The Texas Abortion Ban Might Be the First, But It Won’t Be the Last

On September 1, staff and volunteers at the Lilith Fund, an organization that helps people who need financial assistance to end their pregnancies, began a typical hotline shift shortly after the sun rose over Texas. They’re used to fielding between 30 to 50 calls in a mere three hours. But that morning they awoke to an extraordinary new reality: Overnight, the U.S. Supreme Court’s conservative majority declined to block S.B. 8, a new Texas law that bans abortions as early as six weeks into a pregnancy and puts a $10,000 bounty on the head of anyone—from physicians to rideshare drivers—who “aids or abets” someone seeking an abortion in this time frame.

Just 10 calls came into the Lilith Fund’s hotline that morning, communications director Cristina Parker tells SELF. “Without the ability to [make] an appointment in Texas, we’re hearing from fewer people. That’s really scary and sad for us,” she says. “That silence tells us that there’s folks out there who are pregnant and don’t want to be, and don’t know what to do next.”

Advocates tell SELF that S.B. 8 represents an immediate crisis for Texans—and one in the making for the rest of the country.

“The [Supreme] Court is not going to save us on this one,” Farah Diaz-Tello, senior counsel and legal director for If/When/How, a reproductive-justice legal group, tells SELF. Lower federal courts could still strike down S.B. 8 or portions of it, and the Department of Justice just filed a lawsuit against Texas over the new law. But the fact that S.B. 8 has survived thus far has emboldened abortion opponents ahead of the Supreme Court’s upcoming oral arguments on Mississippi’s 15-week abortion ban. Like S.B. 8, that case is considered a direct challenge to Roe v. Wade, the landmark 1973 Supreme Court case that legalized abortion.

Reproductive-justice and abortion-justice advocates say their focus, as always, is to help people access health care while legal challenges to S.B. 8 mount. The federal court system was transformed for perhaps a generation thanks to President Donald Trump’s record-breaking number of lifetime appointees who are invariably hostile to abortion and LGBTQ protections.

While S.B. 8 returns to the lower courts where the legal challenge will continue, conservative members of the Supreme Court (including Trump appointees Neil Gorsuch, Brett Kavanaugh, and Ruth Bader Ginsburg’s replacement Amy Coney Barrett) have tacitly approved Texas’s blueprint for other states governed under anti-abortion Republican rule. Florida GOP Governor Ron DeSantis, who propped up racist abortion myths in Congress, expressed admiration for the Texas law. By their own admission, Republican lawmakers in Arkansas and Indiana are preparing to copy it.

Ultimately, the result of S.B. 8 is a policy that literally rewards anti-abortion extremists in Texas, feeds off the country’s long history of anti-abortion violence, and gives conservative politicians a way forward to effectively ban abortion in their own states without interference from the Supreme Court.

Progressive voices like Fix Our Senate are pressuring President Joe Biden to throw the White House’s support behind abolishing the Senate’s 60-vote legislative threshold, a Jim Crow relic called the filibuster, and passing the Women’s Health Protection Act to “codify” Roe.

Abortion access in Texas was already in an extremely vulnerable position before S.B. 8.

The landscape of reproductive rights and access in Texas “never fully recovered” from H.B. 2, a 2013 law that forced abortion providers to meet onerous and medically unnecessary requirements, Adri Pèrez, policy-and-advocacy strategist for the American Civil Liberties Union of Texas and cofounder of West Fund, tells SELF. By the time the Supreme Court overturned H.B. 2 in 2016’s Whole Woman’s Health v. Hellerstedt, the damage had been done. More than half of the state’s 40-plus abortion clinics never reopened.

The new law reinforces the haves and have-nots in U.S. health care—not limited to abortion. Many transgender, nonbinary, and gender-diverse patients count on reproductive health clinics for gender-affirming and otherwise culturally competent care. “We can expect a decrease in access to that [kind of care] as well, as the result of this,” Pèrez says.

Leah Torres, M.D., an ob-gyn who provides reproductive health care at West Alabama Women’s Center, a clinic owned by the Yellowhammer Fund, expects to see patients from Texas once she’s treated the ones from Louisiana. Hurricane Ida temporarily closed two of Louisiana’s three abortion clinics last week, she tells SELF, pushing patients “further and further east.”

Dr. Torres characterizes the new law as more than a ban or removal of rights. It forces people to remain pregnant against their will in an act of reproductive coercion that, in the most extreme circumstances, can kill them, she says. The risk to their lives is real in Texas (which consistently boasts one of the country’s highest maternal mortality rates) and in the United States (which continually leads the developed world in deaths from pregnancy or birth and up to one year postpartum).

The maternal mortality crisis poses an even greater risk to Black lives. Black women have a maternal mortality rate that’s at least three times higher than that of white women, according to Centers for Disease Control and Prevention data. The disproportionality applies regardless of income and education levels. And, contrary to anti-abortion propaganda, abortion is 14 times safer than birth, the American College of Obstetricians and Gynecologists reiterated in a December 2020 update.

“When you force someone to give birth, you force them to undergo health and life risks and potentially die doing a thing that they didn’t want to do in the first place,” Dr. Torres says. On top of that, “the people who are going to be hit hardest also have the worst maternal health outcomes when they are pregnant and give birth.”

Dr. Torres fears Texas-style laws will cause more preventable deaths like that of Savita Halappanavar. The 31-year-old dentist died due to sepsis after an Irish hospital repeatedly denied her an abortion, the standard medical treatment for her ongoing, incomplete miscarriage.

Halappanavar’s name became a rallying cry for the successful repeal of Ireland’s near-total abortion ban in 2018. The situation in Texas—and the failure of the Supreme Court to step in—could lead to similar tragedies in the U.S., Dr. Torres says. “And it’s not going to stop with Texas.”

S.B. 8 encourages private citizens to act as bounty hunters by suing anyone involved in abortions.

Another major problem with the Texas law is that it allows abortion “bounty hunters” to sue anyone who aids in an abortion after the six-week mark—and it encourages them to take a wide interpretation of who that might include.

“For lawyers, in particular, who know what it means to be involved in a civil lawsuit, this is really alarming because even a frivolous lawsuit has to be responded to,” Diaz-Tello says. Cases without merit are still a drain on time, money, and energy, she says, and are certain to involve and at the very least stigmatize people who have abortions.

And even though S.B. 8 exempts pregnant people from criminal prosecution, experts say there are still plenty of ways for them to be targeted or intimidated out of seeking care. State and local prosecutors can drum up all sorts of charges, such as the improper burial of fetal remains. “The name of the crime doesn’t have to be ‘abortion’ for a person to be criminally prosecuted for an abortion,” Diaz-Tello says.

If you want to help in the wake of S.B. 8, think locally.

While Roe affirmed the right to abortion, it never guaranteed that people could exercise their right. Access remains disproportionately out of reach for many people with low incomes and people of color in every U.S. state and territory.

The best way to help is to look to local organizations in Texas and around you. “What I always say is when they go low, you go local,” Pèrez says. They recommend donating to Texas-based abortion funds and “continuing to talk about abortion in a way that is unashamed to empowering.” The website needabortion.org provides resources for Texans, by Texans.

Dr. Torres adds another suggestion: “Don’t tell people to move out of Texas. People deserve to live wherever they want to live. We need fascist legislators out of office.” Listen to what people on the ground say they need to ensure abortion access.

In the wake of S.B. 8, Diaz-Tello expects more people will attempt to self-manage their abortions outside clinical settings and recommends people call If/When/How’s hotline to learn their legal rights and risks. Other self-managed abortion resources include Plan C, which provides an online abortion pill finder (including for telemedicine medication abortions), and Abortion on Our Own Terms. Although abortions are technically safest under the care of a medical professional, some people clearly may not have or want that option for various reasons. And research suggests that self-managed medication abortions can be safe and effective.

More than a week after S.B. 8 cut off abortion access, the Lilith Fund is preparing to take however many calls come into its hotline. “We expect that that call volume will pick up as people start making their appointments out of state, but we’re in really uncharted territory,” Parker says. There’s a new dawn in Texas, but people still need health care.

Related:

  • Texas Abortion Ban: An Ultra-Restrictive Texas Law Bans Abortions After 6 Weeks
  • Restrictive Abortion Laws Have Consequences That Reach Far Beyond State Lines
  • 14 Abortion Facts Everyone Should Know

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