Texas' New Anti-Abortion Law Is Already Hurting Patients and Providers—Here's What You Need to Know
As the clock struck midnight in Texas on September 1, 2021, it also seemingly barreled back by half a century. The Supreme Court, faced with a request for an emergency stay of Texas Senate Bill 8, which banned abortions at six weeks, declined to intervene. Hours later, the Court made it official; in a 5-4 decision, they refused to block the law from taking effect.
For the first time since the Roe v. Wade ruling in 1973, nearly all abortions are now illegal in the state of Texas.
Like "a recurring nightmare"
For Valerie Peterson, SB8 felt like a recurring nightmare. Though particularly cruel, it is only one of many severe pieces of anti-abortion legislation to emerge in Texas (including SB5, which was passed even after State Senator Wendy Davis' 2013 filibuster and later struck down in part by the Supreme Court in 2016). When Peterson found out in 2015 that her 16-week fetus had an anomaly called Alobar holoprosencephaly, which would likely result in miscarriage or stillbirth if she continued the pregnancy, she decided to have an abortion. Because of the existing restrictions in Texas at the time, including a mandatory waiting period and the requirement for abortion providers to have admitting privileges at a nearby hospital, Peterson opted to travel to Florida for her abortion rather than deal with existing barriers in the state. Now, with the passing of SB8, an abortion under her circumstances is illegal in Texas.
"I would feel really sad if another woman was going through what I went through and didn't know how they could leave the state, or didn't know where to go," she tells Health. "I was desperate when I had to terminate my pregnancy because I didn't want to feel the pain anymore. I wanted to get to the other side and right now, there is no other side that many women can see in Texas."
The intentionally vague language of SB8
On its own, prohibiting abortions before most people know they're pregnant makes this law blatantly unconstitutional and a clear violation of Roe v. Wade, which prevents states from restricting abortion before fetal viability (typically 24 to 28 weeks). But what's even more pernicious about SB8 is the enforcement mechanism. Rather than relying on the state to enforce the ban, SB8 deputizes private individuals to sue anyone who performs an abortion or "aids or abets" it for a $10,000 minimum. While the law doesn't apply to abortion patients, it does create a "bounty" on abortion providers and clinic staff.
Its language is so vague that it could possibly apply to anyone who helps facilitate an abortion in Texas, and there's no limitation on the number of suits that could be brought or cap on the amount of money each individual can ask. A taxi driver who drops off a patient at an abortion clinic in Houston could risk a five-figure lawsuit by more than one person at a time, potentially facing hundreds of thousands of dollars in damages. A mother who walks her daughter into a reproductive health clinic in Dallas could end up in court, possibly sued by dozens of individual people.
Due to the murky language of the bill, even if an abortion occurs before six weeks, the burden of proof is on the accused. In theory, they would still have to produce documents to prove timing, as well as participate in depositions and a host of other legal maneuvers just to prove innocence. This provision could easily be used as a witch hunt tool to harass people through costly litigation, even if they ultimately win the case and don't have to pay the bounty.
Patients and providers are already reeling
However, it's not just theory—SB8 has already had a devastating effect on patients and providers alike. Anna Rupani, co-executive director of Fund Texas Choice, a nonprofit that provides financial and travel assistance for abortion care in Texas, tells Health they've seen a dramatic increase in calls for help. "[Before SB8], we would get 10 to 15 calls a week," she says. On September 2, a day after SB8 took effect, they received 42 calls.
One of these calls was from a patient they were already helping, whose sonogram on August 31 revealed no embryonic cardiac activity in her early pregnancy, or what SB8 mistakenly calls a "fetal heartbeat." Because Texas has a mandatory 24-hour waiting period, she would have to return the next day, on September 1, to have the abortion. "She went on September 1 and was told there was embryonic cardiac activity," Rupani says, and because of this, was told they could no longer provide her with an abortion. "Now, she's just processing the fact that she did everything right, according to the law. She followed whatever rule she was supposed to follow, not that any of those things are [medically] necessary, and then was told she couldn't have an abortion."
Tensions in Texas
Anti-abortion websites like Texas Right to Life's "Pro-Life Whistleblower" have emerged, which allow people to file anonymous tips against providers for abortions performed after six weeks. The site has now been removed by host sites twice, though Texas Right to Life has vowed to find another way to make it functional. While rideshare companies Uber and Lyft have said that they will cover all legal costs for drivers who end up sued as a result of SB8, people are still bombarding abortion funds and clinics with calls, asking if Roe v. Wade has been overturned, if abortion is illegal everywhere, if they can be sued for helping their sister travel out of state for an abortion.
For abortion providers, the threat is even more acute.
"Less than half of our physicians are now able to provide abortions, even when we're complying with SB8, in part because of this lawsuit situation," Amy Hagstrom Miller, CEO of Whole Woman's Health, which operates four reproductive health clinics in Texas, tells Health. "If you sue a doctor, even if your suit is frivolous and gets dismissed, doctors have to report them all."
A strain on resources, a lack of access
Most patients seeking abortions in Texas will now have to travel out of state, hundreds of miles, to get to the nearest abortion clinic. Some neighboring states, like Oklahoma, Arkansas, and Louisiana, already have their own abortion restrictions in effect that patients will have to navigate, like mandatory waiting periods. Thousands of abortion refugees now need to flee their home state to have the procedures they want and need, and clinics in nearby states could be booked for weeks.
The extra strain on financial and travel resources could be astronomical, and it often takes a lot of time, as well. Not everyone has access to a car, and not everyone can afford to take time off of work, pay for extra childcare, or pay for a hotel or a flight. Plus, the further along in pregnancy an abortion patient goes, the more costly the procedure will be. Existing restrictions like the Hyde Amendment, which bars federal funding of abortion care, disproportionately affect pregnant people of color and hinder their access to care. Marginalized folks, in particular, will either have to surmount all of these barriers and more, or be forced to carry a pregnancy they don't want to term.
"There will be many more denied abortions as a result of this law," Diana Greene Foster, a researcher with the Turnaway Study, the first longitudinal study to rigorously examine the effects of being denied a wanted abortion, tells Health. "When people are denied abortions, they try to get an abortion elsewhere, and it can be very difficult, especially in a state as big as Texas." Foster's research shows that denying a wanted abortion can lead to an increased likelihood of serious complications from the end of pregnancy, including eclampsia and even death. Not only that, but it can have serious and long-lasting physical risks––folks denied wanted abortion care are more likely to remain tethered to an abusive partner and are more likely to experience chronic pain and gestational hypertension.
Foster's studies also show that forced pregnancies also often result in long-term socioeconomic harm––in fact, people denied abortions are four times more likely to be living below the federal poverty line. In addition, denial of this crucial care can have severe impacts on the trajectory of their lives, including lower self-esteem, increased anxiety, and a reduced ability to care for their existing children.
Merely a harbinger of things to come
Legislation like SB8 doesn't exist in a vacuum, either. Texas now has the most restrictive abortion ban in the country in effect, but it's unlikely to be the last of its kind. Already, conservative legislators in at least seven states, including Florida, have said that they are exploring the possibility of passing legislation like SB8.
The Supreme Court's refusal to intervene and block this legislation is a frightening window into what it will likely do when they rule on the case in the coming months. The writing on the wall has been clear for some time now––while it still remains the law of the land, Roe v. Wade is in grave danger, unlikely to last much longer. Even if it does technically remain, however, the Court's refusal to intervene speaks volumes about the kinds of onerous restrictions and overt bans they may very likely uphold.
The fight isn't over—and people still need abortion access now
However, the legal fight surrounding the bill is still far from over. On Monday, Attorney General Merrick Garland announced that the Justice Department is exploring "all options" to challenge SB8 and support abortion providers, including providing federal law enforcement for abortion clinics under attack. But that is limited to protecting clinics; it's unclear how the Justice Department could address SB8 directly. Speaker of the House Nancy Pelosi has vowed that the House will vote later this month on the Women's Health Protection Act, which would provide federal protection for the right to an abortion free from restrictions, including mandatory waiting periods, admitting privilege requirements for providers, and more—though it is unlikely to garner then 10 Republican votes needed in the Senate to override the filibuster.
Meanwhile, people in Texas will still need abortions. Abortion funds like Fund Texas Choice, Lilith Fund, TEA Fund, and others are working around the clock to provide financial and travel assistance to help patients travel out of Texas for abortions, and you can help by opening up your wallet. When following guidelines, self-management of medical abortion can be a safe, effective way to terminate a pregnancy. The World Health Organization has information available on medical abortion, which is done typically through either a combination of mifepristone and misoprostol or with a misoprostol-only regimen, and abortion pills are available for purchase through places like Plan C.
In the meantime, Hagstrom Miller is adamant that Whole Woman's Health, like Planned Parenthood and other reproductive health clinics in Texas, will continue to provide safe abortion care––in accordance with the draconian constraints of SB8––to people in Texas. "The same amount of people in Texas need abortions even though this law is in effect," she says. "Abortion is normal."