‘Treating us like criminals’: Texas abortion ban creates chilling effect across state
This story was originally published by The 19th.
On 31 August, there were 17 abortion providers serving at the four locations of the Whole Woman’s Health clinics in Texas. On 1 September – the day that the nation’s most restrictive active abortion law went into effect – there were just eight.
Senate Bill 8 not only bans the procedure past six weeks of pregnancy, but allows private citizens to sue anyone who “aids or abets” abortion care past that point. Clinics have told the 19th they are fully complying with the new law. It is why Whole Woman’s Health in Fort Worth raced to perform as many abortions as possible before SB8 went into effect, battling against the clock. It’s why, in mid-August, Planned Parenthoods across the state stopped taking appointments related to the procedure if it would be performed past six weeks of pregnancy.
But compliance isn’t a get-out-ofjail-free card: there is still the possibility of being sued and having to go through legal proceedings, which is why SB8 is affecting the vast network of abortion care services and support, creating a chilling effect for some and significantly shifting the work of others.
“Just because we are complying with SB8 doesn’t stop extremists from saying that we are defying SB8,” said Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health. “Even with compliance, there is a reasonable amount of threat that our staff and our doctors have to weigh. There is still so much risk to them.”
The vast majority of physicians who provide abortion care at Whole Woman’s Health live outside of Texas, flying in to work. Half of the clinic network’s providers have left since SB8 went into effect. Just one of them has agreed to stay on with no questions asked. Hagstrom Miller says the remainder have agreed to stay on, but only with modifications to their schedules and if legal counsel is pre-emptively secured. The rest have said they no longer feel they are able to continue safely providing this care in Texas. Several clinic managers at Whole Woman’s Health clinics have also resigned out of fear of facing future litigation.
Whole Woman’s Health and Planned Parenthood are two of the biggest abortion providers in the state. A spokesperson from Planned Parenthood said that none of the providers working at their clinics had left as a result of SB8.
For doctors, especially, the risks associated with the litigation related to SB8 could be disastrous to their careers, Hagstrom Miller said. When a physician applies for any kind of license – whether it’s with the state medical board to practice, with the Drug Enforcement Agency to prescribe medication, or to gain admitting privileges at hospitals – part of the process involves disclosing whether a lawsuit has ever been filed against you. Answering “yes”, regardless of the state the application is filed in, could potentially bar doctors from practicing medicine anywhere. Hagstrom Miller called the law’s implications “endless”.
“Even if abortion providers win in every single case brought against them [under SB8], that burden of having to have a lawyer to defend yourself, traveling all over the state to do so – that alone threatens to shut down abortion providers,” said Marc Hearron, senior counsel at the Center for Reproductive Rights and the lead attorney in the suit challenging SB8. Hearron stressed that though many people might believe that frivolous lawsuits are just par for the course when it comes to practicing medicine, “that’s not how the rule of law works”.
No one wants to get sued, Hearron said, and the threat of being entangled in lawsuits creates what he calls “a chill” on both providing abortion care and receiving it.
“The threat and intimidation that are structured into this bill have been remarkable,” Hagstrom Miller said. “Our physicians and staff are thinking about what might be done to them and what they might have to defend. It’s cruel.”
The Texas state senator Bryan Hughes previously told the 19th that he had heard from lawmakers in other states who were interested in passing similar legislation. He said the “obvious place to start” would be for states that have passed six-week abortion bans, all of which have been held up in legal proceedings, to add the civil action provision, which appears to have kept Texas’s law intact so far.
“Those states can go back, amend their laws and move forward again,” he told the 19th.
The law, with its implications of litigation, also has an outsized effect on abortion funds, which people rely on to secure money for the procedure. The situation feels reminiscent of past dynamics that have played out in abortion-hostile Texas, abortion fund leaders told the 19th. Nevertheless, they are still seeing brand new ways that restrictive laws are limiting access and affecting patients’ lives as a result of SB8.
In complying with SB8, abortion funds can still grant financial support to those seeking abortion care before cardiac activity is detected, or approximately six weeks’ gestational age. Funds can also help cover the cost of abortion procedures for Texans who need to travel out of state for care past that six-week period and refer clients to organizations that help fund transportation. The Lilith Fund, a Texas-based abortion fund, is working closely with other reproductive justice organizations and lawyers to ensure that they are fully in compliance with the new law, according to Shae Ward, the organization’s hotline director. A lot of that work has gone into enhanced security systems for the fund’s technology and communications systems, to ward off attacks by potential hackers and data thieves who might try to access confidential client information.
Denise Rodriguez, the communications manager for the Texas Equal Access (Tea) Fund, an abortion fund providing financial support to lowincome people in north Texas, said the organization was in the middle of conversations with legal counsel about how to best protect themselves – but that was nothing new. As cities throughout Texas have passed local ordinances banning abortion throughout the past year, abortion funds have been explicitly named as “criminal entities” as a result.
“They have been talking about us like we are criminals,” Rodriguez said. “They have been treating us like we are criminals. SB8 just means they will now be able to do more to us. We have not been sued yet, but we will cross that bridge when we get to it.”
Rodriguez said the group’s social worker who provides in-clinic support to patients had noticed that in the four months from SB8’s passage to its taking effect, many patients she supported at clinics already assumed they were at that clinic illegally.
“They thought they were doing something illegal by just being there,” Rodriguez said. “There is a lot of bad misinformation out there. There are a lot of people who are confused, who don’t know what’s going on, who are concerned.”
The law has also cut the Tea Fund off from people who might need help. Rodriguez says most of the fund’s clients come through clinic referrals – and learn about the existence of abortion funds after they have scheduled the appointment for their procedure. With fewer people able to access abortion care, they’re hearing from fewer people – people they could potentially point to out-of-state services.
“Less people are reaching out not because their needs are now being met, but because appointments aren’t even available,” she said. “People don’t know abortion funds exist, so they give up and continue a pregnancy they don’t want to continue.”
The clients who do find their way to them are largely aware that they will need to go out-of-state for abortion care. That means the Tea Fund isn’t simply trying to fund procedures but also to connect clients with practical support organizations that can help them access travel, lodging and meals. (These additional financial burdens of accessing abortion care are typically funded or provided by support organizations, whereas abortion funds help cover the cost of the procedure itself, with the money they disburse going straight to clinics as direct payment for care.)
The Tea Fund also runs a virtual clinic companion program, allowing anyone seeking abortion care to text and connect with someone who can provide emotional support. Whereas previously the program was often utilized by those in domestic violence situations, the virtual companion program now serves a broader demographic. More and more Texans are worried about being able to openly discuss accessing even the kind of abortion care still legal in Texas, and need support when forced to travel out of state for care they can no longer legally access at home.
“A lot of our work right now is helping people pay for abortions, but a lot of it is also just being there to and talking it all through with them and letting them know they are OK,” Rodriguez said.
Post-SB8 has been a time full of “organizational challenges”, Ward, of the Lilith Fund, said. The group was now figuring out how not to divert their much-needed time and attention away from serving clients as they navigate the current legal landscape. Their focus was needed now more than ever, she said, with callers to the fund expressing a “heightened sense of urgency” and an even greater need for financial support as most prepare to travel out of state.
Of the people she has talked to who are still within the legal six-week gestational age limit for abortion care, Ward says these Texans’ only goal is accessing abortion procedures before the legal deadline.
“What I’m hearing from folks is, ‘I have to get this done now or I won’t know what to do,’” she said.
And for those forced out of state, Ward said she hears that without the financial assistance provided by the Lilith Fund, abortion access would be non-existent as a result of these new costs. Many callers, she said, told her that without the fund’s help, they would be forced to choose between abortion care and rent.
This was why for those at abortion funds, the work continued to take priority over the threat of litigation – even though at this point, lawsuits seemed “inevitable” since the state had “offered up this bounty and [litigation] doesn’t have to be based on anything”. The message from the state, she said, was obvious: “They don’t want us to be in operation, to help our community. That’s their goal and they are clear. But our goal is we will help Texans and we are clear as well.”
Already, she said, the people that the Lilith Fund served were feeling the impact of SB8. On Monday, before SB8 went into effect, the fund received approximately 50 calls to the hotline while it was open. On Wednesday, the first day that SB8 was in effect, the fund received 10.
“It’s not that 40 less people didn’t need abortions, but that care is now not accessible to them,” Ward said, an effect of the shrunken window for care and a shortage of providers.
In the two weeks prior to SB8 going into effect, Ward said, the Lilith Fund “just disregarded our budget and spent as much money as we could to serve as many Texans as possible” before the law limited whom they could help and how. Now, the bulk of the fund’s work is providing advice and referrals on how to access abortion care outside the state, which poses additional logistical and financial hurdles to clients. Ward said none of this was coincidental when it came to the desired impact of SB8.
“We serve a majority of people who are people of color and in low-income communities, and that’s who this bill is designed to hurt. And people with money and wealth will still be able to travel out of state with ease,” Ward said. “The people who created this bill are aware of that.”
Rodriguez pointed out that abortion funds were already prepared to advise and assist abortion care patients who needed to go out of state for care. Most recently, the Texas governor, Greg Abbott, utilized the Covid-19 pandemic to temporarily ban abortion in the state in March and April 2020. Now, it feels like that was just a preview of what was more permanently to come.
“In addition to trying to scramble in figuring out how to live in a pandemic, we had to come up with systems for how to get people out of state. Because of those experiences, we’re kind of already prepared for what’s to come with this law,” Rodriguez said.
She added that now, the majority of people who reached out to the fund would need help getting out of state. As of now, providing that kind of help is still legal. But with fewer people now able to schedule appointments at abortion clinics, fewer people will also be directed to abortion funds, as clinics are funds’ primary source of referral.
But Rodriguez said that though the present moment was frightening, she also “feels like I am really where I need to be. Knowing that I am one of the helpers, one of the people fighting this while it is happening, is giving me comfort in doing this work.”