KTEP - El Paso, Texas

What The Texas Abortion Ban Does — And What It Means For Other States

Sep 1, 2021
Originally published on September 1, 2021 4:19 pm

With the U.S. Supreme Court mum, a new law went into effect in Texas that bans abortions after about six weeks of pregnancy. That's well before many women even know they are pregnant.

The law allows private citizens to sue abortion providers and anyone else who helps a woman obtain an abortion — including those who give a woman a ride to a clinic or provide financial assistance to obtain an abortion. Private citizens who bring these suits don't need to show any connection to those they are suing.

The law makes no exceptions for cases involving rape or incest.

Here's why the law is one of the strictest abortion bans in the country.

What does the Texas law prohibit?

It bans abortion as soon as cardiac activity is detectable. That's around six weeks, which is before a lot of people know that they're pregnant. Other states have tried to do this, but those laws have been challenged by abortion-rights groups and blocked by federal courts again and again.

How is this law different from other states' efforts?

Groups who oppose abortion rights have pushed for this Texas law, hoping that it will be harder for federal courts to knock it down. Instead of requiring public officials to enforce the law, this law allows individuals to bring civil lawsuits against abortion providers or anyone else found to "aid or abet" illegal abortions.

This law empowers individuals to enforce an abortion ban. How would that work in practice?

Anyone who successfully sues an abortion provider under this law could be awarded at least $10,000. And to prepare for that, Texas Right to Life has set up what it calls a "whistleblower" website where people can submit anonymous tips about anyone they believe to be violating the law.

"These lawsuits are not against the women," says John Seago with Texas Right to Life. "The lawsuits would be against the individuals making money off of the abortion, the abortion industry itself. So this is not spy on your neighbor and see if they're having an abortion."

In a federal lawsuit challenging this, a coalition of abortion providers and reproductive rights groups said the law "places a bounty on people who provide or aid abortions, inviting random strangers to sue them."

While Texas doctors say they will comply with the new law, they must address patients' concerns and questions, including about how to get an out-of-state procedure.
Sergio Flores / Getty Images

What does the law mean for patients and abortion providers?

Dr. Bhavik Kumar, a family medicine doctor who works for Planned Parenthood in Houston, says the law creating a lot of uncertainty for patients and providers. But Kumar insists he will comply.

The ban, though, will likely mean a lot of questions from patients about how they can get an abortion outside of Texas, Kumar said.

"I know that there are many people who don't have to ability to make it out of state ... The logistics and ability to do so is not an option for them," he said. "So I'm really concerned about what's going to happen to people."

Dr. Ghazaleh Moayedi, an OB/GYN, told NPR over the weekend that patients are apprehensive. "They understand that the abortion that they're having this week, last week, the week before, is something that they wouldn't be able to have next week. They've been asking about it and asking, you know, 'If I were here in September, would I be able to get this?' "

What does this mean for abortion laws in other states?

If the federal courts ultimately allow this law to stand, it's very likely that other conservative states will move to pass similar laws. Seago, with Texas Right to Life, said his organization is working with activists in multiple states who are eager to replicate this model if it succeeds in blocking access to most abortions in Texas.

"It is still a bit untested. We're still working on what these lawsuits are going to look like if the industry decides to break the law," Seago said. "So it is a new model that we're still testing out."

What happens next?

Multiple court challenges to the law are underway, including several lawsuits in state court in Texas targeting anti-abortion-rights groups including Texas Right to Life. Abortion rights groups are also organizing protests and demonstrations in Texas in opposition to the law.

A spokeswoman for Texas Right to Life told NPR that no lawsuits against abortion providers are imminent, and abortion providers say they will comply with the law as long as it is in effect.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

MARY LOUISE KELLY, HOST:

In Texas today, abortion rights guaranteed by decades of precedent under Roe v. Wade are effectively gone. A new state law forbids anyone from obtaining an abortion after roughly six weeks of pregnancy. That is sooner than most people even know they are pregnant. The law also allows Texans to sue anyone they believe is violating the law. The U.S. Supreme Court could have blocked this measure, could still block this measure. But since the court has not yet taken action, the controversial law took effect at midnight.

We're going to talk about what led up to this and what comes next with a trio of reporters, Ashley Lopez from member station KUT in Texas, Sarah McCammon, who covers the abortion debate for NPR, and Nina Totenberg, NPR's legal affairs correspondent. I want to bid you all welcome. And Ashley Lopez, I want to start with Texas and with you. What is happening there today for clinics that provide abortion services?

ASHLEY LOPEZ, BYLINE: Well, clinics say they are complying with the law, which means most abortion services in Texas have stopped. That's because only a very small number of abortions every year are administered before six weeks into a pregnancy. And as a result, some clinics in the state have decided to stop offering any abortion services. Most providers say they are going to try and stay open, though, and provide the procedure for now to the very few people who can still reach this new legal threshold.

KELLY: Ashley, a lot of people were watching for the Supreme Court to step in yesterday. It did not. What was it like in Texas as this law went into effect?

LOPEZ: You know, last night, doctors in Texas worked until almost midnight to provide abortions for women whose pregnancies are beyond that six weeks. Here's Amy Hagstrom Miller, the CEO of Whole Woman's Health, which operates clinics in four Texas cities.

AMY HAGSTROM MILLER: Our waiting rooms were filled with patients and their loved ones in all four of our clinics yesterday. We had a physician who has worked with us for decades in tears as he tried to complete the abortions for all the folks who were waiting.

LOPEZ: And today, a lot of people are getting turned away. One provider just told me that people have been showing up to clinics without calling or an appointment, frantic because they're worried they might not be able to get an abortion. So there's a lot of chaos in Texas right now, a lot of uncertainty and confusion.

KELLY: Well, let's see if Nina Totenberg can clear up any of the confusion by bringing us up to speed with what is happening with the court, with the Supreme Court. Are we expecting, Nina, that the justices will act on the emergency application that abortion providers in Texas have filed?

NINA TOTENBERG, BYLINE: Well, I do expect the court to issue some kind of order, either denying the request to block the law or granting it in some sort of a temporary manner. This whole process got put on warp speed because the abortion providers went to a federal judge who scheduled a hearing on the law. And the 5th Circuit Court of Appeals then canceled that hearing. So the reproductive rights groups went to the Supreme Court asking it to temporarily block the law to allow the judge to hear and decide the case, and then they could take it up through the court of appeals and the Supreme Court in the usual fashion. But so far, the court has not acted. The justices, of course, have another case that they have on their docket for this term, testing a 15-week limit for abortions in Mississippi. As of this moment, though, we don't know what the court's going to do in the Texas case. And if it doesn't intervene, Roe v. Wade is, for all practical purposes, over in the state of Texas, and other states will probably adopt similar laws.

KELLY: Wow. But just help me understand because the Supreme Court has stepped in and passed. It has blocked these so-called fetal heartbeat bills in other states. What makes this Texas law different?

TOTENBERG: In addition to the fact that there are now three Trump appointees on the court...

KELLY: Yeah.

TOTENBERG: ...The state legislature did a very specific, unusual, legally controversial thing aimed at making it very difficult, if not impossible, to challenge this law in court. Normally, when opponents of the law want to challenge a statute in court, they sue the state officials responsible for enforcement. But the Texas law instead puts enforcement in the hands of individuals. Indeed, anyone can file suit against those who aid or abet an abortion. Any random person without any vested interest can sue a staff member at a clinic or, for that matter, a person who drives a patient to the clinic or finances an abortion. If the plaintiff wins, he or she gets a minimum of $10,000 in damages and payment of all legal costs of the suit. So critics of the law are calling it vigilante enforcement. And abortion rights groups are looking for different ways to get at this problem. But so far, the Supreme Court hasn't acted, and the law has gone into effect. So if the status quo prevails, as I said, abortion in Texas is pretty much of a dead letter.

KELLY: Sarah McCammon, let me get you in here on a practical question. At least at the moment, most patients in Texas cannot get an abortion. So what are their options?

SARAH MCCAMMON, BYLINE: Well, they have a couple of options right now, Mary Louise. They can wait and see if the Supreme Court intervenes in their favor, or they can go out of state. But that isn't possible for everyone. I talked to Zaena Zamora, who runs the Frontera Fund in South Texas, which helps people seeking abortions pay for them. And in some cases, they have to travel long distances to get them. And she says that would be especially true now.

ZAENA ZAMORA: We're talking nine hours to the nearest clinic in Louisiana, which is also a very unfriendly abortion state. And if you want to try to get to a friendlier abortion state like New Mexico, that's at least a 12-hour drive.

MCCAMMON: And if this law stays in place, leaders of these types of groups expect to be very busy trying to help patients get out of state. Some of them are worried, as Nina alluded to, about being sued themselves under this law. Advocates tell me they believe it's completely legal to help patients in this way, but they still fear being targeted by lawsuits.

KELLY: And just briefly, Sarah, what about other states - what implications beyond Texas?

MCCAMMON: Well, Texas Right to Life says they're hearing from anti-abortion rights groups around the country. They're also watching what happens with that Supreme Court case out of Mississippi that Nina mentioned. And, you know, if the Supreme Court rolls back Roe v. Wade, I would expect to see a lot more laws like this.

KELLY: That is NPR's Sarah McCammon and Nina Totenberg, also Ashley Lopez of member station KUT in Austin, Texas - all of them sharing their reporting.

Thank you very much.

LOPEZ: Thank you.

MCCAMMON: Thank you.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.