Five abortions a month: How Dobbs changed Texas

"Five abortions a month: How Dobbs changed Texas" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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In the last two years, Texas abortion clinics closed, legal challenges raced through the court system, towns tried to ban out-of-state travel, conservative activists made abortion pills and emergency rooms into battlegrounds, and woman after woman after woman came forward with stories of medical care delayed or denied because of confusion over Texas’ abortion laws.

And five women were able to get an abortion, on average, each month.

Texas, with 30 million residents and 10% of the women of reproductive age in the nation, used to see about 4,400 abortions a month.

Now, five.

State data, which is available only through January 2024, shows some months, no abortions were performed at all; there were never more than 10 in one month.

The drop in abortions in Texas is so large it’s difficult to visualize in numbers: a 99.89% decline, a sheer cliff face on a line graph. But the meaning behind the metrics is perhaps even more difficult to discern.

For abortion-rights advocates, each missing number represents an individual in turmoil — a life derailed by an unintended pregnancy or a heartbreaking pregnancy complication worsened by delayed medical care.

Across the aisle, this number represents a dream achieved and evidence that the laws are working, both in banning elective abortions and ensuring women who need to terminate for medical reasons are able to. If some women have been able to get an abortion — the laws can’t be that restrictive, can they?

Of course, these numbers don’t tell the whole story. They don’t capture the frantic trips out of state, the pills secreted in a bathroom, the forays over the border, all the ways Texans are managing to terminate their pregnancies despite the laws.

But two years after the June 2022 Dobbs ruling overturned Roe v. Wade, those abortions tell us a lot about how Texas’ laws are working — exactly as designed.

Who has an abortion

Before Texas banned nearly all abortions, people sought to terminate their pregnancies for all sorts of reasons. They couldn’t afford another child; they felt they were too young; they were in an unstable, or even abusive, home; they were sexually assaulted; they just weren’t ready.

These people, and their reasons, still exist, and they face enormous challenges in either seeking abortions elsewhere or carrying these pregnancies to term. But since the Dobbs decision, much of the focus of the courts, the legislature, the media and advocates has narrowed in on one aspect — abortions for medically complicated pregnancies.

Performing an abortion in Texas is punishable by up to life in prison, unless, “in the exercise of reasonable medical judgment,” a doctor believes the pregnant patient is at risk of death or “substantial impairment of a major bodily function.”

This “life of the mother” exception, as it is often called, is supposed to allow doctors to perform an abortion when medically necessary. In practice, many doctors say the vagueness of the language and the extreme penalties leave them paralyzed.

“You sometimes feel like you’re damned if you do, damned if you don’t,” Dr. Todd Ivey, a Houston OB-GYN, told the Texas Tribune in April. “Patients are in very difficult situations … and then you have the threat from the other side of civil penalties in addition to criminal penalties, along with the loss of your license and prison time. It’s incredibly frightening.”

The fact that some women are getting abortions under this exception is proof enough for many anti-abortion groups that it is working.

“We can see that there are doctors in Texas who clearly understand that the law allows them to intervene to save a woman's life,” said Amy O’Donnell with Texas Alliance for Life. “Not a single woman has lost their life, and no doctor has faced any kind of prosecution, lost their medical license or faced any penalties.”

The numbers, however, don’t shed light on the process a woman goes through to get that abortion. Amanda Zurawski’s membrane ruptured when she was 18 weeks pregnant, guaranteeing she would miscarry. Her doctors repeatedly refused to perform an abortion because they could still detect a fetal heartbeat. It wasn’t until she went into sepsis, eventually spending three days in the intensive care unit, that they acted.

Zurawski led a lawsuit that challenged Texas’ abortion laws on the grounds that they resulted in delayed or denied care for medically complicated pregnancies. Ultimately, 19 other women and two doctors signed on to the suit with their own stories

“The preventable harm inflicted on me will, medically, make it harder than it already was for me to get pregnant again,” Zurawski said at a news conference announcing the lawsuit last March. “The barbaric restrictions our lawmakers have passed are having real- life implications on real people. I may have been one of the first who was affected by the overturning of Roe in Texas, but I’m certainly not the last.”

The state and anti-abortion activists have argued that the laws are clear — it is the doctors who are being overly timid or, perhaps, intentionally obstinate.

“Our law allowed that doctor to intervene sooner, and so that's not an issue with the law,” O’Donnell said. “Her story is heartbreaking, but it is not an outcome that's based on Texas law, but just a doctor who didn't perform the life-saving abortion.”

During a hearing in which Zurawski and other plaintiffs testified against the laws, lawyers for the state encouraged them to file complaints or bring medical malpractice suits against their doctors for failing to act.

“Given the nature of plaintiffs’ past experiences, it is understandable that they are seeking to place blame,” assistant attorney general Amy Pletscher said at the hearing. “But the blame directed at defendants is misplaced. Rather, plaintiffs sustained their alleged injuries as a direct result of their own medical providers failing them.”

Last month, the Texas Supreme Court rejected Zurawski v. Texas, and further endorsed this view.

“A physician who tells a patient, ‘Your life is threatened by a complication that has arisen during your pregnancy, and you may die, or there is a serious risk you will suffer substantial physical impairment unless an abortion is performed,’ and in the same breath states ‘but the law won’t allow me to provide an abortion in these circumstances’ is simply wrong in that legal assessment,” the court wrote in its May 31 opinion.

The Texas Supreme Court has ruled, in this case but more explicitly in an earlier case, that the law doesn’t require doctors to wait until a pregnant patient is “within an inch of death or her bodily impairment is fully manifest or practically irreversible.” A doctor can act before the harm to the mother is imminent, the court ruled.

But state data shows that 88 of the 90 abortions performed in the 18 months for which data is available happened because there was a medical emergency, as well as being necessary to preserve the health of the patient. And while no doctor has been prosecuted, there is a three-year statute of limitations and both state and private attorneys have shown their willingness to bring long-shot cases to test the limits of the law.

When an Austin district judge ruled 31-year-old Kate Cox could terminate her nonviable pregnancy, Attorney General Ken Paxton sent letters to Houston hospitals telling them he would pursue legal action if they allowed Cox to have an abortion on their premises. The Texas Supreme Court later ruled Cox did not qualify for an abortion.

“A physician thought that abortion was necessary, but the court came right behind and said, ‘No, we don't think so. We disagree,’” said Dr. Ivey, the Houston obstetrician, who is also an officer in the Texas chapter of the American College of Obstetricians and Gynecologists. “How can a physician feel protected enough to provide good medical care when the ultimate decision is going to be made by the court, and they may not support the physician?”

Paxton also sued the federal government for reminding emergency rooms of their obligation to stabilize patients experiencing a medical emergency, even if stabilization requires an abortion. The 5th U.S. Circuit Court of Appeals sided with Texas; the U.S. Supreme Court is expected to rule any day on a related case out of Idaho that could impact that ruling.

Even while it upheld the state law on abortions as it applied to complicated pregnancies, the Texas Supreme Court conceded that more clarity is needed. Late last year, justices asked the Texas Medical Board, the state licensing agency, to issue clearer guidance to doctors to help them interpret the laws and feel more confident performing medically necessary abortions.

The board’s initial attempt at guidance focused mostly on listing paperwork doctors should prepare if they’ve performed a medically necessary abortion. At a stakeholder meeting last month, doctors, lawyers and women who had experienced complicated pregnancies said this wasn’t enough to clear up the confusion and get Texans the care they need.

“We need clarity. Women's maternal health and fertility are dependent on the state getting this right,” said Dr. Joseph Valenti, a north Texas OB-GYN and chair of the Texas Medical Association's Board of Trustees.

On Friday, the board adopted a slightly modified version of their proposed rule.

How many more

While the plight of women with complicated pregnancies has moved into the foreground, Texans continue to seek abortions for a wide-range of reasons. What we don’t know — and likely will never know — is just how many have found ways to terminate their pregnancies post-Dobbs, and how they did so.

#WeCount, a research project from the Society of Family Planning, has found the number of abortions nationally has stayed pretty consistent from before Dobbs, even as 14 states have banned abortion. They attribute this to other states expanding access to abortion and the wider access to telehealth.

Texans are a big part of this out-of-state abortion travel. More than 35,000 Texans went to another state to get an abortion in 2023, compared to just 2,400 in 2019, according to a study from the Guttmacher Institute. They primarily traveled to New Mexico, the only state bordering Texas that still allows abortion. Almost three-quarters of abortions there in 2023 were provided to out-of-state residents. Several clinics that used to operate in Texas have set up shop over the border in New Mexico.

And a countless number of Texans have ended pregnancies without ever leaving the state, thanks to widespread access to medication abortions, pills that induce abortion and are often obtained through telehealth appointments with out-of-state providers.

While prescribing and mailing abortion-inducing drugs is illegal in Texas, at least half a dozen states have passed so-called “shield laws” that aim to protect health care providers who prescribe abortion pills to patients in Texas and other restrictive states. The laws have not yet been tested in court.

Other women use international providers, like AidAccess, a European nonprofit that saw demand spike after the Dobbs decision, make quiet trips to pharmacies over the U.S.-Mexico border, or obtain the pills through an ever-growing whisper network.

Frustrated by this workaround, anti-abortion activists have focused on restricting out-of-state travel and access to abortion-inducing medications.

Several small towns, as well as Lubbock County, have passed a legally dubious ordinance that tries to prevent people from using local roads to transport anyone out-of-state for an abortion. The ordinance, which is enforced through private civil lawsuits, recently hit resistance in Amarillo, the largest city to consider it.

Jonathan Mitchell, the former Texas solicitor general responsible for many of the most aggressive conservative legal arguments in recent years, has taken things a step further. Mitchell has filed legal petitions seeking to depose women who terminated their pregnancies outside of Texas, as well as groups that fund out-of-state abortions for Texans. None of those petitions has yet resulted in depositions.

Mitchell has also filed a wrongful death lawsuit against three women who he says helped a friend obtain and take abortion-inducing drugs. The women have countersued Mitchell’s client, the ex-husband of the woman who had been pregnant. That case is slowly moving through the court system.

Other conservative groups filed a lawsuit seeking to revoke the Food and Drug Administration’s approval for mifepristone, one of two drugs taken together to terminate a pregnancy. While U.S. District Judge Matthew Kacsmaryk, the only federal judge in Amarillo, granted their petition, the Supreme Court recently overturned it, ruling that the doctors did not have standing to bring the suit.

Mifepristone remains approved, but the case may not be over.

Even further out of the spotlight are the Texans who did not get an abortion, but might have if laws were different. Maybe they lacked the resources to travel out of state, the information on how to get the medication, or the willingness to wade into these uncertain legal waters.

The clearest picture about who and how many people carried pregnancies to term as a result of the new abortion laws will eventually come from birth data. Early fertility data for Texas shows Hispanic women are seeing the greatest increase in births, and teen pregnancy has ticked up for the first time in decades. Some may turn to adoption, but the vast majority will likely parent children they did not intend to have.

Last legislative session, in a moment of bipartisan agreement motivated by the overturn of Roe v. Wade, the state extended health care coverage for poor mothers to one year postpartum, and eliminated the sales tax on diapers. It has invested in crisis pregnancy centers to give supplies to new moms.

Whether that commitment will be equally front of mind in the upcoming session will be determined when the legislature convenes in January. While lawmakers in other states have paid for their anti-abortion stances at the ballot box, Texas has continued to march steadily to the right, helped by voters who are more focused on issues like the border and the economy.

Two years after the overturn of Roe v. Wade, Texas voters say abortion is only the sixth most important issue facing the state.

Disclosure: Texas Medical Association has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/06/24/abortion-dobbs-anniversary-pregnancy-complications/.

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