Regardless of Roe: How the Texas GOP Perfected the Anti-Abortion Playbook
On December 10th, 2021 the U.S. Supreme Court ruled that abortion providers may continue their legal challenge to SB8, the Texas law currently in effect which bans abortions around 6 weeks. While challenges to SB8 move through the courts, the bill remains in effect in Texas, denying countless people access to the care they need.
Although the Supreme Court allowed the case brought by local abortion providers to move forward, this ruling follows yet another alarming challenge to Roe v. Wade that was heard on December 1st. In 2021 the United States witnessed a record number of anti-abortion laws enacted at the state-level, a new all- time high since 2011. To many, it rightfully seems we are staring down the barrel of an unprecedented assault on abortion access.
The fact is, Texas was one of the most restrictive states in the nation regarding abortion access long before SB8—and it will remain so even if the law is overturned.
Texas lawmakers have spent the last few decades successfully chipping away at reproductive rights, making abortion nearly impossible for some communities, all while Roe remained established precedent and settled law. The state of Texas has long served as a prime example of how legal abortion does not equate to accessible abortion and of why the U.S. cannot rely on Roe v. Wade alone to protect the right to bodily autonomy.
To understand this, it is important to examine the greater context surrounding Texas reproductive rights prior to the passage of SB8.
Since 2011, if a patient in Texas seeks an abortion, they must schedule two separate appointments. The first appointment is dedicated to a medically unnecessary and legally mandated sonogram, in which the physician is required to make the heartbeat audible to patients and describe the fetus in detail.
During this appointment and prior to scheduling the abortion, physicians are also required to read a state mandated booklet to patients that contains medically inaccurate and debunked statements, including the claim that abortion may lead to cancer and infertility. As of 2016, the state mandated booklet also refers to the fetus as “your baby.”
Additionally, Texas requires patients to wait at least 24 hours between their initial sonogram and the actual procedure.
By law, each appointment must be made not only at the same clinic, but with the same physician. This can make the process of scheduling an abortion more difficult and logistically cumbersome, in addition to the state-mandated emotional burden already imposed through the sonogram appointment itself.
Texas lawmakers have also learned to expand their legal constraints beyond the person carrying the fetus. They have strategically increased the economic strain on abortion seekers by increasing the burden on abortion providers.
Before it was overturned by the Supreme Court via a narrow 5-3 ruling in 2016, a Texas house bill mandated all abortion clinics to meet the standards of ambulatory centers, which requires costly reconstruction to meet minimum size requirements for rooms and doorways. The bill also mandated that doctors providing abortions have admitting privileges at a hospital within 30 miles. In the three years between the bill’s codification and its revocation, the number of clinics in the state was cut in half, because they did not have the funds to meet the bill’s cumbersome and arbitrary standards. The majority of remaining clinics are located in metropolitan areas in central and east Texas. Today, a patient living anywhere in the northern, southern, or western regions of Texas will likely need to drive anywhere from 25 to 100 miles to access the nearest clinic. For the 6,000 people living in Alpine, Texas, the closest clinic is about 250 miles away—a 500-mile round trip.
Then there is the financial burden of a legally protected abortion, even before SB8.
A first trimester abortion using a pill-form medication starts at around $300, and a first trimester procedure abortion ranges anywhere between $500 and $5,000, not including the cost of the state-mandated sonogram. While a menstrual cycle occurs about every 4 weeks, many people go months without having a period due to a variety of factors such as stress, travel, or birth control. It is not uncommon for people to discover they are pregnant well into their first trimester – which leaves Texans looking at a minimum average of $500, before factoring in additional costs such as gas, lodging, lost wages, or childcare.
As of 2017, Texas has barred insurers from including abortion in comprehensive healthcare plans, which—coupled with the Hyde Amendment, which prohibits federal funds from covering abortions, barring coverage for those enrolled in Medicare & Medicaid—forces Texans to pay for their abortions out of pocket.
Further, if the person seeking an abortion is under the age of 18, they need either their parents’ written permission or a notarized judicial bypass court order, delivered only after a judge has determined that they are “mature enough” to have bodily autonomy.
SB8 is clearly detrimental to reproductive justice everywhere, but abortion access in Texas was already abysmal. The legal constraints alone are formidable in deterring abortion, without even accounting for additional barriers such as disability, limited access to transportation, work and family conflicts, urgent medical needs, or abusive environments that require patients to seek their abortions discreetly.
In recent decades, anti-abortion lawmakers in Texas have been enabled and emboldened by a federal landscape full of weak reproductive justice protections. However, there are potential federal interventions in sight that, if enacted, could make a significant impact on protecting reproductive justice on a national scale.
To start, repealing the Hyde Amendment would allow federal funds to cover abortion care for Medicaid recipients, which could reduce the cost of a patient’s abortion by hundreds—in some cases even thousands—of dollars. While the Biden Administration recently passed a federal spending bill without the Hyde Amendment included, Senate Republicans have already vowed to fight this point in budget negotiations. Moreover, Roe, as it currently stands, does not do enough to protect reproductive rights nationwide. The Women’s Health Protection Act, first introduced in 2019 and currently awaiting a vote in the Senate, would codify Roe v. Wade into sound federal law by guaranteeing a person’s right to abortion (pre-viability of the fetus) as well as by banning targeted abortion-specific restrictions. The language within the Women’s Health Protection Act specifically prohibits many of the medically unnecessary and cruel tactics Texas has been using, such as multiple trips for the procedure, unnecessary sonograms, and outlandish clinic infrastructure regulations.
There are currently seven other states attempting to litigate their own 6-week ban on abortion. It would be remiss to think that other state lawmakers are not looking to Texas and SB8 to greenlight their own attempts to overhaul reproductive rights, or any other constitutional right, for that matter. Texas serves as a model for making abortion nearly unattainable, even while constitutionally protected. The fight for safe and legal abortion cannot end at SB8, nor can it end at keeping Roe intact in its current form. It has to go further.