Still reeling from a Supreme Court order that effectively blocked most abortions in Texas, providers in the state are scrambling to help women seeking the procedure and imploring lawyers and the Biden administration to think creatively in order to stop the law – or its effects – as soon as possible.
But so far, supporters of abortion rights see no immediate silver bullet.
Instead, they are proceeding with a three-pronged approach, starting first and foremost with an attempt to get women on the ground the medical attention they need or the financial resources to travel across state lines. In addition, clinics are turning to state courts to block as many civil lawsuits as possible – in a strategy akin to the arcade game Whac-A-Mole – that they hope could ultimately land at the Texas Supreme Court. Finally, they’ve asked the Biden administration to think broadly about ways to use the muscle of the federal government to protect a woman’s constitutional right to abortion.
All this is playing out as the Supreme Court readies to hear a related Mississippi case asking the justices to strike down Roe v. Wade.
On the ground
In years past, Texas clinics warned that they were fighting strict abortion regulations in order to stop a retreat back to the days before Roe. Now, in a shift brought on by the Supreme Court’s order blocking most abortions in the state, clinics are facing that real possibility. They fear some patients who can no longer get an abortion under the law may turn to dangerous alternatives.
“So many people are going to be forced to carry a pregnancy against their will, some folks may take matters into their own hands and try to manage their abortion themselves,” Amy Hagstrom Miller, the founder of Whole Woman’s Health, told CNN in an interview. “We’re just trying to help people figure out the best choices for them and support them with compassion.”
On the ground, women are scared and confused, clinics say, trying to obtain a procedure that has been on the books for some 50 years. The clinics contend that 85% to 90% ofh Texans who obtain abortions in the state are at least six weeks into pregnancy.
According to one official, a provider in Houston would normally see around 30 patients seeking an abortion each day, but on the first day the law went into effect, he was scheduled to see only six. And half of those patients were ineligible for abortion because they were already past the six-week limit.
The Lawyering Project is a nonprofit legal organization that provides practical support networks that help people get their abortions by providing either monetary assistance, emotional support, accommodations or childcare.
“Since the law took effect, abortion funds in Texas have been working around the clock to ensure pregnant Texans can get abortion services, many times out of state, despite this racist, classist, sexist law,” said Jennifer Miller, a spokesperson for the group.
The clinics are fighting back in court where they can.
Under the law, abortion is prohibited when a fetal heartbeat is detected, which is often before a woman knows she is pregnant. There is no exception for rape or incest, although there is an exemption for “medical emergencies.”
Before it was set to go into effect, supporters of abortion rights knew that they might have a hard time fighting the law because of the way it was drafted.
In a novel legal strategy, the state legislature designed the law to prevent government officials from directly enforcing it.
Instead, the law allows private citizens – anywhere in the country – to bring civil suits against anyone who assists a pregnant person seeking an abortion in violation of the ban.
Supporters of abortion rights – unsure of whom to sue – thought their best bet was to bring a lawsuit broadly against government officials like Texas Republican Attorney General Ken Paxton, as well as state judges and clerks in Texas with the jurisdiction to enforce the law. They also targeted a private individual, Mark Lee Dickson, who serves as the director of Right to Life East Texas.
But that challenge failed at the Supreme Court.
Now clinics say they have stopped performing abortion after six weeks, which makes it hard to get back into the judicial branch to have a court block the law. In essence, it is difficult to see how a so-called “test case” could arise unless a doctor o provider is willing to absorb a lot of risk.
“The Texas law forces anyone who wants to help a woman get an abortion, a physician or a friend, to violate the law putting themselves at risk of at least $10,000 before they can assert Roe’s protections,” said Priscilla J. Smith of Yale Law School.
Providers are working as fast as possible on an alternative plan that will have more of a piecemeal effect: Asking state courts to block lawsuits brought by specific individuals opposed to abortion. In court papers, lawyers for Planned Parenthood explained to one judge in Travis County why it was so difficult to challenge the law. They noted that when a provider is sued he or she would have to spend massive amounts of money to defend themselves and unlimited lawsuits could be brought against the same provider by several individuals.
“The suits may also bankrupt those who are sued in the process, since SB8 states that they cannot recover their attorney’s fees against the vigilante,” lawyers for Planned Parenthood argued.
Judge Maya Guerra Gamble issued a temporary restraining order and scheduled a September 13 hearing for Planned Parenthood and other groups to ask for more permanent relief.
“Our North Star is to get a definitive ruling that the law is unconstitutional whether under the state constitution or under the federal constitution,” Planned Parenthood Federation of America Julie Murray said in an interview. But Murray notes that they lost their federal case when the court’s majority allowed the law to go into effect. She said they will continue litigating at the state level but that it will take time.
“We are certainly cognizant of the need to continue litigating and pressing these challenges as hard as we can, but also knowing that there is irreparable harm on the ground, not only to patients but to clinics,” she said and added that “what is happening on the ground will have long-term effect.”
On Monday, US Attorney General Merrick Garland pledged to protect abortion clinics in Texas by enforcing a federal law that prohibits making threats against patients seeking reproductive health services and obstructing clinic entrances. In a statement he said he had reached out to US attorney’s offices and FBI field offices in Texas across the country.
“The department has consistently obtained criminal and civil remedies for violations of the FACE Act since it was signed into law in 1994, and it will continue to do so now,” he said.
On Tuesday, House Judiciary Committee Chairman Jerrold Nadler, joined by 23 Democrats, writing a letter to Garland urging him to “use the full power” of the Department of Justice to defend a woman’s constitutional right to an abortion.
Nadler noted that the law “creates a private right of action that allows an individual to sue not only reproductive healthcare providers that violate this statutory ban, but any individual who ‘aids or abets the performance or inducement of an abortion’ in violation of the ban – all while specifically prohibiting state officials from enforcing the statute.”
In addition, last week, Kristen Clarke, who serves as assistant US attorney general for civil rights, held a “listening call” to hear concerns about the law. One participant said that Clarke “expressed fury that it had gone into effect.”
Other options – some vague on the details – have been floated. Some question whether there is a way to open up federal facilities such as a VA hospital through an executive order or regulation to perform the procedure if it was paid for by private funds. Others have suggested that the federal government could help in transporting patients out of the state or use its statutory authority to punish civil rights’ violations to block suits.
Writing for The Washington Post, Harvard law professor Larry Tribe said that that the best approach would be for Congress to codify the right to abortion in federal law even though the Democrats likely lack the votes to make that happen. He also suggested a look at a federal law that makes it a crime “under color of law” to deprive individuals of “any rights, privileges, or immunities secured or protected by the Constitution” to target those who might go after individuals they believe are assisting a woman to obtain an abortion. The law was designed to go after the Ku Klux Klan.
“The bounty seekers, entitled under the Texas law to collect penalties of at least $10,000, have been made, in effect, private attorneys general of Texas,” Tribe wrote. “They act ‘under color of state law,’ and unless and until Roe v. Wade is overruled, they unmistakably intend to prevent the exercise of a constitutional right.”
The entire dispute over the Texas law comes as the Supreme Court readies itself for its new term. One of the biggest cases the justices will hear concerns a Mississippi law that bars abortion after 15 weeks.
Unlike the Texas dispute, that case serves as a direct challenge to Roe v. Wade and will come with a full set of briefs, oral arguments and a reasoned opinion by June.
The next set of briefs in that case lands before the justices next week, as women in Texas are still dealing with the fallout of its law.
This story has been updated with additional developments Tuesday.