HOUSTON – Within hours, a Texas judge and the United States Supreme Court appeared to undermine Texas’ six-week abortion ban, ruling in separate opinions Thursday night and Friday morning that some aspects of the law were unconstitutional under state law and only federal challenges could go ahead.
But the victories of abortion rights advocates were largely empty, and Texas providers did not cheer on Friday.
Neither decision changed the reality on the ground in the state. Both have left in place the country’s most restrictive new abortion law, which effectively bans abortions after six weeks of pregnancy, with no exceptions for rape or incest.
“Today, because the court has once again failed to protect our most basic human rights, more and more people will continue to suffer as this case makes its way through the justice system,” said Dr Bhavik. Kumar, an abortionist in San Antonio, in one with reporters hosted by the American Civil Liberties Union.
State Senator Bryan Hughes, the main 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 Mississippi case challenging the central findings of Roe v. Wade, the 1973 decision that established a right to abortion.
In the meantime, for the women of Texas, the new normal will continue. Clinics that have been forced to refuse women will continue to do so. An increase in trips to out-of-state providers for abortions is unlikely to abate. And desperation is likely to worsen among women seeking an abortion beyond six weeks gestation. In some cases, clinic staff have reported women begging them to meet after hours in the parking lot to give them abortion pills.
So many women have asked for help with abortions outside of Texas that a travel aid group, Fund Texas Choice, has tripled the size of its small staff and has always found itself overwhelmed trying to respond. on demand. From a few dozen calls per month, he now receives about 300, said Anna Rupani, the executive director of the fund.
“We answer 50 to 60% of the calls we receive,” she said. The fund 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 came into force on September 1st. Most round trips are about 1,100 miles, she mentioned.
The abortion ban is based on a usual enforcement mechanism: private citizens are responsible for enforcing its provisions, and state officials cannot. It was designed to deny abortion rights groups a state official against whom to file a complaint, and was successful in preventing groups from preventing the law from coming into force.
The Supreme Court ruled on Friday that a challenge to the law could be brought against some state officials, but not against others.
Significantly, the court did not allow abortion providers to name clerks or state judges as accused – a blow to abortion providers in their attempt to stop the lawsuits filed. against them by private citizens under the law.
The court allowed lawsuits against members of the state’s medical boards, arguing that those state officials could potentially take coercive action against abortion providers for violating the law.
But even if these officials were later ordered not to take coercive action, that would not take the teeth out of the law – the threat of legal action by private citizens.
“It does not alleviate this burden that was in place, which is the potential legal liability of abortion providers,” said Aimee Arrambide, executive director of Avow Texas, an abortion rights group.
And the potential burden is not just on providers or clinics, but on nurses, staff, abortion funds, and even family and friends who help facilitate abortion.
The ruling followed a ruling Thursday night by a Texas state district court judge, who ruled the enforcement mechanism represented an “unlawful delegation of enforcement power to a private person.” and unconstitutionally granted standing to those who had not been harmed, and that the law violated due process under the Federal Constitution.
But the state court’s opinion did not include an injunction and left the law in place. Abortion providers have said they will not change their behavior until a final decision is made by the Texas Supreme Court. The anti-abortion group behind the law, Texas Right to Life, immediately appealed the decision.
Both decisions were a disappointment for abortion rights advocates and a validation of the unique legal ploy used by abortion opponents.
“At the end of the day, we are celebrating,” said John Seago, the legislative director of Texas Right to Life, who lobbied for the law. “The reality is that the law is still in effect. The law still requires the abortion industry to stop abortion after a heartbeat is present. “
Understanding Texas Abortion Law
The most restrictive in the country. Texas’ abortion law, known as Senate Bill 8, amounts to an almost complete ban on abortion in the state. It bans most abortions after about six weeks and makes no exceptions for pregnancies resulting from incest or rape. The law has been in effect since September 1.
Texas law, known as Senate Bill 8, prohibits abortions once heart activity can be detected in the embryo, usually around six weeks old, before many women even know they are. are pregnant. At this stage of development, there is no heartbeat, only electrical activity in the developing cells.
The law flouts the standard set out in Roe v. Wade, the ruling that prevented states from banning abortions before fetal viability, the point at which fetuses can live outside the womb, or around 23 to 24 weeks after a pregnancy begins.
But it has escaped legal challenges because of its unique structure. And with the law in effect, the threat of potentially unlimited and costly lawsuits has kept Texas abortion providers upholding the law.
The decisions came just over 100 days after the Texas abortion ban went into effect, but have done little to ease the haze of lawsuits, counter-suits and decisions. overlapping justice system that left clinics and women across the state in shock.
“I am remarkably disappointed with today’s decision,” Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which operates four clinics in the state, said on Friday. “Officially in 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 came into effect. They see about 25 percent of their usual patient count, who have abortions before six weeks, and refuse the rest.
Texas’ severe abortion restrictions have forced women to find clinics in neighboring states – New Mexico, Colorado and Oklahoma are the main destinations – inundating them with calls and patients.
At Trust Women, a clinic in Oklahoma City and Wichita, Kansas, Texas law has pushed resources to the breaking point. In Oklahoma, about 60 percent of patients now come from Texas. The Kansas clinic receives patients from Oklahoma who cannot get appointments due to the influx from Texas.
“We are turning away patients every day,” said Rebecca Tong, Acting Co-Executive Director of Trust Women.
The backlog has forced women to wait until later in their pregnancy to see providers, Ms. Tong said, leading to more surgical abortions rather than medical abortions.
This demand has been so strong that clinics plan to authorize more doctors, 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 every argument and court ruling that abortion rights may soon be more widely restricted. This could make it much more difficult to help Texas women access abortion.
“This paves the way for other states to pass laws like this because they know the Supreme Court will not act,” Ms. Rupani of Fund Texas Choice said, adding that in the future the abortion could be banned in most or all countries of the South. States. “We can’t move Texans across the country. It is not sustainable.