TEXAS — On Wednesday, the day the most restrictive abortion bill in the country became law, some Texas women were left wondering what is next in the fight over SB8. Several lawsuits filed against the bill couldn’t stop the legislation from advancing to law.
As late as Tuesday evening, some Texas abortion clinics were already turning patients away, even before the law went into effect, while others stayed open until midnight and came back to work this morning.
Since mid-August, all 11 of the Planned Parenthood health centers in Texas that provide abortion services have stopped scheduling visits after Sept. 1 for abortions past six weeks of pregnancy — the cutoff for abortions mandated in the new law.
The majority of people who obtain an abortion in Texas are at least six weeks pregnant. As a result, the law would prohibit nearly all abortions in the state, according to Planned Parenthood and Whole Woman's Health.
Known as the “heartbeat bill,” SB8 has been heavily criticized because it limits abortion to a time when many women may not know they’re pregnant yet. The bill aims to ban abortion after a fetal heartbeat has been detected — though, most medical professionals consider this a misnomer, as a fetus doesn’t possess a heart at six weeks gestation.
One of the unique and controversial features of the bill is that enforcement of the law falls to private citizens, not law enforcement or government institutions. As of Wednesday, any person around the country can sue anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion,” not just the provider.
Michelle Simpson Tuegel is one of the plaintiffs in a lawsuit against SB8. She and her co-plaintiffs sued on the grounds that the law restricts attorney-client privilege since attorneys aid women who are seeking abortions.
On Tuesday, Simpson Tuegel was granted a temporary restraining order and can continue to advise women. A hearing in her case will land in a Travis County court on Sept. 13, during which some of the more substantive issues related to this law will be addressed and discussed. She still believes there’s a chance to defeat SB8 in the courts.
“The way that they structured this law, I do think we're going to have more ground to challenge it now than we did before,” she said. “We are already being contacted by women who are in need of services, who we intend to help. Thanks to the judge’s temporary restraining order, at least for the next few weeks, I am protected. I am able to provide legal advice and point these women towards resources without fear of being sued.”
The issue now, she said, is finding a provider in Texas.
“I've heard some pretty large providers were already planning to pull out of Texas, at least temporarily, if this law went into effect,” she said. “I’m certainly disappointed to hear that. As someone who really believes in a woman's right to choice and access to those choices, I would hope that the national organizations that have the most resources and the largest breadth to provide those resources don't turn their backs on Texas women now, and that they dig their heels in and fight the same fight that some of us who are much smaller than them are fighting.”
While anti-abortion activists are hailing the new law, the bill is not without controversy. When Gov. Greg Abbott signed SB8 into law, most of the major providers reacted with equal parts outrage and determination.
"Without relief, starting tomorrow, 7 million Texas women of reproductive age will lose access to abortion after six weeks of pregnancy, forcing those seeking to end their pregnancy to travel hundreds of miles out of state for their abortion, if they can afford to do so," said Alexis McGill Johnson, the president and CEO of Planned Parenthood Federation of America, on Tuesday.
"This unconstitutional law is a full-scale assault on patients, their health care providers and their support systems," she added.
Whole Woman's Health's four clinics in Texas will also comply with the law and prohibit abortion at seven weeks or less depending on the ultrasound results and if cardiac activity is detected. Amy Hagstrom Miller, the president and CEO of Whole Woman's Health and Whole Woman's Health Alliance, said it's "remarkable" that the law was passed and set to go into effect.
"Texans, like everyone else in this country, should be able to count on safe abortion care in their own state. No one should be forced to drive hundreds of miles or be made to continue a pregnancy against their will, yet that's what will happen unless the Supreme Court steps in," she said.
The bill garnered little support from Texas Democrats, who suffered historic losses on abortion, voting rights, and other key issues during the last legislative session. The Democratic National Committee’s Women’s Caucus Chair Lottie Shackelford called the law “shameful” and pledged to continue fighting.
“Republicans in state legislatures across the country have engaged in a coordinated effort to dismantle Roe v. Wade and its 50 years of precedent,” she said. “Without court intervention, this law will create a two-tier health care system for Texans because of Republicans’ desire to impose their extremist, unpopular, and dangerous political agenda on Americans. Shameful pieces of legislation like Texas’ SB8 make it next to impossible for people to legally access abortion care and bans a private decision that should be made between a person and their doctor.
“Democrats are committed to fighting to protect and advance reproductive health, rights and justice, and will never stop standing against a Republican anti-choice agenda that is out of step with our values and with the values of a majority of Americans,” she continued.
In a statement from Progress Texas, a spokeswoman argued that abortions will continue, despite the new law.
“When Texans decide to have an abortion, they should be able to do so safely and with dignity — and without fear of legal retribution,” said Diana Gomez, advocacy manager with Progress Texas. “This abortion ban is cruel, unconstitutional and an affront to our legal system. At a time when Texans are suffering from multiple crises, including a global pandemic, Governor Abbott and anti-abortion legislators have prioritized extreme measures to push abortion care out of reach. All Texans deserve control over our own bodies and access to essential health care, which includes abortion. SB 8 is the most extreme abortion ban in the country, but regardless of whatever draconian anti-abortion laws are passed in our state, abortions will still happen. Abortion supporters are the majority. We are everywhere, and will not be silenced.”
Already, anti-abortion organizations like Texas Right to Life are deputizing people across the country to act as plaintiffs in abortion lawsuits. The organization is gathering data on providers, advocacy groups, donors, attorneys, social workers and other prominent pro-choice voices as potential defendants in a suit.
One of the unusual provisions of SB8 is that it only allows a plaintiff, not a defendant, to recover attorney’s fees if they win the case. There’s also a provision that allows the plaintiff to decide where they're going to sue, which is the opposite of standard legal practice. Normally, the case would be tried in the city where the offense occurred.
Simpson Tuegel said the fight over SB8 is far from over.
“I think in the next few weeks, you're going to see more creative and aggressive challenges to this law,” she said. “And there are going to be challenges made that have standing — that’s a legal question — and that have immediate need to be addressed by the courts, both at a state and a federal level.”
She said other organizations and people involved in advocating for women’s rights will now likely follow in her footsteps in seeking a similar restraining order to the one she was granted.
“My guess is more plaintiffs will file in Travis County requesting similar relief so they can continue providing services because they've seen that we got a [temporary restraining order],” she said. “Other people are going to follow behind us so they can get the same relief and continue providing services without fear of lawsuits, at least for a little while.”