With support from
With support from

FORT WORTH, Tex. — Some mornings, Bhavik Kumar starts his day at 5 a.m. and thinks about a life different from the one he began this year. In that other life, the 30-year-old physician lives minutes from work and doesn’t have to look over his shoulder for his safety. He doesn’t have to travel hundreds of miles a week, by car and plane, to provide abortions.

In New York, where Kumar trained after medical school, the women who came to him to end their pregnancies didn’t try so hard to justify their decision. He doesn’t ask patients to do that; their insistence on doing so makes him uncomfortable. In New York, he didn’t have to recite a script mandated by Texas lawmakers that the state’s current lieutenant governor described as offering a woman “all the information she deserves before making a decision to end a life.”

“This is not normal,” Kumar tells his patients before reading the statement. “The state requires me to do this.”

In New York, he wasn’t required to give women a medically unnecessary sonogram, or describe to them the embryonic or fetal development, or make them listen to the fetal heartbeat. They weren’t required to wait 24 hours after counseling for the procedure, as women in Texas must. New Yorkers can use state Medicaid money to cover the cost of the abortion and get birth control the same day. Texans — whose governor refused the Medicaid expansion under the Affordable Care Act and whose laws prohibit even covering birth control at an abortion clinic, let alone paying for an abortion — cannot. The patients Kumar saw in New York rarely had to drive hundreds of miles to receive care, as Texas women increasingly do.

On the Front Lines of the Abortion War
Read all the interviews »

Until Kumar returned to Texas, the state where he grew up and which he proudly calls home, he had never heard a woman say that she preferred to undergo the procedure without anesthesia. “I want to feel this because I deserve this,” is what they tell him in Texas, he says, or “I need to feel what I'm doing and feel pain.” Another woman, he remembers, said, “I need to teach myself a lesson.” That upset him.

By the time Kumar rests his head on the hotel pillow, he says, he doesn’t have any doubts about the life he has chosen. Here is his mental math: Yes, he has to travel 190 miles, but that’s one man traveling rather than the many patients he sees having to travel hundreds more. The patients are surprised and relieved, he said, to see a doctor so young, someone not much older than they are, who has driven on the same roads and knows Texas like they do.

Kumar is thin and bearded. He prefers slim tweed slacks and a button-down shirt to scrubs. On a recent afternoon, he sat in his office at Whole Woman’s Health, the clinic where he works, where each room is named after an inspiring woman. A colleague, Fatimah Gifford, asked Kumar if he had checked his work email lately. He hadn’t.

He paused and furrowed his brow. “Did something happen with the Supreme Court today?” he asked Gifford. She chuckled. Something did.

Roe v. Wade — the 1973 Supreme Court opinion legalizing abortion — started in Texas. Now, as abortion rights are under unprecedented attack, it’s Texas that could trigger the end of Roe v. Wade. At stake: The reproductive rights of millions of American women, across the entire country.

“We’ve created a situation where women who lack financial means do not have the same constitutional protections as other women do.”

While there is no time since Roe when abortion hasn’t been under attack, this moment is different. In the nearly five years since Republicans swept statehouses in 2010, states have slapped a record 288 restrictions on the procedure, according to the Guttmacher Institute, a nonprofit research group that supports abortion rights. Some laws require doctors to tell patients things about abortion that they don’t believe; some make women wait as long as 72 hours between counseling and the procedure; some ban abortion at a point earlier than that laid out by the Supreme Court.

But for women seeking abortions, the most consequential of these laws are those that on the surface seem the most banal: laws requiring doctors working at abortion clinics to have admitting privileges at local hospitals and mandating that abortions take place only in mini-hospitals known as ambulatory surgical centers. Major medical associations say these laws are unnecessary and actually make women less safe. But if the clinics can’t comply — and many have been unable to — they close. You can’t get a safe and legal abortion at a clinic that doesn’t exist.

“We have two classes of citizens right now,” Wendy Davis, who as a Texas state senator famously filibustered the law now being challenged by the Supreme Court, told msnbc. “If you have financial means, you will always be able to exercise your access to abortion services. We’ve created a situation where women who lack financial means do not have the same constitutional protections as other women do.”

Shuttered clinics
Tracking the past and possible closures of abortion clinics in Texas and beyond
As of 10/19/15

Sources: State Department, Elizabeth Nash at Guttmacher Institute, and Jennifer Miller at the Center for Reproductive Rights.
2011
2015
Post-SCOTUS

Depending on what the Supreme Court does this term, the situation Davis describes could get much worse. Laws that could force many clinics to close have recently passed in Texas, Mississippi, Alabama, Louisiana, Kansas, and Oklahoma.

In each of those states, clinics have gone to federal court to challenge the constitutionality of the laws, and in each of those states, the clinics have so far generally prevailed — except in Texas. There, the Supreme Court allowed the admitting privileges law to go into effect — closing roughly 20 clinics in the state — but has temporarily blocked the ambulatory surgical center requirements. The high court has agreed to consider whether Texas’s clinic regulations are constitutional, and will hear oral argument in the case on March 2.

In court, the attorneys representing the two states have repeatedly said that women can easily just go out of state to obtain an abortion. But under the requirements, an estimated half the clinics in a region that stretches over a thousand miles — as far west as El Paso, Texas, and as far east as Huntsville, Alabama — face closure. The full force of these laws could leave just one clinic each in Oklahoma, Alabama, and Louisiana. In Texas, a vast state with 5.4 million women of reproductive age, no more than 10 clinics will remain.

With the vacancy left by Justice Scalia’s death, the case could end in a 4-4 tie, closing Texas’s clinics but limiting the immediate impact to Texas, Mississippi, and Louisiana. Justice Anthony Kennedy could also vote with the court’s four liberals to strike down the laws nationwide. On Sept. 3, the day Whole Woman’s Health asked the Supreme Court to hear its case against the Texas clinic regulations, owner Amy Hagstrom Miller put it bluntly. ”I think we have to ask,” she said. “Do we want the rest of the country to look like Texas?”

Undue Burden
On the road with Bhavik Kumar, the young doctor who travels hundreds of miles to provide abortions in Texas.

The patient at Whole Woman’s Health in Fort Worth is 31 years old and spoke with a determined assurance. “I never thought it would happen to me,” she said.

She had been married. Her doctor told her she couldn’t conceive naturally, which was what she and her husband wanted at the time. After the marriage ended, she got pregnant.

“So not really how I was hoping things would go,” she said dryly. She was nine weeks pregnant that day.

She’d thought about having a child. “I travel a lot, and now I'm single,” she said. “It's just not a situation I want to bring a child into at all.”

She talked to her friends, several of whom told her their stories of their own abortions. She talked to her mother, whom she expected to disapprove.

“I was raised Catholic, very pro-life, and when I told her I was pregnant, I mean, she was ecstatic,” the patient said. But when she decided to have an abortion, her mother told her she was making the right choice. “Which shocked me,” she said.

When she learned that the nearest clinic would require a two-hour drive — abortions have been banned in military facilities for decades — she went online and found Whole Women’s Health.

“I think I'm more scared cause I'm wondering how I'm gonna feel emotionally after this, what the effects are gonna be more so than am I doing the wrong thing. I'm just wondering how I'm gonna feel afterwards.”

“I read reviews where people are calling this clinic, you know, baby killers and things like that,” she said. “But the reviews that were from people who had actually been here were really good, and it just made me feel a lot better.”

She grew up near an abortion clinic, so she knew protesters would be waiting for her. At Whole Woman’s Health, anti-abortion activists even rent out the lawn of the house next door, erecting a large cross from which to stage their intervention attempts with women crossing the parking lot.

The clinic, she said, was even nicer than she expected. “I thought it would be a little more bare,” she said, adding, “I just thought it would be very boring and very almost scary.” More, perhaps, like the cavernous ambulatory surgical centers in which Texas lawmakers are trying to require abortions be performed.

She knew she was lucky to be able to pay for the procedure herself, since her health insurance wouldn’t cover it. She didn’t know how lucky she was to find the clinic open at all. Whole Woman’s Health clinics have closed and reopened so many times in the last two years that its staff say it has to reassure patients that abortion is still legal in Texas.

The first time the Fort Worth clinic closed, for a month in October 2013, it was because the admitting privileges provision of the state law had gone into effect. The second time it closed, for six weeks in 2014, it was because after a year, one clinic doctor lost the admitting privileges he had managed to obtain at a local hospital. He hadn’t had to admit any patients, Gifford said, because none had complications. “It’s a Catch-22,” said Gifford.

For months, the clinic was poised to close a third and final time. It cannot afford the $2 million an architect estimated it would cost to convert the building into an ambulatory surgical center, a provision of the law that was supposed to go into effect in the fall of 2014. Twice in the past year, the Supreme Court has stepped in to keep the clinics temporarily open while the case proceeds. They now face permanently closure in October (if the court declines to hear the case) or by June 2016 (if the court takes the case but rules against Whole Woman’s Health).

All that was on the patient’s mind that day was that she was ready for this to be over. “A part of me is also a little sad,” she said. “I think I'm more scared cause I'm wondering how I'm gonna feel emotionally after this, what the effects are gonna be more so than, am I doing the wrong thing. I'm just wondering how I'm gonna feel afterwards.”

In McAllen, Texas, pro-choice activist Audrey Perez fights to defend the only abortion clinic in the Rio Grande Valley -- because they were there for her three years ago when she needed them.
In Jackson, Mississippi, pro-life activist Barbara Beaver runs the Center for Pregnancy Choices, where she works to convince pregnant women to choose life -- and that there's nothing more anti-woman than abortion.

Louisiana State Rep. Mike Johnson isn’t waiting for the day where Roe v. Wade is overturned, though he hopes for it.

“I think that case is wrongfully decided and I think one day Roe may be overturned,” Johnson, a Republican, said in his law office one day in Shreveport. “But until that point, what we have to do, what's incumbent upon the state to do is to protect women's health to the greatest extent as possible.” That’s why, he says, he supports requiring abortion providers to have admitting privileges at local hospitals.

A young stalwart in the legal arm of the anti-abortion movement, Johnson made his name bringing malpractice suits against abortion clinics and trying to get the state to shut them down on health violations. He joined the Legislature last February, after a special election. As an attorney, he’s still working on the case defending Louisiana’s admitting privileges law.

At the trial in June, abortion providers testified behind curtains over what they said were personal safety concerns. Johnson thinks that was overwrought. “No one's out to get abortion doctors as they claim,” he said. “We're out to make sure that women's health is protected.”

That, Johnson said, is where the admitting privileges requirement comes in.

“The Legislature wanted to ensure continuity of care,” he said. “Everyone admits it's beyond dispute that having an admitting privilege to a hospital within 30 miles of the clinic is a good way to ensure that.”

In fact, many leading health organizations do dispute Johnson’s claim and see such efforts as a ruse to force clinics to close.

A friend-of-the-court brief filed by the American College of Obstetricians and Gynecologists and the American Medical Association in the Texas case put it simply: “There is no medical basis to impose a local admitting privileges requirement on abortion providers.”

Asked about those groups’ positions, Johnson said, “All these cases are a battle of the experts, and we had some very credible experts.” The defense’s witnesses included an anti-abortion ob-gyn, Dr. Damon Cudihy, and the former executive director of the Louisiana State Board of Medical Examiners.

While Johnson says he does find ACOG and the AMA to be credible, “I'm not sure if they've taken a position that says that it is not in a patient's best interest to be able to get to a hospital quickly and efficiently,” Johnson said. “If they've taken a position against that, I would say that might be a political position.”

“I think that case is wrongfully decided and I think one day Roe may be overturned...But until that point, what we have to do, what's incumbent upon the state to do is to protect women's health to the greatest extent as possible."

The question of medical evidence has been a fraught one in these cases. When Alabama’s admitting privileges were challenged in court, a federal district court judge chided the state for using a witness that either “has extremely impaired judgment; he lied to the court…or he is so biased against abortion that he would endorse any opinion that supports increased regulation on abortion providers.” Another federal district court judge in Wisconsin considering yet another admitting privileges requirement for abortion providers called three medical experts — one from each side of the case, and one he chose himself. That judge’s conclusion: “The admitting privileges requirement remains a solution in search of a problem.”

The medical associations argued that by delaying a woman’s ability to get an abortion, or by making it likelier that she would take matters into her own hands, such laws actually endanger women’s health. A recent study conducted in Texas after the closure of many clinics found that in some parts of the state, wait times for an abortion appointment had increased to up to 20 days.

And for a woman traveling long distances to reach a shrinking number of abortion clinics, what good would it do in case of a complication that the doctor 200 miles away had local admitting privileges?

“Well, it wouldn't do that woman any good, but the legislation is geared for the situation like I had with my client,” Johnson said. His client, he said, “had a hemorrhaging event on the table during a procedure and rather than sending her to a nearby hospital, the doctor that was doing her procedure did not have admitting privileges. So she didn't have the ability to do that.”

But would his client have been turned away at an emergency room?

“No. They can't under federal law,” Johnson conceded. “But having admitting privileges as a requirement is one way to prevent bad doctors because they have to certify. They go through a review of their credentials.”

Nationwide, ACOG and the AMA have noted, “there is less than 0.3% risk of major complications following an abortion that might need hospital care.” At the Louisiana trial, the administrator of Hope Medical Center testified that the clinic performs 3,000 abortions a year, and that she could only remember four times in 20 years that a patient had had to go to the hospital.

“I think that's beyond dispute that in relative numbers, the number of complications probably is rare, but that's not what's in dispute in the litigation,” Johnson said. “The dispute is, is the regulation reasonable under the law?”

How to even frame the dispute is itself, well, a matter of dispute. For decades, on the belief that a woman has a fundamental right to an abortion, a majority of the Supreme Court has considered abortion restrictions with a stricter standard than whether they sound reasonable at first blush.

Under Planned Parenthood v. Casey, the 1992 case that governs — loosely, in practice — how far states can regulate abortion, the government can’t put an “undue burden” on a woman’s right to the procedure. In other words, there has to be a good reason for a law that restricts abortions — it can’t be just a fig leaf to curtail access.

For years now, the definition of “undue burden” has depended on the judge calling it. When Wisconsin passed a law requiring admitting privileges for abortion providers, Judge Richard Posner of the 7th Circuit wrote, “The feebler the medical grounds, the likelier the burden, even if slight, to be undue.” But the 5th Circuit Court of Appeals, in approving the Texas admitting privileges law, boldly declared, “In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.” They were daring the Supreme Court to tell them they were wrong.

As it stands, for Whole Woman’s Health and its patients, the Supreme Court is their last hope.

Kumar says he chose his career while at medical school in Lubbock, Texas. He had taught too many sex-ed classes to teenagers who had graduated from abstinence-only programs and didn’t know the first thing about how their bodies worked. Roughly once a month, he and his fellow teachers would receive an index card with something scrawled on it like, “What happens if I take a pregnancy test and its positive? Can I get an abortion at home?”

“How are we going to give voice to the women that don't make it here?...What happens to those women? Where do they go?”

Those index cards worried Kumar. He didn’t know who had written those cards, or whether they would know how to go somewhere safe. In one day in Fort Worth, he’s already seen several patients who are pregnant and don’t know much more than those teenagers did. They’re why he came back to Texas. “I think the lack of education is sort of a lack of power for a lot of people,” he says.

It’s a reminder of why he’s doing this. But he feels restless. He’s worried about the women he doesn’t see.

“How are we going to give voice to the women that don't make it here?” he asked. “Because those are the women, in my opinion, that are going to be the more marginalized women — the women that perhaps can't afford to get here, can't afford it, the procedure, if they were to get here. Women of lower socioeconomic status. Women of color. Women that live in South Texas. What happens to those women? Where do they go?”

Because, Kumar added, “We know that there are always going to be women with unwanted pregnancies.”

Dr. George Tiller, a doctor who provided later-term abortions, was murdered while Kumar was in medical school. But Kumar says he doesn’t worry so much about himself anymore.

“I realized that at some point, there's only so much I can do with my life and so much control that I can have over it,” he said on the day Whole Woman’s Health went to the Supreme Court.

“At some point in residency, my fear of safety sort of took a backseat, and I said, ‘Even if I died tomorrow, if I'm providing abortions in Texas and helping other people, I'm okay with that.’”