Texas Abortion Providers Face ‘Cruel’ Risks Even With Law on Hold
(Bloomberg) -- Texas abortion providers have reason to celebrate after a federal judge temporarily blocked a ban on most procedures in the state, but they still face significant financial risks if the strictest such law in the nation is eventually upheld.
The law banning abortions after about six weeks of pregnancy -- before many women know they’re pregnant -- is designed so that private citizens rather than the state enforce it, making judicial review of the statute difficult. Under the 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 as many as four years later.
“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.
Crucially, S.B. 8 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 night in Austin, in a suit brought by the U.S. Justice Department.
Ken Paxton, the Republican attorney general of Texas, has already appealed the ruling to the Fifth Circuit Court of Appeals, which leans conservative.
‘Violent Business as Usual’
“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, which took effect Sept. 1.
Amy Hagstrom Miller, president of abortion provider Whole Woman’s Health, said late Wednesday that she was making plans to resume abortions of pregnancies up to 18 weeks as soon as possible. Hagstrom Miller had no immediate comment Thursday on the continuing risk of liability under the law.
Her clinics in Texas have already taken a serious financial hit, she said in a Sept. 21 interview. Three weeks after the ban took effect, 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 at the time.
Of Texas’ 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.
“We don’t have income without seeing patients, so this is a backdoor way of closing clinics,” she said of the law.
The judge touched on the retroactivity issue in his ruling when he rejected Texas’ 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 ACLU’s Amiri called the retroactive provision another “cruel tactic” woven into the law designed to “harass and intimidate pregnant Texans and their providers.”
“But as the district court recognized, the retroactivity provision is on shaky legal ground and some providers have explicitly said that they will provide under an injunction,” Amiri said.
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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