Abortion providers await Supreme Court decision on Texas law

AUSTIN, Texas - When Texas imposed the most restrictive abortion law in the nation, doctors and clinics were forced to move their patients quickly to out-of-state providers.

And for the past two months, providers have had to work in a sort of limbo as they wait to see if the new law passes the Supreme Court's review.

"This is not patient care," said Dr. CeCe Cheng, a maternal fetal medicine specialist in San Antonio. "This is disaster management. And it has no place in medicine."

Cheng performs abortions as only a small part of her practice, but sometimes she has to help expectant parents make difficult, life-saving decisions about terminating a pregnancy for medical reasons.

That became nearly impossible on Sept. 1, when the new Texas law made it illegal to perform abortions when the fetus is showing cardiac activity, around six weeks into a pregnancy.

But because the law relies on citizen lawsuits against providers to enforce the restrictions, physicians and clinics now face costly legal battles if anyone believes they have violated the restrictions and performed an abortion outside of that window.

"My only options now are to refer out of state or wait," Cheng told The Texas Tribune in an email. "I have to wait until my patient comes in with an emergency. Wait until the patient is bleeding profusely. Wait until there are signs of infection. Wait until the patient goes into labor, which for some may not ever happen."

The resulting risk of costly court and lawyer fees has caused physicians to drop out of abortion-care networks, providers say, or reduce the level of care they can give desperate patients.

Now, Cheng and other individual providers and clinics across Texas are uncertain what the future holds as they wait for the U.S. Supreme Court to issue an opinion on Senate Bill 8, the bill that was signed into law and is now facing challenges from providers in the nation’s highest court.

The court has not announced a date when the opinion might be issued.

Since the law went into effect, abortion providers have seen a significant drop in the number of women they are able to serve under the new restrictions, along with fewer calls for those services as well.

The four Whole Woman’s Health clinics in Texas are operating at 20% to 30% of their previous service levels, with only a fraction of patients coming in or qualifying for abortions under the new restrictions, said Amy Hagstrom Miller, president and CEO.

"It’s just becoming eerie," Miller said. "I think when people kind of know they're seven or eight weeks pregnant or further pregnant, they're not even calling anymore ... a lot of folks are just, I think, going straight to calling Oklahoma and New Mexico and Louisiana."

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

At Planned Parenthood of Greater Texas, for which abortion care is only one of the health services offered to its clients, officials recently announced that they would be expanding their programs that offer low-income clients access to birth control, cancer screenings, pregnancy testing, vaccine, sexual health and hormone therapy treatments.

The organization is also offering financial assistance with travel expenses for those who have to leave Texas to get an abortion after the signing of SB 8 two months ago.

Planned Parenthood officials told KUT Austin that most people coming in to their clinics to get an abortion since the new law went into effect have been too late and that demand for more reliable birth control has increased.

Providers say it’s been devastating to turn away patients who still need the care, regardless of the law, but whom they are not allowed to help.

"I went into abortion care to help people have control over their own bodies and decisions, and it breaks my heart to have to tell patients that their government has limited those choices for them," said Dr. Stephanie Mischell, a provider at a medical facility in Dallas and a fellow with Physicians for Reproductive Health. "These past few months have been challenging, to say the least."

The Austin Women’s Health Center website says the new law has "caused a lot of confusion and anxiety for the staff, the patients" and that clinics across the state are seeing "less than half the patients they are used to seeing."

Miller says she hasn’t heard of any clinics in danger of imminent closure yet, mainly because donations and funding from nonprofits have helped keep the lights on and the staff paid at Whole Woman’s Health and several other independently owned clinics.

"People all over the country are seeing what’s happening in Texas, and people are trying to support the clinics," she said.

But signs of struggle are there. Staff has been reduced in the Texas Whole Woman’s clinics, not through layoffs but through attrition, Miller said — mainly due to employees leaving for more stable jobs and the company being hesitant to replace them while income levels are so low.

It’s also been discouraging to try and help people in this political climate, she said.

"I think clinic staff on the ground are more in touch than any of us with how many people in the community need abortions," Miller said. "And they know this law didn't change the need for abortion. It just ties their hands as medical professionals from being able to provide it. And that's pretty hard to sit with."

If the Supreme Court decides to strike down the law, medical providers can go back to performing abortions up to the 20th week of pregnancy. But because it’s been hard to retain staff amid all the uncertainty, Miller said, it could take weeks to return to normal staffing.

Any decision by the high court about the Texas law could mean little in the long term because on Dec. 1, the Supreme Court hears arguments about a Mississippi law that could result in an overturning of Roe v. Wade, the 1973 case that legalized abortion.

But even though clinics haven’t closed yet, and even if the court rules in their favor, Texas providers say they worry that 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.

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

In 2013, House Bill 2, a measure that was eventually struck down by the Supreme Court, required abortion clinics to meet specific, hospital standards and shrunk the number of abortion clinics in Texas from more than 40 to 19 by 2016.

When the pandemic began, Gov. Greg Abbott’s executive order banning all surgeries that were not medically necessary effectively banned abortion and was the subject of litigation for weeks. During that time, there was a sharp rise in the number of patients seen at the Colorado Planned Parenthood of the Rocky Mountains, one of the nearest abortion clinics outside of Texas.

"History has taught us that when Texas passes abortion restrictions, clinics close, and they do not always reopen once the laws are overturned," Mischell said. "So I am worried that the harm done by SB8 will outlive the law itself.

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