AUSTIN, Texas – A federal judge in October will hear the Biden administration’s efforts to block Texas’ new law banning most abortions, which is already putting a strain on clinics and patients in the two weeks since it took effect.
U.S. District Judge Robert Pitman, an appointee of President Barack Obama, will decide whether to grant a temporary hold that could allow Texas clinics to resume performing abortions on most patients. Currently under the new law, abortions in Texas are now prohibited once medical professionals can detect cardiac activity, usually around six weeks.
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Supporters of the law known as Senate Bill 8 are preparing for a ruling that favors the Justice Department’s challenge but believe the measure — the strictest abortion law in the nation — will ultimately be upheld.
Here are some questions and answers about what's next and the impact so far:
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WHAT HAS BEEN THE IMPACT?
Abortion providers say the ramifications have been punishing and “exactly what we feared.”
More than 100 pages of new court filings this week offered the most comprehensive glimpse at how the near-total ban on abortion in Texas has played out. Physicians and executives at Texas’ nearly two dozen abortion clinics described turning away hundreds of patients, and some who show up for appointments cannot proceed because cardiac activity has been detected.
One Planned Parenthood location in Houston normally performed about two dozen abortions daily, but in the 10 days after the law took effect, the clinic had done a total of 52. Clinics in nearby states, meanwhile, say they are struggling to meet surging demand and care for their own residents is being delayed to accommodate women making long trips from Texas.
At a Planned Parenthood clinic in Oklahoma City, more than 60% of the 219 appointments over the next two weeks are for women from Texas. Doctors say recent patients from Texas have included rape victims, as SB8 makes no exceptions in cases of rape or incest.
Texas abortion providers say they are complying with SB8, and there are no reports of lawsuits accusing clinics of violations.
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WHAT WAS THE LANDSCAPE IN TEXAS BEFORE?
More than 55,000 abortions were performed last year in Texas, which already had some of the nation's strictest abortion laws, including a ban after 20 weeks of pregnancy.
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IF A JUDGE SIDES WITH CLINICS, HOW SOON COULD THEY REOPEN?
If the new Texas law is put on hold by a court, abortion providers say it could be done quickly, but how soon is likely to depend on several factors.
Abortion providers in Texas have experience when it comes to abruptly ramping up operations again. In the early stages of the COVID-19 pandemic last year, abortions in Texas were all but banned for weeks under orders by Republican Gov. Greg Abbott that postponed surgeries “not immediately medically necessary."
But providers are already reporting staffing issues and worry some clinics will permanently shutter the longer SB8 is in effect. A decade ago, Texas had more than 40 abortion clinics, but more than half of them closed for good during a protracted legal battle over a 2013 law that was ultimately overturned by the Supreme Court.
“I believe that, without court-ordered relief in the next couple of weeks, SB8 will shutter most if not all of the remaining abortion clinics in Texas,” Amy Hagstrom Miller, president of the abortion provider Whole Woman's Health, told the court this week.
Seth Chandler, a professor of law at the University of Houston, said he believes the judge will act within two weeks. But he said even if Pitman temporarily stops the law from being enforced, abortion clinics may still be reticent to quickly resume normal operations over concerns of a swift appeal.
“If I were an abortion clinic, I would still be concerned," Chandler said.
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WHAT HAPPENS NEXT?
The Biden administration filed its lawsuit a week ago and this week asked for a temporary restraining order that would put SB8 on hold while the lawsuit proceeds.
Texas Right to Life, the state's largest anti-abortion group and a driver of the new law, has cheered the fact that it has stopped abortions everyday that it has been in effect.
A ruling to grant a temporary hold wouldn't decide the constitutionality of the law, though whether the administration's lawsuit — which calls it "clearly unconstitutional" — is likely to succeed is a factor in putting the law on hold. At the hearing, Pitman will hear from both sides, and a written ruling would likely follow.
In the short term, that means SB8 is in effect unless and until Pitman says differently. Supporters of the law are already anticipating Pitman will rule against the law and are preparing their next move. If they're right and Pitman puts the law's enforcement on hold, abortion providers could theoretically resume their previous practices. But Texas could also quickly ask a federal appeals court to reinstate the law, and the 5th U.S. Circuit Court of Appeals that oversees Texas is a conservative-leaning panel with a track record of staying lower-court rulings from Austin.
The law has already made one trip to the Supreme Court. The justices voted 5-4 not to intervene to prevent it from taking effect, but they said further challenges were possible. With the Biden administration’s challenge underway, the law could return to the justices quickly.
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HOW ARE OTHER STATES RESPONDING?
After Texas' law went into effect Republican lawmakers in at least half a dozen states said they would consider introducing bills using the Texas law as a model, hoping it provides a pathway to enacting the kind of abortion crackdown they have sought for years. Those states include Arkansas, Florida, Indiana, Mississippi, North Dakota and South Dakota.
Meanwhile, on Wednesday, two dozen state attorneys general, all Democrats, submitted a brief in the Biden administration’s lawsuit saying a substantial reduction of abortion access in one state would result in health care systems being burdened elsewhere. They asked Pitman to block enforcement of the law.
The City Council in Portland, Oregon, briefly considered a boycott of Texas businesses because of the new law but instead decided to set aside $200,000 to fund reproductive care.
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Gresko reported from Washington.