Women as Healthcare Consumers: The Efficiency of Recent Supreme Court Abortion Rulings

By Nikki Mahendru

Abortion has always been a highly politicized and loaded topic, particularly for the American public. Given that the population of the United States is largely heterogeneous, the question of the right to choose abortion is highly contentious and arguments both for and against this right are related to morality, religious righteousness, liberty, and safety. However, another interesting way to analyze this debate in healthcare is to view it from an economic perspective. The main tenet of economics is to find efficient solutions to the problems that different consumers face. The hallmark of an efficient solution is that benefits to the consumer are maximized while costs are minimized, and any sort of negative externalities are avoided.  In the case of abortion, we consider women as consumers of reproductive healthcare. Therefore, it is critical that policymakers and legal experts consider how their policies and rulings related to reproductive healthcare impact those who seek access to abortion from an efficiency perspective and may provide insight into abortion rulings across the country.  In this paper, I will look specifically at the supreme court case Whole Woman’s Health vs. Hellerstedt; while it did not aim to overturn Roe v. Wade, it serves as an interesting example of how limiting access to abortion negatively impacts women as consumers of healthcare, and how, ultimately the Supreme Court’s decision to side with the plaintiff, is efficient.

            The case Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, considers the legal issues surrounding House Bill 2 (H.B.2), enacted by the Texas State Legislature in July of 2013. H.B.2 introduced two separate regulations with respect to abortion proceedings in Texas’ abortion facilities. The first regulation imposed was that providers performing abortions should have to have admitting privileges no more than 30 miles away from the site at which they are performing abortions; this regulation will be called the admitting-privileges requirement hereinafter. The second regulation was such that abortion performing facilities should meet surgical center requirements (not only requiring up to level operating rooms but also parking, and infrastructure to abide by ambulatory surgical care center regulations); this will be called the surgical-center requirement for the purposes of this paper. To provide some background regarding the context of the case, the plaintiffs were a group of abortion providers in addition to a cluster of abortion performing clinics, including Whole Woman’s Health, based in Texas. The defendants are John Hellerstedt, M.D, commissioner of the Department of State Health Services, and Mari Robinson, Executive Director of the Texas Medical Board, in their official capacities. This case ultimately rose to the level of the supreme court, making its’ way through the district court and the Fifth circuit court of appeals. The Supreme Court ultimately held that the two provisions, taken together, levied an undue burden on women seeking abortions in the state of Texas.

            From a legal perspective, the main issue here is to decide whether the two provisions levy an undue burden on the women of Texas who seek abortions, or whether the provisions augment a legitimate state interest in protecting the lives and safety of these women by making the abortion process safer. The legal precedent, regarding the “undue burden” issue, stems from Planned Parenthood of Southeastern Pennsylvania v. Casey. In this case, the Supreme Court echoed the decision of Roe v. Wade wherein a woman’s right to terminate her pregnancy before the viability of a fetus is protected by the Fourteenth Amendment. Furthermore, Casey added to this by recognizing that abortion restrictions are unconstitutional if it “imposes an undue burden” on a woman’s decision to get an abortion. It is important to see here, that while this augments the protection of a woman’s right to get an abortion, it does, however, create further ambiguity as to what is considered “an undue burden”. The plaintiffs here, argue that the two restrictions not only taken together but separately, result in mass closures of the state’s abortion facilities, cutting off access to the essential service for women across the state, qualifying as an undue burden. The defendants instead argue that these provisions seek to ensure the safety of women receiving the abortion procedures. Ultimately, in taking a closer look at the magnitude of the burden imposed on the women and the expenses due to the imposition of such safety regulations, we can get a better idea of how economic analysis proves that efficiency rests in the decision made by the Supreme Court.

            First, we can apply benefit-cost analysis to the admitting-privileges and surgical-center requirements. The costs associated with the admitting-privileges are high in that now, previous negotiations (i.e. working relationships) between abortion providers and physicians with admitting status at hospitals are rendered worthless. Instead, these abortion providers must renegotiate contracts with hospitals 30 miles from the sites at which they perform abortions, and that too by the time the admitting-privileges provision went into effect, thus demonstrating increasingly high transaction costs. The costs associated with the surgical-center requirements are more quantifiable. According to expert witnesses, compliance with the surgical-center requirement would most likely exceed $1.5 million to $3 million per clinic1, taking into account infrastructure requirements and land acquisition. For some clinics, the cost would even be closure, given the physical size limitations to enact the changes. The defendants argue that the benefits of these two provisions would be primarily to reduce the delay in treatment for serious complications, screen for incompetent abortion providers and health centers, and ultimately benefit the safety of patients as it is. However, in looking at the existing rates of complications in abortions, it is found that abortion procedures are one of the safest medical procedures, and before the passage of H.B. 2 there were very low rates of serious complications and virtually no deaths occurring as a result of the procedure. Here, we can see that a simple cost-benefit analysis can show us the exorbitant costs associated with the passage of H.B.2 that would lead to marginal benefits, given that the status quo had already ensured the safety of its’ patients. We can also look to the balancing test in this matter, wherein according to Hand’s rule, the injurer (i.e. the state or the provider) must increase precaution until marginal social costs equals marginal benefits. Given how abortion procedures are already so safe, increasing precaution is not cost-justified when the resulting reduction in expected abortion risks is less than the cost to do so.

            With increasing costs both physical and transactional, providers and clinics that cannot abide by these regulations are induced to remove themselves in order to minimize their costs. This means that the pool of providers available to provide abortions decreases, and clinics begin to shut down to prevent increases in costs that are not justified. The data provided in the case states that after the implementation of the admitting-privileges requirement, from the 40 licensed abortion facilities in Texas, nearly half had to close, by October of 2013. Economic modeling predicted that the enactment of the surgical-center provision would further reduce the number of abortion sites available to seven or eight facilities in the following cities: two in Houston, one in Austin, one or two in San Antonio, and one in the Dallas Forth Worth metropolitan region. It is important to disaggregate this data and see that the rural and poor women that are most disadvantaged when it comes to these forced closures1, as the clinics that cannot support the increasing costs are also the ones that provide abortions at increasingly subsidized rates, the ones that will do so without healthcare, and the ones that were most readily accessible given geographical proximity. This, in turn, becomes a supply and demand problem, with a great negative externality. As the supply of abortion sites decreases from forty to seven/eight, the demand for abortions remains the same within the state of Texas, at an approximately consistent rate of 60,000 to 72,000 legal abortions sought annually1. This demand, rather than spreading out across forty abortion clinics, instead spreads to seven or eight clinics, resulting in each facility serving approximately 7,500- or 10,000-women seeking abortions per year1. The capacity for such clinics to schedule 1,200 women per month for counseling, follow-ups, and the abortion procedure, would ultimately be strained. This would certainly mean that there would be a number of women, just due to sheer demand, that would now be unable to get abortions between the seven or eight clinics serving the entire state of Texas, where they could have previously.

Let us consider for a moment that the remaining abortion clinics have the capacity to meet the increasing demand, this still does not address the issue of geographical inaccessibility which could lead to welfare losses for women who previously could have received the health services they needed. Justice Breyer’s opinion states that “before and after the enforcement of the admitting-privileges requirement, the ‘decrease in the geographical distribution of abortion facilities’ has meant that the number of women of reproductive age living more than 50 miles from a clinic has doubles from 800,000 to 1.6 million […] 100 miles has increased by 150% from 400,000 to 1 million […]” the data continues on and only compounds on the addition of the surgical-center requirement: “2 million women of reproductive age will live more than 50 miles from an abortion providers; 1.3 million will live more than 100 miles from an abortion provider; 900,000 will live more than 150 miles from an abortion provider.”1. The geographical landscape of accessibility to abortion providers would shift dramatically with the compounding of the admitting-privileges requirement and the surgical-center requirement. This also provides women with a greater chance of forgoing abortions, as now there are higher transaction costs associated with traveling long distances to receive care and even monetary expenditures beyond the capacity of the women who need abortions. It has been cited that the costs of abortions and the requisite follow-up appointments at health centers, such as the ones that had and would have closed due to the two regulations together, typically cost between $1004-$1195 less than at hospitals or ambulatory centers3. Furthermore, the study finds that there are no significant differences in the likelihood of abortion-related event follow-up care, and adverse events for first, second, and later term abortions2. These women may be teenagers or those who wish to undergo abortions discretely and safely, now are faced with increasingly high transaction costs and limited access to care. A study conducted throughout 2014-2015 after the passage of H.B.2 analyzed the landscape of “self-managed abortions”, otherwise known as abortions, conducted by women themselves without clinical supervision. It was found that between 1.7%-4.1% of women of reproductive age in Texas had attempted self-managed abortions–meaning anywhere between 100,000-240,000 residents3. In further disaggregating this data, it was found that the populations of women most likely to induce abortions alone were: 1) Latina women living in a county that borders Mexico and 2) Women who reported having difficulties accessing reproductive healthcare, for services such as birth control or pap smears, often due to the costs of these services and arranging transportation to get these services3. This data is incredibly important to demonstrate how decreasing access to reproductive health centers that provide abortions places increasing risk and costs, both monetary and transactional, for women across Texas. The incentives that are created by such policies, such that women can minimize their costs and increase their benefits, turn them toward unsafe means of seeking out abortions, whether across state lines or self-management.

Now, to shift the focus toward the long-term effects created by the admitting-privileges and surgical center requirements in Texas, we can turn to the logic used by Professor Ubel in lecture on February 14th. Professor Ubel stated that the logic of many policymakers as it relates to healthcare is that exposure of consumers to high out-of-pocket costs will make them more savvy consumers, meaning that they will choose to either prevent pregnancies more or get fewer abortions. To refute this, just as Professor Ubel did in the lecture, what has been found is that abortion rates do not decrease when costs to seek abortion increase (when abortion is outlawed or more difficult to access)4. Instead, what happens is that the number of unsafe abortions increases, posing greater harm to people who are pregnant. This distinction makes it clear that traditional normative economic thinking related to high out-of-pocket costs acting as a deterrent, does not work in reproductive healthcare access. While in class, we discussed how this was largely due to the hidden cost of healthcare, we must also recognize that people seeking abortion have a variety of other factors that compound and force them into choosing to travel greater distances for abortion or performing them themselves, without the supervision of a medical provider. However, for the minority that does not choose these two options, and for whom the deterrent does work, there are further economic implications: raising a child that one is not ready for. The average cost of raising a child born in 2020 in the US is $284,7105. As discussed earlier, the people who are least likely to access abortion due to such closures are low-income minority populations, who are then forced into having a child that they are not prepared to have. This can lead to severe financial distress within families and even, at times, neglect. Dr. Steven Levitt and Dr. Joseph Donahue III’s infamous article links this devastating outcome to an increase in crime rates through a longitudinal study looking at crime rates before and after abortion was legalized6. Therefore, increasing restrictions and access to abortion forces women into choosing between sub-optimal options that do not allow for the consideration of the multitude of factors that influence their decision to get an abortion. As discussed in class, one of the main remedies to having patients make savvier decisions as it relates to their health is to make sure that the patient is fully informed regarding their choices. This means, 1) having choices to choose between 2) risks, side effects, long-term implications are all addressed by their healthcare provider, such that when the patient does make a choice they are agreeing to all possible risks. Restricting abortion does the exact opposite of this and instead limits the ability of women and patients to make decisions based on their full set of preferences.

Ultimately, efficiency rests with the Supreme Court’s decision to strike H.B.2’s regulations. It is supported by understanding that in the long-term abortion restrictions prevent women who seek abortions from choosing and making informed healthcare decisions, as all consumers have the right to do. And more broadly, the Supreme Courts’ decision effectively corrects the harmful negative externalities imposed on the women of Texas due to the mass closures of clinics, created by the increasing costs of compliance with H.B.2 for only marginal benefit.

Works Cited 

1.     Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 195 L. Ed. 2d 665, 2016 U.S. LEXIS 4063, 84 U.S.L.W. 4534, 100 Fed. R. Evid. Serv. (Callaghan) 887, 26 Fla. L. Weekly Fed. S 360 (Supreme Court of the United States June 27, 2016, Decided). https://advance-lexis-com.proxy.lib.duke.edu/api/document?collection=cases&id=urn:contentItem:5K3P-VXF1-F04K-F1HS-00000-00&context=1516831

2.     Leslie, Douglas L., et al. "Healthcare Costs for Abortions Performed in Ambulatory Surgery Centers Vs Office-Based Settings." American Journal of Obstetrics and Gynecology, vol. 222, no. 4, 2020, pp. 348.e1-348.e9, https://www-sciencedirect com.proxy.lib.duke.edu/science/article/pii/S0002937819312190, doi:https://doi-org.proxy.lib.duke.edu/10.1016/j.ajog.2019.10.002.

3.     Grossman, D, et al. 2015, pp. 1–5, Knowledge, Opinion and Experience Related to Abortion Self-Induction in Texas.

4.     Bearak, Jonathan., et al. “Unintended Pregnancy and Abortion by Income, Region, and the Legal Status of Abortion: Estimates from a Comprehensive Model for 1990-2019.” Guttmacher Institute, 28 June 2021, https://www.guttmacher.org/article/2020/07/unintended-pregnancy-and-abortion-income-region-and-legal-status-abortion-estimates.

5.     Lino, Mark, et al. “The Cost of Raising a Child.” USDA, 18 Feb. 2020, https://www.usda.gov/media/blog/2017/01/13/cost-raising-child.

6.     Donohue, John J. III, and Steven D. Levitt. "The impact of legalized abortion on crime." Quarterly Journal of Economics, vol. 116, no. 2, May 2001, p. 379. Gale Academic OneFile, link.gale.com/apps/doc/A76816320/AONE?u=duke_perkins&sid=summon&xid=cfb25327. Accessed 24 Apr. 2022.