People Don’t Know If Abortion Is Legal in Texas. That’s a Problem.

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Analysis Law and Policy

People Don’t Know If Abortion Is Legal in Texas. That’s a Problem.

Paige Alexandria

Extreme abortion laws like SB 8 in Texas create "immense confusion for people needing abortion care" in the state, advocates say.

Abortion is, and remains, legal in Texas. But an extreme new law is creating fear among clinic staff and sowing confusion among patients who don’t know whether abortion is still allowed in the state.

That’s exactly what restrictive laws like Texas’ SB 8, which Republican Gov. Greg Abbott signed into law two months ago, are intended to do.

“It has caused immense confusion for people needing abortion care in Texas, as many are worried that abortion is no longer legal and that clinics are closed,” said Amy Hagstrom Miller, founder, president, and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance. She added that it’s been difficult to secure new staff during these uncertain times.

Whole Woman’s Health and Whole Woman’s Health Alliance are part of the coalition of more than 20 clinics, abortion funds, and support services that are suing state officials to keep SB 8 from going into effect on September 1. The group filed the legal challenge last Tuesday, with the help of the Center for Reproductive Rights, Planned Parenthood, and the American Civil Liberties Union.

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SB 8 not only bans abortion as early as six weeks but also grants citizens the power to literally sue anyone who helps someone access an abortion—and rewards them $10,000 for doing so. It means anyone—from a rideshare driver who drives a patient to an abortion clinic, a spiritual leader who guides someone in their abortion decision, or a family member who helps a pregnant person pay for it—could face a lawsuit. The bill allows anti-choice activists, family members, and abusers who don’t agree with a patient’s decision to sue the abortion provider if they find out.

Hagstrom Miller said around 85 percent to 90 percent of her clinics’ patients access an abortion after six weeks’ gestation, and that’s because many people don’t know they’re pregnant before that point.

“This law creates an impossible timeline for people to learn they may be pregnant and quickly decide if having an abortion is what is best for them and their futures,” Hagstrom Miller said.

“Frankly, our current staff are terrified. If this law comes to pass and private citizens are emboldened to sue, they may be sued for providing a moral good to their community. That is why we are taking the lead in fighting this law. Because to us, access to quality, compassionate abortion care matters and we know that is what Texans deserve.”

The passage of SB 8 comes during a record-breaking year for abortion restrictions. In the first half of 2021 alone, states enacted more than 90 restrictions, the most anti-choice legislation since Roe v. Wade made abortion a constitutional right in 1973. In Texas, SB 8 comes on the heels of a total abortion ban that was voted into place by residents of Lubbock—now the biggest city in the country to try to ban abortion in its city limits (a lawsuit to block the ordinance was dismissed last month)—and, similar to SB 8, would allow anyone to sue a provider.

These laws have led to the same confusion and misinformation as other extreme anti-choice legislation, like 2013’s HB 2, which closed over half of Texas’ abortion clinics, and 2019’s HB 896, which would have banned abortion upon conception and made it a crime punishable by imprisonment or death. (HB 896 never made it out of legislative committee, but people seeking abortions still feared its consequences).

The outlook in Texas

For many abortion providers in Texas, the situation feels eerily similar to last year, after Abbott issued an executive order that banned most procedural abortions from late March to April 2020, early on during the COVID-19 pandemic.

Texans seeking abortions experienced similar barriers back then when it came to scheduling appointments; clinic availability was often limited, clinics weren’t able to serve all patients, and many had to travel out of state. One study found the number of procedural abortions at or after 12 weeks’ gestation increased by 82.6 percent in May 2020 once the order lifted, when compared to the previous May. Whole Woman’s Health had to cancel appointments for hundreds of patients while the executive order was in effect, not knowing when they’d be able to reschedule them.

Now, just a year later, and with COVID-19 cases rising once more, Texas lawmakers want to force pregnant people through it again.

Maria, whose last name is being withheld to protect her privacy, said the abortion clinic where she works has been “getting calls for weeks” from people seeking abortions in central and northern Texas whose local clinics do not have availability until the next month.

“People express shock at the fact that their local clinics are booked so far out, which is completely understandable,” she said. “Abortion is time-sensitive health care, and crisis pregnancies are urgent in nature. It makes little sense to hear that you can’t get your abortion for another month when you need your abortion right now.”

Jeana Nam, a counselor at a Houston abortion clinic, understands the fears patients must feel when it comes to the increased financial and logistical barriers extreme legislation like SB 8 will impose—because she could easily have been in their position.

“The stakes are high,” Nam said. “What’s more, I had irregular periods and didn’t realize I was pregnant until I was at seven weeks. If SB 8 had been in effect, I would have had to find a way to get care out of state, or (more likely) I would have become a mother before I was ready.”

Nam added that many of her patients are working parents. This means they will need to coordinate child care, travel, and other expenses in order to access abortion out of state.

“How are [patients] supposed to find the time, money, child care, sick days, [or other things] they need to leave the state for an abortion they could otherwise safely have right where they live?” Nam said. “Bans like SB 8 are punitive and absurd attempts to legislate away our right to bodily autonomy and self-determination.”

The grim consequences

The lawsuit describes the “absolute chaos” that will occur in Texas and the irreparable harms created if SB 8 is allowed to go into effect:

In particular, the burdens of this cruel law will fall most heavily on Black, Latinx, and indigenous patients who, because of systemic racism, already encounter substantial barriers to obtaining health care, and will face particular challenges and injuries if forced to attempt to seek care out of state or else carry an unwanted pregnancy to term. S.B. 8 will also cause irreparable harm to Plaintiffs, who are Texas abortion providers and individuals and organizations who help patients obtain abortions.

Cristina Parker, communications director at the Lilith Fund, one of the plaintiffs in the suit, said the consequences of SB 8 will affect the fund’s clients—and clients of all Texas abortion funds—the worst. Most of the clients Lilith Fund serves are people of color and low income folks. (Disclosure: I joined Lilith Fund’s board of directors this spring.) In 2020, the nonprofit organization was only able to fund 27 percent of the 4,557 calls it received.

“It’s already incredibly difficult to access abortion in Texas, but this ban would force Texans to travel out of the state for their care,” Parker said. “We’ll do everything in our power to ensure all Texans can determine what’s best for themselves and their families.”