In May 2021, Texas passed a law which dramatically impairs a women’s right to have an abortion in Texas. [1] The law prohibits abortions after any sign of fetal heartbeat, which typically develops around six weeks of pregnancy. This is often before many women even know they are pregnant; and the law does not make any exceptions for rape or incest. The law also empowers private citizens to sue abortion providers or anyone who facilitates abortions in civil courts, thereby removing the State itself from enforcing its own law. This law, known as the “Texas Heartbeat Act”, represents one of the most extreme departures from the United States Supreme Court’s 1973 landmark decision, Roe v. Wade, and almost 50 years of precedent thereafter, which protected a woman’s right to autonomy and to decide whether to terminate a pregnancy before the fetus became viable at the end of the second trimester. [2]
Texas abortion providers sought an injunction, or a stay, of the Texas law in the Supreme Court, but on September 1, 2021, the Court refused to block this law by a 5-4 decision. [3] The closeness of this decision reflects a deep divide in the Supreme Court and underscores the impact of Justice Ruth Bader Ginsberg’s death and her replacement with conservative Judge Amy Coney Barrett. If Judge Bader Ginsberg had been on the Court, the decision would have likely been 5-4 to grant the stay.
Much of the debate surrounding this Texas law has to do with its constitutionality and its nullification of 50 years of Supreme Court precedent. While legal battles unfold between the state and federal government over its legality, Texan women cannot get an abortion. The anti-abortion movement has been passionately devoted to protecting the “vulnerable and voiceless” unborn human life. [4] But even Gracy Olmstead, an anti-abortion advocate, admitted that anti-abortion Republicans are “guilty of ideological inconsistency” and that the principle of protecting the vulnerable should have a wider application to other members of our society. [4]
This is the principle which provides the framework for this article. The focus of this article is not on the law’s constitutionality, but rather on its deleterious impact on minority and low-income women’s right to reproductive health, thereby creating further racial and ethnic disparity in the healthcare system.
The most immediate impact of the Texas law is that it forces women to go beyond state lines for an abortion. Instead of traveling 15 miles to a clinic, women now have to travel hundreds of miles to neighboring states such as New Mexico, Louisiana, and Oklahoma. This means that women seeking an abortion need a working car, sufficient funds to pay for travel, the ability to take time off from work, and someone to take care of any children they may have. The out of state travel likely requires overnight hotel stays further straining the budgets of low-income women and forcing them to take even more time from work and losing that income. Further, as Texas law prohibits health insurance from covering abortions, women need sufficient funds to pay for them out of pocket. [5] In short, this Texas law has created a landscape of hurdles that cannot be overcome by many women, and perhaps this was the intent of the law. For every woman that can leave Texas to escape the law, there are many more who cannot; it is the minority and low-income women who will be most negatively impacted by this law. Those who can afford the travel and the medical costs will be able to get an abortion, but this Texas law essentially makes it impossible, or at a minimum exceedingly difficult, for the poorer women to obtain one.
The Centers for Disease and Control (CDC) has been conducting abortion surveillance since 1969 from 47 reporting states, which includes Texas. [6] In the year 2013, based on the data submitted on race and ethnicity, Black women had the highest abortion rate and Black and Hispanic women together accounted for the majority of abortions – about 55% - throughout the United States. [6] The data submitted by Texas reflects an even higher proportion of abortions among Black and Hispanic women in their state. In Texas, Black and Hispanic women accounted for 64% of the total abortions. Further, in the year 2013, women in their 20s accounted for the majority (59%) of abortions. [6] Women in this age category are below their peak earning age placing many of them on the lower end of the economic spectrum. Based on pure statistics alone, it is undeniable that the Texas anti-abortion law will have its greatest negative impact on minority and low-income women because they have the highest abortion rate and are more often economically strained.
This new Texas law will likely have a profound detrimental impact on the Black community particularly which was cogently articulated by Michelle Anderson of The Afiya Center, an advocacy group for Black Texans’ reproductive and other rights. Ms. Anderson stated “For Black women, we know that our young girls are at risk of losing their futures because they’ll be forced to parent before they’re prepared…. It will further perpetuate the rate of generational poverty in Black communities. ... It also perpetuates the rate of maternal mortality.” [7]
Ms. Anderon’s comment on maternal mortality is a significant one. Our country’s own history before the 1973 Roe v. Wade decision should remind us that anti-abortion law does not eliminate abortions – it only forces them to be performed underground in nightmarish, unsafe, and unsanitary conditions. Dr. David Grimes, former Chief of Abortion Surveillance at the CDC, wrote about the “ineffective and dangerous” methods used to carry out abortions which had resulted in incomplete abortions, significant rates of infections and complications, and high maternal death. [8] Illegal abortion clinics were not regulated by the department of health and as such, were not subject to the regulations that promote patient safety and health. Without governmental oversight, illegal abortions were performed by medical assistants instead of physicians and in settings that were under equipped, understaffed, and unsanitary. Dr. Daniel Mishell, a Los Angeles physician remembers a time when women were “jabbed into their uteruses with knitting needles and coat hangers” or were inserted with “chemicals – drain cleaner, fertilizer, radiator-flush” that would end deadly in an otherwise health 20 year old woman. [8] “It was a different world”, Dr. Mishell noted. [8]
On the other hand, when abortions are performed legally and are subject to governmental regulations, abortion clinics are responsible for performing this service by qualified staff and with safe and effective resources. Indeed, Dr. Grimes credited the legalization of abortion to the dramatic reduction in maternal deaths because it allowed for access to safe abortions. [8]
Texas’s illegalization of abortions within its borders throws Texas back to an environment ripe for illegal abortion clinics to pop up to service those who cannot afford to leave Texas to get a competent abortion. While we can hope that there will be advancements in “illegal abortions” since the pre-Roe v. Wade days, the reality is that minorities and low-income women will likely be subjected to dangerous, unsafe, and less attentive care, in contrast to those women who are financially able to obtain the legal and medically regulated abortion. In spite of significant medical advancements allowing for safe abortions, the Texas law deprives its citizens from access to those tools. This law will cause a certain section of society to suffer worse and even unacceptable medical outcomes. This lies at the core definition of unequal treatment in health as these women will receive lower quality of care than the non-minorities who have the means and access to out of state abortions.
The unconstitutionality of the Texas law is only one argument in the law’s disfavor. There is a practical daily and immediate effect that this law will have which renders it onerous. The Texas anti-abortion law represents a set back in women’s reproductive health. While the constitutionality debate over Texas’s anti-abortion law continues, the ethical impact it has on race and ethnicity is an aspect that requires further consideration. The law itself, whether its intent or not, creates a racial and ethnic disparity in reproductive health care. Legalized abortion is a social health measure of great importance as it preserves equity. It is a measure that can prevent generational poverty by ensuring that an unwanted pregnancy does not inhibit a woman from maximizing her access to educational, professional, and social betterment. With Texas rendering abortion effectively unlawful in the State, low-income and minority women are disproportionately exposed to unequal reproductive health which can affect every aspect of their social and economic mobility. If the anti-abortion movement’s purpose is to defend the vulnerable unborn, then the question becomes how can it rationalize this law’s impact against another vulnerable population in our society.
References
(1) Texas S.B. No. 8; https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf (May 2021).
(2) Roe v. Wade, 410 U.S. 113 (1973).
(3) Whole Woman’s Health v. Juddge Austin Reeven Jackson, 594 U.S. ____, No. 21A24 (September 1, 2021).
(4) Gracy Olmstead, “How Republicans Hurt the Fight Against Abortion”, New York Times, May 28, 2019, p. 27, sec. A. https:nytimes.com/2019/05/27/opinion/republicans-abortion-pro-life.html
(5) Texas HB 214.
(6) TC Jatlaoui, A Ewing, MG Mandel et al, “Abortion Surveillance – United States, 2013. MMWR Surveill Summ 2016”; 65 (No. SS-12):1-44, November 25, 2016 https://www.cdc.gov/mmwr/volumes/65/ss/ss6512a1.htm
(7) Jolie McCullough, Neelam Bohra, “As Texans fill up abortion clinics in other states, low-income people get left behind”, The Texas Tribune, September 3, 2021. https://www.texastribune.org/2021/09/02/texas-abortion-out-of-state-people-of-color
(8) David Grimes, The Bad Old Days: Abortion in America Before Roe v. Wade, Huff Post, January 15, 2015; https://www.huffpost.com/entry/the-bad-old-days-abortion_b_6324610