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Jay Janner Austin American-Statesman/AP
Antiabortion demonstrators gather in the rotunda at the Texas Capitol while the Senate debated antiabortion bills on March 30 in Austin.
AUSTIN — A Texas law that bans most abortions after six weeks of pregnancy went into effect Wednesday, as a midnight deadline for the Supreme Court to stop it came and went without action.
The court could still grant a request from abortion providers to halt the law, one of the nation’s most restrictive. But for now, abortion providers in Texas, including Planned Parenthood and Whole Woman’s Health, said they will no longer terminate pregnancies more than six weeks from a woman’s last period.
Providers said the law effectively eliminates the guarantee in Roe v. Wade and subsequent Supreme Court decisions that women have a right to end their pregnancies before viability, and that states may not impose undue burdens on that decision.
As longtime opponents of abortion claimed Wednesday as “a historic and hopeful day,” abortion-rights advocates and providers decried the impact of the new law on the women they serve.
“It’s just really unclear what the future will hold for women in Texas,” said Kathy Kleinfeld, the director at Houston Women’s Reproductive Services. “I really don’t know. I don’t feel pessimistic. I don’t feel optimistic. I’m just right in the middle, cautiously waiting.”
Human Coalition Action Texas Legislative Director Chelsey Youman, who backed the bill, praised Texas as “the first state to successfully protect the most vulnerable among us, preborn children … Human beings are worthy of protection at all phases of development.”
Federal judges across the country have cited Roe and other precedents to block six-week bans in other states before they took effect.
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The lawsuits that stopped those laws targeted government officials who would enforce the bans, which proponents dub “heartbeat bills” because they say that is when a doctor can first detect a fetal heartbeat. Doctors opposed to the bills dispute that description, saying the fluttering that is detected cannot exist outside the womb.
[The Mississippi clinic at the center of the fight to end abortion in America]
The Texas law was designed to make it more difficult for abortion rights advocates to win such pre-enforcement injunctions. The statute empowers individuals, instead of state government officials, to bring legal action against those who help women seeking a prohibited abortion.
Lawyers for abortion providers told the Supreme Court that the statute, known by its bill number, S.B. 8, would “immediately and catastrophically reduce abortion access” in Texas and probably force more clinics to close. The law is unconstitutional, they say, because it conflicts with the court precedents that prevent states from banning abortion before a fetus would be viable outside the womb, usually around 22 to 24 weeks.
About 85 to 90 percent of people who obtain abortions in Texas are at least six weeks into pregnancy, meaning this law would prohibit nearly all abortions in the state.
“Patients will have to travel out of state — in the middle of a pandemic — to receive constitutionally guaranteed health care. And many will not have the means to do so,” Nancy Northup, president of the Center for Reproductive Rights (CRR), said in a statement. “It’s cruel, unconscionable, and unlawful.”
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In response Tuesday, Texas Attorney General Ken Paxton (R) said the Supreme Court does not have jurisdiction to act against the law at this point, and that any legal challenges would have to wait until someone actually brought a civil action against an abortion provider or someone who aids the woman.
“This Court cannot expunge the law itself. Rather, it can enjoin only enforcement of the law,” he wrote in his brief to the court, which did not mention Roe. But in the Texas case, he noted, government officials “explicitly do not enforce the law.”
The abortion providers, Paxton wrote, “have not shown that they will be personally harmed by a bill that may never be enforced against them by anyone.”
Eric Gay
AP
Texas state Rep. Donna Howard (D-Austin), center at lectern, stands with fellow lawmakers in the House Chamber on May 5 to oppose the bill that would ban abortions as early as six weeks and allow private citizens to enforce it through civil lawsuits.
[In East Texas ‘sanctuary for the unborn’ movement expands]
Abortion providers and advocacy groups initially challenged the law in July. Because the measure depends on lawsuits filed by private citizens, the groups targeted state court judges and county clerks in their challenge, to try to prevent them from accepting paperwork required to sue those who assist women in getting abortions.
Mark Lee Dickson, the director of Right to Life of East Texas, who has encouraged people to bring the suits and offered to recommend lawyers, is also named as a defendant. His lawyer, Jonathan F. Mitchell, told the justices on Tuesday that abortion providers cannot demonstrate that the injunction they are seeking will “prevent the irreparable harms that they allege.”
Individuals who are sued under the ban could be required to pay the person who brought the lawsuit at least $10,000 for each abortion the defendant was involved in. Critics say the law places a “bounty” on the heads of those who assist with abortions.
In August, a District Court judge in Austin allowed the case challenging the law to proceed and scheduled a hearing for Monday to consider whether to block the law. But the Texas-based U.S. Court of Appeals for the 5th Circuit called off the hearing and halted the proceedings.
The Supreme Court has agreed to review a Mississippi ban on almost all abortions after 15 weeks of pregnancy. Abortion opponents are hoping that the court’s conservative majority will use that case to overturn Roe.
[No abortions after 6 weeks: Texas clinic prepares for ban to take effect]
At the Texas Equal Access Fund on Tuesday, a shaken staff worked long hours to provide financial assistance and emotional support to as many women seeking abortions as possible before the ban took effect. They also had begun sending women across state lines to terminate their pregnancies.
“We are just in total limbo. Can we help people today but risk being sued tomorrow if the ban holds?” said Nikiya Natale, a lawyer for the fund.
Inside College Heights Baptist Church in West Texas, Dickson told a crowd that people should “fear God more than the ACLU.” In addition to backing the Texas law, he has worked for years to create “Sanctuary Cities for the Unborn,” persuading dozens of towns in rural parts of the state to create similar abortion bans.
“An abortion clinic in Waskom, Texas, is not an Austin problem or a Washington problem, it’s a town problem,” Dickson said Tuesday night. “Who wants their city to be the gateway of abortions?”
Abortion providers and advocates for abortion rights said they would continue fighting the bill and pushing for access to a full range of reproductive health care for women.
“Our ability to provide the best health care for our patients has been turned over to self-appointed vigilantes,” said Amy Hagstrom Miller, president and chief executive of Whole Woman’s Health, which is leading the legal challenge to the law. “This is an abortion ban, plain and simple. It robs Texans of their ability to make decisions about their health and their futures. We have been here before, and we’ll continue serving our patients however we legally can and fighting for their right to safe, compassionate abortion care.”
Heather Gardner, the executive director of the antiabortion Central Texas Coalition for Life, said her organization will start distributing fliers explaining the ban to abortion clinics in that part of the state.
Although Gardner said she does not expect to file lawsuits herself to enforce the ban, she said her organization would advise people who come to her to report any illegal abortions.
“We would do what we could to see what legal action could be taken,” Gardner said. “We wouldn’t want to let that go, because they need to be held accountable.
Kitchener reported from Austin, Wax-Thibodeaux reported from Lubbock, Tex., and Barnes and Marimow reported from Washington.
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