The Supreme Court will hear its most important abortion case in decades on Wednesday — and the outcome may depend on one justice’s perception of just how much the procedures put women at risk.
There are about 1 million abortions a year in the United States — 90 percent of them in the first 12 weeks of pregnancy — and, overall, they’re extremely safe.
But in the name of increasing protections for women, several states have passed laws requiring abortion clinics to meet the same building codes as ambulatory surgical centers (such as hallways wide enough for gurneys) or requiring clinic doctors to have admitting privileges at nearby hospitals. The Supreme Court will hear a challenge to a Texas law, HB2, which includes both of those mandates.
Much of the case will likely revolve around whether HB2 creates an “undue burden” on women seeking abortions by shuttering many clinics and forcing patients to drive farther. But there’s another crucial question: how often abortions lead to the types of dangerous complications that might justify the state treating clinics as full-fledged surgical centers.
“Every reason exists to believe these complication rates are understated,” Texas officials write in a brief filed to the Supreme Court.
But are abortion complications actually underreported? As it turns out, that’s tricky to determine.
Abortion complications are hard to track
Health care professionals in 46 states are required to submit basic information to the state on all abortions, and that data gets funneled to the Centers for Disease Control and Prevention.
Far fewer states — just 27 — require providers to submit information on complications that arise after an abortion. And even in those states, the data is not necessarily complete.
One reason: The reports that health care providers file on abortions are usually sent within the first few days after the procedure.
“They’re filling them out as they go,” said Elizabeth Nash, a state abortion policy researcher with the Guttmacher Institute, which supports abortion rights.
That system catches most complications, because the health care professional who did the abortion is likely to know about any immediate problems, such as excessive bleeding. “Most of these things occur immediately, particularly the major complications,” said Dr. Daniel Grossman, an obstetrician who does research for the abortion rights advocacy group Ibis Reproductive Health and teaches at the University of California, San Francisco.
But some complications — including an incomplete abortion or an infection related to the procedure — might not present in patients for several days, until after the paperwork is sent in to the state. And if a woman doesn’t return to the same clinic for follow-up treatment, her complication isn’t always documented in the paper trail.
That doesn’t necessarily mean that tons of complications are going unreported, though.
A University of California study published last year in Obstetrics & Gynecology found that major complications occurred in 0.23 percent of first-trimester abortions. For all abortions — including first- and second-trimester abortions, medical abortions, and surgical abortions — the overall complication rate (including minor complications like mild bleeding) was 2.1 percent.
The study, conducted by Grossman and his colleagues, tracked women who got abortions while insured by the state’s subsidized MediCal program, so researchers were able to tally complications by looking at a woman’s total health care claims, rather than her visits to a particular facility.
Both opponents and supporters of abortion restrictions see the California study as proving their point.
Abortion rights groups say it shows how rare complications are. But Texas officials writing in a brief for the Supreme Court used the same study to assert that the rate of major complications “translates to 2-3 women every week assuming 60,000 abortions annually in Texas.”
Are abortion complications hidden from view?
It’s possible that in some places, complications could be underreported.
A 2011 investigation by the Chicago Tribune, using data from 2009, found that nearly 4,000 cases of abortion complications in the state weren’t fully detailed in reports submitted by the clinics. That same investigation found that the upwards of 9,000 abortions may never have been reported to the state.
Texas health officials in the case allege that the same underreporting is happening in their state, too.
“Significant discrepancies exist between petitioner Whole Woman’s Health’s forms reporting complications to the State and its internal complication logs,” one of their legal briefs states.
Abortion opponents across the country have tried to make the point that complications occur — and are not sufficiently reported — by scouring 911 logs for evidence that clinic personnel have called paramedics or ambulances on occasion.
But Grossman said the University of California study shows that reported complication rates are likely very low, even if some state records are incomplete.
“It’s very, very, very unlikely that this underestimates complications,” he said.
What’s at stake in the Supreme Court case
Whole Woman’s Health, which operates abortion clinics in several Texas cities, has challenged HB2.
The group argues that there is no medical need to require clinics to have wider hallways or require doctors to have admitting privileges at nearby hospitals. Those requirements don’t protect women’s health and impose such a costly burden on abortion clinics that many across the state will shut down, it says.
Indeed, fewer than a dozen clinics in Texas are expected to stay open if the law is upheld, forcing some women to travel hundreds of miles to the nearest abortion doctor.
The death of Justice Antonin Scalia last month leaves the court with three conservative justices expected to uphold the law, four liberals expected to reject it, and one wild card in Justice Anthony Kennedy.
If Kennedy sides with the liberals to strike down HB2, the ruling would invalidate similar laws across the country and be seen as a huge victory for abortion rights activists. If Kennedy joins the conservatives, resulting in a 4-4 vote, the Texas law would be upheld, but a tie isn’t binding as a precedent, so the ruling would not affect other states.