Phones Don’t Stop Ringing as Abortions Resume at Texas Providers
(Bloomberg) -- At least one Texas abortion provider has resumed performing the procedure after a judge put a temporary hold on a restrictive new state law, despite the financial risk if the ban is ultimately upheld.
Whole Woman’s Health, which operates four clinics in Texas and isn’t new to high-profile litigation, provided abortions Thursday at some locations for patients whose pregnancies exceeded the six-week limit of the law, Chief Executive Officer Amy Hagstrom Miller said. On Wednesday, a federal judge in Austin paved the way for the procedures by granting a Justice Department request for an injunction, after the law had effectively halted abortions since going into effect Sept. 1.
“The phones are really busy,” Hagstrom Miller told reporters during a press conference, adding that some other clinics she didn’t identified had also resumed procedures. “There’s actually hope from the patients and the staff. But there’s a little desperation in that hope because people know that opportunity could be short-lived.”
Even with the injunction in place, the financial risk to abortion providers is significant. Under the new law, known as S.B. 8, anyone in the country can sue anyone suspected of performing or aiding an illegal abortion in Texas. And the lawsuits, which offer bounties of at least $10,000 per procedure, can be filed retroactively up to four years later. It could be months or even years before the fate of the law is known, and the U.S. Supreme Court may have the final say.
“That’s part of why you don’t see every clinic reopening today,” Hagstrom Miller said. “They can sue us for every abortion we perform in the interim. That gives some people pause.”
Ken Paxton, the Republican attorney general of Texas, has already challenged the ruling at the Fifth Circuit Court of Appeals, which leans conservative. If the injunction is stayed, any abortions past six weeks of pregnancy that are conducted in the meantime could result in litigation. And even if the injunction is upheld, the law could still survive the challenge years later.
“We are confident that the appellate courts will agree that every child with a heartbeat should have a chance at life,” Renae Eze, a spokesman for Governor Greg Abbott, said in an emailed statement.
“We believe the abortion industry is taking a significant risk of future liability if they decide to continue their violent business as usual,” Kim Schwartz, of Texas Right to Life, said in an email. “We intend to ensure the law is fully enforced when this case is settled.” The group says it helped draft the law.
Molly Duane, a lawyer from the Center for Reproductive Rights, which is representing Whole Woman’s Health, acknowledged the ongoing risk, but said cases like this can take years to be resolved.
“Providers and patients cannot wait,” Duane said during Thursday’s press conference. “They are relying on the assurances they got today.”
The center decided to offer abortions because “the hurdles to operating these clinics in Texas have become mountains,” Hagstrom Miller said. “If S.B. 8 stays in force long enough the damage will be done even if the law is struck down.”
The law bans abortions after a fetal heartbeat is detected -- before many women know they’re pregnant. And crucially, S.B. 8 also strips abortion providers of protection for procedures they perform when the law is blocked by a court order that is later overturned.
That would seem to blunt the effectiveness of the temporary injunction U.S. District Judge Robert Pitman issued Wednesday. Paxton has previously said he believes any injunction will be stayed.
“Each provider will need to make their own determination of whether to provide in the face of the threat that they could be sued for serving their patients retroactively,” Brigitte Amiri, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project, said Thursday.
Hagstrom Miller’s clinics in Texas have already taken a serious financial hit, she said in an earlier interview. Three weeks into the ban, Hagstrom Miller said patient visits had dropped to 20% of normal and that some staff had already left for more secure jobs.
“The staff is starting to get edgy and worried” about how long the clinics can survive without the bulk of their income stream, she said in a Sept. 21 interview. “We don’t have income without seeing patients, so this is a back-door way of closing clinics.”
Of Texas’s 20 remaining abortion clinics, 14 aren’t affiliated with organizations like Planned Parenthood and don’t enjoy the financial support such ties can offer, Hagstrom Miller said.
The judge touched on the retroactivity issue in his ruling when he rejected Texas’s argument that the ongoing risk to abortion providers justified denying the injunction. He also expressed doubt that this aspect of the law was legal.
“The state claims it is unlikely providers will be willing to resume abortion procedures upon an injunction, given that the retroactivity provision in S.B. 8 -- of questionable legality itself -- extends future liability to abortions facilitated during the operation of any preliminary injunction,” Pitman said. “There is no reason to assume providers will be so deterred.”
The Justice Department argued an injunction was warranted because Texas women were being forced to drive hundreds or thousands of miles to get constitutionally protected reproductive care in other states -- if they had the time and money to do so. In his ruling, Pitman said the federal government was likely to win the case, calling the law “contrived.”
The case is U.S. v. Texas, 21-cv-00796, U.S. District Court, Western District of Texas (Austin).
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