Old Fight, New Rules

Alternately energized and exasperated by the latest abortion legislation, each side gears up for the battle ahead.

By Kerry H. February 2, 2014 Published in the February 2014 issue of Houstonia Magazine

The physical center of Houston’s abortion debate is located in a desolate corner of the city, just off I-45, past some crumbling concrete and a chain-link fence and possibly a stray dog or two, at 4600 Gulf Freeway, where stands a hulking glass 78,000-square-foot building, Planned Parenthood’s biggest outpost in the region. The clinic is one of the few in Texas that already meets the structural standards for performing abortions in accordance with Texas’s new abortion law, and it is called, in various corners of the internet, “The Auschwitz of America in Houston,” “the largest abortion facility in the Western Hemisphere,” and “the abortion supercenter.” Protesters gather here every weekend. There is usually also a purple bus parked across the street, and on that bus a vertical flapping banner that reads “free ultrasounds.” The bus is a rolling outpost of the Houston Coalition for Life. Its occupants aim to capture the attention of women on their way to get abortions, show them ultrasounds of their embryos and fetuses, and change their minds.

Inside the bus on a Monday morning, a nurse who does not wish to be named eats her lunch as she tells me about the seven women she sees on an average day. Between us are a number of clay models of fetuses; at our feet sits a tub full of baby blankets to be handed out to pregnant women, and on the walls posters depicting fetuses at various stages of development (“Month 3: I grabbed my hand!”, “Month 4: I had a dream!”) In the back of the bus is the ultrasound machine, paid for by the Knights of Columbus, and a cot on which the women recline while the nurse swipes a probe over their pelvises. “It’s a boy!” reads a felt picture of a stroller on the wall. “It’s a girl!” reads a rattle. 

The nurse has actively opposed legal abortion since the Roe v. Wade Supreme Court decision in 1973. She refers to the embryos of women who go on to their appointments, instead of turning back, as babies she has “lost,” and asks the women to let her keep a picture of the ultrasound so that she might pray for each one. From her post in a small, cramped bus opposite a monstrously large building, she thinks of herself as defending the weak and powerless—“abortion industry” is the term she uses—against doctors who would profit by putting women at risk of serious medical complications. 

Those on the other side of the abortion debate treat with skepticism the idea that House Bill 2, the sweeping abortion law passed last summer, has anything to do with the safety of women. The bill’s strongest proponents, after all—Governor Rick Perry and Attorney General Greg Abbott, who is running to be Perry’s successor—are vocal pro-life advocates not otherwise noted for their interest in women’s health. Nevertheless, Houston’s anti-abortion groups maintain that they are the only thing standing between a profit-seeking industry and the women to whom it would do harm. 

Consider the admitting-privileges requirement, among the most controversial of HB2’s provisions, which took effect in October. The provision requires that doctors performing abortions have the right to admit patients to a hospital within a 30-mile radius of their clinics. The American Medical Association and American College of Obstetricians and Gynecologists call the requirement medically unnecessary obstructionism, pointing out that hospitals must by law admit any patient in need of emergency care, and admitting privileges are not demanded of physicians who perform similarly low-risk, but uncontroversial, procedures, such as colonoscopies. Christine Melchor, who directs the Houston Coalition for Life, says there is nothing unnecessary about it, once more citing women’s health as her guiding principle. 

 “Just last Saturday we saw an ambulance at Planned Parenthood,” she tells me the next day, offering the sighting as further proof that abortion is not the low-risk procedure that abortion rights advocates claim it is. “Many times I have seen women collapse in the parking lots of abortion clinics. If you were going for a surgical procedure, you would want to know that your doctor could admit you to the hospital and come and see you. These are rules to protect women, and it’s just surprising to me that the abortion industry is fighting this so hard.” 

Abortion rights advocates counter that the rules are actually designed to protect women from qualified doctors who will perform abortions. The admitting-privileges regulation means all clinics that do not exist within 30 miles of a hospital must close, as must clinics that only exist within 30 miles of a Catholic hospital, or clinics that exist within 30 miles of a hospital that won’t grant privileges to doctors who rarely or never actually require the use of an emergency room, which is true of most abortion providers. 

Still, Melchor and her nurse like to talk in terms of what women are gaining as a result of HB2 and not what they’re losing. It’s a rhetorical strategy that has played well for them, and there is no contradiction in believing that abortion is morally wrong but, if it must happen, ought to be performed in a highly regulated environment. If the regulatory environment becomes so onerous that women start making other choices, however, Melchor will not be disappointed. She sees victory on the horizon. 

“It has to do also with the availability of ultrasound,” says Melchor, “and people seeing now what’s in the womb. There’s no denying the humanity of the unborn child. The tide is turning.”

Like Melchor and the nurse, Kathy Kleinfeld and Frances “Poppy” Northcutt have been involved with abortion politics for decades. It is with world-weary resignation that they ask the Houston clinic in which we are sitting remain nameless, because publicity brings weekday protesters to the parking lot, who appear every Saturday in any case, which means women approaching the clinic from a parking lot across the alleyway must walk through a line of placard-holding activists. 

Northcutt, a retired mathematician, was the first woman to work in an operational capacity for NASA, volunteers at the clinic, and is the president of the Houston chapter of the National Organization for Women. She is slumped in a chair and it is clear that she does not suffer fools gladly. Kleinfeld is a warm, bespectacled consultant who advised clinics in Michigan before moving to Houston. The clinic itself feels like a house that’s been converted into a sparsely decorated small-town doctor’s office, complete with a fish tank in the waiting area. Throughout the facility are small rooms, each containing a single desk, and in many of these a woman in scrubs is making phone calls to patients. After-hours on a Friday, we chat in the recovery room, which is a space packed with comfortably enveloping stuffed chairs accessed through three identical examination rooms, each with examination tables and stirrups. 

The passage of HB2 has brought changes to this clinic, but to understand them, you have to go back to 1991, when the Texas legislature first took an interest in the regulation of abortion clinics, imposing basic licensing requirements. “And they were reasonable,” says Kleinfeld. “There was nothing unreasonable about what was put forth at that point.” When things began to get unreasonable, she says, was in 2000, when the state mandated parental notification for anyone under 18 seeking an abortion. (A few years later, parents not only had to be notified, they had to consent.) 

In 2003, lawmakers in Austin decided that abortions past 16 weeks had to be performed at clinics that meet the requirements for ambulatory surgical centers, outpatient facilities that up until then had typically played host to more complex and involved procedures, like carpal tunnel release surgery. “Throughout the state,” Kleinfeld says, “clinics had to shut down abortions after 16 weeks because nobody had a surgical care center.” 

The clinic in which we are sitting has never performed abortions past 16 weeks, so that change did not affect them. Another provision of the same bill did: clinics were now required to provide certain state-mandated information to women 24 hours in advance of an abortion. At first, the clinic instructed patients to call in to a recorded message about the psychological and physiological risks of abortion. Some of this information struck Kleinfeld and Northcutt as inaccurate, but the new requirements did not initially claim more of the physician’s time. It was years later, in 2010, that Attorney General Greg Abbott interpreted the regulation to mean that the doctor providing the abortion had to give the information in person a full day before the procedure, excepting women who live more than 100 miles from the clinic. 

Somehow Greg Abbott came to that conclusion,” sighs Kleinfeld. “It effectively required twice as much of the physician’s time.” A woman seeking an abortion now had to come to the office twice, and see the same doctor for both visits. During the preliminary, informational visit, that doctor would also have to provide a transvaginal ultrasound, and describe to the woman what he or she saw. This raised the Houston clinic’s costs, because ultrasounds are not free, though this particular clinic did not pass the costs on to their patients. 

The goal of the ultrasound requirement was to discourage women from aborting, according to Kleinfeld. She points out that in her experience, ultrasounds are just as likely to encourage abortion, since women tend to imagine that the fetus is further developed than it actually is. Nevertheless, for women seeking the procedure—and for whom getting a day off work, acquiring childcare, and paying for gas to and from the clinic was already hard enough—the burden effectively doubled. 

“At this clinic there is one physician,” says Northcutt. “But things get much more complicated when you’re at a place that has multiple physicians. Now you’ve got another layer of complexity. At Planned Parenthood, Dr. X might be there Monday and Tuesday, and Dr. Y Wednesday and Saturday. So those were challenges we were already dealing with.”

Already dealing with, she means, when the Texas legislature passed HB2 in 2013, which imposed restrictions far beyond any previous legislation. In addition to the admitting-privileges requirement, as of September 2014 all abortions must be performed at licensed ambulatory surgical centers, those expensive-to-build clinics previously only required for post-16 week abortions. In addition, any patient seeking to terminate pregnancy via mifepristone—the abortion pill—must now visit a clinic four times (previously only two visits were required). Finally, the state has mandated an outright ban on abortions after 20 weeks, where previously they were permitted till 24. 

The admitting-privileges regulation, which has already forced numerous West Texas clinics to close, does not affect Kleinfeld’s clinic, because the doctor who runs it—and who also performs the abortions—already has admitting privileges at a Houston hospital. But that’s not to say the clinic has been unaffected. Shortly after the privileges regulation went into effect and clinics began to close across Texas, the clinic began to hear from patients well outside the area it was used to serving—not just the Houston metropolitan area, but Lufkin and Bryan and Victoria. “The increase in volume has been overwhelming,” says Kleinfeld. “Women are waiting at the clinic for four or five hours; before, it was two. We’re desperately trying not to say, ‘I’m sorry but we can’t see you until next week.’ Time is of the essence in a pregnancy.”

Many women are also calling seeking the abortion pill, and that’s because of a major unforeseen consequence of HB2: At least some Planned Parenthood health centers simply stopped offering it when the mandatory visits increased from two to four. With that, the least invasive way to end a pregnancy, and do it quickly and early, became more difficult to obtain than a surgical procedure. 

“If you really drill down to the particulars of implementing this law,” says Kleinfeld, “it requires that doctors performing abortions do nothing but abortions and be available every single day to do that.” 

Bigger challenges are coming for the small clinic in which we’re sitting. It does not meet the standards of an ambulatory care center, and the upgrades necessary to turn it into one would be so extensive that the current building will not suffice. On September 1, if the law survives its ongoing legal challenges, the clinic will either have to find the hundreds of thousands dollars necessary to convert some other facility, or close.

Texas’s current abortion debate forces each side of the political spectrum to adopt rhetorical strategies usually associated with the opposition. Those who generally identify as “liberal” are railing against the over-regulation of small businesses, while those who identify as “conservative” treat the word “industry” as an insult and argue passionately for laws they say are necessary to public health. 

But the relatively new focus on women’s health does not mean the cast has changed. Most of the people arguing, legislating, and fighting over the rights of women of child-bearing age have been fighting the same fight for decades, and are much older than the population at the center of the debate. Among doctors who perform abortions in the Houston area, the average age hovers somewhere around 65, according to Kleinfeld and Northcutt. What young physician, they ask, would want to go into a specialty that she can’t be sure will be legal in a decade? And doctors much younger cannot remember a time when women were dying from illegal abortions.

“More and more doctors don’t want to do abortions anymore,” affirms Margaret Hotze, a mother of eight and grandmother of 42 who has been lobbying the state of Texas on life issues since 1969. (“I’m old,” she adds.) Hotze, who can remember riding the trolley through the Heights, its frame “rattling over the bayou” as she rode to her grandmother’s house, drives to Austin from her home near Memorial Park every single week that the legislature is in session. 

She calls Attorney General Greg Abbott “Dear Greg,” follows up mention of Rick Perry’s name with a “God bless him,” and advises that one never show up at a Texas legislator’s office door before Tuesday; on Monday they’re too busy.

Hotze can no longer walk easily, so every week she rides what she calls an electric go-kart up and down the halls of the Capitol, calling on any representatives who will listen. She’s such a familiar sight that if one of her children wants to get in touch with her, he need only call a legislator’s office. An aide will go find her motoring around the halls. 

In her home, in a blue velour jumpsuit and glittering silver cross necklace, Hotze does not appear the least bit angry; nor is she openly emotional while describing fetuses being thrown in a Heights dumpster. Mostly she seems slightly exasperated, as if the world has come to be run by people whose motives are impossible to understand; people who “throw feces” at Austin political rallies, and shout “hail Satan” in the Capitol. “It’s so crazy!” she says often, with a quizzical look and a laugh. 

Hotze’s first win in the legislature was in 1977, when Texas passed a law making it illegal for medical schools to force students to perform abortions. Before this latest victory, she had become preoccupied, like many in the pro-life movement, with the phenomenon of “Telemed” abortion—whereby a doctor oversees the administration of the abortion pill by video—and fly-by-night doctors who show up in rural areas not served by a regular clinic, perform abortions, and leave. 

“What they had,” says Hotze, her reading glasses in her lap, “was these portable abortionists. They’d fly in, get a cab, and run through the front door [of a clinic] so nobody even saw them. So crazy. And then after that when they were through with the abortions, the cab would come and pick them up and take them to the airport. What’s wrong with that? If the women had any complications at all, what would happen? If she showed up at a hospital losing blood, losing consciousness, they’d say, who is this? What’s wrong with them?”

Nothing in HB2 directly addresses these concerns; a doctor can still perform a surgical abortion and leave, so long as she has admitting privileges, and Telemed abortions ended in September 2010 when Greg Abbott ruled that the informed-consent law required a doctor to be physically present during procedures. But whereas pro–abortion rights advocates are prone to see new regulations like admitting privileges as mean-spirited obstructionism, pro-life advocates have a well developed narrative of their own, one focusing on medical safety and the importance of “continuity of care.” One does not get the sense, when talking to Margaret Hotze, that these are ad-hoc measures designed to raise the cost of abortion, but rather a reaction to a number of commonly heard hypotheticals—what if she has complications?”—circulating amongst activists and legislators. While Texas’s abortion death rate—0.58 deaths per 100,000 abortions, with no deaths in the past six years, according to the New York Times—would seem to be reassuring, some continue to see abortion as a dangerous procedure inflicted on women by negligent, profiteering physicians. 

Hotze didn’t get to speak to the legislature as a whole over HB2; when her time came to speak, she only had two minutes, and she couldn’t get her go-kart to the floor in time. Still, she’s had her share of victories—“we’ve had so many bills!” she says—and doesn’t sound the least triumphant about them. Her next mountain is not some new regulation or ban but the upholding of this latest barrier; admitting privileges. In November, after the Supreme Court declined to hear a challenge to the admitting-privileges requirement, the case was sent back to the Fifth Circuit Court of Appeals, which will hold a hearing on the provision’s constitutionality. “Well, of course,” Hotze says, “they always file a lawsuit with the federal government.” She sighs and laughs. “So crazy.” 

In 1973 Chuck Cohen was just a kid. He does not remember the Roe v. Wade decision, and has never volunteered for a pro-choice rally or an anti-abortion protest. What Cohen has followed since the ’70s is the incredible rise of ambulatory surgical centers (ASCs)—those outpatient clinics whose rigorous safety standards abortion clinics will likely have to meet come late 2014. ASCs have exploded over the past 30 years for a number of reasons, chief among them regulatory rules that limit what businesses surgeons can invest in (but allow them to invest at ASCs where they work) and advances in medical technology that made once-complicated procedures safe enough to perform outside of a hospital. 

“I grew up in an operating room,” Cohen says, both hands around a venti Americano in a Heights Starbucks. He is unshaven, relaxed, and more comfortable talking in terms of government regulations and operating costs than in moral abstractions. “My mother was director of surgery services at St. Louis University Hospital. When she had to go in the middle of the night or whatever, I would go with her. So I’ve been running around an OR since I was 8. And been working in an ASC since I was 14.”

As a consequence of a childhood spent holding surgical instruments while adults around him sliced into patients, Cohen feels most comfortable around medical professionals. Today he consults for ASCs, helping them navigate the complicated sets of regulations with which they must comply. 

“When HB2 was first being discussed, my first inclination as a businessman was, now we’ve got all of these clinics that are going to need to become ASCs. There is not a single soul out there operating one of these clinics who is going to know how to make an ASC. I need to reach out to these people and see what I can do to help them go through this process. And then it was a very quick nexus to ‘Wait, none of these facilities are going to be able to become ASCs.’”

Cohen’s list of ASC regulatory requirements lasts for at least half an Americano. The operating room has to be a certain size, as do the hallways. There are air-quality requirements that mandate a rate of outside air versus inside air. There are humidity controls and temperature controls and standards for the tiles on the floor. An ASC must have emergency backup power and walls built in a certain way to create smoke barriers. And on and on.

“The existing clinics fall into two categories,” says Cohen, speaking of the current state of abortion facilities in Texas. “Either it’s not possible or it’s a gut-and-redo. So the next step was to say, okay, that creates a) a problem, but b) an opportunity. I know ASCs. I can build them with my eyes closed. The problem with it is they’re expensive to build.”

The most ideological Cohen is willing to get is this: if abortion is legal, it should be available. His goal is to build ASCs that can provide abortions legally at the same price uncomplicated abortions currently cost—about $500. That would be impossible for a for-profit organization that built an ASC on credit, because they would have to take on hundreds of thousands of dollars of debt and pass that cost onto women. (According to the Lilith Fund, which subsidizes abortions for low-income women, terminations that currently need to be performed at ASCs—those past 16 weeks, as of 2003—typically cost more than $1,000.)

So Cohen is starting a 501(c)(3), which he says will accept donations to build such a facility in Houston, allowing it to open debt-free. He thinks the profits from that facility could eventually be used to open other such facilities in counties in West Texas, say, where regulations currently make it impossible for clinics to exist. Those facilities may never be profitable themselves, says Cohen, “but you’d support it with revenue generated in major metropolitan areas. So our target was, okay, let’s open three: one in Dallas, Houston, and San Antonio, and within a year we can open up three more in smaller demographic areas, whether they be in Amarillo or the Valley or—we haven’t gotten through throwing the dart at the map for stage two, but we would look at the map and the demographics and where it would be needed.”

Cohen, for all his dart throwing, has yet to collect substantial donations, much less choose clinic locations, but he seems to be one of the very few Texans whose recent approach to the problem of abortion restrictions has not been exclusively judicial. From the moment of the abortion bill’s passage, all of the energy in Texas’s pro-choice movement has been directed toward the question of constitutionality; legal challenges have made their way to the District Court for the Western District of Texas, the Fifth Circuit, and most recently the Supreme Court. At the time this article went to print, the case was back with the Fifth Circuit. “We are waiting to see what happens,” says Kathy Kleinfeld, “and then as it gets closer we’ll come up with a plan of action.” If the challenges ultimately fail, small clinics will find that almost no one, with the exception of Cohen, has a plan for helping them survive in a new and hostile environment. 

In 2011, following the prosecution of Dr. Kermit Gosnell for infanticides and illegal late-term abortions, Pennsylvania passed a law requiring that all abortion clinics be upgraded to ambulatory surgical centers. Pro–abortion rights groups called the bill a barely veiled attempt to shut down clinics that would not be able to afford the upgrades. The regulations, the Philadelphia Weekly declared, “would force most if not all” of the state’s freestanding abortion clinics to close. 

Five Pennsylvania clinics did close, according to the Guttmacher Institute, leaving 17 standing. According to Dayle Steinberg, CEO of Planned Parenthood of Southeastern Pennsylvania, upgrading the two facilities in her jurisdiction with new sinks, new heating and cooling systems, new ceilings, new floors, and other additions cost $507,000. “The intent behind this,” she says, “was to increase our costs, and one would assume we would have to pass that on to our patients. We went all out to ensure that we did not.” Instead, the organization solicited donations for the entire sum, and managed to keep the cost of an abortion at its clinics from rising. 

Last November, when the admitting privileges regulation went into effect in Texas, 14 of the state’s 36 clinics stopped performing abortions, including the only clinics in Lubbock, Killeen, Waco, and McAllen, according to a list compiled by pro-choice organizations. “East Texas is closed,” Poppy Northcutt says flatly.

Meanwhile, a nonprofit called Fund Texas Women began collecting donations to bus women no longer within driving distance of a clinic to facilities inside and outside the state. The Lilith Fund flew a woman needing a complicated abortion all the way to San Francisco. Charles Cohen saw his first donations come in. 

Six Texas clinics, according to the Deparment of State Health Services, currently meet the ambulatory surgical center requirements scheduled to kick in late this year. The biggest of these is the Planned Parenthood on the Gulf Freeway, the “abortion supercenter” that will stay standing even as smaller clinics shutter, and will no doubt encounter a broader cross-section of Texas women than ever, women who will drive much farther to get to it. The Houston Coalition for Life, meanwhile, is ready and waiting. They’re outfitting a second bus. 

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