Texas banned abortion during the pandemic, but she got one anyway. How the legal battle is creating confusion for clinics

Heather Artrip had an abortion last Friday.

The 30-year-old single mother was ready to pack up her two sons and drive to New Mexico to find a willing medical provider when she got the call from her clinic in Austin. Two days earlier, someone had called to cancel her appointment, citing the state’s ban on abortions to preserve medical resources for coronavirus patients. But this time they said they could get her a medication abortion — which involves taking pills.

“I said, ‘Can I come in now?’” Artrip said. “I was scared it would get ripped away.”

Last month, Gov. Greg Abbott announced an executive order pausing all medical procedures and surgeries that aren’t urgent in an effort to slow the spread of COVID-19, the disease caused by the new coronavirus, and conserve personal protective equipment. Attorney General Ken Paxton quickly said that the governor’s order should include a ban on most abortions, setting off a legal battle and a barrage of conflicting court rulings that have created confusion for clinics and women seeking to end their pregnancies.

The courts volleyed back and forth this week, siding in turns with the state and then with abortion providers on a question that may ultimately be settled by the U.S. Supreme Court.

On Tuesday, the U.S. 5th Circuit Court of Appeals sided with Paxton, allowing the near-ban to remain in place. By Thursday, a lower court weighed in to say that medication abortions like Artrip’s — which do not require personal protective gear — should still be allowed to proceed. And then on Friday afternoon, the appeals court again sided with the state, but this time allowed for some women who are further along in their pregnancies to undergo abortions even as the prohibition remains in place.

Artrip was able to get an abortion in the midst of the legal whiplash, but abortion providers across the state are responding inconsistently, with some shutting down altogether while they await a final answer.

“This is a nightmare inside of a nightmare,” said Alexis McGill Johnson, acting president and CEO of Planned Parenthood Federation of America. “One day patients are called back for their procedures, the next day they are canceled — all at the whim of Gov. Abbott.”

In an interview Friday with the executive director of Texas Alliance for Life, Paxton said he found it “a little shocking” that abortion providers were continuing with their suit against the state.

“This is the only group of doctors and providers that have fought it,” Paxton said. “They’re not getting treated any differently. I will admit this is very inconvenient, it's not easy for anybody, but they're saying no, we're special, we don't need to be treated like everybody else, we should be treated better.”

Abortion rights advocates worry that even as the law is still being settled, Texas GOP officials are effectively cutting off access by scaring women into thinking all abortions are illegal and scaring providers into shutting their doors.

On Wednesday, at least one clinic, Austin Women’s Health Center, was still scheduling women for medication abortions, according to an employee who picked up the phone but declined to give her name. By Friday morning, a staffer said the clinic, one of the plaintiffs in the ongoing litigation, was shutting down until they heard back from attorneys.

Also on Friday, an employee who answered the phone at Whole Woman’s Health, another plaintiff in the case, said the clinic is offering medication abortions at its locations in Austin, Fort Worth and McAllen for pregnancies up to 10 weeks gestation.

Still, several providers across the state were closed both before and after Thursday’s ruling that gave the green light to medication abortions. Many contacted by The Texas Tribune, such as Houston Women’s Clinic and Alamo Women's Reproductive Services in San Antonio, had added temporary voicemails that said they were not offering abortion services due to Abbott’s executive order.

Personal protective equipment

Abortion rights advocates, meanwhile, say clinics should be able to continue providing pill-induced abortions in spite of the ban, which was implemented March 22 and is likely to be extended, because those types of abortions don’t use medical resources cited in the executive order.

“He [Paxton] has an interest in presenting that misinformation and letting people believe that all abortion is illegal in Texas now,” said Blake Rocap, legislative counsel at NARAL Pro-Choice Texas, which is not one of the plaintiffs in the case. “And reading what the Governor said and what the TMB [Texas Medical Board] has said and what the Fifth Circuit said, that doesn't seem like the case legally.”

Throughout the legal battle, Paxton has argued that the state’s executive order applies to both medication and surgical abortions. In his latest court filing Friday, he again pushed for it to include abortions that involve ingesting pills.

“Respondents claim that medication abortion consumes little PPE, but, again, all PPE is valuable at this time,” he said in the filing.

Abbott’s executive order as written exempts procedures that “if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.”

Artrip said her experience was totally contact-free and used “zero” personal protective gear. She and the doctor talked through the process over a video call while they sat in neighboring rooms. Then, from behind a bulletproof glass window, she was given a series of pills she would take over the course of 24 hours, along with detailed instructions.

“It’s a very simple process,” said Artrip, who had previously shared with the Tribune her struggle to get an appointment.

Daniel Grossman, an obstetrician-gynecologist, agreed that medication abortions don’t require the scarce medical safety gear.

“It is certainly safe and within the standard of care to offer medication abortion without using any personal protective equipment,” said Grossman, who is also an investigator with the Texas Policy Evaluation Project, which has been studying the executive order’s impact on abortion access.

A growing percentage of people obtaining abortions in Texas use medication abortion, those investigators report. The state’s most recent data shows medication abortions accounted for 31.6% of reported abortions among Texas residents in 2017. Procedural abortions, which use more invasive techniques, accounted for more than 60%.

Even in Texas, where patients are legally required to get a sonogram at least 24 hours before the procedure, Grossman said it is still possible to not use protective gear.

Artrip said she is relieved to have gotten an abortion, but she is angry for the women who cannot access them. Her message to women who are unsure whether they can get an abortion right now: Keep calling clinics.

“The legality of it could change at any minute,” she said. “Call every clinic until you find one that can take you, and take the one that can take you the soonest.”

Emma Platoff contributed to this report.

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.