When federal appellate judges ruled last week that the state could enforce strict new abortion restrictions while a legal challenge winds its way through the courts, Texas was left with just eight abortion clinics authorized to perform the procedure. While many Texas women now live hundreds of miles away from such facilities, some may still have another option: their doctor’s office.
State statute does not require physicians’ offices, such as gynecology and obstetrics practices, to obtain abortion licenses if they perform fewer than 50 such procedures a year. That exempts them from the most restrictive provisions of House Bill 2, the contentious 2013 measure that has now shuttered almost all of the state's remaining abortion clinics.
Figures collected by the Texas Department of State Health Services show that in 2002, Texas physicians performed more than 10,000 abortions in their offices, accounting for nearly 14 percent of all abortions that year. Physicians only reported performing 43 abortions in 2012 — less than 1 percent of that year's total.
Health care providers say several factors have long kept the number of abortions performed at doctors' offices down, including lower costs at abortion facilities, the fact that many poor women are uninsured and don't have an established relationship with a physician, and the reality that most doctors won't perform the procedure. They add that the stigma associated with the procedure sends women to abortion clinics over their routine doctor, and also discourages doctors from disclosing that they will perform the procedure.
Abortions reported in Texas doctors' offices
Source: Texas Department of State Health Services
While state health officials say they don't have an explanation for the big drop in reported abortions at physicians' offices, one element could be the Woman's Right to Know Act, a measure lawmakers passed in 2003 that, among other restrictions, reduced the number of abortions that could be performed annually in Texas doctors' offices without getting a license.
Texas OBGYNs attribute the drop in part to what they call negative rhetoric around the procedure since GOP lawmakers upped their assault on it in the last decade. Some say doctors are performing the procedure — just not reporting them as abortions.
“I’m sure there will be physicians that will do things and call them miscarriages so they don't look like they're doing abortions,” said Dr. Raymond Moss Hampton, an OBGYN in Odessa who chairs the Texas arm of the American Congress of Obstetricians and Gynecologists.
The Republican-led Legislature passed HB 2 last summer amid a heated debate over women’s constitutional rights to access abortion.
Lawmakers who support the measure — which requires that doctors performing abortions have hospital admitting privileges within 30 miles of a clinic and that clinics meet the same standards as ambulatory surgical centers — say it’s about improving women’s safety.
But Hampton said the dramatic reduction in the number of abortion clinics in Texas could lead to an increase in physician misreporting on abortions, especially in the areas west of San Antonio and Fort Worth where abortion facilities are no longer in operation.
“History is going to repeat itself in my mind," he said. "They tried to prohibit alcohol, and that just led to an underground industry. The same thing is going to happen with abortion.”
While some health care observers think abortions in physicians' offices could be the next frontier for GOP lawmakers seeking to further limit the procedure, anti-abortion groups have so far not prioritized the issue.
Emily Horne, a lobbyist for Texas Right to Life, said she did not expect the number of abortions performed in physicians' offices to increase now that more clinics had closed. But she did not rule out pursuing legislation on it.
“A lot of the same safety provisions that the doctor is subject to are still in place,” Horne said. "I don’t think it’s as substantial of a loophole as it might seem.”
The licensing exemption has not gone unnoticed by state lawmakers. In 2004, former state Rep. Frank Corte, Jr. sent the Texas attorney general’s office a letter requesting an opinion on the scope of the state’s authority to regulate abortion among providers exempt from state licensing requirements.
In an opinion issued that year, Attorney General Greg Abbott, the current Republican gubernatorial candidate, wrote that the Texas health department’s interpretation of the state statute that exempts some abortion providers from licensing requirements was “reasonable because it does not leave patients unprotected.” He wrote that other licensing laws “provide for exempt facilities’ licensing and regulation and protect patients’ health and safety.”
Dan Grossman, a principal investigator for the University of Texas at Austin’s Texas Policy Evaluation Project, said there could be a small uptick in the number of abortions performed at doctors' offices as a result of the recent HB 2 ruling. He added that because so few doctors currently perform the procedure, it was unlikely they would be able to make up for the increased demand.
But Dr. Tony Dunn, a Waco OBGYN and former steering committee chairman for the Texas Women’s Healthcare Coalition, a group of medical trade associations and organizations that promote access to preventive care, said the closure of most of the state's clinics could encourage some doctors to begin offering the procedure.
“We’ll have to wait and see whether physicians in underserved areas are going to step up and include that as part of the services that they offer," Dunn said.
Reporter Bobby Blanchard contributed to this report.
This story was produced in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.
Disclosure: The University of Texas at Austin is a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.