Legal Dangers Loom Large for Texas Abortion Care: Unless courts act, six-week ban takes effect Sept. 1 – News

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Whole Woman’s Health Founder and President Amy Hagstrom Miller (Photo by Jana Birchum)

“My staff and doctors are forced to obey a remarkably cruel law,” says Amy Hagstrom Miller. “You have to enforce it, even if you fundamentally disagree with it.

Whole Woman’s Health founder and president speaks about the recent attempt by Texas lawmakers to put her and other abortion treatment providers out of business. Hagstrom Miller and other plaintiffs have stood up and previously won, particularly in a landmark 2016 US Supreme Court ruling, but things have changed. Subject to a court order, Senate Act 8 will ban abortion from September 1, after embryonic heart activity can be detected by transvaginal ultrasound, which is usually around six weeks after pregnancy.

Anti-election activists have urged 15 states to adopt what they have misleadingly but effectively formulated as “heartbeat laws” over the past decade. Most were blocked in court; SB 8 will go into effect first (Oklahomas is slated to follow on November 1, unless it is blocked as Hagstrom Miller and others attempt. The law allows up to 80% of Texans seeking an abortion to do so prevent getting these because most don’t know they are pregnant this early, according to research by the Texas Policy Evaluation Project.There are no exceptions for rape or incest, only in medical emergencies.

How would SB 8 succeed where other bills have failed? The law explicitly prohibits Texas state and district officials – lawmakers and prosecutors, regulators and licensing authorities – from enforcing it. Instead, it empowers anyone, anywhere in Texas or beyond, to bring civil actions against anyone who “helps or supports” or intends to “help” or “assist” the care that SB 8 prohibits. (State and local officials are allowed to file briefs in such cases.) These can be doctors and care providers, clinic staff, abortion fund employees, rape crisis advisors, or friends and family who offer a ride to the clinic.

This is to open the floodgates for frivolous and harassing lawsuits from swarms of anti-electoral citizens. Any defendant (there could be many) sued in a single trial could be held liable for at least $ 10,000 in legal damages, as well as plaintiffs’ court and attorney fees. The defendants cannot claim their costs even if they win in court. More than 350 members of the Texas Bar Association, including Austin Mayor Steve Adler, Travis District Judge Andy Brown, District Attorney Delia Garza and District Attorney José Garza, have come out against the draconian law, saying it “breaks fundamental beliefs of fairness and freedom “. in a democratic society. ”

The state’s loudest anti-election lobby group, Texas Right to Life, aggressively targets abortion providers with a website that invites whistleblowers to anonymously report SB-8 offenders. (Pro-choice activists hit back by flooding the virtual form with satirical taunts.) Less than 10 days to SB 8 going into effect, “It’s an extremely difficult and emotionally stressful position,” says Hagstrom Miller. “Even if my employees are more concerned with caring for our patients, they are understandably also very afraid of being sued themselves.”

“Nervousness of the unknown”

Hagstrom Miller’s team spent “an enormous amount of time” talking to attorneys and malpractice experts to develop a compliance plan and strategies to protect their employees from legal threats and intimidation. In the event of a lawsuit, doctors would have to disclose this fact when applying for licenses, certifications, or hospital admission privileges, which could potentially harm their careers. So far, after weighing the risks, only 25% of doctors at the four Whole Woman’s Health clinics in Texas – and only one doctor in Austin – have agreed to continue providing abortion care after SB 8.

Planned Parenthood of Greater Texas is also in ongoing discussions with its vendors and attorneys. “We are carefully evaluating the delivery of abortion delivery in full compliance with SB 8 at our South Austin health center and other Texas communities,” said Sarah Wheat, chief external affairs officer, Planned Parenthood.

Texas Abortion Fund groups, which assist low-income patients with travel, lodging, and direct medical care to overcome the many existing barriers to legal abortion care, also feel hit. “The law is designed to intimidate and target our work,” said Amanda Williams, executive director of the Lilith Fund for Reproductive Equity. “In fact, it encourages attacks on us with money. We’re scared and afraid, but that won’t stop us from fighting for our customers. ”

Lilith Fund has intensively developed strategies for all scenarios over the past few months and has energetically raised donations to cover the cost of abortion outside of the state. If most or all of state care under SB 8 were shut down, the average distance between Texan patients and an abortion clinic would increase twenty-fold, from 12 miles to 248 miles, according to a letter from the reproductive health group, the Guttmacher Institute. Lilith Fund reached out to providers in Georgia, Colorado, and New Mexico to find out where Texas patients could travel for care.

Dallas-based fund Texas Choice, which finances travel and accommodation, also works with partners outside of the state while ensuring that the fund itself is legally protected. “We are afraid of the unknown,” says Anna Rupani, co-managing director of the group. “Because although we will obey it, the law is so broad that it can [plaintiffs] might argue that we are not. And that cruelty is the point. So we’re preparing for a possible onslaught and figuring out how we can best protect ourselves. “

All of these providers and funds are among the plaintiffs in a lawsuit against SB 8 filed in Austin federal district court last month. They argue that SB 8 “blatantly violates the constitutional rights of Texans seeking an abortion and turns the rule of law on its head in the service of an anti-abortion agenda.” protect, the case names every state judge and county official in Texas as a defendant who could be used to enforce the ban. A hearing is scheduled for Monday, August 30th, and plaintiffs are hoping for immediate relief before the law is passed.

Even if it is not yet in force, SB 8 has already sown confusion among customers – as intended by law, says Hagstrom Miller. Of the patients who visit their Austin clinic, 80% asked if abortion is still legal in Texas.

Meanwhile, abortion rights are taking another hit

As the dire prospect of SB 8 loomed, last week the 5th U.S. Court of Appeals upheld another law passed by the Texan Legislature in 2017 that prohibits the use of dilation and evacuation, or D&E, the safest and most common type of surgical interventions, prohibits abortion procedures in the second trimester (after approx. 15 weeks, which under SB 8 would only be legal in a medical emergency anyway). Doctors who break the ban face up to two years in prison; the new ban comes into force on September 9th.

“Texas was determined to get rid of abortions, and it is annoying that a federal court would uphold a law that so clearly refutes decades-long Supreme Court precedent,” said Nancy Northrup, president and CEO of the Center for Reproductive Rights. “There is no question about that [the] Decision will hurt those who are already facing the greatest obstacles to health care. We will analyze this decision and will weigh up all of our legal options. “

At the 2017 trial, U.S. District Judge Lee Yeakel ruled in favor of plaintiffs, including Whole Woman’s Health, who challenged the D&E ban as unconstitutional. This decision was upheld by a three-judge panel from the 5th district in October 2020, but in an unusual step, the appeals court with a total of 17 judges – considered the most conservative in the country – agreed to hear the case again. The only next stop is SCOTUS, which has added three anti-election judges since 2016 and is due to hear a challenge to Mississippi’s 15-week abortion ban this fall; the state has specifically asked the court to overturn Roe against Wade.

Texas has successfully enacted more than two dozen laws since 2000 that restrict access to abortion care, including a 24-hour wait, mandatory transvaginal ultrasounds, a ban on the use of telemedicine services, and a ban on public or private insurance coverage for abortion. These efforts continue now as Governor Greg Abbott’s agenda for the current special session includes laws restricting drug abortion. These barriers disproportionately affect low-income women and women of color.

While the endless assaults on Texans’ constitutional right to legal health care are nothing new, they are still emotionally and logistically taxing for providers and patients. Hagstrom Miller says her clinics are still recovering from Abbott’s attempt last March to ban all abortions as an emergency measure amid the COVID-19 pandemic that wreaked havoc on Texan clinics.

“We heard the despair and hysteria from patients whom we could help but were forced to say no – it’s a terrible situation to be in the medical field,” she says. “And here we are again, preparing for the same thing.”

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