Texas Preview of a World Without Roe v. Wade
Pro-choice demonstrators march outside the Texas State Capitol, in Austin, on Wednesday, the day that the state’s anti-abortion measure known as S.B. 8 took effect.Photograph by Sergio Flores / The Washington Post / Getty
The new law, an employee of Whole Woman’s Health said, has been “nothing short of devastating for our providers, our staff, and our patients.”
The Lilith Fund provides financial assistance to people in Texas who are seeking abortions. In 2020, nearly three-quarters of its clients were people of color, around sixty per cent already had children, half did not have paying work, and more than forty per cent were uninsured. For two weeks last month—just before Senate Bill 8, the new Texas law banning abortion after six weeks into a pregnancy, went into effect—the fund ignored its budget, in order to help as many people as it could, Shae Ward, who oversees the group’s hotline, told me. Normally, Ward said, the hotline takes in thirty to fifty calls per day. On September 1st, after S.B. 8 had become law, the hotline received about ten calls. “That’s not because fewer people needed abortions,” Ward told me. “It’s because they don’t know if it’s safe to ask for support.”
Abortion is still legal in Texas—for about two weeks after a woman’s first missed period, which is two weeks before most doctors suggest scheduling an initial prenatal visit. Whole Woman’s Health, which operates four abortion clinics in Texas, estimates that more than eighty-five per cent of abortion seekers in the state are at least six weeks into pregnancy. Twelve other states have tried to ban abortion after six weeks, by passing what are manipulatively and unscientifically named “heartbeat” laws, and they have been blocked in court, because such laws are unconstitutional under the precedent set by Roe v. Wade. But S.B. 8 was written so that the burden of enforcement lies entirely with private citizens, who are allowed—encouraged, really—to file lawsuits against anyone who performs an abortion after the six-week mark, or who “engages in conduct that aids and abets” an abortion, or who even “intends” to do such a thing. Plaintiffs do not need to know the person they file suit against, and, if they win, they are entitled, in most cases, to ten thousand dollars from the defendant and the reimbursement of their legal fees; defendants who win cases do not get their legal fees back. This bounty mechanism has made S.B. 8, so far, immune to judicial interference, because there is no clear entity that can be sued in order to block the law.
Anyone who has ever had to simultaneously make a doctor’s appointment, find emergency child care, and secure time off work can understand that what amounts, at best, to a two-week window—putting aside the state’s mandatory twenty-four-hour waiting period and the vagaries intrinsic to the human body—will rule out abortion for most people who need it. Reproductive-rights advocates in Texas sounded alarms about S.B. 8 when it was moving through the legislature—it was one of nearly fifty anti-abortion bills introduced in the 2021 session—and again, in May, when Governor Greg Abbott signed it into law. In July, Whole Woman’s Health was part of a group of Texas abortion providers that filed suit against state officials in an attempt to block the law. Around that time, Texas Right to Life, a decades-old Christian pro-life organization that was one of the principal forces behind the passage of S.B. 8, sent out a florid fund-raising appeal. (Texas Right to Life received more than two million dollars in contributions in 2019.) “These abortion extremists are downright apoplectic,” the appeal read, “clamoring about alleged ‘rights,’ trembling about a post-Roe world. And they should be.”
Texas abortion providers and advocates for reproductive choice have been anticipating the post-Roe moment for a long time, and trying to warn anyone who would listen. In 2013, the Texas legislature enacted H.B. 2, which required abortion clinics to meet the full standards of an ambulatory surgical center; the state went from forty-two clinics to about half that number in the following years. H.B. 2 was overturned in 2015, but there are still only twenty-one clinics in a state that is roughly the size of France. A year and a half ago, Abbott seized on the opportunity provided by a global pandemic to make abortions more or less impossible to get in Texas, especially for the poor, by designating most of them as nonessential medical procedures, which were suspended, owing to covid. At the time, I spoke with Lindsay Rodriguez, who sits on the board of directors of Fund Texas Choice, which funds and arranges travel for Texans seeking abortions. The organization was sending many patients to New Mexico, but New Mexico required a fourteen-day quarantine, an incredibly heavy burden for people who needed to work or care for families or both. (The majority of abortion patients are already mothers.) Travel, of course, involved an increased risk of contracting covid; Greyhound had cut back on bus schedules; ice sometimes stopped and searched the buses. Clinics generally did not allow patients to bring a support person, on account of the pandemic.
Many of these obstacles—the difficulty of travel, the shifting logistical restrictions, the impossibility of arranging child care—were already familiar to low-income women who sought abortions in Texas. (Nearly half of abortion seekers live below the poverty line.) Now they were also a reality to more affluent women in the state, most of them white. “What we see in Texas is coming for the rest of the country,” Rodriguez told me back then. The ban was lifted in late April of 2020, but it had been a preview of a future without Roe. Now the state is getting another one.
Sean Mehl is the associate director of clinical services for Whole Woman’s Health. He told me, the day after S.B. 8 went into effect, that the law had already been “nothing short of devastating for our providers, our staff, and our patients.” On August 31st, the staff at the organization’s Fort Worth clinic had worked from 7 a.m. until near midnight, hardly taking breaks or stopping to eat; the only doctor on duty, as a reporter for the 19th noted, was an octogenarian. Mehl told me that the clinics were receiving a “flood of phone calls, both from patients and people harassing our staff.” Patients were scared: they did not know how far along they were—and no one does, exactly, until you visit a doctor—and they knew that if they measured at five weeks and six days pregnant, it would most likely be too late. “The majority of Texans will not be able to travel out of state to obtain abortion care,” Mehl said. “We know this from experience. Those with means will be able to go somewhere else, and the majority will be forced into parenthood.” The new restrictions endanger clinics like those run by Whole Woman’s Health, which already had to close its Austin location after the passage of H.B. 2, in 2013.
The nonprofit Jane’s Due Process helps minors in Texas who are seeking abortion or birth control get legal assistance and referral services. (Outside the federally funded network of Title X clinics, teen-agers in the state can’t get a birth-control prescription without parental consent.) Like the Lilith Fund, Jane’s Due Process has received fewer calls about abortion to its hotline since S.B. 8 went into effect, the group’s executive director, Rosann Mariappuram, told me. (The group has received more calls than before, on the other hand, about emergency contraception.) Mariappuram noted that her organization frequently works with “foster youth, youth in immigration detention, youth with incarcerated parents.” In most cases, these were people in “dire situations,” for whom leaving the state is not an option. Jane’s Due Process had clients who’d secured a judicial order allowing them to get an abortion, but who were past the six-week mark, and had no idea what to do. Mariappuram suspected that the teen-agers who would normally be calling the hotline had resigned themselves to becoming parents against their will.
Fund Texas Choice, the organization that arranges and funds travel for abortions, has had the opposite experience: it typically receives ten to fifteen client requests each week, but took forty-two calls on September 2nd alone. “We’ve had to turn off the hotline because our capacity is maxed,” Anna Rupani, Fund Texas Choice’s co-executive director, told me. It is roughly two and a half times more expensive to send a client out of state than to fund an abortion in state; it is also significantly more complicated, when it is possible at all. Rupani had long known what the effects of S.B. 8 were likely to be, and she had prepared for this moment, but she had also held on to hope that the Supreme Court would step in. Shortly before midnight on Wednesday, the Court, which had reviewed the law on its shadow docket, issued an unsigned majority opinion that cited “serious questions regarding the constitutionality of the Texas law at issue” but also “complex and novel antecedent procedural questions” that supposedly prevented it from acting. The dissenting Justices were unsparing. Justice Sonia Sotomayor wrote, “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”
Rupani was a practicing lawyer for several years, and she was stunned, she said, that “no action had been taken. I didn’t think the Supreme Court would rule on a procedural basis that they couldn’t even do a preliminary injunction.” She wasn’t alone in feeling a whiplash combination of confirmation and shock. Aimee Arrambide, of Avow, an organization that focusses on pro-choice lobbying and advocacy, told me, “We were all prepared, we’re all used to the onslaught of new bans every year at the legislative session, we all expect to get sued. But, still, I honestly thought that the Supreme Court would step in—or, at the very least, enjoin it while they let it play out in the courts.” Rupani said, “You think that there’s going to be some semblance of law, and the fact that there wasn’t—that’s what’s so hard to understand, or accept.”
It has been the summer of disasters that are hard to understand and harder to accept, even though they are not very hard to see coming. For years, conservative legislators in Texas have been using the state as a proving ground for strategies that could chip away at Roe v. Wade. (Florida lawmakers have already pledged to pass a law like S.B. 8.) The tactic of decimating abortion access through civil lawsuits took off in Texas, in the nineties; S.B. 8’s diabolical bounty structure was successfully implemented in Lubbock earlier this year. The movement against abortion that Texas Right to Life is a part of remains focussed on prohibiting abortions once a person has decided she needs one—on working toward a future in which anyone who has been inseminated, under any circumstances (S.B. 8 contains no exceptions for pregnancies caused by rape or incest), must carry any resulting child to term, whether or not that person has any resources to care for another human being. (Nearly one in five children in Texas lives in poverty.) “Texas will always defend the right to life,” Governor Abbott tweeted, on the day that S.B. 8 went into effect—approximately two weeks after he had contracted covid, received treatment in the form of an antibody cocktail tested on cells derived from aborted fetal tissue, and recommended that all Texans with covid do the same. (In May, Abbott barred school districts from mandating protective equipment used to fight the spread of the coronavirus.)
The myriad other ways of preventing abortion, if that is what one wishes to do—providing free birth control and comprehensive sex education, for instance, or creating economic and political conditions that would make it easier for low-income people to raise a family without fearing indigence and disaster—are ignored or, at best, given lip service, when they are not being actively repudiated. (Texas does not mandate sex education in schools, though it does mandate that abstinence be stressed as the preferred method of birth control in any sex-ed classes that are taught.) Texas Right to Life and other groups have encouraged people to donate to crisis-counselling centers as a way of showing the world that pro-lifers care about pregnant women, and the Texas legislature recently allocated a hundred million dollars to an old state program called Alternatives to Abortion, which furnishes parenting classes and supplies to expectant and new families. But that program has repeatedly drawn criticism for its operational opacity. And neither initiative will touch on the aspects of existence in Texas that endanger the lives of those who have already been born: that the maternal mortality rate is double the already shameful national average; that the uninsured rate is the highest in the country; that so many children live in poverty; that people are allowed to carry guns in public without a permit or training in a state with upward of thirty mass shootings a year.
In the first twenty-four hours after S.B. 8 went into effect, an ActBlue fund-raiser for Texas abortion-support groups received more than nine thousand donations, but money can only mitigate a state-generated disaster that was designed not to end. Abortion is common and safe, and the right to get one is consistently supported by a majority of the American public. And yet the anti-abortion movement has been on the offensive for decades, while many pro-choice people have stayed in a defensive posture, leaning against the fragile safety net of Roe v. Wade, which has never sufficiently protected abortion access for the poor and otherwise marginalized.
The persistent and profound endangerment of the right to an abortion is much bigger than Texas; it reflects the undemocratic reality of political life in America. Addressing that reality, with major structural changes—an end to the filibuster, an expansion of the Supreme Court—is likely the only thing that can lastingly ameliorate the suffering that has already arrived for pregnant people in Texas.