Clinics across the state — the second most populous in the country — drastically limited their services, as the law prohibits physicians from conducting the procedure when a fetal heartbeat is detected, which is often before a woman knows she is pregnant.
Whole Woman’s Health, which operates four clinics in Texas, is offering abortion services “only if no embryonic or fetal cardiac activity is detected in the sonogram,” according to a spokesperson, and several other providers also are taking that limited approach.
The providers have brought a federal lawsuit challenging the constitutionality of Texas’ law, pointing to the Supreme Court’s 1973 Roe v. Wade ruling, which enshrined a nationwide right to an abortion prior to viability, a point about 24 weeks into pregnancy.
But that lawsuit is stuck in a procedural quagmire that both the 5th US Circuit Court of Appeals and the Supreme Court have so far dithered on unjamming, despite the desperate requests from clinics this week that the courts block the Texas law from going into effect while the litigation plays out.
The Texas measure was designed to make such a challenge difficult to bring. By tasking private citizens — who are empowered by the law to bring civil litigation against those who violate the six-week ban — instead of government officials with enforcement of the prohibition, the Texas legislature scrambled the usual legal route that abortion rights advocates have taken in getting courts to block other extreme restrictions before they can be implemented.
If the law is allowed to stay in force, tens of thousands of Texas women seeking abortions will likely be unable to access them. Many women do not even know they are pregnant at six weeks, and according to the law’s opponents at least 85% of abortions in Texas happen after that point in pregnancy.
Some of those women may be able to travel out of state to obtain abortions. The ban’s impact will fall most heavily on lower-income people — who don’t have the time or resources for such trips — as well as people of color. Taken together, Black, Asian and Latina individuals made up most of the people obtaining abortions in Texas, according to 2019 state data.
The procedure itself costs around $550 in Texas and cannot be covered by public or private insurance, according to Elizabeth Nash, a state policy analyst at the reproductive rights think tank the Guttmacher Institute. The expense of traveling out of state will escalate that cost dramatically. The nearest clinics are in Louisiana — which is currently reeling from a hurricane — and that can be a three-and-a-half hour drive for many Texans and nine hours for those in its Rio Grande valley.
The travel costs can be compounded by residual costs like child care and lost wages from time taken off work.
“All of those costs compound to make it very unreachable for a lot of people,” said Zaena Zamora, the executive director of the Frontera Fund, which offers tactical and financial assistance for abortion seekers in southeastern Texas.
Clinics scramble as the ban goes into force
Even before midnight struck in Texas and the abortion ban went into effect, providers said they were subject to an uptick in surveillance and harassment from anti-abortion activists, who now have the power to bring private enforcement actions under the law.
“The protesters called the police twice and the fire department once (on Tuesday) in Fort Worth, all in their attempts to say there were too many patients, to try to find some law that we were breaking,” said Amy Hagstrom Miller, the CEO of Whole Woman’s Health, which operates a clinic in Fort Worth.
Hagstrom Miller, speaking on a call with reporters, said the protesters shined giant lights on the clinic’s parking lot. At 10 p.m. local time, the clinic had 27 patients left in the waiting room, Hagstrom Miller said, and the last procedure was completed at 11:56 p.m., just before the ban went into effect.
The law allows any person — as long as they’re not a government official — to bring a civil lawsuit in state court against a provider accused of violating the ban, regardless of whether the person bringing the lawsuit has any connection to the abortion being sought. If they prevail, they are entitled to at least $10,000 in damages, and the law is structured to make it especially costly for clinics that are targeted with an enforcement action. It prohibits clinics from recouping attorneys’ fees from their court foes, even if a judge sides with the provider in the lawsuit. The measure also prevents clinics from seeking to transfer the cases to venues more convenient for them, unless they have the agreement of their opponents.
Because of the way the litigative deck is stacked against them, clinics and other abortion access proponents implicated by the ban — including abortion funds and groups that provide other transport for abortion-seekers — are planning to fully comply with it until there is a court order blocking the law. In addition to this chilling effect, the measure comes with the potential that it will shutter clinics, even if they are ultimately found not to have violated the law.
“Even if the defendants won every single case, the burden of having to defend themselves, of having attorneys spending their time, having to go around in rural courts all over Texas — 258 counties — defending themselves, that alone threatens to stop the provision of abortion access across the state,” said Marc Hearron, a senior counsel at the Center for Reproductive Rights, which is representing the clinics in their federal challenge to the law.
A ‘target’ on the backs of groups that facilitate abortion access
Another notable aspect of the ban is how it targets not just physicians, but anyone who “knowingly” assists a woman in getting an abortion after six weeks, or even anyone who “intends” to help women access illegal abortions.
The Lilith Fund, Texas’ oldest abortion fund, has been preparing for the measure since it was signed into law in May, according to the organization’s communications director, Cristina Parker. The group is shifting its focus to getting funding to women so they can access the procedure before the six-week cutoff or helping them travel out of state.
“We knew the target was on our back as soon as this bill was filed in the spring,” Parker said.
Limits that GOP Gov. Greg Abbott put on the procedure for a few months during the beginning of the pandemic offer a preview of how the new ban could play out if it is allowed to stand.
Women traveled as far as Colorado or Virginia to get abortions, according to Nash of the Guttmacher Institute. Jane’s Due Process, an organization that helps teens navigate accessing abortion when they don’t have their parents’ permission, saw only a handful of those young people obtain abortions when the pandemic limitations were in place. The organization usually helps at least 350 teens obtain abortions annually, said the group’s executive director, Rosann Mariappuram.
During that period, the Lilith Fund also saw requests for financial assistance wane, because women were having trouble even getting appointments at out-of-state clinics. Already, the Frontera Fund has seen a “huge decrease” in call volume in the past two weeks, Zamora said, because the sole clinic in her organization’s area was already booked up in the anticipation of the ban going into effect.
Still, even as clinics and the organizations that facilitate access to them drastically shift their approach in accordance with the ban, they feel vulnerable to legal attacks from anti-abortion activists that the new law makes possible.
“Our very existence is creating a risk,” Zamora said.
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