Small Court Victories Change Nothing for Women Seeking Abortions in Texas

A Texas statute that bans abortion after six weeks of pregnancy was seemingly undercut by two court rulings, but the reality on the ground has not changed.,

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HOUSTON — Within the span of a few hours, a Texas judge and the U.S. Supreme Court appeared to undercut Texas’ six-week abortion ban, ruling in separate opinions late Thursday and early Friday that aspects of the law were unconstitutional under state law and that federal challenges could go forward.

But the victories for abortion rights supporters were largely hollow, and providers in Texas were not cheering on Friday.

Neither decision altered the reality on the ground in the state. Both left in place the new abortion law, the most restrictive in the country, which effectively bans abortions after six weeks of pregnancy, with no exceptions for rape or incest.

“Today, because the court once again failed to protect our most basic human rights, more people will continue to suffer as this case winds its way through the legal system,” said Dr. Bhavik Kumar, an abortion provider in San Antonio, in a call with reporters hosted by the American Civil Liberties Union.

State Senator Bryan Hughes, the lead sponsor of the law in the Texas Senate, called Friday’s ruling “a total victory for life.”

The Supreme Court is expected to rule next summer on the constitutionality of abortion in a separate case from Mississippi challenging the central holdings of Roe v. Wade, the 1973 decision that established a right to abortion.

In the meantime, for Texas women, the new normal will continue. Clinics that have been forced to turn away women will continue to do so. A surge in travel to out-of-state providers for abortions is unlikely to abate. And desperation is likely to deepen among women seeking abortions beyond six weeks of pregnancy. In some cases, clinic staff members have reported women begging them to meet after hours in the parking lot to give them abortion pills.

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A nurse at Houston Women’s Reproductive Services performed an ultrasound to determine whether the woman was less than six weeks pregnant and eligible to have an abortion in Texas, in October.Credit…Evelyn Hockstein/Reuters

So many women have been seeking assistance to get abortions outside of Texas that one group that helps with travel, Fund Texas Choice, tripled the size of its small staff and still found itself overwhelmed trying to keep up with the demand. From a few dozen calls a month, it now receives about 300, said Anna Rupani, the executive director of the fund.

“We’re servicing 50 to 60 percent of the calls that we get,” she said. The fund has had to spend more money on each woman — about $1,000 on average now — because women have had to travel much further to access abortions outside of Texas since the law took effect on Sept 1. Most round trips are about 1,100 miles, she said.

The abortion ban relies on an usual enforcement mechanism: Private citizens are tasked with enforcing its provisions, and state officials are barred from doing so. It was designed to deny abortion rights groups a state official to bring a case against, and was successful in preventing the groups from stopping the law from taking effect.

On Friday, the Supreme Court ruled that a challenge to the law could proceed against certain state officials, but not others.

Significantly, the court did not allow abortion providers to name state court clerks or judges as defendants — a blow to abortion providers in their attempt to halt legal actions brought against them by private citizens under the law.

The court allowed cases to go forward against members of state medical licensing boards, arguing that those state officials could potentially take enforcement action against abortion providers for violating the law.

But even if those officials were later ordered not to take enforcement action, it would not remove the teeth from the law — the threat of lawsuits by private citizens.

“It doesn’t alleviate that burden that has been in place, which is the potential legal liability to abortion providers,” said Aimee Arrambide, the executive director of Avow Texas, an abortion rights group.

And the potential burden is not just on providers or clinics, but on nurses, staff members, abortion funds, and even family and friends who help facilitate the abortion.

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The Supreme Court is expected to rule next summer on the constitutionality of abortion in a separate case from Mississippi challenging the central holdings of Roe v. Wade.Credit…Michael A. McCoy for The New York Times

The decision followed one issued late Thursday by a state district court judge in Texas, who found that the enforcement mechanism represented an “unlawful delegation of enforcement power to a private person” and unconstitutionally granted standing to those who were not injured, and that the law violated due process under the federal Constitution.

But the state court opinion did not include an injunction, and left the law in place. Abortion providers said they would not change their behavior until a final decision had been reached at the Texas Supreme Court. The anti-abortion group behind the law, Texas Right to Life, immediately appealed the decision.

The twin rulings were a disappointment to abortion rights advocates and a validation of the unique legal gambit employed by abortion opponents.

“At the end of the day, we’re celebrating,” said John Seago, the legislative director for Texas Right to Life, which lobbied for the law. “The reality is the law is still having its effect. The law is still forcing the abortion industry to stop abortion after a heartbeat is present.”

Understand the Texas Abortion Law

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The most restrictive in the country. The Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks and makes no exceptions for pregnancies resulting from incest or rape. The law has been in place since Sept. 1.

Citizens have the power to enforce the law. The law effectively deputizes ordinary citizens — including those from outside Texas — allowing them to sue those who violate the law. It awards them at least $10,000 per illegal abortion if they are successful. Patients cannot be sued, but doctors, staff and even a patient’s Uber driver could become a defendant.

The aftermath. The number of abortions performed in Texas fell by roughly half in the weeks after the law went into effect. Several suits, by abortion providers and the Justice Department, were subsequently filed in response to the passing of the law.

Challenges before the Supreme Court. The court declined to block the law twice, in September and October. On Dec. 10, it allowed a challenge to the law to proceed, ruling that abortion providers may sue some state officials in federal court. The law remains in effect.

The Texas law, known as Senate Bill 8, bans abortions once cardiac activity can be detected in the embryo, usually at around six weeks, before many women are even aware they are pregnant. At this stage of development, there is no heartbeat, only electrical activity in developing cells.

The law flouts the standard set out in Roe v. Wade, the decision that prevented states from banning abortions before fetal viability, the point at which fetuses can sustain life outside the womb, or about 23 to 24 weeks into a pregnancy.

But it has evaded legal challenge because of its unique structure. And with the law in effect, the threat of potentially limitless and costly legal actions has ensured that Texas abortion providers have been following the law.

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Anti-abortion activists outside the Supreme Court in Washington last month.Credit…Tom Brenner for The New York Times

The decisions arrived just over 100 days since the abortion ban took effect in Texas, but did little to alleviate the fog of suits, countersuits and overlapping court rulings that have left clinics and women in the state reeling.

“I’m remarkably disappointed by the decision today,” said Amy Hagstrom Miller, the president and chief executive officer of Whole Woman’s Health, which operates four clinics in the state, on Friday. “Officially on the books it’s considered a win, but the win is so narrow.”

Ms. Hagstrom Miller said her clinics have been open and compliant with the law since it went into effect. They are seeing about 25 percent of their usual patient load, who are receiving abortions before six weeks, and turning away the rest.

The severe restrictions on abortion in Texas have forced women to find clinics in nearby states — New Mexico, Colorado and Oklahoma are top destinations — inundating them with calls and patients.

At Trust Women, a clinic with locations in Oklahoma City and Wichita, Kan., the Texas law has pressed resources to the breaking point. In Oklahoma, about 60 percents of patients are now from Texas. The Kansas clinic is receiving patients from Oklahoma who can’t get appointments because of the influx from Texas.

“We’re turning away patients every single day,” said Rebecca Tong, Trust Women’s acting co-executive director.

The backlog has meant women have to wait until later in their pregnancies to see providers, Ms. Tong said, leading to more surgical abortions rather than medication abortions.

That demand has been so sustained that the clinics are planning to license more physicians, add staff, and double the number of days per week that abortion-care clients are seen.

But among abortion providers and advocates, concern has grown with each court argument and decision that abortion rights may soon be curtailed more broadly. That could make assisting Texas women with access to abortion much more difficult.

“This paves the way for other states to pass laws like this, because they know the Supreme Court is not going to act,” said Ms. Rupani of Fund Texas Choice, adding that in the future abortion could be banned in most or all Southern states. “We can’t move Texans across the entire nation. That’s not sustainable.”

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