Texas abortion providers in limbo as they wait for Supreme Court word on state ban

Washington – Abortion providers in Texas have found themselves in limbo as they wait for a slew of legal issues raised during challenges to the state’s restrictive abortion law to unravel, as the Supreme Court wonders. it is necessary to block its application.

The High Court could as of Thursday respond to a emergency request from the Ministry of Justice to restore a ruling by a federal district court judge that suspended the law, which prohibits most abortions in the state. A Supreme Court ruling ending the application of the Texas measure as the legal battle over its constitutionality continues would be a victory for abortion providers, who argue the law denies women the constitutional right to freedom. abortion and will force many clinics to close.

But the dispute between the Biden administration and the state of Texas is in the preliminary stages and no court has yet made a decision on the constitutionality of the law, raising the question of whether abortion clinics have a chance to get relief in the near future.

“They are in this limbo,” said Jessie Hill, a law professor at Case Western Reserve University, who challenged state restrictions on reproductive rights. “They can’t perform abortions beyond six weeks and now live in constant fear. Even if they obey the law, I guess they can only go on like this for so long.”

The Justice Department’s claim pending in the Supreme Court is “the last best chance for claimants to get relief for a while,” she said.

“We’re right now where the Supreme Court is acting on this request to put the injunction back in place and things can go back to what they were in Texas, or there is no relief in sight for a while.” Hill said. “They might win out eventually, but it will probably take a while.”

Dispute landed in court weeks after the Biden administration filed his complaint against Texas in early October, arguing that the law had been enacted “in open disregard” of the Constitution. The law, the most restrictive in the country, prohibits abortions after detection of embryonic heart activity, usually around six weeks and often before many women know they are pregnant.

The Justice Department first asked a federal district in Austin to temporarily block law enforcement while court proceedings continue. The judge there, Robert Pitman, agreed to do it Oct. 6, writing in a scathing 113-page decision that women “who seek abortion face irreparable harm when they cannot access abortion; these people have the right to access abortion under the American Constitution ”.

Pitman’s order granting the Biden administration’s request for a preliminary injunction allowed state abortion providers to resume services, although the clinics and Justice Department victory was short-lived .

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which operates four clinics in Texas, said her organization was prepared for the eventuality of a court order that would give providers the green light to resume abortions.

Clinic staff reached out to women who were over six weeks pregnant and signed consent forms to see if they wanted to start meeting other Texas requirements to undergo the procedure, which positioned them to be ready for the case. where the court would suspend the application of the law. .

Other requirements include that a woman seeking an abortion must have at least two visits to an abortion provider, first for an ultrasound and then for the procedure. The state also requires that patients wait 24 hours after receiving their ultrasound and required documents before having an abortion.

“We have prepared our patients as best we can,” Hagstrom Miller told CBS News. “A lot of people are on the wait, are we going to break this law somehow? While they wait, their pregnancies are progressing.”

A total of six women had abortions at Whole Women’s Health while Pitman’s injunction was in effect, Hagstrom Miller said. About 48 hours after blocking law enforcement, the 5th U.S. Court of Appeals froze its decision, reinstate state ban October 8.

Acting within the law, staff at Whole Woman’s Health canceled appointments for abortion patients after the 5th Circuit allowed the law to revert.

“Our staff are put in the position against their will to be agents of the state, and they must enforce and enforce the law that puts them out of work,” said Hagstrom Miller.

The Supreme Court could once again suspend law enforcement, granting the Biden administration’s request to reinstate Pitman’s order and paving the way for resumption of abortions after six weeks.

Marc Hearron, senior attorney at the Center for Reproductive Rights, who represents Whole Woman’s Health and other providers in a separate challenge to the Texas ban, said if the Supreme Court lifts the suspension issued by the 5th Circuit, there is will have abortion clinics throughout the state that will resume performing abortions after six weeks.

“It’s hard to say if this will look like it was before, because even if a clinic makes a decision, they’ll start providing again, maybe all of the doctors working in that clinic or all of the staff do not do the same. choice, “he said.” It’s hard to say exactly what this is going to look like. “

Texas law leaves the application to private citizens, who are responsible for bringing civil suits in state court against anyone who performs an abortion after embryonic activity is detected or “aids or encourages ”. If an action is successful, the plaintiff is entitled to at least $ 10,000 from the offender.

As a result of this enforcement regime, it is not only clinics that face legal risks.

“It’s the doctor, the nurses, it’s also the front desk staff,” Hearron said. “Each person must think and make this choice for himself.”

The law enforcement regime made doctors reluctant to perform abortions when the measure was blocked, as it allows clinics and providers to be sued retroactively for procedures performed even when an injunction was in place, if it is then lifted.

Hagstrom Miller estimated that at least six doctors in Texas performed abortions when Pitman’s order was in effect, but most chose not to because of the risk of retroactive lawsuits.

A Supreme Court ruling ending enforcement, however, could leave providers more willing to resume abortions.

If the court declares in response to the Justice Department case that the law “is patently unconstitutional and we put it on hold, people will feel differently about moving forward than” if the court issues a brief one-paragraph opinion, Hill said. .

Meanwhile, staff at the Texas clinic have discussed with patients the possibility of going to clinics in neighboring states like Oklahoma or Louisiana for abortions, although that too is not without challenges. Clinics in other states have been inundated with women from Texas, Hagstrom Miller said, causing delays of four to six weeks in getting an appointment.

“It doesn’t affect patients not only in Texas, but in other states who are delaying their own access,” Hearron said. “This is pushing first trimester abortions towards second trimester abortions, causing significant delays in several states. It is heartbreaking. It really has to end. It is high time.”