institute, which researches reproductive health policy, looked at what happens if people need to leave Texas to obtain abortion care, which would happen for most people who need abortions in the second trimester. Guttmacher calculated that the average one-way driving distance to a clinic would go from 12 miles to 248 miles. A round-trip total of nearly 500 miles would almost certainly require an overnight stay, increasing costs for getting a hotel, obtaining child care, and taking time off work. That increased cost may put abortion entirely out of reach.
Guttmacher found that Texans might not be able to just go to a neighboring state either. Both Louisiana and Oklahoma, which border Texas, are defined as "hostile to abortion," having multiple types of severe abortion restrictions. Louisiana, in particular, is an especially poor choice, having passed more anti-abortion laws than any other state.
And what happens in Texas does not stay in Texas. As Rachel Rebouche, a professor and reproductive rights expert, explained to the online publication the 19th, this is all part of an "overlapping strategy" and "a race to see who can get to the Supreme Court first." Other states are bound to follow Texas' lead now that this ban has been upheld, making abortion access a lot more fragile in a lot more places.
Texas also recently made the news for passing a 6-week ban that is set to go into effect in September and is facing a court challenge. That ban bars all abortions well before many people even know they are pregnant. It also offers a bounty, where any Texas citizen can sue someone who violates the ban, including someone who does something as simple as driving someone to a clinic past the 6-week mark.
Published with permission of The American Independent Foundation.