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Texas Bans the Safest, Most Common Abortion Procedure After 13 Weeks


  • Rena Schild,
In late 2015, Rachel Goldberg was giddily awaiting the birth of her first child. She daydreamed about her own Spring birthday, a celebration she'd be able to spend with her newborn baby boy. She had a room in her Springfield, Missouri home filled with tiny clothes and a new crib.

But 20 weeks in, Goldberg and her husband were hit with unexpected and sobering news at a routine ultrasound: her baby's heart wasn't functioning properly, and his organs were developing far too slowly. Something had gone terribly wrong.

Goldberg was referred to a perinatal specialist, who wasn't able to fit her into his schedule for two weeks. A week or two after her appointment, she was told her baby was missing a stomach and kidneys altogether. If she carried it to term, the baby would likely live a short, painful few minutes before dying — and her doctor guaranteed it would be a high-risk delivery for her. He said he understood if she wanted to terminate the pregnancy. But since the doctor couldn't affirm Goldberg's life was definitely in danger, it would be illegal for him — or anyone else in Missouri — to facilitate her abortion. That's because Missouri law prohibits women from getting an abortion after 21 weeks and 6 days from conception, except if the woman's life is threatened.

So Goldberg was faced with this decision: Drive 10 hours to a Colorado abortion clinic (where state law has no cutoff date for the procedure) and pay $10,000 (her insurance couldn't legally cover a non-life threatening abortion) or risk a dangerous delivery, after which she'd watch her baby suffer in pain and die.

Goldberg and her husband took out a loan from their bank and drove to Colorado, where an unfamiliar doctor aborted her 25-week-old fetus. She recovered in an unfamiliar, uncomfortable hotel room miles away from home while she mourned the loss of her son.

"It's not an emotion I can really explain or describe to people," Goldberg told the Current. "My body was responding like I had just delivered a baby, which I had. But I wasn't holding it. I felt empty inside. And I wanted to be home."

Aside from the staggering cost of the abortion, she estimates she ordeal cost her and her husband about $3,000 in lost wages, gas and hotel costs.

"I realize it's a decision many women can't afford to make," she said.

But it's a decision Texas women will soon face now that Gov. Greg Abbott has signed a sweeping new anti-abortion bill into law.*

Researchers now know that a 2013 Texas law, which has since been declared unconstitutional by the U.S. Supreme Court, forced more Texas women to get abortions even later in their pregnancy. They now fear that lawmakers only exacerbated the problem this session by passing a bill that bans the safest type of abortion procedure these women can receive in the second trimester.

Texas' Senate Bill 8 aims to prohibit an abortion procedure called "dilation and evacuation" (or D&E), the safest and most common form of an abortion after 12 weeks gestation. The only alternatives to D&E are making a woman go through labor and deliver the fetus or going under the knife for a procedure similar to a hysterectomy — both procedures that abortion doctors say are incredibly risky and expensive.

"The complication rates associated with the alternatives are much, much higher," said Bhavik Kumar, the Texas medical director for abortion provider Whole Women's Health.

By leaving women with these dangerous alternatives — alternatives that go against most doctors' best medical judgement, SB8 will effectively be a ban on second-trimester abortions. Which, Kumar fears, may push women to take their abortion into their own hands by taking illegal pills or withstanding physical abuse to induce a miscarriage. "It's already happening in Texas," he said. "I can only imagine that's going to get worse with this bill."

Like most bills that survive the Texas Legislature, SB8 started out looking a lot different than the final law Abbott signed.

Filed by Sen. Charles Schwertner, SB8 was originally meant to prohibit women who have an abortion to donate any of the resulting fetal tissue to scientific research organizations. But as the session drew closer to its May 29 end date, more anti-abortion lawmakers with bills yet to be heard by a committee started tacking pieces of their bills onto Schwertner's, since his seemed to be getting traction. Soon, SB8 became a 12-page bill banning the sale of fetal tissue, prohibiting D&E abortions, prohibiting Dilation and Extraction (D&X) abortions (which anti-choice activists call "partial-birth abortions") and requiring abortion remains to be cremated or buried.

Two of these measures — D&X abortions and selling fetal tissue — are already illegal by federal law, proving that part of this bill's intention was to simply remind conservative voters that their anti-abortion representatives are still anti-abortion. The D&E ban is arguably the bill's one regulation that will impact the lives of Texas women the most. And it's specifically punishing women who need the kind of procedure another Texas law forced them to seek out.

The bill is similar to 2013's House Bill 2, a similar jumble of various anti-abortion regulations that came out of the state capitol. HB2 placed specific, strict building regulations on abortion clinics and doctors across the state, ultimately forcing 21 of Texas' 40 abortion providers to close. Lawsuits against the bill's constitutionality eventually brought HB2 to the Supreme Court in 2016 with Whole Women's Health vs. Hellerstedt. Justices sided with the abortion provider, agreeing that HB2 placed an "undue burden" on the majority of Texas women seeking legal abortions by unnecessarily shuttering so many clinics.

"I thought the message from the HB2 ruling made it crystal clear — states cannot regulate abortion out of existence," said Amanda Allen, senior state legislative counsel for the Center for Reproductive Rights, the legal group that represented Whole Women's Health at the Supreme Court. "We believe SB8 is unconstitutional."

Allen is especially concerned with a provision in the bill that only allows a D&E abortion if it's a "medical emergency," but not if they're a victim of rape or incest. Under SB8, rape or incest victims would be forced to carry a fetus to term. She wouldn't confirm whether or not CRR will file a lawsuit after the bill goes into effect.

While it's no longer law, HB2 has left a long-term impact on women seeking abortions in Texas. Only a couple of the 21 shuttered clinics have reopened, meaning women are still facing the "undue burden" of driving hours for a procedure (if their employer, childcare provider or budget allows it, that is). Because of this hurdle, many women aren't able to arrange an appointment until later in their pregnancy — meaning they had to have a D&E procedure.

"Economic justice is such an issue here," said Amanda Williams, the director the Lilith Fund, a nonprofit group that helps low-income women pay for their abortion. Many of her clients are seeking second-term abortions because of serious financial barriers. In many cases, she said, women aren't able to come up with enough money for an early abortion, which ranges from $550 to $1,500 in-state, forcing them into the second-trimester. Sometimes, Williams added, women can't ever come up with the funds — and are forced to go through with the pregnancy.

"Our main concern is that this could completely push abortion out of reach," Williams said.

According to researcher Dan Grossman, director of University of California at San Francisco's Advancing New Standards in Reproductive Health, the need for a second-trimester abortion has only increased since HB2's short-lived success. Before HB2's fall, Grossman worked with the Texas Policy Evaluation Project at UT Austin to collect quantitative data on how HB2 had impacted Texas women. His work played an instrumental role in the Supreme Court victory.

He told the Current that if SB8 becomes law, his team is ready to start recording how the anti-abortion restrictions impact Texas women all over again. He now knows how key this kind of comprehensive data is in court.

"Courts must consider evidence when they weigh the potential benefits of a law affecting abortion care against the potential harms in terms of women’s access to services," he said. "Courts cannot simply rely on the statements or beliefs of legislators."

That's the main reason Rachel Goldberg started telling her story to Missouri state legislators pushing for anti-abortion laws. She wanted her experience to protect future women from draconian laws — and the stigma that envelops them.

When Goldberg returned home from Colorado, she was vilified by family, friends and relatives who heard she'd gotten an abortion. "They told me I was going to hell," she said. "A lot of them still don't talk to me."

Others were more apologetic, and said her abortion was different than the normal kind, so it was okay. But Goldberg wasn't looking to be pardoned.

"Everybody's abortion experience is different, everyone has the right to make that decision on their own. I wasn't any different," she said. "I imagine a world where all children who are born are wanted and every woman's reproductive rights are valued."

*Updated 6/6/2017 @ 3:50 p.m.: Gov. Abbott signed Senate Bill 8 into law on June 6.

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