'This is a dark day': For Texas abortion providers, U.S. Supreme Court ruling feels apocalyptic

click to enlarge A protester at a San Antonio rally in defense of reproductive rights shows off her sign. - JAIME MONZON
Jaime Monzon
A protester at a San Antonio rally in defense of reproductive rights shows off her sign.
Abortion providers and activists on Friday bashed the U.S. Supreme Court's decision to leave Texas' new abortion law in place, warning that it could force the closure of clinics across the state. Even though the providers' legal challenge can continue, the ruling failed to dismantle the ban's novel enforcement method that relies on citizens to file lawsuits against physicians and clinics suspected of performing the procedure after about six weeks of pregnancy.

"Staying open is not sustainable if this ban stays in effect much longer," said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which operates four clinics in Texas and is the chief plaintiff in the case before the Supreme Court.

Hagstrom Miller said her chain has been operating at less than 30% of its income since the law went into effect.

"We are grateful for the donors and foundations and folks who have been supporting us in the interim ... but the future looks bleak if we can't get some justice here," she said.

The high court's decision not to halt enforcement as the legal battle continues was called "shameful" and "devastating" by providers and their advocates, who said it seems to be another nail in the coffin for abortion rights in Texas, which has the most restrictive abortion ban in the country. Lawyers for abortion-rights groups said the decision ends some of the most promising pathways to blocking the ban and restoring the right to abortion for women who are up to 20 weeks pregnant.

"While the Court did not put a complete end to our legal challenge, its failure to stop Texas’s deliberate nullification of the constitutional right to abortion within its borders makes the court complicit in widespread chaos and harm to Texans," said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America.

The fact that a majority of justices did not shut down how the law is enforced — via lawsuits filed by private citizens against abortion providers — was one of the most troubling aspects of the court's decision, said Marc Hearron, senior counsel for the Center for Reproductive Rights.

"This is a dark day for abortion patients and for physicians and providers," Hearron said. "It is also a dark day for anyone who cares about constitutional rights. ... If a state can prohibit the exercise of any constitutional right that's disfavored in that state and get around federal court review by allowing private citizens to sue someone for exercising that constitutional right, then it's hard to say where this scheme ends. Today's decision is a marker that says every constitutional right is now at risk."

Hagstrom Miller said the decision to allow the larger legal battle continue does not "feel like a green light" to again perform abortions early in a pregnancy. She and other providers, including Planned Parenthood Federation of America, said their clinics will continue to abide by the Texas law that now bars abortions once an embryo's cardiac activity is detected — at about the six-week mark in a pregnancy, which is before many people know they're pregnant.

"The risks for clinic staff and physicians remain great," she said.

Julia Kaye, staff attorney for the Reproductive Freedom Project at the American Civil Liberties Union, said the decision ignored 50 years of legal precedent and empowered states who have enacted more than 100 restrictions on abortion across the county just this year.

"There was no reason for the Supreme Court to accept this case at all, if not to undermine Roe," Kaye said, referring to the landmark 1973 case, Roe v. Wade, which legalized abortion.

The battle continues, providers say, but the law has already had a chilling effect on staff who want job stability, on patients who remain unclear what their rights are and on the funding and longevity of the clinics themselves.

"While I’m glad that we are able to move forward with the suit, the [Supreme Court] ruling today does very little for Texans who are pregnant today," said Dr. Stephanie Mischell, a Texas family medicine physician and a fellow with Physicians for Reproductive Health. "We are practicing in the same reality of the past 100 days: Patients must access abortion within an incredibly narrow window or be forced to continue an unwanted pregnancy."

When Texas imposed the most restrictive abortion law in the nation in September, doctors and clinics were forced to move quickly to get their patients to out-of-state providers as they waited to see if the law would pass constitutional muster at the nation’s highest court.

“It's going to take a long time for Texas to rebuild,” Hagstrom Miller said. “And this is the damage that is intended from this law.”

Prolonging the uncertainty is the fact that the decision could mean little in the long term depending on how the Supreme Court rules on a Mississippi law, a decision that could result in an overturning of Roe v. Wade.

Due to Texas' new law, many physicians have already dropped out of abortion care networks, providers say, or reduced the level of care they can give desperate patients because of the threat posed by lawsuits that anyone could file against people who help someone obtain an abortion past the threshold lawmakers set. Abortion providers also have seen a significant drop in the number of women they are able to serve under the new restrictions, and there are fewer calls for those services as well.

Patient numbers for the four Whole Woman’s Health clinics in Texas have dropped by about two-thirds since the restrictions were put in place, Hagstrom Miller said.

Texas has fewer than two dozen abortion clinics, but there are individual providers who perform them at other types of medical facilities or at private practices. All of them are affected by the new law.

Friday's Supreme Court ruling came one day after a state district judge agreed with 14 abortion advocates and declared that the Texas law violates the state’s Constitution, though he didn’t stop it from being enforced. That ruling would likely be used as precedent in individual lawsuits filed under the new statute restricting when abortions can be performed.

"I hope that this ruling and the state ruling from yesterday mean that the courts are recognizing the harms of this law and more good news will come as we continue this fight," Mischell said. "But given the harm of being denied the legal right to abortion, people need and deserve more immediate relief."

Disclosure: Planned Parenthood has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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