Here’s What Happens If Texas’s Extreme Abortion Ban Goes Into Effect
When Planned Parenthood of Greater Texas opened its health center in Lubbock in 2020, it was the culmination of a years-long effort to reestablish an abortion clinic in west Texas, a region that had become, by some metrics, the country’s most notable abortion desert. In 2013, Lubbock’s old Planned Parenthood clinic had been forced to close after Republicans in the state legislature passed budget cuts and anti-abortion restrictions sharply curtailing clinics’ ability to operate. Until this spring, when the new clinic began offering medication abortions, people living in the area were forced to drive hundreds of miles, often to New Mexico or Oklahoma, to find the closest abortion clinic. The result of this additional burden was both predictable and dire—according to Texas state statistics, Lubbock County residents had just over half as many abortions in 2019 as in 2012.
The return of an abortion clinic to the region immediately drew the attention and ire of anti-abortion activists, including Mark Lee Dickson, the relatively young head of Right to Life of East Texas and the lead proponent of a campaign to get towns and cities in the state to adopt local ordinances banning abortion, turning them into what Dickson called “sanctuary cities for the unborn.” At the heart of these ordinances was a provision that turned over enforcement of these bans from the state to private citizens, allowing Texas residents to sue for damages from both abortion providers and anyone who “aided and abetted” an abortion seeker. Lubbock was now in Dickson’s crosshairs, and in May of this year, the city’s voters approved a version of his ordinance. At the end of that month, the Planned Parenthood clinic in Lubbock stopped offering abortions to comply with the ordinance. Planned Parenthood had sued the city, but in early June, a federal judge dismissed its complaint, citing lack of jurisdiction.
Despite Roe v. Wade continuing to be the law of the land, it ultimately didn’t matter. The clinic had no good options if it wanted to remain open—it could continue to provide abortions and be deluged by lawsuits from irate anti-abortion extremists that could put it out of business, or it could stop performing abortions, a concession that would at least allow it still to offer other important reproductive health care services in a part of the state that badly needed them. “We’ve had to inform patients in Lubbock that they need to travel outside of Texas or travel approximately 600 miles roundtrip to access an abortion,” Sarah Wheat, the chief external affairs officer at Planned Parenthood of Greater Texas, told me.
What happened in Lubbock is about to happen throughout the state. It’s a gutting of Roe without touching Roe. On Wednesday, barring a last-minute intervention from the Supreme Court, Texas’s extreme and near-total abortion ban, S.B. 8, will go into effect. Most bans on early abortion follow a typical, if exhausting, process—they’re signed into law, abortion advocates sue the state, and the laws are barred from being implemented due to their clear unconstitutionality. But last Friday, the Fifth Circuit Court of Appeals canceled a hearing on a lawsuit filed by abortion providers and advocates against S.B. 8 and subsequently denied several emergency motions filed by Texas abortion providers. On Monday, groups filed an emergency appeal to the Supreme Court; the fate of S.B. 8 is now in the hands of the most anti-abortion Supreme Court since Roe was decided in 1973.
No matter what the outcome, what’s happening in Texas is an instructive preview of what’s to come, as Republican-led states, spurred by an emboldened and more extreme anti-abortion movement, pass restriction after restriction, and as the upcoming Supreme Court case on Mississippi’s 15-week ban looms like a thundercloud. “We know what happens in Texas doesn’t stay in Texas,” Amy Hagstrom Miller, the president and CEO of Whole Woman’s Health, which operates four abortion clinics in the state, told me. “This is a strategy, and we can’t just write it off as extreme.”
Signed by Governor Greg Abbott in May, S.B. 8 appears to be modeled on the local abortion bans trumpeted by Dixon and other anti-abortion extremists in the past two years—it bans abortion before most people even know they’re pregnant, and deploys a similar enforcement mechanism. (When I interviewed Dixon in March 2020, he told me he worked with state Senator Bryan Hughes to come up with the model language for the ordinance; Hughes was, perhaps not coincidentally, the author of S.B. 8.) Instead of the state enforcing an unconstitutional law, it is private citizens who will be deputized to act as enforcers of the law, by filing what will likely amount to frivolous but time- and money-consuming lawsuits against abortion providers and anyone who offers assistance to an abortion seeker—the friend who drove someone to a clinic, the abortion fund hotline staffer who gave advice. It’s expressly designed, as Slate noted, “to evade review by federal courts otherwise obligated to enforce Roe.” In a state where extreme anti-abortion laws have become the norm, S.B. 8 is even more radical. It is honest in its cruelty. S.B. 8, as Melissa Gira Grant wrote recently for The New Republic, “makes explicit something core to the political ethos driving anti-abortion laws: The Texas heartbeat bill marries the powers of the state with the power of the patriarchal family.”
S.B. 8, no matter what the Supreme Court decides to do, has already achieved some of its intended effects, sowing uncertainty about the legality of abortion and creating a climate of fear among providers and clinic staff. Immediately after S.B. 8 was passed, advocacy groups received frantic calls from abortion seekers, according to Rosann Mariappuram, the head of Jane’s Due Process, an organization that helps Texas minors obtain abortions. “We immediately started hearing from teens, ‘Oh is abortion legal? I can’t get any help, can I?’” Mariappuram told me. “It’s already immediately caused harm.” Staff at the Texas Equal Access Fund, which provides financial support to abortion seekers in the state, received similar calls. “This is not new,” said the TEA Fund’s advocacy and outreach director, Nikiya Natale, but “it’s been even more so after S.B. 8 passed.” According to Hagstrom Miller of Whole Woman’s Health, in the months since S.B. 8’s passage, 80 percent of abortion patients who have gone to their clinics have asked if abortion is still legal in the state. “Even more surprisingly, people ask when they’re in the clinic,” she said. “And I think that points to people needing an abortion no matter what.”
If S.B. 8 does go into effect, “everything changes for our work,” Natale said when we spoke on Tuesday. “Every single person who calls, we’re going to have to work with our partners to get them out of Texas. It’s going to cost more money, and it’s going to be more work.” Natale estimated that the costs of going out of state to obtain an abortion will be three times the cost of remaining in the state. “Abortion is out of reach for so many people in Texas right now, but this would make it out of reach for the vast majority of people in the state,” she said. “There will be people who will not be able to get abortions and will be forced to carry their pregnancies to term.” Mariappuram pointed to the experience of some Jane’s Due Process clients when Abbott, using the Covid-19 pandemic as an excuse, temporarily banned abortion in the state last year. Stuck at home, they were unable to obtain a judicial bypass to avoid the state’s parental consent laws. “Not only were they forced to stay pregnant, they were kicked out of their homes,” she said. Some adults with resources will be able to leave the state to obtain an abortion, but “if you’re 16 and need to keep your pregnancy private, you can’t explain being gone for 24 hours or 48 hours,” she said.
People who work at abortion clinics are used to harassment by anti-abortion extremists, but S.B. 8 has introduced a new level of fear. At the four Whole Women’s Health clinics in Texas, “staff are scared of being sued, they’re scared of the harassment, the invitation this gives to the people that are already screaming at them,” Hagstrom Miller told me. In recent weeks, two clinic managers have left their jobs, and other staff have been leaving as well, at the rate of about one per week. “We’re having trouble recruiting people, and this is unusual for Whole Woman’s Health,” she said.
According to Hagstrom Miller, most abortion providers in the state are, like her organization, planning to comply with the ban by only providing abortions up until cardiac activity is detected in the fetus. “My first gut [reaction] was, a whole bunch of us should link arms and willfully and openly defy the law, in public,” she said. “Then you read the law a few times, and you realize the kinds of risks that would take.” But even the plan to go along with it carries risks for her staff. “I still have it on the back burner that I might just say, we’re not going to do any abortions at all,” she said. “We can comply in the most perfect way, but it won’t prevent us from being accused of not complying. And it’s cruel that our frontline health care workers are being put in this kind of situation.”
Mariappuram at Jane’s Due Process is anticipating not only a flood of calls to their hotline on Wednesday, but lawsuits from anti-abortion advocates. “We’ll probably get sued the second the law takes effect,” she said. “Maybe every single one of us will be sued, maybe no lawsuits will be filed, we don’t know,” the TEA Fund’s Natale told me. “There’s a lot of unknowns.” In August, Texas Right to Life, one of the state’s leading anti-abortion groups, set up a website encouraging people to report potential violations of the law. “Texas Right to Life will ensure that these lawbreakers are held accountable for their actions,” the site reads. (In a heartwarming response, the Buckle Bunnies abortion fund, led by queer young sex workers in the state, announced a campaign to have supporters overwhelm the site with fake tips.)
According to Mariappuram, the threat posed by S.B. 8 has forced groups like hers to consider moving away from providing abortion-related services. “We might have to shift from helping people get care in Texas to trying to connect them to other resources,” like birth control and sex education, she told me. “A lot of us are in this for the long haul, but what does the long haul look like if we lose the legal protection to do the work?”
That question will be one that more and more abortion advocates and activists in states like Texas will be forced to answer, and soon.