Abortion Regulations in Texas (US)

Tutorial 1 - Group 3

Antonia Martínez - 12447188

Celia Pastor - 12453455
Wing Hung (Victor) Lau - 12453544

1
 1. INTRODUCTION
It is generally agreed that everyone has the right of bodily integrity to decide
over their own body without making any interference in the life of the others 1. Yet,
in the debate of abortion, while the “pro-choice” campaign stand for women’s right
to decide whether to interrupt her pregnancy, with the support of the US federal
constitutional right of privacy, the “pro-life” campaign argues the fetus as a
“potential life” should be protected by the right to life, and abortion should be
considered as an act of murder.

While different governments will have their respective approach to this

controversial topic, we in this paper are going to investigate in one of the most
conservative state in the US with a long history anti-abortion measures, Texas and
their abortion regulations.

The structure of this paper will begin by firstly stating our objectives, then we
will broadly introduce the abortion regulation in the US and will move our focus on
specifics in Texas. By doing so, we hope to lay out a proper foundation for better
understanding the legislative conflicts between the US supreme court and the Texas
government and to better explain our choice of investigation before assessing the
regulations by using the “European Commission Guidelines on Impact Assessment”.

2. OBJECTIVES
First of all, it should be stressed that the aim of this paper is to obtain a wider
understanding on the regulation case chosen, and not to defend a certain idea or
persuade the readers of a concrete belief. Just by introducing this previous
clarification indicates we are about to deal with one of the most controversial topics
worldwide, where unbiased arguments are desired but seldom achieved.

For that reason, and to ensure the reader feels familiar with the subject-matter,
it is worthy introducing a brief definition of the topic studied. There is indeed a
global definition for abortion that refers to the “termination of pregnancy when the

1
Fenwick H, Kerrigan K, Glancey R. Q&A Civil liberties & human rights 2011-2012. 5th ed. London:
Routledge; 2011

2
 fetus is not viable”2, either through the medication or in-clinic technique3. The
medication abortion consists simply of taking two pills from a doctor or nurse, while
the in-clinic abortion is performed in a health centre with medical instruments.

Nevertheless, the discussions over the issue in the United States affected even
the definition of the term itself. In fact, the legal definition of abortion has become
the centre of the dispute, since it defines the margins that women’s free decision can
attain.

The two large movements on the topic, commonly known as pro-life and pro-
choice supporters, create an intense debate on the definition previously mentioned
with their respective interpretations on the voluntary termination of pregnancy4.
Besides, they determine the two possible legal guidelines: one of them, underpinned
by a religious perspective of the public service, and the other one, by an ethical
vision thereof.

The American dispute for the meanings of abortion is just an exemplification

of the battle fought everyday all around the world. Despite this, neither in the United
States nor in any other nation, it is possible to determine one of the visions as the
correct one. Therefore, if it is aimed to work from the unbiasedness, as it is in this
assignment, it is necessary to bear in mind the simple but valid definition previously
mentioned, and lay the subjective interpretations aside.

3. ABORTION REGULATIONS IN THE US (IN GENERAL)

a. OVERVIEW
Before 1973

Since the independence of the United States, England Common law was
applied to Abortion, of which was permitted before ‘quickening’, up until the 1860s,
when the majority of states criminalised abortion at any stages of pregnancy. Under
the severe legal consequences, pregnant women had to perform illegal abortions

2
Gabbe S, Niebyl J, Simpson J, Landon M, Galan H, Jauniaux E et al. Obstetrics: Normal and Problem
Pregnancies. 7th ed. Philadelphia: Elsevier; 2016
3
What facts about abortion do I need to know? [Internet]. Plannedparenthood.org. 2018 [cited 15 October
2018]. Available from: https://www.plannedparenthood.org/learn/abortion/considering-abortion/what-
facts-about-abortion-do-i-need-know
4
Maier E. Libertades restringidas: el aborto y el ocaso de la libertad de decisión en Estados Unidos.
Región y sociedad [Internet]. 2014 [cited 15 October 2018]:24-26. Available from:
http://www.scielo.org.mx/pdf/regsoc/v28n66/1870-3925-regsoc-28-66-00023.pdf

3
 overseas bearing high transportation costs and risks of surgical delay. The situation
was slightly improved after 1967 when Colorado started to decriminalised abortion
in cases of rape, incest, or health threat to mother and 19 other states followed suit
with respective restrictions5

After 1973 - Roe v. Wade

The turning point was at 1973, the supreme court had overruled Texas’ anti-
abortion statutes as the violation of women’s constitutional right to privacy. Since
then all previous state regulations were invalidated with the guideline of Roe v.
Wade6. For three decades, no abortion ban had been placed until 2003, when the
court passed through the first ban Partial-Birth Abortion Ban Act prohibiting intact
dilation and extraction, a late termination of pregnancy.

Recent

In 2016, the supreme court overruled again another Texas’ restriction on

abortion clinics which had successfully reduced the supply of abortion service7.
Yet, the retirement of supreme court justice Anthony Kennedy might break the
current balance and overturn the situation, as the president Trump’s replacement
nominee, Brett Kavanaugh, with his conservative legal stance, is holding a vital vote
on reversing Roe v. Wade. and other previous supreme court decisions. Texas and
23 other states will then be able to place another abortion ban since 19738.

Statistics

Due to the advancement in contraception and recent waves of abortion

regulations in different states, the abortion rate has been declining gradually over the
US and reached 14.6 abortions per 1,000 women aged 15–44 in 2014, as shown in
the below figure, with 95% of abortion surgeries taking place in clinics. Yet, the

5
Benson Gold R. Lessons from Before Roe: Will Past be Prologue? [Internet]. Guttmacher Institute. 2003
[cited 19 October 2018]. Available from: https://www.guttmacher.org/gpr/2003/03/lessons-roe-will-past-
be-prologue
6
Roe v. Wade LAW CASE [Internet]. Encyclopedia Britannica. 2018 [cited 19 October 2018]. Available
from: https://www.britannica.com/event/Roe-v-Wade
7
Zurcher A. Supreme Court: Why a fight over US abortion law now looms. BBC [Internet]. 2018 [cited
19 October 2018];. Available from: https://www.bbc.com/news/world-us-canada-44569514
8
Weiland N. Trump Chooses Brett Kavanaugh for the Supreme Court. The New York Times [Internet].
2018 [cited 19 October 2018];. Available from: https://www.nytimes.com/2018/07/09/us/politics/trump-
supreme-court-nominee.html

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 number of abortion clinics in the US had dropped by 6% in three years since 2011 9.
Even the correlation is yet to be verified, the efficiency of Texas abortion
regulations, which are about to be further discussed, might be affected by the
nationwide declining trend and resulted in overestimation.

Table 1. The U.S. abortion rate

Source: Guttemacher Institute (2017)

b. ARGUMENTS FOR / AGAINST

Two of the major arguments for abortion is, the right of privacy for women to
freely decide whether to have abortion for the first trimester as stated in 1973 Roe v.
Wade; Moreover, women should also possess the right to self-determinate
interrupting pregnancy for external causes, as danger to the mother, inviability of the
fetus and rape.

On the country, there are three historical arguments against abortion:

Firstly, back in the days, abortion was a risky surgical procedure that had cost
a lot of women’s life. The laws had a public health intention to protect a woman,

9
Jones R, Jerman J. Abortion Incidence and Service Availability In the United States, 2014 [Internet].
Guttmacher Institute. 2017 [cited 19 October 2018]. Available from:
https://www.guttmacher.org/journals/psrh/2017/01/abortion-incidence-and-service-availability-united-
states-2014

5
 who nevertheless sought abortions and risked their lives in doing so, but as the
medical technology advancement, this reason fail to stand.

Secondly, abortion was considered as transgression of mortality in states

where fetus is recognised as a life form, and the laws were intended to punish that.

Thirdly, abortion was restricted to protect fetus from causes of pain.

4. ABORTION REGULATIONS IN TEXAS

a. EXPLAIN OUR CHOICE
Texas is, without a doubt, the most interesting American state with respect to
the study of abortion. The U.S. Supreme Court’s famous decision Roe v. Wade, that
established the right to abortion as a constitutional right in the country, came into
existence due to a lawsuit brought against the State of Texas’ law on the subject. By
then, Texas had transformed abortion into a crime, with the only exception of the
risk of mother’s life.

Nevertheless, the relevance of Texas on this field is not merely symbolic.

After all the years since the well-known judgment, and consequently, the extensive
case law existing, Texas is still widely known for its severely restricted reproductive
rights access, including abortion.

In fact, the legislation of abortion implemented by states such as Texas,

Alabama, Mississippi or Louisiana, among others, prompted the (informal) use of
the term Bible Belt10. This is a relatively recent geopolitical tendency that refers to
the region in the Southern United States as an area that severely criminalises
abortion in all cases (with the exception of rape, incest and risk of mother’s life).

This fact allows to a deep study of the state’s regulation in force, thanks to the
extensive regulation strategies undertaken, as well as to the rich literature on the
field, as much for the supporters as for the detractors.

i. REGULATION STRATEGIES
Since the year 1973, when the U.S. Supreme Court decriminalized the
abortion in the country, countless laws have been approved establishing legal
10
Maier E. Libertades restringidas: el aborto y el ocaso de la libertad de decisión en Estados Unidos.
Región y sociedad [Internet]. 2014 [cited 15 October 2018]:40-42. Available from:
http://www.scielo.org.mx/pdf/regsoc/v28n66/1870-3925-regsoc-28-66-00023.pdf

6
 barriers to the right of women to obtain a safe abortion in forty-one of the fifty
American states; Texas among them11 with in total of 18 anti-abortion measures
with the majority passing in recent year. These laws are, in the end, the regulation of
the issue at hand, as they regulate and limit all parameters under which a woman
may obtain an abortion (whether she can, when and how).

Due to the close relationship between abortion and the rights to life and to
privacy, protected by Fourteenth Amendment of the U.S. Constitution, the voluntary
termination of pregnancy in Texas is vastly regulated through the command and
control regulatory strategy (C&C).

Certainly, we are facing a direct regulation performed by the legislator that

states what is legal through the law. Accordingly, those actions undertaken by
individuals beyond the legal framework in force may incur sanctions.

It is important to reinforce the fact that abortion in Texas (as well as in any
American state) is legal: women have a constitutionally protected right to decide
when to terminate their pregnancy. However, states individually are allowed to
impose sanctions on the performance of this right (in other words, they are free to
regulate the right), as long as it does not incur in a prohibition outright.

In this context, Texas bans abortions performed after twenty weeks of

pregnancy, with the only exceptions of a life-threat for the mother or in case that the
foetus has a severe and irreversible abnormality12.

With respect to the procedure, the state prohibits the use of the dilation and
evacuation procedure (D&E), which is the most available procedure for second-
trimester abortions. This leads to a situation in which women should go through
more invasive procedures to remove the foetus during this trimester13.

Regarding the counselling, Texas establishes a very dense list of requirements

that vary depending on the distance between the woman’s house and the nearest
abortion provider. In any case, women must attend a physician to inform her about

11
An Overview of Abortion Laws [Internet]. Guttmacher Institute. 2018 [cited 15 October 2018].
Available from: https://www.guttmacher.org/state-policy/explore/overview-abortion-laws
12
Tex. Health & Safety Code Ann. §§ 170.002 (Enacted 1999), 170.001(3) (Enacted 1999; Last
Amended 2001)
13
Tex. Family Code § 171.101(F) to (G), (Enacted 2017). S.8, 85th Leg., Reg. Sess. (Tex. 2017)

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 the risks of carrying such an abortion and to receive a state-mandated lecture that
contains several points, such as alternatives to abortion, among other aspects14.

Also, Texas expressly prohibits private insurance coverages of abortion

services (unless woman’s health is severely under danger). Therefore, abortion
coverage may be obtained paying an extra premium, only in those cases that such
companies wish to offer such service15. However, it must be stated that no woman is
actually planning to undergo an abortion, which means that offering this option is a
false commitment. This prohibition is also established for the insurance plans
offered to state employees16.

Another explicit prohibition concerns women of low-income levels: those

women eligible for receiving state medical assistance for general health care still
cannot obtain any kind of funding in case they perform an abortion17. In fact, public
funding is only possible in certain cases of life endangerment, rape or incest.

Finally, women under the age of eighteen can get an abortion, but several
strict requirements must also be satisfied. Both parental notice and consent are
necessary, at least from one of the parents (no other trusted adult can give such
consent). This parental mandate will not even be suspended in cases of rape, incest
or if the woman was victim of child abuse. It can be waived, though, in case the
teenager’s life is under threat and under other exceptional circumstances in which a
judge may give the consent required18.

In this scenario, it is also necessary to mention a specific type of regulation

only imposed on abortion clinics, that are commonly known as TRAP (targeted
regulation of abortion providers) which demand strict requirements on abortion
clinics and providers. In Texas, these laws came into force in 2014, and their

14
Tex. Health & Safety Code Ann. §§ 171.011 to .016 (Enacted 2003, Last Amended 2011)
15
H.B.214a, 85th Leg., Special Session (TX 2017) at Tex. Ins. Code Ann. § 1218.001 et. seq. (Enacted
2017)
16
H.B.214a, 85th Leg., Special Session (TX 2017) Tex. Ins. Code Ann. § 1218.001 et. seq. (Enacted
2017)
17
Tex. Admin. Code § 354.1167; 2006 Texas Medicaid Provider Procedures Manual, § 36.4.18.1, p. 36-
43, and B.1 Abortion Certification Statements Form (2006), at http://www.tmhp.com
18
Tex. Fam. Code Ann. § 33.001 to .014 (Enacted 1999, Amended 2001 and 2007, Last Amended 2015),
101.003(a) (Enacted 1995); Tex. Occ. Code Ann. § 164.052 (Enacted 1999; Last Amended 2015); 22
Tex. Admin. Code § 165.6 (2006); Tex. Health and Safety Code Code Ann. § 245.006 9Enacted 1989;
Last Amednded 2015)

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 effectiveness is damning: in 2014, some 96% of Texas counties had no clinics that
provide abortion, meaning 43% of women live in counties with no abortion clinic19.

Clearly, all this regulation comes from the ability of the state to use its power
to command. But in this specific case, the legitimacy of Texas to use the force of
law derives from a basic but essential principle of a constitutional state: the
separation of powers.

However, despite the importance of the command and control strategy, it is

not the only one applied. In fact, the regulation of abortion in Texas is quite dense
and complex. Studying such regulation deeply, it is possible to observe the use of
nudging complementing the command and control technique.

Texas tries to influence the behaviour of women seeking abortion care by

requiring some actions by law. This is the case of the mandatory delay: women must
wait at least twenty-four hours since her attendance to a physician and the start of
the procedure.

Another strategy framed in the nudging strategy is the obligation to undergo

an ultrasound that must display an image at least twenty-four hours before
performing the abortion. The physician present in that moment must describe the
image to the woman20.

For most women aiming to undergo an abortion, an ultrasound is not

medically necessary. The aim of these requirements is therefore to discourage
women to perform such procedure. Obviously, the state leaves women to make a
free decision afterwards, but these decisions are partial and indirectly altered.

ii. MARKET SITUATION AND REGULATORY NECESSITY

To observe in the abortion service market in Texas, we investigate
respectively the demand side: number of pregnant and the ratio of pregnancies that
aborted; and the supply side: abortion clinics which provide medical information
and legal abortion services and the black market of which unobservable self-induced

19
Jones RK and Jerman J, Abortion incidence and service availability in the United States, 2014,
Perspectives on Sexual and Reproductive Health, 2017, 49(1), doi:10.1363/psrh.12015
20
State Facts About Abortion: Texas [Internet]. Guttmacher Institute. 2018 [cited 15 October 2018].
Available from: https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-texas

9
 abortion could be brought from Mexico to terminate pregnancy without formal
medical guidance.

In 2014, one year after implementation of the straightest anti-abortion

regulations in the US at the time, the number of abortion in Texas declined
drastically from 66.908 in 2012 to 54.148 with ratios of 9.8 abortions per 1,000
women (age 15-44), constituting 12% of total Pregnancies, reported by The Centres
for Disease Control (CDC). There were 44 abortion-providing facilities in Texas in
2014, and 28 of those were clinics. These numbers represent a 29% decline since
2011 in overall providers21. Nowadays there are six abortion providers for a state of
nearly 5.5 million reproductive-age women22.

The need of regulate this market started when they realize on one hand that
this woman that wants an abortion are dying because there is no safety supplier that
can give them the protection that they need, and they are in the need to do it by
herself causing haemorrhages or going somewhere that is not hygienic or with the
basic need. But now abortion is one of the safest surgical procedures for women in
the United States. Fewer than 0.05% of women obtaining abortions experience a
complication23.

On the other hand, there is a federal constitutional right of privacy broadly

covered the decision of a woman to interrupt or not her pregnancy, but this is only
for the first trimester. So, the market is created and to be measured and have control
because are in risk life and the law must take care about it, they must regulate. As
described, instead of protecting the market to achieve efficiency, the state regulation
on abortion intentionally distort the market and creates market failure which resulted
in a severe scarcity of abortion services and consequently, people in demand must
seek for black markets with negative externalities e.g. risk, health, etc.

21
Jones RK and Jerman J, Abortion incidence and service availability in the United States, 2014,
Perspectives on Sexual and Reproductive Health, 2017, 49(1), doi:10.1363/psrh.12015
22
Thomson-DeVeaux A. It’s Really Hard To Measure The Effects Of Abortion Restrictions In Texas.
FiveThirtyEight [Internet]. 2014 [cited 19 October 2018];. Available from:
https://fivethirtyeight.com/features/its-really-hard-to-measure-the-effects-of-abortion-restrictions-in-
texas/
23
Weith T, Taylor D, Desai S, Upadhyay U, Waldman J, Battistelli M et al. Safety of Aspiration Abortion
Performed by Nurse Practitioners, Certified Nurse Midwives, and Physician Assistants Under a California
Legal Waiver [Internet]. 2013. Available from: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3673521/

10
 The graph below demonstrates the Rates of maternal mortality for US average,
Washington DC, Texas and California, published by the American College of
Obstetricians and Gynaecologists and TMM of the Centre for Disease Control and
Prevention (CDC). The result reflects that maternal mortality rate in Texas growing
consistently since 2010 which might caused by the tightening access to legal
abortion services that discourage risky pregnant women to terminate pregnancy.

Furthermore, the black market that represent the ineffective regulation of

abortion is demonstrated on the statistics. The number of abortions in Texas
decrease from 77.463 in 2010 to 54.148 in 2014 reported by The Centres for Disease
Control, but in Mexico increase from 16.945 in 2010 to 20.559 in 201424.

Table 2. Maternal mortality rate in 48 american states,

Washington DC, Texas and California

Source: Benjamin Mateus (2017)

b. ASSESSMENT
i. TECHNICAL JUSTIFICATION & EXPLANATION
To begin with, abortion regulations could potentially be justified by avoiding
moral hazard as low income minority group who pay less tax but appears to be
frequent users of the abortion services in public health facilities with cost shared by
all taxpayers in Texas; or theoretically justified by preventing negative externalities

24
Johnston W. Historical abortion statistics, Mexico [Internet]. Johnstonsarchive.net. 2018 [cited 19
October 2018]. Available from: http://www.johnstonsarchive.net/policy/abortion/ab-mexico.html

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 creating undesirable social cost, of which will be further discussed in later Cost and
Benefit analysis section.

Nonetheless, we believe to truly justify the abortion regulations, the rights-

based and social rationales have to be introduced. As suggested by Tony Prosser,
other than correcting market failures, protecting human right and social solidarity
could also justify regulations, even if the regulation might paternalistically ignore
the preferences or objections of related stakeholders. According to the official
House Bill 2 analysis25, abortion regulations were set in order to “protect the life of
an unborn child from the stage at which this reported evidence indicates the unborn
child is capable of feeling pain”, in other words, to protect the human right of the
unborn.

This is in line with the Public interest theory, which assumes in a neutral
world of unbiasedness, rule-makers will objectively regulate the society for the sake
of public interest. In this scenario, Texas society as a whole could believe abortion
to be dangerous, immoral, irrational, and should, therefore, should be prohibited or
discouraged at all cost. However, the presumption of unbiasedness and the
interpretation of public interest itself is yet to be debated. This leads to a further
question, by what mean should the society define human right? Is it by religious or
democracy? If so, will the regulation procedure be manipulated by powerful parties
in the society as suggested by Capture theorists?

To answer these question, the Interest group theory is introduced, by assuming

all affected parties in the regulation legislative procedure are self-interested,
politicians will take a stand to please the majority of voters, maximize their election
funding and electoral power. Texas, a relatively conservative, Republican state,
where studies reflected that the majority of republicans are in the pro-life campaign,
contrary to the Democrats26. It is hard to disprove the hypothesis that politicians are

25
Laubenberg. BILL ANALYSIS [Internet]. [cited 19 October 2018]. Available from:
https://capitol.texas.gov/tlodocs/832/analysis/pdf/HB00002H.pdf#navpanes=0
26
Henson J, Blank J. The Supreme Court, the Politics of Abortion, and the 2018 Elections [Internet]. The
Texas Politics Project. 2018. Available from: https://texaspolitics.utexas.edu/blog/supreme-court-politics-
abortion-and-2018-elections

12
 captured by the majority of the democratic society to shape regulations as their will
and sacrifice the unvoiced minority27.

ii. CONCERNS
A problem that arises with C&C is legalism, which is the proclivity to produce
complex and inflexible regulation, leading to an over-production of laws and
sanctions in force, and thus, to their ineffectiveness.

Partially, Texas is suffering from this legalism, since the complexity of some
requirements, as well as its authoritarian, force some clinics and providers to make
certain mistakes from the legal point of view. When their aim is to provide a safe
abortion, they do it regardless of the previous demands established by the law.

Also, an onerous regulation in such a delicate issue lead to some women to

avoid any kind of requirement and perform and unsafe (and illegal) abortion. In fact,
according to a research made in 2015 by the Texas Policy Evaluation Project,
between 100,000 and 240,000 Texas women aged 18-49 have tried to end a
pregnancy by themselves without medical assistance28.

This is closely related to another problem of C&C: enforcement. Laws do not

only need to be adopted, but also enforced. Obviously, the role played by
individuals is crucial. But the coercive state apparatus must turn all its efforts to get
a successful implementation of the law, which is costly, expensive and challenging.

With respect to the nudging regime, its weaknesses are related to the thin line
existing between influence and manipulation. By establishing a mandatory
ultrasound, even if women does not want to, the state is not forcing women to make
a decision, but they are clearly appealing to use feelings and emotions as a weapon
to pursue their goal.

iii. REGULATION FAILURE

It is believed that regulations will fail when they are unable to meet their
objectives or when their legislative procedures and implementation process are
unjustified.

27
HISTORICAL ELECTIONS - OFFICIAL RESULTS [Internet]. Elections.sos.state.tx.us. Available
from: https://elections.sos.state.tx.us/index.htm
28
Grossman D, White K, Fuentes L, Hopkins K, Stevenson A, Yeatman S et al. Knowledge, opinion and
experience related to abortion self-induction in Texas [Internet]. Chicago; 2015 p. 2-3. Available from:
https://liberalarts.utexas.edu/txpep/_files/pdf/TxPEP-Research-Brief-KnowledgeOpinionExperience.pdf

13
 For all the abortion regulations passed in Texas, a throughout legislative
procedure in a bicameral legislature composed by the Senate and the House of
Representatives has to undergone before transforming the idea of a bill into a legal
binding law29.

Take the controversial House Bill 2 as an example, a draft bill made by a

house representative was read, amended, debated and voted on in a committee,
composed before passing on the Senate. Relevant reports and documents including
the expert study from the University of Arkansas for Medical Sciences are all
uploaded for public access. These procedures have made sure the transparency and
accessibility of the due process.

Yet, even though democratic elections have been placed for both the house
and senate which provided legitimacy to the authority, the composition for both
legislatures in recent elections are dominated by the republicans. Concerns about the
levels of participation of the opposite opinion may then be overheard and, hence,
might affect the fairness of the regulations. In addition, a survey studied around 800
women in Texas on their opinion about recent abortion regulations, has reported that
more than half of the respondents are unaware or never heard of the House Bill 2.
For those that have heard of such regulations, only 19% of the respondents support
tighter abortion regulations and conservative republicans are more likely to take that
stand30.

These results reflect that affected parties might not be aware or well informed
about the abortion regulation, causing information inadequacies for public judgment
which might hindered the legitimacy of the democratic system and might therefore,
as written by Justice Stephen Breyer when overturning two of the provisions of
HB2, “We conclude that neither of these provisions offers medical benefits
sufficient to justify the burdens upon access that each imposes,”; “Each places a
substantial obstacle in the path of women seeking a pre-viability abortion, each

29
Henson J, Blank J. The Supreme Court, the Politics of Abortion, and the 2018 Elections [Internet]. The
Texas Politics Project. 2018 [cited 19 October 2018]. Available from:
https://texaspolitics.utexas.edu/blog/supreme-court-politics-abortion-and-2018-elections
30
White K, Potter J, Stevenson A, Fuentes L, Hopkins K, Grossman D. Women's Knowledge of and
Support for Abortion Restrictions in Texas: Findings from a Statewide Representative Survey [Internet].
2016 [cited 19 October 2018]. Available from: https://onlinelibrary.wiley.com/doi/full/10.1363/48e8716

14
 constitutes an undue burden on abortion access, ... and each violates the Federal
Constitution.” result in bias and unfairness31.

5. APPLICATION OF RIA FRAMEWORK

“European Commission Guidelines on Impact Assessment” (EC, 2015)

I. What is the problem and why is it a problem?

As described in previous 4. ABORTION REGULATIONS IN TEXAS
section, the problem is that Texas has an abortion market which legal abortion
surgery can be done in clinics while Texas house of representative believe the act of
abortion is violating human rights of the unborn child and should therefore be
discouraged at all cost.

II. Why should the Texas state government act?

Since the US supreme court has institutionally legalised abortion after Roe v
Wade. to protect women’s right of privacy. If the Texas state government is
determined to fulfil their believe, to protect the unborn, self-interpretation of the
constitutionality of laws and restricting abortion services is required. Otherwise,
abortion will be protected and there will always be overproduction in the abortion
market.

III. What should be achieved?

As mentioned before, the issue at hand is delicate and controversial. Thus, it is
possible to answer this question adopting two different points of view.

On the one hand, the aim of regulating abortion could be to protect the
equality of women, by allowing them to make free decisions regarding their own
body and reproductive lives. However, in the constitutional states of our days, law is
invasive, as it affects any single aspect of an individual’s life. Therefore, even when
talking about freedom, these actions must be regulated by the law. Consequently,
abortion is regulated in order to achieve a specific kind of freedom for women. Only
then, women can feel truly protected and empowered to make their free decisions
and undergo a safe abortion with every guarantee.

On the other hand, the intention of regulators could be the opposite: to

establish the legal barriers to perform such procedure, in order to avoid women seek

31
Whole Woman's Health v. Hellerstedt. 579 U.S. (2016)

15
 for abortion care no matter the circumstances. In this context, the regulation aims to
reduce the freedom of women on the issue to ensure viable foetus are born safely,
unless women’s life is in severe danger.

IV. What are the various options to achieve the objective?

The available options to achieve any of the two objectives previously analysed
are the ones that are already imposed. The reason behind this statement is the
intimate relation between abortion and fundamental rights involved. Therefore, it is
not possible to regulate such procedures with other measures but legal ones. Only
then, regulators ensure the respect to such fundamental rights contemplated in the
U.S. Constitution, due to the possibility of using the enforceability (law, unlike
moral, is coercive).

V. What are their economic, social and environmental impacts and who will be
affected?
To begin with the economical impacts. As described previously, anti-abortion
regulations significantly reduced abortion service providers and hence the supply in
the market. The price of the abortion services will then increase according to the
market mechanism, and since demand for abortion services are believed to be less
responsive to price changes, the increase in cost will be borne mostly by consumers.
Meanwhile, the prohibition of insurance coverage further increase the financial
burden of abortion surgeries. As for the supplier, renovation have to be taken for
most of the clinics to meet the new regulations.

The social impact affected principal the society that is in favour the abortion
and on the other side, the ones that are against. The one that is in favour and has the
need to realize and abortion are affected because they could not carry out this after
the week 20 and must go ahead with the pregnancy and everything that is
implicated. And on the other side are the ones that are against the abortion that if
this is not regulated or banned in some state of the pregnancy, their beliefs of the
importance of life are not respected and heard.

16
 Also, according to Donohue & Levitt who claimed that abortion legalization
may account for as much as 50 % of the recent decline in crime rates in the U.S.32,
this benefit would no longer be enjoyed by the society once abortion is restricted

Last but not least, we could not associate direct environmental impacts, like
pollution or unnecessary waste with abortion, the surgical waste from operations
might still affected by the regulations. As the decline cases of legal abortion, we
believe some of the demand was shifted to the black market and perform illegal
surgeries deriving a potential rise in illegal medical disposal, which might worsen
the environmental hygiene if poorly handled.

VI. How do the different options compare in terms of their effectiveness and
efficiency (benefits and costs)?
To do an analysis of cost and benefits, we are comparing the effect of the
regulation with the baseline, before most of the straight anti-abortion measures have
passed on 2013.

Costs
First, a lot of new standards have to be met by abortion service providers after
the implementation of new restrictions as mentioned, only a few of them could pass
the new standards and the rest who failed has to pay an estimated cost of renovation
from $1.5 million to $3 million. This renovation cost must either be subsidized by
the state or provided by the clinic33. In case of the former, it would increase the
social cost shared by all taxpayers, but for the latter it will depends on whether the
new standards are truly necessary. Since those standards are meant to be providing a
safer medical environment, so reducing the medical risk in the clinic could
potentially be beneficial to the patients. However, if those standards are deemed to
be unnecessary, it will produce social costs, since those failed clinics either have to
close down, which will decrease the options for consumers; or have to pay a huge
amount of unnecessary fees which could have spent on other areas to improve
medical quality.

32
Donohue J, Levitt S. The impact of legalized abortion on crime [Internet]. Cambridge: 379-420; 2000
[cited 19 October 2018]. Available from: https://www.nber.org/papers/w8004.pdf
33
Bazelon E, Posner E, Baude W. (2016) Why the Supreme Court’s Texas Abortion Decision Is So
Momentous. The New York Times.

17
 Second, cost for the women restrictions on abortions in Texas generally makes
it more difficult or expensive. The cost of an abortion varies depending on several
factors including how far along you are in your pregnancy and which abortion
provider and the method you choose. The cost in the first trimester is between $300
and $800 for a medication abortion and between $300 and $1,500 for a surgical
abortion.34

Third, there is an unquantifiable cost of the value of the woman that need or
want an abortion. There is a possibility of death if the procedure is not doing it in the
right conditions like self- induce, is estimated that 100.000 to 240.000 woman try to
self-induce an abortion after the law went into effect35. Also there are those women
that must go to a black market or travel to other state or country exposed to higher
risk and must be considered at the time of making the impact assessment and each
year between 4.7% - 13.2% of maternal deaths can be attributed to unsafe
abortion36Also as presented in the market failure, there is a redistribution of the
abortion, the women that need one and can afford it in Texas, go to Mexico. The
stadidistic shows how much the abortion in Mexico has increase and that the 20% of
that abortions are not from the own country, being unsafe to carried a pregnant
woman to another country.

Finally, there are studies concluding that allowing abortion could decrease the
criminal ratios. “Our results suggest that all else equal, legalized abortion will
account for persistent declines of 1 per cent a year in crime over the next two
decades” 37. That means that without the abortion regulations reducing the crime
rates, Texas will be a safer cities. Apart from the potential improvement in people
satisfaction, we could look into quantifiable benefits, as the prison expenditures in
Texas are 2.3 billion per year 38, this cost will potentially be reduced. However, with

34
Donohue J, Levitt S. The impact of legalized abortion on crime [Internet]. Cambridge: 379-420; 2000
[cited 19 October 2018]. Available from: https://www.nber.org/papers/w8004.pdf
35
Herskovitz J. Texas law leads to more attempts at self-induced abortions: study. Reuters [Internet].
2015 [cited 19 October 2018];. Available from: https://www.reuters.com/article/us-texas-abortion/texas-
law-leads-to-more-attempts-at-self-induced-abortions-study-idUSKCN0T62C220151117
36
Say, Chou , Gemmill, Moller, et al (2014). Global causes of maternal death: a WHO systematic
analysis.
37
Donohue, John, and Steven Levitt. (2001). The Impact of Legalized Abortion on Crime. Quarterly
Journal of Economics. Pp. 415
38
Stephan (2004) State Prison Expenditures,2001. Bureau of Justice Statistics Special Report.

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 the imposition of regulations discouraging abortion, crime rate might then increase
and hence rise in crime related cost.

Benefits
For benefits from discouraging abortion, we take a psychological and
philosophical approach which might be difficult to associate with economical
values.

There are studies conducted to ask women’s reactions within the first few
weeks after accepting abortion treatments. Results have shown that between 40 and
60 percent of women questioned answered with negative emotions. Within 8 weeks
after their abortions, 55% of the interviewee felt a sense of guilt, 44% of them
expressed with nervous disorders, 36% had experienced sleep disturbances, 31%
had regrets about their decision, and 11% had been prescribed psychotropic
medicine by their family doctor.39 We also believe there might be a possibility for
those who sentimentally connected with the abortion patient, such as family
members or close friends, to experience similar negative sentimental emotions.
Hence, we suggest to discourage abortion, less women or people related might have
to experience such emotions which might lower their corresponding productivity
and might require further psychological assistants.

Moreover, there are some babies that can have any type of illness or
syndrome, now with the technology that can be discovered in the period of
pregnancy. As for down syndrome, with conditions on their chromosome, at least
two-thirds and as many as 90 per cent of foetuses discovered with Down syndrome
in utero are aborted40. While whether those diagnosed should be born or not is still
under debate, but certainly anti-abortion regulations can decrease the number of
fetus aborted, and a higher chance for those with syndrome to be given birth.

Discussion
After identifying possible costs and benefits of implementing anti-abortion
measures, some quantifiable figures have been estimated, such as the cost of clinics

39
Ashton (1980).The Psychosocial Outcome of Induced Abortion, British Journal of Ob&Gyn., pp. 1115-
1122.
40
Schrad (2005). Does Down Syndrome Justify Abortion?. The New York Time magazine.

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 renovation, crime administration and increase in surgical cost. Yet, to evaluate the
efficiency of such regulations, subjective judgments have to be involved before
calculating the overall net benefit to the society.

VII. How will monitoring and subsequent retrospective evaluation be organised?

The texas legislature system allows members of either the House of
representative and the House of Senate to revisit previous passed bills. However,
due to the current political demographics in Texas, both houses are dominated by
Republicans which increases the difficulties of changing existing policy directions,
Especially for sentimental topics like abortion, which focuses more on philosophical
or religious debate about definition and value of life instead of objective evaluation
of economics efficiency. Unless the majority of the society changes their political
belief and reflect on the next democratic election, it might be unlikely to see any
state level amendments on existing anti-abortion regulations.

Still, in cases of unjustifiable orders, the US supreme court could overruled

Texas governments’ decisions like Whole Woman's Health v. Hellerstedt. 579 in
2016. However, the latest appointment of Supreme court Justice, Brett Kavanaugh,
who has openly stated his anti-abortion view might hinder the monitoring effect or
even overturn the Roe v. Wade in 1973 and abortion might no longer be protected by
constitutional right in the coming future.

6. CONCLUSION
After attempts to explain, technical justifying and assessing Texas’ abortion
regulations, we come to a conclusion that those implemented anti-abortion
measures have been effectively achieving the objective of discouraging abortion
but this could hardly be justified by unbiasedly protecting public interest as it
fails to produce an economically efficient outcome without subjective judgment
on the value of life. While abortion remains an unsolvable debate, it would be
difficult to untie abortion legislation with the benefits of political interest
groups.

7. BIBLIOGRAPHY

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October 2018]. Available from: https://www.guttmacher.org/state-
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Normal and Problem Pregnancies. 7th ed. Philadelphia: Elsevier; 2016
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● Tex. Admin. Code § 354.1167; 2006 Texas Medicaid Provider Procedures
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● Tex. Health & Safety Code Ann. §§ 170.002 (Enacted 1999), 170.001(3)
(Enacted 1999; Last Amended 2001)
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