Six months in, “no end in sight” for Texas’ new abortion law

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When Texas’ restrictive new abortion law went into effect Sept. 1, clinics, advocates and even some who supported the legislation thought it might quickly be blocked by the courts. Six months later, the law is still standing.

The law, passed as Senate Bill 8, prohibits abortions after fetal cardiac activity is detected, usually around six weeks of pregnancy. While other states have tried and failed to ban abortions this early in pregnancy, Texas’ law relied on a unique private enforcement mechanism that made it extremely difficult to challenge in court.

The law empowers private citizens to sue anyone who “aids or abets” a prohibited abortion. Those who sue could be awarded at least $10,000 if they win. Since it isn’t enforced by state officials, the law is difficult to challenge on constitutional grounds.

Abortion providers have tried anyway, bringing legal challenges on several fronts, none of which have succeeded in stopping the law from being enforced for more than a few days. So for six months, Texans have largely been unable to access abortions after about six weeks of pregnancy — with enormous ripple effects for the entire country.

Abortion clinics in surrounding states have seen demand skyrocket, while some patients are turning to self-managed abortion care. The U.S. House of Representatives passed legislation that would have codified abortion rights into federal law; it was blocked by the Senate on Monday.

At least eight state legislatures have taken steps to pass similar legislation to ban all but the earliest abortions. California, meanwhile, has tried to use a similar enforcement mechanism to curtail the use of automatic weapons.

Nowhere has the impact of this law been felt more acutely than inside Texas’ abortion clinics, which are limping along on donations and a fraction of their usual patient load.

“​​Our Texas clinic staff have transformed clinic counseling sessions into grief support layered with travel logistics,” Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health, said in a press briefing Thursday. “In many cases, there's nothing we can do for them but listen, hold their hands and dry their tears.”

Legal challenges

In its 1973 ruling in Roe v. Wade, the U.S. Supreme Court created a constitutional protection for abortion through viability, the point at which a fetus could likely survive outside the womb, usually around 24 weeks.

Since then, states, including Texas, have been stopped by the federal courts when they’ve tried to ban abortions before that point in pregnancy.

But Texas’ law has so far managed to evade a similar fate. The U.S. Supreme Court declined to stop the law from going into effect before Sept. 1, instead allowing lawyers for the abortion providers to bring a pre-enforcement challenge, which was heard in November.

The U.S. Department of Justice also tried to challenge the law, and succeeded in getting it temporarily enjoined by a federal district judge. That ruling was swiftly overturned by a higher court and the U.S. Supreme Court eventually threw out the DOJ’s challenge.

In December, the Supreme Court also threw out the vast majority of the abortion providers’ legal challenge, allowing only one narrow aspect to proceed. That remaining challenge is slowly wending its way through the courts, but even if it is granted, it would not allow abortion providers to resume providing the procedure after six weeks of pregnancy.

Marc Hearron, senior counsel for the Center for Reproductive Rights, which is representing the abortion providers, said Thursday that their challenge in federal court “no longer stands a chance” of stopping these lawsuits from being filed.

“The Supreme Court greenlit this law’s unprecedented vigilante scheme and essentially said that federal courts are powerless to stop it,” he said. “There is no end in sight to this nightmare.”

Abortion providers have had more luck in Texas courts, where state District Judge David Peeples ruled in December that the law is unconstitutional. His judgment did not block lawsuits from being filed under the law, and is currently being appealed.

Clinics remain in limbo

As these various legal challenges make their way through the court systems, the state’s abortion providers have stopped offering the procedure after fetal cardiac activity is detected.

Many are keeping their doors open thanks to donations and fundraising, but with only a fraction of the patients they were seeing before, the financial situation is growing increasingly dire.

Hagstrom Miller said it feels very reminiscent of 2013, when Texas passed an omnibus abortion law, aspects of which were eventually struck down by the U.S. Supreme Court.

“Texas lost half of its clinics, and [most] of them weren’t able to reopen,” she said in an interview. “These kinds of laws can damage the infrastructure so greatly that even if you win a huge Supreme Court case that sets legal precedent, it doesn't mean clinics reopen.”

Immediately after Texas’ latest abortion restrictions went into effect Sept. 1, one San Antonio doctor, Alan Braid, announced in a Washington Post op-ed that he had provided an abortion after cardiac activity was detected.

“I fully understood that there could be legal consequences,” Braid wrote, “but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.”

Three people sued Braid, including two disbarred attorneys who indicated they were more interested in seeing the law tested and getting the money than actually taking a stand against abortion.

Hearron, who is also representing Braid, said Thursday that they have filed a countersuit in federal court against the three claimants, seeking to have the law declared unconstitutional and the suits thrown out.

Beyond those initial three claims, no lawsuits have been brought against anyone for aiding or abetting in a prohibited abortion. But just last week, a group of anti-abortion lawyers asked a judge to allow them to depose the leaders of two abortion funding nonprofits to gather information for potential lawsuits.

Pregnant patients look elsewhere for care

While Texas abortion providers are largely hamstrung by the new law, pregnant patients have begun looking farther afield for help accessing the procedure.

In the first four months after the law passed, Planned Parenthood centers in other states saw a nearly 800% increase in Texas patients seeking abortions, compared to the year before.

Clinics in Louisiana, Oklahoma, New Mexico, Kansas and Colorado are reporting huge surges in Texas patients, creating a ripple effect across the country.

Kathaleen Pittman, administrator at Hope Medical Group for Women in Shreveport, said they’re currently scheduling appointments a month out and still scrambling to fit people in before they run out of time under Louisiana law.

“We at one point in time considered ourselves specialists in termination of early pregnancies,” she said. “We are seeing very few early pregnancies these days … because it's taking so long for everyone to get in.”

Whether due to long wait times or an inability to leave the state, more women are also seeking to obtain medication to perform abortions outside of a clinic setting. One international nonprofit that helps with these so-called self-managed abortions saw requests for medication increase by more than 1,000% the week after the law went into effect.

Abortion opponents have cheered the decreased access to the procedure in Texas, while lamenting the fact that pregnant patients continue to find ways to terminate their pregnancies.

“We recognize that women in Texas can elect to go out of state for abortions, but it's our hope that they will choose life and access the amazing programs that we have in our state to provide support and care for them and their child,” said Amy O’Donnell, chief communications officer for Texas Alliance for Life.

The state has invested heavily in the Alternatives to Abortion program, which funnels money to crisis pregnancy centers across the state.

New law echoes outside of Texas

With little hope of blocking this law in the federal courts, some abortion providers and advocates are turning their attention to the other arms of government for relief. The U.S. House of Representatives passed the Women’s Health Protection Act, which would enshrine the right to access and perform abortions in federal law.

The law would ban many of the restrictions Texas had in place even before this new law, including ultrasound requirements and mandatory waiting periods between appointments.

Democrats failed to get the required 60 votes to move the bill forward in the Senate during a Monday vote, but Republicans Susan Collins of Maine and Lisa Murkowski of Alaska have introduced a counter-proposal that codifies aspects of Roe v. Wade while allowing states to enact some restrictions, according to The 19th.

Although the Women’s Health Protection Act gained momentum in response to Texas’ new law, it’s part of a broader concern about the curtailing of abortion access nationally. In December, the U.S. Supreme Court heard arguments in a Mississippi case that could overturn Roe v. Wade and throw the question of abortion access back to the states.

Texas has already passed a so-called “trigger law” that would automatically ban abortion 30 days after the Supreme Court overturned Roe “wholly or partly.”

Hearron said Thursday that the high court’s inaction on the new Texas law is a warning about what might come next summer, when justices rule on the Mississippi case.

“What is happening in Texas should be a grave warning for the rest of the country,” he said. “This is a preview of what will happen on a much larger scale if Roe falls.”

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.