Abortion clinics brace for near shutdown
Providers to wait and see legality, effect of restrictive Texas law
The National Abortion Federation has told doctors in Texas it will stop referring patients and sending money to clinics that offer abortions after about six weeks of pregnancy.
In North Texas, the Texas Equal Action Fund will likely “pause” its ride-share program that helps women reach abortion appointments.
Dr. Bhavik Kumar, an abortion provider for Planned Parenthood, has cleared his schedule to fit in as many patients as he can before the end of the month.
And online, the group Texas Right to Life has launched a website for whistleblowers who want to potentially help sue Kumar and doctors just like him, beginning Sept. 1.
With only days left until the country’s first six-week abortion ban rolls out in Texas, abortion clinics and their supporters are bracing for a virtual shutdown of legal access to the procedure, at least for several weeks. Some clinics in the state are preparing not only to abide by the new guidelines but to go beyond them, shuttering their abortion offerings entirely.
“This law is senseless. It’s not in the best interest of the people of Texas,” Kumar said. “But it is the law, and if it passes, we have to comply.”
What unfolds over the coming weeks could have broad ripple effects. Even a brief pause in access in Texas, the second most populous state, could affect thousands of pregnant women and encourage similar laws across much of the South and Midwest, where abortion care is already limited.
“This is a new approach, and it’s going to open up new oppor
tunities,” said John Seago, legislative director for Texas Right to Life, which opposes abortion access. “It’s a different battlefield than what we typically have with pro-life laws, and that’s why we’re optimistic.”
Abortion providers are trying to delay the rollout in federal court but are not counting on a win given the law’s largely untested enforcement tool. Unlike similar bans in other states, which have all been blocked by judges, Senate Bill 8 allows ordinary citizens to sue doctors and others who defy the ban.
That makes it tough to challenge preemptively, because providers don’t know whom to sue.
Hundreds of Texas lawyers have come out against the law, warning it contradicts provisions in the state constitution and would open the door to absurd outcomes beyond abortion if allowed to stand. Even proponents of the law expect many of the suits to be dismissed.
But providers and the people who help women access abortions in Texas say they can’t afford the risk of potentially endless litigation, even if hardly any of it is deemed credible. Under the law, defendants are unable to recoup legal expenses.
That’s why some are considering shutting down their abortion operations altogether, at least until it is clear whether the law will withstand scrutiny in the courts.
“I have one physician who’s for sure willing to provide abortions and comply with SB 8,” said Amy Hagstrom Miller, the chief executive of Whole Woman’s Health. “But the rest of my 16 physicians are still trying to figure out where their risks stop and start, and if they’re willing to provide.”
Defiance not popular option
Most of the physicians at Whole Woman’s four clinics in Texas also work at universities and in other states, flying in regularly to provide abortions. Hagstrom Miller said she does not plan to shut down any of the sites, regardless of the law, and will continue at least providing nonabortion pregnancy care, as well as counseling and referrals to clinics in states where abortion access is more protected.
Dr. Lauren Thaxton, a Whole Woman’s provider and a researcher at the Texas Policy Evaluation Project who is still weighing her options, said she assumes she will be sued even if she tries to provide abortion care strictly within the parameters of the law.
“Whether or not a case is found to be reasonable, or a true violation of SB 8, there are concerns about how that could affect someone’s other sources of employment,” she said. “How that could affect their medical licensing. How that could affect the patients that they see and their potential loss of privacy.”
Thaxton and others said they were unaware of anyone who is planning to openly defy the law on Sept. 1, though that strategy has been discussed.
Planned Parenthood Gulf Coast, where Kumar works, will continue offering abortions for women before the fetal heartbeat has been detected, as allowed under the law. But most women don’t know they’re pregnant at that point, typically about six weeks into the gestation period.
Spokeswomen at the nonprofit’s two other independent Texas affiliates, one based in San Antonio and the other in Dallas, declined to describe their plans.
Kumar said “the vast majority” of Planned Parenthood patients will need to leave the state for abortion care if the law proceeds, and that he is personally preparing to pitch in at out-ofstate clinics that accept Texas patients, to help with their influxes.
Providers performed about 54,000 abortions last year and 56,000 in 2019, according to state data.
The chaos now forming may be the exact scenario that lawmakers were envisioning when they passed Senate Bill 8 this spring. Republicans, who control all branches of the Texas government, have tried for years to choke the industry out of existence, imposing restriction after restriction, many of them later overturned in federal court.
Past disruptions, including last year when Gov. Greg Abbott prohibited most abortions at the beginning of the COVID-19 pandemic, have especially impacted low-income women and women of color, many of whom lack private insurance or the resources or time to travel out of state, according to groups that support abortion access.
Perceived jail threat
This upheaval could drag on longer, and it’s not clear that providers would be able to outright block the law even if they prove that it infringed on their federally protected right to abortion. Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said the decisions in each suit will apply only to that case.
“This is a law designed to prevent Planned Parenthood from going on offense,” he said. “It keeps them on defense.”
In response, abortion providers and their support networks in Texas are scrambling to expand the out-of-state pipelines they pieced together last year and that many have feared will be needed if the conservative-led U.S. Supreme Court rolls back federal abortion protections. This fall, the justices are set to hear their first major abortion case in years.
At abortion clinics, employees are being retrained on what information they will be able to legally give patients on Sept. 1. Those who choose to comply with the law will have to update their websites and promotional materials.
Earlier this month, the National Abortion Federation, a coalition of abortion providers, notified clinics in Texas that it would be pulling support from clinics that defy the ban but would fund up to the full cost of patients seeking abortions within the new guidelines. Chief executive Katherine Hancock Ragsdale said in an interview that the organization is creating a special “concierge team” to assist women in Texas.
Small abortion funds that operate solely in Texas are also rethinking their approach and have been inundated with questions internally.
“No one knows what’s happening. Even our volunteers, they think they can go to jail when that’s not what this is,” said Kamyon Conner, who heads the Texas Equal Access Fund.
Despite the rhetoric, abortion opponents and others are not convinced that providers will comply with the law. Many of their supporters have been working for months to recruit women and employees at abortion clinics who would be willing to help sue. Successful claimants can win at least $10,000 in damages.
“There’s a lot of people who are interested in this fight from different angles,” said Seago, of Texas Right to Life. “And you’re going to see a lot of these people getting involved, now that they have the tools to do it.”