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Confusion in Texas as ‘unprecedented’ abortion law takes effect

Abortion-rights groups and providers steeled themselves for potential legal fights, vowing to comply with the law even as they fought for it to be thrown out.

By: New York Times | Houston |
September 3, 2021 11:33:45 am
Texas, abortion lawA 'Bans Off Our Bodies' protest at the Texas State Capitol in Austin on Wednesday, Sept. 1, 2021. (Montinique Monroe/The New York Times)

By J. David Goodman, Sabrina Tavernise, Ruth Graham and Edgar Sandoval

When the Supreme Court decided this week that Texas could carry out and enforce the nation’s most restrictive anti-abortion law, even some staunch opponents of abortion were surprised.

The ruling suddenly forced them, as well as abortion providers, to confront a legal situation that has little precedent but an immediate impact on women across the state.

The law essentially bans abortions after six weeks of pregnancy and, uniquely, allows private citizens to bring suit against abortion providers. On Thursday, anti-abortion groups were on the hunt for viable lawsuits even as other conservative states considered emulating the Texas legislation.

“You can only dream of these kinds of things,” said Melanie Salazar, who headed a student anti-abortion group at the University of Texas, San Antonio. “To be young, to be an activist, this is definitely a celebratory time.”

Abortion-rights groups and providers steeled themselves for potential legal fights, vowing to comply with the law even as they fought for it to be thrown out.

The uncertainty came after the conservative-leaning Supreme Court declined late Wednesday to temporarily halt the restrictions, a decision that heightened expectations among anti-abortion groups that Roe v. Wade, the landmark 1973 decision establishing a constitutional right to the procedure, could soon be overruled by the court.

It also pushed the issue of reproductive rights to the forefront of Democratic campaigns in Texas and around the country.

President Joe Biden called the law, and the Supreme Court’s decision to let it stand, an “unprecedented assault on constitutional rights” and pledged to explore steps the federal government could take “to insulate those in Texas from this law and ensure access to safe and legal abortions.” House Speaker Nancy Pelosi vowed to call a vote on a measure that would protect abortion access for women.

Although the law does not allow those seeking abortions to be sued, panic and confusion reigned among women in the process of seeking the procedure Thursday. Call centers for abortion services turned into help lines crowded with crying women weighing unforeseen circumstances and undesired options. Some began seeking services by crossing state lines. Others wondered at ending pregnancies themselves.

“Patients are struggling,” said Doris Dixon, who oversees patient access at Planned Parenthood in Houston. “Patients are crying. There’s a lot of anxiety and frustration.”

One woman who had an ultrasound Wednesday discovered she was just over five weeks pregnant, under the limit for a legal procedure, Dixon said. But the woman also tested positive for the coronavirus, which meant she had to isolate for a period of time and would not be able to have the abortion within the legal window.

“She’s crying and she’s begging — what can I do?” Dixon said.

Under the new law, any person across the nation can bring a lawsuit against anyone who “aids or abets” an abortion performed in Texas past the six-week mark — and possibly earn $10,000 if the suit is successful. The category of defendants could include drivers who bring women to clinics or donors to nonprofit groups that advocate for abortion rights or assist women in paying for the procedure.

Abortion clinics braced for an onslaught of lawsuits. Instead, what seemed to be happening was near-complete compliance with the law without a single suit filed.

Stephen Vladeck, a constitutional law professor at the University of Texas, Austin, said the Texas law had not prompted a rush of lawsuits because it was accomplishing what it was intended to do: intimidate clinics into performing few abortions, while making it fiendishly difficult for them to challenge the restrictions.

“The law is deliberately designed to create the exact procedural morass we are in now,” Vladeck said. The Supreme Court majority “hid behind that morass,” he said, and its “nonintervention is an ominous portent for the future of Roe.”

While many states have passed abortion bans, the law in Texas was drafted specifically to make it difficult to challenge in court. Lawsuits are the enforcement mechanism: No law enforcement officer or other government official is tasked with upholding the new law. In fact, they are explicitly barred from doing so — a legal maneuver meant to deny those that would challenge its constitutionality a government entity to file suit against.

The novel structure had led some legal scholars to anticipate that the Supreme Court would block its implementation. By not interceding, the court gave lawmakers in other states a reason Thursday to try to copy the approach — a kind of legal hack to address contentious social issues that have regularly ended up in court.

In Florida on Thursday, Wilton Simpson, the state Senate president, openly supported the idea of passing a bill similar to that in Texas.

But Samuel Lee, an anti-abortion activist in Missouri, cautioned against that approach, saying it could work both ways. “What if California says, we want to enforce our laws on gender transitioning,” he said. “Be careful what you wish for because the sky is the limit.”

The uncharted legal territory also created concern among anti-abortion groups in Texas that had supported it. Several worried that early suits under the law could be brought by someone frivolously, and then provide an easier avenue for abortion-rights groups to mount a federal challenge.

“The strength of the law is that anyone can bring a lawsuit,” said Joe Pojman, executive director of the Texas Alliance for Life. “But it also leaves it vulnerable to lawsuits that are not brought in good faith.”

Anti-abortion groups on Thursday sought to tamp down expectations of a flood of lawsuits.

The largest group, Texas Right to Life, had received “a couple of voicemail messages” and some tips on a website set up for people to report illegal abortions, according to John Seago, legislative director for the group. So far, he said, the tips had led nowhere. “There’s no big smoking gun yet,” he said.

Seago said his group had been reaching out to lawyers and activists to make sure they were on the same page, hoping to avoid a poorly thought-through suit that ends in dismissal.

But lawsuits, anti-abortion groups said, were not the goal of the law. The goal was stopping abortions. And in that, the law appeared to be effective.

Though she follows anti-abortion legislation closely, Jana Pinson said the bill’s success caught her off guard. “I didn’t think it would happen in my lifetime,” said Pinson, executive director of Pregnancy Center of the Coastal Bend, which has four clinics in the Corpus Christi area. Waiting rooms have been “filled to overflowing,” she said, and staff members have been staying late to accommodate requests from women seeking ultrasounds and pregnancy tests.

Abby Johnson, an anti-abortion activist based in Austin, said she was thrilled with the Supreme Court ruling, but also recognized that the spotlight in the nation’s abortion fight had swung to Texas. “Now is the time for pro-lifers to really stand up and do what we say we’ve always wanted to do, and that’s to help women,” she said.

The Supreme Court refused just before midnight Wednesday to block the law in a 5-4 vote, with Chief Justice John Roberts joining the court’s three liberal members in dissent. The chief justice called the law’s unique structure “unprecedented.” The majority’s unsigned opinion consisted of a single long paragraph.

For those who oppose abortion, the court’s vote was a moment their movement had spent years building toward. Conservatives have spent years pushing Republicans to appoint right-leaning judges, and in recent years, that effort has gained momentum, including in the country’s highest court.

The court now includes three members appointed by former President Donald Trump, who had vowed to name justices prepared to overrule Roe v. Wade.

Although the Texas case remains mired in lower courts, the decision by the Supreme Court means the law, which makes no exceptions for pregnancies resulting from incest or rape, will likely remain in effect for the duration of the legal battle.

In the meantime, abortion providers said they were complying with the new restrictions, even as they lamented a particularly severe blow to organizations that assist poor and immigrant communities in places like South Texas and southeast Houston.

At the one Planned Parenthood in Houston that provides abortions, only seven women came in Wednesday for ultrasounds mandated by the state at least a day before an abortion can be conducted — a small fraction of the usually 20 or 30 who come in on any given day, said Melaney Linton, chief executive of Planned Parenthood Gulf Coast. Of the seven, four were told their pregnancies were already too far along for an abortion to be legal under the new law.

“It hurts because they begin to cry and they ask, are you sure?” Dixon said. “It’s been law after law after law,” she added. “But this is the worst.”

At the Frontera Fund, a nonprofit group that offers tactical and financial assistance for women seeking abortion care in South Texas, the number of women calling dropped significantly Thursday. Those who did call expressed confusion and desperation, said Zaena Zamora, the fund’s executive director.

The only option, she said, is to refer women to clinics hundreds of miles away to states like New Mexico and Colorado. The nearest clinic to McAllen, Texas, a large city in South Texas, is 615 miles away in Baton Rouge, Louisiana, a state with its own abortion restrictions.

Because 85% to 90% of procedures in the state happen after the sixth week of pregnancy, the Texas law amounts to a nearly complete ban on abortion in Texas, according to lawyers for several clinics.

The law, known as Senate Bill 8 and referred to as “the heartbeat bill,” prohibits abortions at about six weeks of pregnancy, before many women are even aware they are pregnant. But there is no heart at this stage of development, only electrical activity in developing cells. The heart is not fully formed until later in pregnancy.

Anti-abortion activists in several states said they remained focused on how the Supreme Court would rule on a Mississippi law banning most abortions after 15 weeks. The court will hear the case in its next term, which starts in October. The law has been blocked by lower courts; upholding it would mean overturning Roe v. Wade.

In Texas, anti-abortion groups have prepared for that eventuality.

During this year’s legislative session, a different abortion bill was also passed and signed into law by Gov. Greg Abbott. It would ban all abortions in Texas from the moment of conception.

Like other similar bills around the country, it is set to take effect if the Supreme Court overturns Roe v. Wade.

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