A study published today found that the number of abortions performed at Texas clinics fell by half in September, when the state’s new restrictions on the procedure took effect, compared to the number performed in the same month last year. That drop, while striking, is less dramatic than the law’s supporters hoped and its opponents feared. Furthermore, the calculation does not take into account abortions that Texas women obtained at clinics in other states or drug-induced abortions they performed at home.
S.B. 8, which took effect on September 1, prohibits abortions after embryonic cardiac activity can be detected, which typically happens around six weeks into a pregnancy, but limits enforcement to private civil actions. The law is the focus of two cases the Supreme Court will hear on Monday. The question for the Court at this stage is whether the ban’s novel enforcement mechanism precludes constitutional challenges until lawsuits authorized by S.B. 8 are considered by state courts.
The plaintiffs in one of the lawsuits challenging S.B. 8 estimated that it would affect “at least 85%” of women seeking abortions. Texas Right to Life claimed the law had “saved at least 100 lives PER DAY,” or 3,000 in September. Based on “preliminary estimates,” Fox News reported that “the law could prevent roughly 132 procedures per day, or 4,009 per month.” The new data indicate the actual number is much smaller than both estimates.
The University of Texas at Austin’s Texas Policy Evaluation Project (TPEP) tallied abortions performed at 19 of the state’s 24 clinics, accounting for 93 percent of facility-based abortions in Texas. It counted 2,164 abortions in September 2021, compared to 4,313 in September 2020. The difference amounts to about 72 fewer abortions per day, or 2,149 for the month. Assuming that the clinics not covered by the study saw a similar drop, the total decrease would be about 2,310, or 77 fewer abortions per day.
The researchers found that abortions in August 2021 were up 28 percent compared to August 2020, which seems to reflect women who rushed to obtain abortions before the law took effect. That reduces the net decrease to roughly 1,100, or about 38 a day. But women who did not obtain abortions in Texas had other options, which need to be taken into account in estimating the number of abortions that were actually prevented.
Based on “mystery client calls,” the TPEP found that waiting times for appointments at abortion clinics in three of the four states bordering Texas increased substantially after S.B. 8 took effect, which reflects the surge in demand from Texas women seeking abortions that were newly prohibited in their state. In addition to those four states (Arkansas, Louisiana, New Mexico, and Oklahoma), women have traveled as far as Colorado and Kansas to obtain abortions banned by S.B. 8.
Self-induced medical abortions offer another workaround. “In Texas, a service called Aid Access connects patients with European doctors who write prescriptions that are mailed from India,” The New York Times notes. “Some women also cross the border to Mexico, where one of the pills that causes abortions is sold over the counter. These methods are not technically legal.”
Overall, the Times says, “rough estimates based on previous research on abortion restrictions in Texas suggest that about half of the women who are unable to get abortions at clinics there end up getting one another way.” Based on that estimate, the actual number of abortions prevented by the end of September may have been closer to 500 than 3,000 or 4,000.
One reason the drop in Texas abortions was smaller than expected, the Times suggests, is that “women who were worried about being unable to get an abortion because of the law might have sought care earlier than they otherwise would have.” But if the law remains in effect, it is apt to have a bigger impact, and not just because the adjustment for the unusually large number of abortions performed in August will no longer apply.
The TPEP notes that private financial aid helped some women who otherwise might have waited until they had saved enough money to pay for the procedure, by which time they might have crossed the line drawn by S.B. 8. An abortion costs about $650 in Texas, and the state generally prohibits private insurers from covering the procedure. Fundraising prompted by the highly publicized enactment of S.B. 8 helped women overcome that obstacle. But “if financial donations decrease over time,” the TPEP notes, “patients’ out-of-pocket costs will increase.”
The researchers also note that “many facilities maintained pre-SB8 staffing levels in the face of reduced patient volume,” which “may have prevented even greater declines in services.” But “given the decreased client volume, facilities may need to cut staff or reduce clinic hours,” which “may lead to delays in appointment scheduling and more patients becoming ineligible for in-state abortion because, by the time they get to a facility, providers can detect embryonic cardiac activity.”
It is also possible that out-of-state clinics will find it increasingly difficult to manage the overflow from Texas. “There is early evidence, in the form of long waiting times for appointments, that Texans seeking out-of-state abortion care are straining capacity at the small number of facilities in nearby states,” the TPEP says. It adds that “services outside of Texas may become more difficult to access if restrictions in other states go into effect, such as Oklahoma’s new restrictions on abortion providers and a required mandatory in-person, state-directed counseling visit before medication abortion.”
Even if S.B. 8’s impact continues to fall far short of the estimates offered by pro-life groups, they will consider any reduction in abortions a victory. From their perspective, each of those prevented abortions represents an innocent life spared.
From a pro-choice perspective, of course, each of those prevented abortions represents a woman who was forced to continue a pregnancy she wanted to end, despite the fact that the Supreme Court for half a century has said that is her constitutional right. The burdens imposed by the law also extend to women who manage to obtain abortions by resorting to expensive, disruptive, and time-consuming workarounds, which are especially difficult to manage for women who have little money to spare, have inflexible work schedules, need to arrange child care, or live far from out-of-state clinics.
Still, the experience with S.B. 8 shows that restrictive abortion laws cannot be judged simply by their intent, since they inspire adaptive behavior that limits their practical impact. Just as bans on drugs and guns do not eliminate drugs and guns, bans on abortion do not eliminate abortion. That is especially true when nearby jurisdictions do not impose the same restrictions or when technological developments offer do-it-yourself options that did not previously exist.
In these respects, S.B. 8 offers a preview of what will happen if the Supreme Court decides that the Constitution does not protect a woman’s right to abortion after all. Pro-choice groups project that overturning Roe v. Wade would have no impact on abortion access in most of the country, although more than 20 states (including Texas) are expected to impose severe restrictions. Assuming that 22 states ban elective abortions, Middlebury College economist Caitlin Knowles Myers calculated this year, the average distance to an abortion clinic for women of childbearing age would increase from 35 to 279 miles. The upshot, she and her colleagues estimate, would be about 14 percent fewer abortions.
“A post-Roe United States isn’t one in which abortion isn’t legal at all,” Myers told The New York Times. “It’s one in which there’s tremendous inequality in abortion access.” As in Texas under S.B. 8, many women seeking abortions will find the new obstacles insurmountable, but most will find a way around them.
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