With Texas’ restrictive abortion law in effect, clinics say they’ve canceled most appointments

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Providers requested emergency relief in the Supreme Court, and many onlookers waited late into the night Tuesday, expecting an order from the high court before the law came into effect — but it never came. The Supreme Court could still act at any time. Credit: Michael Stravato for The Texas Tribune

“With Texas’ restrictive abortion law in effect, clinics say they’ve canceled most appointments” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

(THE TEXAS TRIBUNE) — Major abortion providers in Texas said Wednesday that they are following the state’s new restrictive law and have canceled appointments that made up the vast majority of abortions in the state until a day ago.

The new restrictions went into effect after the U.S. Supreme Court did not act on providers’ requests to block the law before the Sept. 1 effective date, allowing Texas to become perhaps the hardest place to get an abortion in the United States.

The law bans abortions as early as six weeks — a period before many women realize they are pregnant. It places responsibility for enforcing the rule on members of the general public, allowing anyone to sue for damages against someone they suspect is “aiding and abetting” an abortion. Providers say that the law prevents at least 85% of the procedures previously completed in the state.

The law did not appear to prompt a deluge of lawsuits against providers on its first day. John Seago, legislative director for the prominent anti-abortion group Texas Right to Life, said his organization has prepared to begin filing lawsuits but hasn’t yet, as there hasn’t been evidence of violations so soon. He said abortion clinics have all said they would be following the new law.

Planned Parenthood of Greater Texas and Whole Woman’s Health, two of the largest providers in the state with clinics in multiple cities, told reporters on Wednesday they would be abiding by the law and offering only services that are still allowed. No other Texas clinics have publicly said they would defy the law.

Prior to the midnight deadline, hundreds of people engulfed the clinics. Twenty-seven women sat in the Whole Woman’s Health Fort Worth clinic at 10 p.m. Tuesday to get abortions, two hours before the procedure would become illegal in the state, said Amy Hagstrom Miller, CEO of Whole Woman’s Health. A doctor cried as they tried to perform all of the procedures before the clock struck midnight. Anti-abortion protesters crowded outside and attempted to stop the last legal abortions occurring in the state.

“This morning, I woke up feeling deep sadness. I am worried. I am numb,” Miller said. “[The law] robs people of their ability to make decisions about their health and their future.”

Texas anti-abortion advocates are celebrating the law as their biggest victory since Roe v. Wade affirmed women’s right to an abortion in 1973. And they are gearing up to sue those they believe to violate the law. Texas Right to Life set up a whistleblower website, where anyone can file anonymous tips on illegal abortions.

“This is a great development for the pro-life movement, but Texas Right to Life is not going to fully celebrate this until we see how the Supreme Court responds,” Seago said. “We’re very optimistic.”

Abortion providers originally challenged the new law in July, arguing it violates the precedent established by Roe v. Wade. But the U.S. Fifth Circuit Court of Appeals put a hold on district court proceedings, leading the providers to seek emergency relief in the Supreme Court. Many onlookers waited late into the night Tuesday, expecting an order from the high court before the law came into effect — but it never came. The Supreme Court could still act at any time.

Steve Vladeck, a University of Texas at Austin law professor, said he was surprised that the Supreme Court did not take action Tuesday night, but it will need to act at some point.

“There is no deadline on the courts,” he said. “We could hear from the court as soon as tonight. We could hear from the courts as late as next week.”

Vladeck said it’s hard to predict what direction the high court will rule. But he also said the fact that the Fifth Circuit Court of Appeals hasn’t made a ruling on its temporary stay order is “galling.” Action on that front could resume district court proceedings.

“An administrative stay is supposed to be just long enough for the court of appeals to consider whether to leave the stay or keep it in place,” he said. “The fact that we haven’t gotten a decision from the Fifth Circuit on that yet is just as big a deal as the fact that we haven’t gotten anything from the Supreme Court.”

Lila Rose, president of Live Action, a national anti-abortion organization, called the law in a statement a “historic step forward for basic human rights.”

Under the new law, Texans can sue providers or those who they suspect helped achieve an abortion performed after an ultrasound could detect what lawmakers defined as a fetal “heartbeat.” Medical and legal experts say the “heartbeat” term is misleading, however, because embryos don’t possess a heart at that developmental stage.

Abortion-rights supporters have feared the Supreme Court might rule against access to the procedure after the death of Justice Ruth Bader Ginsburg nearly a year ago and her succession by Justice Amy Coney Barrett. And while Roe v. Wade in 1973 established a constitutional right to have an abortion before the point of fetal viability, the law skirts that precedent by removing enforcement from the state — instead having private citizens be the mechanism to enforce the law through lawsuits.

Marc Hearron, senior counsel for Center for Reproductive Rights and lead attorney on the case, said the law is using intimidation tactics to stifle even legal abortions in the state. Suspicion alone can lead to lawsuits, he said.

The mechanism within the law allows numerous lawsuits to be filed on the same abortion case, with little consequences if they lose, Hearron said. Even if found not guilty, the law says those being sued cannot recoup their attorney fees — meaning a swarm of lawsuits could financially overwhelm someone or an entity even if they aren’t found guilty. He said it minimizes the risk of suing, while removing protections from those being sued.

He said that although he believes this would not apply to those who help Texans get an abortion out of state, they could still potentially be sued and saddled with legal fees.

“We are unwavering in believing that Texans deserve abortion care in their own communities,” Miller said. “We will continue fighting and do everything we can to protect Texans’ right to safe abortion and compassionate care.”

Disclosure: Planned Parenthood and University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2021/09/01/texas-abortion-clinic-follow-new-law/.

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