Abortion providers cautious after ruling
As some clinics offer procedure, others wait to see if order is upheld
Some clinics in Texas resumed performing abortions Thursday after a federal judge halted the state’s near-ban on the procedure, but others are waiting for a looming appeal to be resolved.
U.S. District Judge Robert Pitman issued a preliminary injunction Wednesday night that prevents enforcement of the new law known as Senate Bill 8. The law prohibits abortions after cardiac activity is detected in the fetus, usually around six weeks, and enlists private citizens to sue providers who violate the guidelines for damages of at least $10,000. The state said it will appeal.
“We have reopened our schedule to expand beyond that sixweek limit in our Texas clinics already,” said Amy Hagstrom Miller, president of Whole Woman’s Health, which has four clinics in Texas. “In fact, last night, we reached out to some of the patients that we had on a waiting list to come in to have abortions today, folks whose pregnancies did have cardiac activity earlier in September, and we were able to see a few people as early as eight, nine this morning, right away.”
Over the last month, the clinic had allowed patients to have consultation appointments early and get Texas’ 24-hour waiting period out of the way, so that if the law were ever blocked, they could come get the procedure right away.
However, not all Whole Woman’s physicians are comfortable resuming services given the uncertainty of whether the injunction will be upheld by higher courts, Hagstrom Miller said.
Planned Parenthood has not committed to returning to offer
ing the service.
“We are regularly assessing what’s possible during this period of uncertainty but, given the state’s appeal, our health centers may not have the days or even weeks it could take to navigate new patients through Texas’s onerous abortion restrictions,” the group wrote in a statement Thursday.
Texas Right to Life, the state’s largest anti-abortion group, said the order was not unexpected.
“This is ultimately the legacy of Roe v. Wade, that you have activist judges bending over backwards, bending precedent, bending the law, in order to cater to the abortion industry,“said Kimberlyn Schwartz, a spokeswoman for the group. “These activist judges will create their conclusion first: that abortion is a so-called constitutional right, and then work backwards from there.”
Abortion providers say their fears have become reality in the short time the law has been in effect.
Planned Parenthood says the number of patients from Texas at its clinics in the state decreased by nearly 80 percent in the two weeks after the law took effect.
Some providers have said Texas clinics are now in danger of closing while neighboring states struggle to keep up with a surge of patients who must drive hundreds of miles for an abortion. Other women, they say, are being forced to carry pregnancies to term.
The Texas law has sent abortion patients to clinics in Oklahoma, Louisiana, Colorado and New Mexico, which say they’re being inundated.
In Louisiana, officials at Hope Medical Group for Women in Shreveport said they went from seeing no more than 20 percent of their patients from Texas to now over 50 percent. Some patients are driving from as far as McAllen in the Rio Grande Valley.
One in 10 women of reproductive age in the U.S. live in Texas, or about 7 million people. Texas providers performed about 54,000 abortions last year. The new law, which does not include exceptions for rape or incest, was expected to cut off abortion access for about 85 to 90 percent of those seeking it, according to providers.
What’s most worrying for physicians is a novel provision in the law that allows for retroactive enforcement if Pitman’s injunction is overturned, meaning abortions performed now could still one day be subject to litigation.
“It’s really the retroactive clause that gives people pause,” Hagstrom Miller said. “It’s a hard thing to think about.”
Under that provision, any abortion a clinic provides, even while protected by an injunction, could leave someone susceptible to a civil lawsuit “six months from now, a year from now. It’s pretty daunting to think about that,” she said.
The Constitution prohibits federal and state governments from enacting retroactive, or “ex post facto,” laws, but the clause applies only to criminal cases in which the stakes are often much higher.
Most laws do not include retroactive penalties for activities that are permitted by a judge’s order.
“It’s rare, and I don’t know if it’s even effective,” said Joshua Blackman, a constitutional law professor at South Texas College of Law Houston. “Even if it says that, it’s not clear it’ll actually work.”
Some civil laws are retroactive to serve a public purpose; for example, tax laws might apply retroactively to prevent people from manipulating rules to limit their liability, said Harold Krent, professor of law at Chicago-Kent College, who has studied the issue.
“It’s basically to avoid someone from getting away with an advantage they shouldn’t have,” Krent said. “It’s contestable, it’s still controversial, but that would be the general idea.”
Regardless, experts agreed that SB 8 will likely still keep many providers from offering the procedure based on fear alone.
“Even if the answer is unclear, that could result in crippling liability,” Blackman said.