Abortion in Texas: The small fraction

Medievalpreg

Only a small fraction of Texas women will suffer.

With the closing of thirteen abortion clinics in Texas, one out of six Texas women seeking an abortion will have to travel 150 miles or more, and never mind all the other obstacles about waiting periods, increased costs, hassling protesters and having to listen to medically incorrect messages. But one out of six? That’s only a small fraction, according to the United States Court of Appeals for the Fifth Circuit.

“In our circuit,” wrote Judge Jennifer Elrod, a George W. Bush appointee, “we do not balance the wisdom or effectiveness of a law against the burdens the law imposes. We do not doubt that women in poverty face greater difficulties.”

What a bother, those “women in poverty.”

Judge Elrod argued that the court had to find that “a large fraction” of women would be affected by the law – the medically unnecessary requirement that all abortion clinics in the state meet the same building equipment and staffing standards as hospital-style surgical centers. And those 900,000 women in rural Texas the judge acknowledged would be affected, well, they’re just a “small fraction.”

Judge Elrod may not know a lot about what it feels like, being part of the small fraction. Born in 1966, she grew up in the Houston-area city of Baytown, Texas, which bills itself as a city “where oil and water really do mix.” She graduated from Baylor and Harvard Law School. Her Wikipedia and Judgepedia pages make no mention of marital or family status, but presumably she never sought to have an abortion. If she had, she would have definitely been in the large fraction – women with money who always have access to safe and legal procedures, even in Texas.

This writer was in another large fraction: women without access to safe or legal abortion in the days before Roe v Wade. Much like today’s small fraction, faced with no viable options we took desperate measures to end unwanted pregnancies. Some of us survived, countless others did not.

This is the fate to which the three-judge panel of the Fifth Circuit is consigning the small fraction. Danger, expense, family trauma, health risks and occasional death. Even for a small fraction, that seems hardly what America is about. And hardly in tune with the antiabortion forces’ proclaimed wish to “protect women.”

Some in the small fraction will face primarily family distress and exorbitant costs (usually upwards of $1,000 or $1,500) like “Maria,” whose story is recounted by RH Reality Check Senior Political Reporter Andrea Grimes. Some will face very real danger traveling to Mexico for drugs that can cause permanent injury or death if improperly created or improperly used. Some will maim or kill themselves in efforts to self-abort.

There will be hundreds of women like Elvia Yamell Hamdan, whose story was reported in a recent New York Times article by Laura Tillman and Erick Eckholm. Ms. Hamdan, 44, showed up at the Whole Woman’s Health clinic in McAllen, TX with her husband after a three-hour drive from their home, only to find that clinic professionals could suddenly no longer provide abortions. Ms. Hamdan already has four children and three grandchildren, and seeks to end an unplanned pregnancy. The U.S. Constitution says she has a right to make that choice – but Texas law says her best remaining option is an appointment three weeks later in San Antonio, 240 miles north.

Denise Burke, Vice President of Legal Affairs for Americans United for Life, is quoted in the New York Times story as saying the Fifth Circuit decision endorses anti-abortion forces’ argument that “abortion harms women, and states may regulate in the interest of women’s health.”

“Maria” and Ms. Hamdan seem likely to secure, eventually and at significant risks to their own health and wellbeing, the safe and legal abortion guaranteed to American women. How many others will now, instead, wind up sick, maimed or dead because of this latest ruling will never be known.

Because those others are just part of “the small fraction.”

Laboratories of the States: The good… and then, the very bad and ugly

This essay first appeared on Huffington Post

Will a few states rule the United States? Or fundamentally change it? And if so, who are the winners and losers? Depending on your point of view, this “laboratory-of-the-states” business is good news today… or not.

The metaphor dates to the dissenting opinion of Supreme Court Justice Louis Brandeis in a 1932 case, New State Ice Company v. Liebmann and is often used today to assert the success of one social program or another. The best most recent — and decidedly successful — laboratory-of-the-state demonstration is Oregon’s Death with Dignity law. This writer’s extraordinary attorney friend Kathryn Tucker published a paper in the 2008 Michigan Law Review, when she was Director of Legal Affairs for Compassion & Choices, titled “In the Laboratory of the States.” Tucker wrote, “Because Oregon’s Death with Dignity Act has proven both useful and harmless, this Article concludes that it is time for other states to follow Oregon’s lead and enact their own legislation to allow their citizens an alternative to what otherwise could be a prolonged and painful death from terminal illness.”

Tucker deserves much of the credit for expanding the Oregon law into the movement that now seems a clear national trend, along with Compassion & Choices (full disclosure: this writer has long been a C&C supporter, volunteer and local board member). Washington and Vermont have passed similar bills and Montana wisely concluded that it’s none of the state’s business what a doctor and patient decide to do, making physician aid in dying now legal in those states. A handful of other states have pending bills and still others are mounting strong movements. So Oregon’s laboratory of success is likely to be the nation’s overall policy in the foreseeable future, and we’re all better off for that. (Opposition has come from religious and political forces that hold onto a belief that God requires some sort of existential suffering be visited upon Her dying creatures.)

The laboratory-of-the-states pathway is both effective and well trodden, said San Jose State Professor/author Larry Gerston at a recent Commonwealth Club political panel event. The panel was looking at other current trends, but Gerston specifically cited the Oregon Death with Dignity model as an example of how it all works.

Now — what if Texas becomes a laboratory for the denial of reproductive rights?

In Texas, just for a rough overview, recent laws have passed requiring parental notification and now parental consent; requiring abortions to be performed in ambulatory surgical centers with hospital-grade operating rooms; requiring women who seek abortions to submit to ultrasounds and then wait 24 hours for the procedure. The list of harsh, medically unnecessary restrictions and requirements is long, and a clear violation of both ‘best medical practice’ and women’s rights.

It is worth noting who are the winners and losers in these state laboratories. In Oregon, the winners are we the people everywhere. Few of us would turn down the right to a humane and compassionate death, which is made a possible choice by death-with-dignity laws. Losers? No one. No one is compelled to choose a hastened death, anywhere, any time.

In Texas, however, the scorecard is seriously skewed. The winners are archconservatives that have learned that this is a good way to get votes. Winners also include those, men and women alike, whose religion teaches that life begins at conception and thus all abortion is wrong. This writer can appreciate those who hold such views, but it is not possible to uphold the rights of a fetus without denying the right of the woman in whose body it resides. Many of us come down on the side of already-alive women and on the doctrine of church/state separation.

And the losers in Texas: women. All women. Primarily they are women without money or resources, who are frequently disadvantaged and disproportionately women of color. These women are already turning to desperate measures to end unwanted pregnancies; increasingly they are turning up in emergency rooms with failed attempts to self-abort. To a lesser degree, but still worth considering, the losers include those — men, women, boys, girls — who need the other services provided by rapidly closing clinics: birth control, sex education, STD testing, breast cancer screening and many other critically important needs that will now go unmet.

It’s hard to contemplate the win-lose picture of this Texas laboratory. But if it indeed becomes a laboratory-of-the-states argument in upcoming Supreme Court cases, and elsewhere, the losers will be all of us. You and me. We the people.

Win some, lose some…

It’s a not-too-encouraging new twist on the old baseball adage: win some, lose some, some get rained out.

Women’s health & rights recently won one – Albuquerque –  lost one – Texas – and guess who still gets left out? The woman (and often her husband or partner) who simply wants to exercise a constitutional right to make a very personal, very private and usually very difficult decision to terminate a pregnancy.

The Albuquerque issue was a blatant attempt by right-wing ideologues to circumvent the law and ban late-term abortions outright. It would have immediately affected the entire state, since the only two clinics (and specifically the openly-advertising Southwestern Women’s Options) performing the procedure are in Albuquerque. Although late-term abortions are a tiny, tiny fraction of all such procedures, they are often the most wrenching, difficult and extremely private of decisions; for now, New Mexico women at least retain the right to make such decisions when necessary — and the access needed to carry them out.

Texas women fared worse. The Supreme Court turned down an appeal to block another blatantly anti-women law passed by Texas in July, which will force the immediate closing of as many as one third of the clinics in the state offering abortions.

Texas Governor Rick Perry proudly proclaimed that this means Texas women “are now better protected from shoddy abortion providers operating in dangerous conditions.” Excuse me? If I could get Mr. Perry to read my own story in Perilous Times, he might know what shoddy abortion providers operating in dangerous conditions are actually like. Tragically, because they are now denied access to safe and legal procedures, Texas women without resources may be forced to turn in similar directions.

Highly trained, dedicated physicians have been available to perform abortions in Texas clinics. Whether they have admitting privileges at hospitals within 30 miles of the clinic — as is now required — has absolutely no bearing on “the safety of Texas women.” But the law now enables one harsh, strident, anti-women segment of the state to impose its will on disempowered women. All but a handful of clinics in Texas will be forced either to close or to stop offering abortions. Some Texas women will be able to travel the long distances necessary to access safe procedures but others — women without money or power, desperate to end an unwanted pregnancy that could bring lead to unbearable hardship?

They not only lost one, they are now left out. My heart aches for those women.