A Six-Week Abortion Ban in Texas Will Probably Go Into Effect; This Is Why

The Texas law relies on a legal mechanism that makes it almost impossible to preemptively block

By Marie Solis | August 30, 2021 | 6:00pm

Abortion Politics

A Six-Week Abortion Ban in Texas Will Probably Go Into Effect; This Is Why

For years, anti-abortion lawmakers’ attempts to pass abortion bans met a predictable fate: Blatantly unconstitutional bills were passed by legislatures, signed into law by Republican governors, and then swiftly blocked by court injunctions. After that, the law would wind its way through a lengthy appeals process before eventually being struck down, either by a circuit court or the Supreme Court. The laws weren’t without harm, but abortion rights advocates could at least count on them never being formally implemented.

But in Texas, a new six-week ban is perilously close to going into effect. Senate Bill 8 resembles other states’ so-called “heartbeat bills” in many ways, but there’s one crucial difference. Rather than being enforced by the state, the law is enforced by private citizens, who are encouraged to file lawsuits against people they suspect of obtaining, providing, or otherwise facilitating the procedure after the six-week mark. The law text specifically forbids the state, district, or county from enforcing the law. Most pressingly, this provision makes the law virtually impossible to fight in court ahead of the deadline for the law going into effect.

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Typically, groups like the Center for Reproductive Rights, Planned Parenthood, and the ACLU file court challenges following an unconstitutional abortion law, and name state officials as the defendants in the court filings. But because the state isn’t responsible for enforcing the legislation, those groups have so far been unable to preemptively block the law—meaning abortion will likely be banned at six weeks in Texas starting on September 1. (After a Monday hearing that could have resulted in a temporary injunction on the law was canceled, reproductive rights groups called on the Supreme Court to intervene.)

S.B. 8 will force abortion providers in Texas to comply with the ban. If they don’t, they risk facing ruinous lawsuits from anti-abortion activists that could put them permanently out of business

Though patients in Texas are still guaranteed the right to an abortion by Roe v. Wade, after Tuesday it will be theoretical at best. On a Thursday press call, a lawyer from the Center for Reproductive Rights told reporters S.B. 8 will force abortion providers in Texas to comply with the ban. If they don’t, they risk facing ruinous lawsuits from anti-abortion activists that could put them permanently out of business. And even if they do comply—as clinics are planning to do—they face the same risks. This puts between 80 and 90 percent of abortion-seeking patients in the position of either having to travel out of state for the procedure, self-manage their abortions (a safe and effective option, but not everyone’s preferred method), or continue carrying unwanted pregnancies.

“Our decision to comply didn’t come from our values—complying with the six-week ban goes against our mission, vision, and beliefs about what people deserve in Texas,” said Amy Hagstrom Miller, the president and CEO of Whole Woman’s Health, which has four clinics in the state. “Our decision came from being forced and advised to comply as a way to protect our physicians and staff from these frivolous lawsuits.”

Under the law, anyone can file a lawsuit against clinics, clinic staff, and individual providers. They don’t even need to live in Texas. If the person who files the suit wins, they’re entitled to at least $10,000 in damages—what abortion supporters are calling a “bounty.” Texas Right to Life, the group behind the legislation, has opened an anonymous tip line for civilians to report suspected abortions and the people who provided them, as well as anyone who “aided or abetted” the procedure, which could include a partner who helps pay for the procedure, for example, or a friend who drives the patient to their appointment. Physicians who face lawsuits will have to disclose those suits if they apply for licenses in other states, potentially preventing them from finding future work and leading to professional ruin.

It’s not a question of if these lawsuits are coming, Hagstrom Miller explained, but when. “The anti-abortion protesters screaming outside on the sidewalk already know [our physicians’] names,” she said.

Hagstrom Miller and other abortion rights groups are still fighting to get the law blocked, as difficult as the language of the legislation makes it to do so. Because Whole Woman’s Health and the other plaintiffs in the suit can’t name Texas’s attorney general, for example, they’ve named every judge and court clerk in the state who could potentially be tasked with litigation related to the ban. Nonetheless, Hagstrom Miller has spent months making contingency plans, talking to lawyers, and meeting with clinic staff to figure out how to best protect them from lawsuits. In the months since S.B. 8 was signed into law, two out of four Whole Woman’s Health clinic managers have resigned. She hasn’t been successful in hiring anyone new.

Many of the abortion funds that would usually help patients pay for procedures at a Whole Woman’s Health clinic—or any of Texas’s 19 abortion providers—are pivoting to helping patients access care in bordering states. One of these is Lilith Fund, which before S.B. 8 provided patients with vouchers to clinics in Texas; the fund is now collaborating with other funds to put its resources toward travel, lodging, and childcare costs.

“Obviously we have a target on our back being abortion funds,” said Cristina Parker, Lilith Fund’s communications director. “The law was written to target providers and patients, as well as anyone who ‘aids and abets abortion.’ That’s us, 100 percent.”

“We’ve got support on deck for if and when we get sued,” she continued. “But there’s not much to prevent folks from doing it.”

Getting hundreds of patients across state lines is no small task, and even with the help of Lilith Fund and the other 10 abortion funds in the state, not everyone will have the resources to travel for an abortion. During the three weeks Governor Greg Abbott’s ban on abortions during the pandemic was in effect, Whole Woman’s Health had to cancel appointments for more than 200 patients. Some of them were able to go to another state for the procedure, but others had no choice but to give themselves abortions or stay pregnant.

As S.B. 8’s deadline looms, patients have been frantically calling clinics, or walking in for their scheduled appointments and asking if abortion is illegal. (In Whole Woman’s Health clinics, Hagstrom Miller estimated that 80 percent of patients are asking this question upon waking in.) Some are already being turned away for post-September 1st appointments.

Robin Marty, the author of The New Handbook for a Post-Roe America and a volunteer at Yellowhammer Fund, an Alabama-based abortion fund, said she feels confident that the law will eventually be struck down—what she’s worried about is what happens in the meantime.

Even if it becomes legal again in the state there’s going to be a huge amount of people who are still going to be afraid to go into a clinic or call an abortion line

“It’s a question of how long [it goes on for],” she said. “People can’t get into clinics and people are going to believe that abortion is illegal. Even if it becomes legal again in the state there’s going to be a huge amount of people who are still going to be afraid to go into a clinic or call an abortion line.”

Abortion rights advocates also worry that if S.B. 8 is enacted, it will become a strategy conservative lawmakers across the country try to replicate in their states. It already has a precedent in Texas, where anti-abortion lawmakers have used city ordinances to skirt federal abortion laws and establish “sanctuary cities” banning abortion. An ordinance in Lubbock, Texas, recently succeeded in getting a Planned Parenthood clinic to stop providing abortions.

“It’s being discussed all over the country as a legitimate strategy—it’s legitimized every time we talk about it,” Hagstrom Miller said. Whether or not the ban goes into effect, “it’s already alive, and acting as a ban in the minds of pregnant people in Texas.”