Chipping Away at Roe

Despite the efforts of anti-abortion activists, support for Roe v. Wade remains unshakably high in this state. A recent poll commissioned by Texas family planning groups found that 84 percent of those surveyed agreed with a broad statement endorsing legalized abortion. Even the anti-abortion group Life Dynamics, Inc., places the number at over 70 percent. Nevertheless, after 30 years, anti-abortion activists have learned an important lesson: As long as no one actually proposes a bill that would ban abortion, few voters will make an issue of bills that restrict the procedure. As Peggy Romberg, executive director of the Women’s Health and Family Planning Association of Texas, acknowledges, “They don’t have to overturn Roe if they just win enough access battles.”

Texans can expect many such battles this spring as the legislature takes on bills that would increase regulation of clinics, require a waiting period, limit teens’ reproductive health options, and grant something called “fetal personhood.” Many of these bills have been quietly killed in committee for years. But with Texas Right to Life counting 90 representatives and 20 senators on their side, plus committed pro-lifers David Dewhurst and Tom Craddick at the helm, many of them stand a good chance, not only of making it to the floor, but of passing.

What makes these bills difficult for pro-choice groups to fight is that none claim to be about limiting abortion. Instead, just as they did with the 1999 Parental Notification Act, which requires minors to tell a parent or talk to a judge before they can have an abortion, the authors of these bills claim to be concerned with protecting women’s health and safety. Nevertheless, their practical effect is to drive up the cost and time commitment for women getting abortions or to make it harder for providers to continue their work. Such restrictions may not significantly affect well-off women with adequate time and finances, but they can be devastating to the young and the poor–the very people who have the fewest resources with which to care for a child.

Take HB 15, sponsored by Rep. Frank Corte (R-San Antonio). Nominally, it protects women’s health by requiring that they be given access to information about fetal development and the risks of abortion and childbirth. But since they must receive the information 24 hours before the procedure, the bill also creates a de facto waiting period.

“The waiting period is not a big deal because you don’t generally walk into an abortion facility and get an abortion,” insists Corte’s aide Donovan Burton. “Usually you go in and make an appointment, and come back next week.”

Not so, says Kae McLaughlin of the Texas Abortion and Reproductive Rights Action League (TARAL). Since only 15 of the 254 counties in Texas have an abortion provider, many women must travel for their procedures. A waiting period, she argues, would further strain many women’s tight travel funds.

“TARAL just helped a woman who had to abort a very much wanted pregnancy because of a severe fetal abnormality,” McLaughlin said. “She and her husband, who were both wage workers, had to travel to another city for the procedure. They were missing pay for each day they were gone, plus travel costs, plus lodging. A waiting period would double all that.”

However, Joe Kral of Texas Right to Life vehemently denies claims that the bill would hit low-income women hardest.

“To say we’re trying to intimidate women of low income is absolutely untrue,” he said. “When a woman is making one of the most serious decisions of her life, we want to make sure she has time to go over the information, to know her rights, and to know she has alternatives.”

Nevertheless, HB 15 includes another provision that would make some abortions prohibitively expensive: requiring second-trimester procedures to take place in an ambulatory surgical center or hospital.

“That is absolutely unnecessary to protect women’s health,” said Romberg. “But what it will do is quadruple the cost. When does ‘expensive’ become ‘too expensive?'”

McLaughlin says that convincing women to delay their abortion until they reach the “too expensive” zone is already a tactic of crisis pregnancy centers (CPCs), which provide counseling and information on abortion alternatives. While pro-choice groups agree women should have as many reproductive health alternatives as possible, many also complain that CPCs give misleading information. Nevertheless, a bill from last session is likely to reappear that would include CPCs in the adoption groups funded through the sale of “Choose Life” license plates.

“I know a woman who went to a CPC and was told she was much further along than she actually was,” McLaughlin recalls. “It was either uninformed or malicious, because the discrepancy was weeks, not three or four days. So she had been struggling to get together $1,700, and when we sonogrammed her she was only in the 11th week. That’s a $400 abortion, and she had had the money all along.”

Of course, several groups in Texas do help low-income women afford abortions. But Melissa DeHaan, head of fundraising for one such organization, the Lilith Fund, says that the unmet need is still great.

“Funds are so tight that when women first call I ask them to really think about what they can come up with on their own,” she said. “If they can ask five people to loan them $20. Sometimes it comes down to selling books and CDs. But then you talk to that woman on Medicaid, in Section 8 housing … and you know there’s no way she can get together $400 on her own.”

he other group hit hard by abortion restrictions are teenagers. And thanks to the flawed logic of pro-life forces in the state with the second-highest teen birth rate in the country, they are also subject to regulations that limit their access to confidential reproductive health care by forcing parental involvement. While agreeing that involving parents in teens’ major life decisions is a good idea, clinic workers argue that for many teens that’s simply not possible. When an open relationship is already lacking, confronting a teen’s sexual activity is no recipe for instant harmony.

“I’ve heard stories that will curl your hair,” said Rachel Goeres of the San Antonio Planned Parenthood. “One girl’s father brandished a shotgun when he found out she was having sex. He had already thrown her sister out of the house. Another girl’s mother called the police when she found a condom in the girl’s bedroom.”

This spring, the Texas Department of Health (TDH) will implement a particularly onerous restriction that was pushed through the last Legislature as a rider to an appropriations bill. Known as Rider 13, the measure was authored by Sen. Steve Ogden (R-College Station); no doubt it will also be included in this year’s appropriations bill. Rider 13 requires parental consent for minors to receive contraceptives from state-funded clinics. However, it will not affect those clinics that receive federal family planning funds [Title X], or minors whose care is funded by Medicaid, because both programs require confidential access. Nevertheless, in some areas, the consequences will be drastic.

As Romberg points out, the entire San Antonio Metropolitan Health District receives no Title X funds. “Once the TDH implements Rider 13, they will have to require parental consent or not serve teenagers,” she says. “Mr. Ogden seems to think that if you deny teenagers care they won’t be sexually active, but his formula just doesn’t work.”

Romberg cites a 2002 study in the Journal of the American Medical Association that found that 47 percent of adolescents surveyed would not visit a clinic if their parents had to know; another 12 percent said they would delay care. Of that combined 59 percent, 99 percent said they would not stop sexual activity.

A further disincentive for teens to seek health care is Sen. Ogden’s Rider 14, passed at the same time as Rider 13, which requires clinics to report child abuse to state regulatory or law enforcement agencies. This sounds beneficial enough, and indeed, clinic workers insist they already report evidence of abuse. Texas law defines the age of consent as 17, although as long as the partners are within three years of age, the “crime” of teen sex is only prosecutable for those under 14. Thus, Rider 14 requires health care providers to file reports on anyone under the age of 14 who is pregnant or has a sexually transmitted disease; their sexual activity is sufficient proof that they have been “abused.”

However, in an environment that criminalizes teen sex, it is not surprising that some law enforcement agents have gone even further. In Lubbock, the police visited clinics to issue stern warnings that they must file a police report on any client under 17, and on one occasion they questioned a pair of pregnant minors waiting for their appointments. In addition, some pro-life groups have complained that the Parental Notification Act does not go far enough in forcing girls to talk to their parents if they want an abortion. According to the law, minors can request that a judge waive the parental notification requirements if telling their parents would put them at risk, or if they can show that they are mature enough to make their own decision. The law also allows them to file their request for a waiver, or judicial bypass, in any county in the state.

However, pro-life activists have complained that minors are “court shopping” to find “activist” judges. Diana Philip of Jane’s Due Process, a group that helps teens negotiate the bypass process, worries that these rumblings among pro-life groups will lead to legislation that forces girls to file for bypasses in their home counties.

“When you live in a small town, and your grandfather is the district court judge or your ex-boyfriend’s mom is the clerk, of course you’ll choose to file in the county next door,” she said.

But as lawyers who represent pregnant teens point out, there are other sound reasons to engage in forum shopping. Annette Lamoreaux, a lawyer in East Texas, describes judges who have set out to punish her clients for seeking a bypass. “It is horrifying,” she says. “My background is in criminal defense on death row, and never have I seen clients treated in such inappropriate, unprofessional, and humiliating ways.”

While lawyers and clinic workers struggle with existing restrictive legislation, they’re also watching for efforts to re-introduce bills that failed last session, including two other bills tightening the Parental Notification Act. One would raise the evidentiary standard to make it harder to qualify for a judicial bypass. The other would make public the number of judicial bypasses granted and denied. Currently these records are sealed; if they were open, it would make it easier for pro-life groups to target judges whom they see as “wantonly” granting bypasses.

But even as teens and poor women bear the brunt of the access battles, pro-lifers have not completely given up on making abortion illegal. HB 246, introduced by Rep. Ray Allen (R-Grand Prairie), would define an “individual” in the civil and criminal code as an “unborn child at every stage of gestation from fertilization until birth,” meaning that someone who causes a woman to lose her pregnancy, would be charged as a “murderer.” Already similar provisions have been enacted in 27 states.

“If a woman chooses to carry her baby to term, we don’t believe a drunk driver, for example, should be able to take that away from her,” says Allen’s chief of staff, Scott Gilmore. He insists that the bill is not about abortion at all, and points out that abortion and legal drugs, including contraceptives, are exempted.

“There are people out there who believe there is an ulterior motive to this bill,” he said. “I don’t know how to make irrational people think rationally.”

McLaughlin disagrees. “Bills like these are building blocks. They say, ‘If another person can’t kill a fetus, why should the woman be able to?'”

But for women under the age of 18, for poor women, or for women who live in rural counties far from physicians and clinics that provide abortions, questions of legality have a different meaning. Abortion may be legal, but for them, it is already inaccessible. Now, the legislature is poised to make their dilemmas even more difficult. But as beleaguered pro-choice groups prepare for battle, some still hope that areas of compromise could emerge that would truly help Texas women.

“With this huge budget crisis, we should have the anti-choice folks demanding the legislature provide family planning for the 1.2 million women out there who don’t get it,” said Romberg. “That would do a lot more to prevent abortion than passing bad legislation.”

Rachel Proctor is a writer in Austin.