Texas abortion clinics: How far is too far to drive?

Is 150 miles too far to drive in order to get an abortion? In some parts of Texas, that distance could get a lot longer, and it’s up to a federal appeals court to decide whether that places too much of a burden on women seeking to end their pregnancies.

A panel for the 5th Circuit U.S. Court of Appeals in New Orleans was set to hear arguments Wednesday challenging a portion of House Bill 2 (HB2), the contentious Texas law passed in 2013 that effectively forced dozens of abortion clinics in the state to close. With the requirements that abortion doctors must have admitting privileges at local hospitals, and that abortion clinics must be outfitted with hospital-like surgical centers, the number of providers in Texas shrank from 41 to seven, most of them located in major cities.

Clinics and abortion-rights advocates have argued that lower-income women in rural South Texas who lacked childcare or transportation would be stuck without the option to safely terminate their pregnancies. They filed a lawsuit last year contesting the so-called “ambulatory surgical center” part of HB2, arguing that the clinic closures meant more than 1 million Texas women of childbearing age would live at least 100 miles from an abortion provider. And in order to keep pace with demand, the remaining clinics would be forced to quadruple the number of abortions they perform, according to Daniel Grossman, the UCSF obstetrics and gynecology professor testifying on the clinics’ behalf.

But state geographer Todd Giberson, on behalf of the state, testified that more than 90 percent of women of childbearing age will still live within a 150-mile drive of an abortion provider even if the law is carried out.

Whatever the appeals court’s ultimate decision, the map shows that broad swaths of South and West Texas would be left without any available abortion clinics if the ambulatory surgical center provision goes forward.

For example, a woman in the city of McAllen — where the single abortion clinic is not an ambulatory surgical center — would have to drive over 200 miles to the nearest clinic in San Antonio.

A woman living in the city of Midland used to have a Planned Parenthood in her town, but since that clinic's closure amid increased regulations, she’d have to drive over 270 miles to Fort Worth or San Antonio.

The courts disagree as to exactly how long a woman must drive in order for it to be legally considered an inconvenience. A district court judge blocked the ambulatory surgical center part of the Texas law in August, ruling that the resulting clinic closures would place an “undue burden” on women by compelling them to travel longer distances to get to the remaining ones. The federal appeals court overturned that ruling in October, siding with the state on the so-called “undue burden” on women — after which the Supreme Court turned around and blocked it, causing 13 clinics to re-open.

“It’s always been a little bit unclear exactly what constitutes an ‘undue burden,’” said Caitlin Borgmann, a professor at CUNY School of Law with expertise on reproductive rights law.  

Courts have also been ambiguous about how many women have to be affected by a law in order for it to qualify as an undue burden, she said, citing the 1992 Supreme Court case that struck down Pennsylvania’s law requiring women to inform their husbands before having abortions. Though the number of women who might fear spousal abuse if they didn’t inform their husbands might have been small, the court ruled that the informed consent law would pose an undue burden on most of that group of women.

“Do you look at all the women specifically burdened by the law, or do you look at all women in general?” Borgmann said.

These will be among the considerations of the appeals court — and if it decides HB2 should be enforced, the matter could be taken on by the Supreme Court, which in 1973 set the precedent for women’s constitutional right to abortion with Roe v. Wade.

“If women can’t access abortions, then the right is meaningless,” Bormann said. “This very much goes to the core of what it means to be a constitutional right to abortion.”