Fighting Abortion Texas Style
Excerpt from Crow After Roe: How “Separate But Equal” Has Become the New Standard in Women’s Health and How We Can Change That
This excerpt from author Robin Marty’s book, Crow After Roe, chronicles the various ways Texas lawmakers worked with anti-abortion advocates to sharply decrease women’s access.
As Texas governor, Rick Perry (R) helped put in place some of the country’s most restrictive abortion laws. Though he is now ensconced in the Trump administration, heading up the Department of Energy, his brand of anti-abortion fervor has infected Republicans in dozens of states, in Congress, and the White House.
The story of what happened to abortion access in Texas remains instructive about the state of reproductive rights throughout the country. Indeed, budget riders advanced by House Republicans in 2018 would replicate Perry’s successful effort to deny federal funds to Planned Parenthood for any health care for women, not just abortion. And just several weeks ago, Mississippi passed the most restrictive abortion law in the nation.
Poor women of Texas may have become the canaries in the coal mine when it comes to reproductive health services. If so, the future for women’s health is bleak.
This excerpt from Robin Marty’s book, Crow After Roe, chronicles the various ways Texas lawmakers worked with anti-abortion advocates to sharply decrease women’s access.
About the authors: Robin Marty is the senior political reporter for the UN Foundation blog, RH (Reproductive Health) Reality Check. Jessica Mason Pieklo is a senior legal analyst at RH Reality Check and the former Assistant Director of the Health Law Institute at Hamline University School of Law.
The excerpt below is a compressed version of Chapter 9, “Texas: An Inaccessible Medical System for Poor Women” from Crow After Roe: How “Separate But Equal” Has Become the New Standard in Women’s Health and How We Can Change That (Ig Publishing, April, 2013).
WhoWhatWhy introduction by Celia Wexler.
“I’ve met too many prospective moms and dads from all across
Texas who want nothing more than the chance to love a child
they can call their own. I know of too many families that have
been blessed and made whole by the glorious gift of adoption
to ever believe there can ever be such a thing as an ‘unwanted
Child.’”1
When [former] Texas governor Rick Perry spoke those words at a fundraiser for the Downtown Pregnancy Center of Dallas in 2009, he was singing the praises of organizations that support women and teens in the state who choose to carry unintended pregnancies to term.
However, what the [former] governor didn’t mention was that, between his gutting of family planning funding and his ceaseless vendetta against the state’s Planned Parenthood affiliates, he himself has been and continues to be the biggest factor in creating “unwanted children” by blocking access to affordable contraception, especially for women who are uninsured or rely on the state’s low-income Medicaid coverage to meet their health care needs.
The Texas bid to defund Planned Parenthood wasn’t … popular with its residents. The state was already deep in a health care crisis; less than half its population had private insurance coverage, and a quarter of its citizens were completely uninsured.
In 2010, Texas ranked number one in the percentage of uninsured adults in the country, with nearly five million uninsured between the ages of nineteen and sixty-four.2
The numbers were even worse for minority groups. According to the Texas Medical Association, “37 percent of Hispanics/Latinos, 21.4 percent of African Americans, and 21.1 percent of Asians” in the state were uninsured, “compared to 13.5 percent of whites.”3
As a result, the state was suffering from an epidemic of adults who lacked primary care doctors, often skipped preventative care, and were forced to use emergency rooms as their primary health care source. The situation was even worse for women, especially the Latina population in the state, who without access to physicians would be unable to obtain birth control or other family planning needs, increasing the rate of unintended pregnancies and continuing their cycle of poverty.
“Latinas as it stands currently have the least amount of access to health insurance of any ethnic group of women in the United States,” explained Veronica Bayetti Flores, a policy research specialist at the National Latina Institute for Reproductive Health.
“Low-income Latinas who would otherwise qualify for public assistance such as Medicaid or any other kinds of programs that are there to provide public assistance often don’t qualify because, if they’re immigrant Latinas, sometimes they’re undocumented. So that would prevent them from qualifying for a number of different health care programs. Latinas are already operating from a context of disproportionate poverty and lack of access to care, so when you take away the cornerstones like that, it’s actually a huge impact on Latinas.”4
In fact, according to Flores, sometimes it takes getting pregnant to get any health care at all.
“Those are some of the places where undocumented women are actually able to get care when they’re pregnant. It’s a disturbing feeling for them that that’s actually one of the only times that they’re able to receive any care, when they’re pregnant.”
It was exactly these sorts of issues that had led to the development of Title X funding as a federal program in the first place. With the federal government providing grants, women who were poor, uninsured, or using Medicaid could obtain exams, contraception, prenatal care, and other basic health care services without having a primary physician.
Access to contraception was understood to be crucial in reducing unplanned pregnancies and cutting health expenses associated with abortion and giving birth.
According to a 2012 report from the Brookings Institute, for every dollar spent on contraception, taxpayers save between two and six dollars.5
These were the types of arguments that led to the creation of the Texas Medicaid Women’s Health Program (WHP). The program serves low-income, uninsured women in the state, allowing them to visit providers for family planning needs and health screenings for cancer, as well as testing for sexually transmitted infections.
The funding for the program is used entirely for these screenings and for providing contraception, and no clinic that participates — including Planned Parenthood affiliates in the program — offers abortions.
Yet it was the specter of “fungible funding” that [former] Governor Perry and his cohorts used to pass a law forbidding Planned Parenthood affiliates from being a part of WHP. “Planned Parenthoods across the country provide abortions, are affiliated with abortion providers, or refer women to abortion providers,” the governor’s spokesperson told the New York Times in March 2012.6
Republican state representative Wayne Christian agreed. “I don’t think anybody is against providing health care for women. What we’re opposed to are abortions … Planned Parenthood is the main organization that does abortions. So we kind of blend being anti-abortion with being anti-Planned Parenthood.”7
However, when Christian was asked if this was a “war on birth control,” he responded, “Of course it’s a war on birth control, abortion, everything — that’s what family planning is supposed to be about.”8
To assist in the defunding process, Texas dropped its two-year budget for family planning from $111 million to $38 million.9
The elimination of two-thirds of its family planning budget would cut services for about 300,000 women in the state and was projected to lead to 20,000 unwanted pregnancies that would cost the state about $230 million.10
Those who were familiar with [former] Governor Perry’s record knew that this wasn’t a money-saving endeavor. In 2005, Perry had taken a swing at the state’s family planning funding, transferring $10 million to Federally Qualified Health Centers (FQHCs), community-based clinics that provide a full range of health care services, choosing to fund those clinics instead of Planned Parenthood or reproductive health centers.
According to reporter Jordan Smith, while those funds may have gone to FQHCs, that doesn’t mean patients were served. Smith wrote in the Nation that in the first year, $2 million of that $10 million was returned to the state, unused.
Though their costs per client were fifty dollars more than what Planned Parenthood spent, the FQHCs continued to return funds every year.11 Perry also took $5 million in family planning funding and gave it to crisis pregnancy centers, allowing them to use taxpayer funding to counsel women with unintended pregnancies to give birth rather than choose an abortion. According to a report by the Washington Independent, almost all of the funding to the state’s pregnancy centers went to Christian-centric nonprofit agencies.12
Blaming Obama
.
It didn’t take long for the federal government to make it clear that Texas’s move to cut Title X funding was unacceptable. The Department of Health and Human Services warned [former] Governor Perry that purposely ousting Planned Parenthood as a provider, and prohibiting the organization from receiving Title X funds, put the state in danger of losing all of its family planning funding. Still, Perry insisted that it was the Obama administration that was putting a political agenda over the well-being of the state’s poor and uninsured women. He wrote in a March 8, 2012, op-ed:
Why would the Obama administration take away access to health care for low-income Texas women? Because this administration puts funding for abortion providers and affiliates ahead of funding for women’s cancer screenings and other preventive health care. Texas, operating under the direction of an overwhelming and bipartisan majority of legislators, prohibits abortion providers and affiliates like Planned Parenthood from receiving taxpayer money.
Because Texas refuses to fund abortion providers and their affiliates, the federal government has announced that it will cancel the Women’s Health Program. To me, this reflects a twisted set of values, not to mention a continued disregard for the basic concept of states’ rights.13
Perry approved the ban on Planned Parenthood affiliates being used in WHP, even if it meant the loss of federal funds, and vowed to replace the lost $30 million from the state budget. “I am directing you to begin working with legislative leadership to identify state funding to continue to provide these services, in full compliance with Texas law, should the Obama Administration make good on its threat to end the health care to these 100,000-plus women,” Perry wrote in a public letter to Texas Health and Human Services Commissioner Tom Suehs. “Texans send a substantial amount of our tax dollars to Washington, DC, and it is unacceptable that the Obama Administration is denying Texas taxpayers the use of those dollars to fund this program, simply because of its pro-abortion agenda.”14
Down With Birth Control
.
Supporting Perry in his mission was the Catholic Bishops of Texas, which argued that ousting Planned Parenthood as a provider, despite the fact that the Texas clinics in question didn’t offer abortion services, actually reinforced “comprehensive” women’s health care:
There are only 44 Planned Parenthood locations in the Women’s Health Program and many do not provide comprehensive health care — say, for example, mammograms or many common gynecological services — which are critical for women’s health. It is the Texas bishops’ position that true women’s health services should be separated from services that are not health care: namely, contraception, sterilization, and abortion. By insisting that the state of Texas cannot direct funds to thousands of providers statewide who offer true, comprehensive, women’s health care — and instead require Medicaid funds go to prop up 44 Planned Parenthood clinics — the federal government risks removing preventative health care from hundreds of thousands of women in Texas.15
That the bishops referred to contraception as “not health care” is telling. The WHP program is supposed to offer family planning services to low-income women, and those who advocate the exclusion of Planned Parenthood from the program and the use of alternative providers are admitting that they don’t believe birth control should be offered at all.
It’s a variation of the same argument used to oppose the birth control mandate in the Affordable Care Act. “The bishops want contraception out of the Affordable Care Act entirely,” explained Jon O’Brien, president of Catholics for Choice. “That would affect all Americans. And if you think that’s the whole story, again you are wrong.”16
According to O’Brien, the bishops’ fight against contraception is motivated by their desire to continue to get federal funding for their charity work while still being allowed to adhere to and enforce their own set of moral rules. “They’ve carefully constructed a very bogus argument taken to the far extreme,” O’Brien says.
Getting the Runaround
.
In the end, the bishops got their way, when, in March 2012, the state of Texas began phasing Planned Parenthood out of the WHP. [Former] Governor Perry touted the more than 2,500 doctors in the state as a primary reason why it would be just fine to move women away from Planned Parenthood services. However, as Texas-based freelance journalist Andrea Grimes discovered in her own personal investigation, getting access to a doctor was very complicated for patients without insurance:
Most places I telephoned did not provide reproductive health care and instead focused on providing low-income housing, job training and addiction-recovery programs. A homeless shelter on the FQHC list did tell me I could get a free pap smear if I could prove I was homeless. I then got sidetracked looking into something called Project Access, a low-cost program that helps uninsured people who don’t qualify for Medicaid — but because I made more than about $20,000 last year as an unmarried woman without kids, I don’t qualify for that, either. And the Texas Breast and Cervical Services, which is supposed to provide low-cost screenings for Texas women? It referred me to Planned Parenthood. So that was a no-go.17
Mention “Abortion” and Be Banned
.
The full switch to the Texas-funded program wasn’t expected to be complete until November 1, 2012 — conveniently a few days before the 2012 election. But concerns began to grow as women were told that as of May 1, they would no longer be able to use Planned Parenthood as their provider. Texas Planned Parenthood filed suit against the state on April 11, and on April 30, the Fifth Circuit Court of Appeals blocked the ban from going into effect, saying it was “likely unconstitutional because it bars [Planned Parenthood] from participating in the Women’s Health Program based on their affiliation with legally and financially separate entities that engage in constitutionally protected conduct related to abortion.”18
Perry and his administration appealed the ruling by reassessing how a provider for the program could be barred. Now, instead of disqualifying only groups associated with an “abortion provider,” they also banned any group that so much as referred patients for or even mentioned abortion.19
This essentially created a state gag rule that many medical providers feared would jeopardize their ability to assist patients. Collectively, the Texas Medical Association, the Texas division of the American College of Obstetricians and Gynecologists, the Texas Association of Obstetricians and Gynecologists, the Texas Academy of Family Physicians, and the Texas Pediatric Society sent a letter to the Department of State Health Services expressing their concerns about the law.
“The relationship between patient and physician is based on trust and creates the physician’s ethical obligations to place the patient’s welfare above his or her own personal politics, self-interest and above obligations to other groups,” wrote the organizations, which represented more than 47,000 medical practitioners. Among other worries was the concern that doctors might leave the program because of the new regulation, making an already precarious provider situation even worse.20
Fighting the Affordable Care Act
.
As Perry continued to fight the federal government over funding for women’s health care, an even bigger storm was brewing in 2012. The Supreme Court had just ruled that the Affordable Care Act, President Obama’s signature health care reform bill, was constitutional, and that states would need to extend Medicaid eligibility or be prepared to give up their expansion funding.
The expansion would be a boon to Texas, a state that relied heavily on Medicaid, by cutting the costs of the uninsured on the state health care system. On principle, however, [former] Governor Perry had to remain as stubbornly committed to rejecting the funding as he had been to rejecting WHP funding. In a July 2012 letter to Health and Human Services Secretary Kathleen Sebelius, Perry pointedly stated his opposition to the expansion of Medicaid funding:
I oppose both the expansion of Medicaid as provided in the Patient Protection and Affordable Care Act and the creation of a so-called “state” insurance exchange, because both represent brazen intrusions into the sovereignty of our state. I stand proudly with the growing chorus of governors who reject the PPACA power grab. Thank God and our nation’s founders that we have the right to do so. Neither a “state” exchange nor the expansion of Medicaid under the Orwellian-named PPACA would result in better “patient protection” or in more “affordable care.” What they would do is make Texas a mere appendage of the federal government when it comes to health care.21
But rather than forcing a state to become “a mere appendage of the federal government” in regards to health care, Medicaid — and Title X specifically — were designed to function as a partnership between individual states and the federal government, with both working toward the common goal of delivering health care services to those most in need.
By its very design, Title X assumes cooperation between states and the federal government, cooperation that the Perry administration refused to give. Where the law envisioned a marriage of federal and state interests, the Perry administration insisted on going it alone, refusing to enter into a partnership with the Obama administration and instead moving forward with turning Texas into a health care desert for the poor and uninsured.
Title X of the Public Health Services Act authorizes the secretary of health and human services to make grants and contracts with public or private entities to help establish and operate voluntary family planning projects that offer a broad range of “acceptable and effective family planning methods and services.”22
Since its inception in 1970, the act has been the target of anti-abortion (and anti-birth control) activists, despite the fact that Section 1008 of the act specifies that none of the federal funds appropriated under Title X “shall be used in programs where abortion is a method of family planning.”
Despite the specific statutory language that prevents Title X funds from going to programs that provide abortions, activists on the right have nevertheless consistently pushed challenges to the law. For example, in 1988, the Department of Health and Human Services issued regulations that, among other things, prohibited Title X family planning projects from engaging in abortion counseling or referrals and required said projects to maintain “objective integrity and independence from the prohibited abortion activities” by using separate facilities, personnel and accounting records designed to provide “clear and operational guidance” to grantees about how to “preserve the distinction between Title X programs and abortion as a means of family planning.”23
The regulations also prohibited Title X programs from “indirectly” encouraging or promoting abortion, such as by weighing a list of referrals in favor of providers who performed abortions or by excluding available providers who did not perform abortions.24 Title X projects were also expressly prohibited from referring a pregnant woman to an abortion provider even if she directly asked for such a referral.25
These changes created a host of new regulatory burdens on family planning programs, making accessing family planning services by poor women even more difficult than it had been previously under Medicaid. Before these regulations went into effect, Title X grantees and physicians who supervised Title X funds filed several lawsuits in federal court.
After working its way through the lower courts, one challenge made its way to the Supreme Court for review. In Rust v. Sullivan (1991), the court upheld the 1988 regulations, solidifying a bias against reproductive services as part and parcel of comprehensive family planning.26
Chief Justice William Rehnquist wrote the majority opinion for the court, rejecting the plaintiffs’ argument that the regulations were not authorized by Title X.27 In addition, the court rejected the argument that the regulations violated the First Amendment because they discriminated on the basis of viewpoint, prohibiting discussion about abortion but mandating information promoting childbirth.28
When the government appropriates public funds to establish a program, the court held, it is entitled to define the limits of that program even if that means funding some rights at the expense of others.29
The court also rejected the plaintiffs’ alternative First Amendment claim that the regulations conditioned the receipt of Title X funding on the relinquishment of a constitutional right, namely the right to engage in abortion advocacy and counseling.30
According to the court, this claim fell short because the government was not denying a benefit to anyone but was “simply insisting that public funds be spent for the purposes for which they were authorized.”31 Moreover, the court said, the regulations did not force a Title X grantee to relinquish any abortion-related speech. Instead, they simply required that the grantee keep such activities “separate and distinct from Title X activities.”32
The regulations, the court explained, were aimed at Title X projects, not Title X grantees, a distinction that was significant on paper but fell short in reality. According to the court, Title X grantees remained free to perform abortions, provide abortion-related services, and engage in abortion advocacy so long as those activities were conducted through programs that were separate and independent from projects that received Title X funds.33
Despite the court’s ruling in Rust v. Sullivan that the federal government could place restrictions on Medicaid dollars going toward abortion services — as well as its decision in Dalton v. Little Rock Family Planning Services, a 1996 case that made it clear that states would be given wide berth in regulating the economics of abortion access — it wasn’t until June 2012 that the balance of power between federal and state cooperative spending was upended.
The States’ Rights Approach
.
In National Federation of Independent Business v. Sebelius, the Supreme Court, for the first time ever, invalidated a condition on federal spending, in this case the Medicaid expansion under the Patient Protection and Affordable Care Act, on the grounds that it coerced the states into acting by making the conditions of receiving federal dollars essentially too good to turn down. The decision provided the perfect cover for the Perry administration and its charge against universal health care access as envisioned in the act, especially for women.
The Affordable Care Act represented an unusual expansion of access and equalizing of price that embraced a vision of women’s equality and demanded that the private sector provide parity in coverage.
For those who opposed expanding care for women, what better place than Texas to reinforce the isolationist states’ rights approach and create a stand-off with the federal government over access to reproductive health care? After all, Texas is the only politically red state with a large enough population that, by standing alone and apart from the Medicaid program, it could cause a significant political impact across the country. If that impact happened to harm women, especially those without insurance, so be it.
Harm women it did. Within a year of the initial family planning cuts instituted by the Perry administration, sixty clinics across the state of Texas were forced to close.34 Of those sixty clinics, only twelve were actually run by Planned Parenthood, the alleged original target of the cuts.
As a consequence of the governor’s actions, federally qualified health centers across the state are now refusing new clients because they lack the resources to deal with the increase in numbers, and in remote areas, thousands of women are going without services of any type due to lack of money and access. “In hoping to punish Planned Parenthood, politicians had gone too far, with devastating consequences for women’s health,” wrote Carolyn Jones in an article for the Texas Observer. “Lawmakers, they said, had thrown the ‘baby out with the bathwater.’”35
Today, with a growing list of case law that allows states broad regulation of healthcare spending related to abortion, and the Supreme Court’s embrace of the legal theory of “coercion” related to federal-state cooperative spending, states now have the power to cut off federal spending to clinics for reproductive health care. And in Texas, that’s exactly what they’ve done.36
As the effects of these cuts are being felt throughout the state, with clinic closures and a lack of providers able and willing to take on new Medicaid patients, it has become clear that Texas has succeeded in creating a separate health care system for women, based on income. And as has been the case throughout our history of segregated public benefits, there’s not a shred of equality in it.
Notes
1. Rick Perry, “Prepared Remarks for ‘Light of Life Dinner and Gala,’” September 26, 2009, https://governor.state.tx.us/news/speech/13747, retrieved January 25, 2013.
2. The Uninsured in Texas,” Texas Medical Association, https://www.texmed.org/Uninsured_in_Texas, retrieved January 25, 2013.
3. “The Uninsured in Texas,” Texas Medical Association.
4. Interview, Veronica Bayetti Flores, July 27, 2012.
5. Adam Thomas, “Policy Solutions for Preventing Unplanned Pregnancies,” Brookings Institute, March 2012, https://www.brookings.edu/research/reports/2012/03/unplanned-pregnancy-thomas, retrieved January 25, 2013.
6. Pam Belluck and Emily Ramshaw, “Women in Texas Losing Options for Health Care in Abortion Fight,” New York Times, March 8, 2012. https://www.nytimes.com/2012/03/08/us/texas-womens-clinics-retreat-as-finances-are-cut.html.
7. Belluck and Ramshaw, “Women in Texas Losing Options for Health Care in Abortion Fight.”
8. Wade Goodwyn. “Gov. Perry Cut Funds For Women’s Health In Texas.” NPR, September 20, 2011. https://www.npr.org/2011/09/20/140449957/gov-perry-Cut-funds-for-womens-health-in-texas
9. Belluck and Ramshaw, “Women in Texas Losing Options for Health Care in Abortion Fight.”
10. Belluck and Ramshaw, “Women in Texas Losing Options for Health Care in Abortion Fight.”
11. Jordan Smith, “Rick Perry’s War on Women,” The Nation, December 19, 2011, https://www.thenation.com/article/164880/rick-perrys-war-women#.
12. Patrick Brendel, “State Abortion-Alternatives Program Funds Christian Nonprofits in Houston,” Washington Independent, March 15, 2011.
13. Editorial, “Rick Perry: Women’s Health vs. Abortion Politics,” Abilene Reporter News, March 12, 2012.
14. “Gov. Perry Pledges State Will Take Care of Texas Women if Obama Administration Ends Women’s Health Program Funding, as Threatened,” office of Governor Rick Perry, March 8, 2012, https://governor.state.tx.us/news/press-release/17020, retrieved January 25, 2013.
15. Texas Catholic Conference, “Texas Bishops Support True, Comprehensive Women’s Health Programs,” https://www.txcatholic.org/the-church-in-texas/134-texas-bishops-support-true-comprehensive-womens-health-program, retrieved January 25, 2013.
16. Interview, Jon O’Brien, August 7, 2012.
17. Andrea Grimes, “All Those Alternatives to Planned Parenthood? In Texas, at Least, They Don’t Exist,” RH Reality Check, April 5, 2011, https://www.rhrealitycheck.org/blog/2011/04/05/where-will-health-care-when-family-planningfunds-thing-past.
18. Planned Parenthood, “Federal Judge in Texas Rules in Favor of Women’s Health,” April 30, 2012, https://www.plannedparenthood.org/about-us/newsroom/press-releases/federal-judge-texas-rules-favor-womens-health-39241.htm, retrieved January 25, 2013.
19. In the United States Court of Appeals for the Fifth Circuit. https://www.ca5.uscourts.gov/opinions/pub/12/12-50377-CV0.wpd.pdf
20. Hollie O’Connor, “Medical Groups Oppose Women’s Health Program Rule,” Texas Tribune, August 6, 2012, https://www.texastribune.org/2012/08/06/tma-rejects-rule-banning-discussion-abortion.
21. “Governor’s Letter to HHS Secretary Kathleen Sebelius,” July 9, 2012, https://governor.state.tx.us/files/press-office/O-SebeliusKathleen201207090024.pdf, retrieved January 25, 2013.
22. 42 U.S.C. § 300(a).
23. 53 Fed. Reg. 2923-24 (1988).
24. Id § 59.8(a)(3).
25. Id. § 59.8(b)(5).
26. Rust v. Sullivan 500 U.S.183 (1991).
27. Rust, 500 U.S. at 183-91.
28. Rust, 500 U.S. at 192.
29. Id. at 194.
30. Rust, 500 U.S. at 196.
31. Id.
32. Id.
33. Id.
34. Carolyn Jones, “One Year Later, Cuts to Women’s Health Have Hurt More than Just Planned Parenthood,” Texas Observer, August 15, 2012, https://www.texasobserver.org/one-year-later-cuts-to-womens-health-have-hurt-more-than-justplanned-parenthood.
35. Jones, “One Year Later, Cuts to Women’s Health Have Hurt More than Just Planned Parenthood.”
36. On August 21, 2012, the Fifth Circuit held in Planned Parenthood v. Suehs that the Texas rule defining abortion affiliate to include any clinic tied to Planned Parenthood, regardless if they performed abortions, and cutting off state and federal grant money to those clinics could be implemented.
Related front page panorama photo credit: Adapted by WhoWhatWhy from Planned Parenthood building (Hourick / Wikimedia).
