As Texas Supreme Court weighs abortion ban, both sides say it’s unlikely anything will stop it now

The Texas Supreme Court is hearing oral arguments Thursday in the ongoing federal legal challenge to the state's six-week abortion ban.

For abortion providers in Texas — some of whom are plaintiffs in the case — there is little hope the case will shore up abortion rights in the state.

Kathy Kleinfeld says the past several months have been some of the toughest in her long career working at clinics that provide abortions. Kleinfeld is the administrator at Houston Women's Reproductive Services, a clinic that offers only the abortion pill.

Ever since the six-week ban went into effect, she said, every patient consultation she and her staff have done has been riddled with anxiety.

“As we open that door and the doctor is there and we are greeting a woman and getting ready to do her ultrasound, there is like this moment of holding our breath, almost, on her behalf," she said.

Senate Bill 8 bans a patient from getting an abortion in Texas if the doctor picks up any fetal cardiac activity, which can happen as early as five or six weeks into a pregnancy.

Kleinfeld said patients who are that far along and can afford it must make an appointment for an abortion in another state — many of which are currently overrun with Texas patients. They must also figure out travel, lodging and child care.

And then, of course, there are the countless patients who don’t have the financial means for any of that.

“In a moment, what we find on an ultrasound could completely change her forever,” Kleinfeld said. “And when we have to tell them that their choices are limited because of this law that is a direct violation of Roe v. Wade, that’s very hard.”

Gabriel C. Pérez

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KUT

This is perhaps one of the biggest frustrations for abortion providers in Texas.

SB 8, which went into effect in September, is clearly in violation of Roe, the legal precedent from the 1970s that legalized abortions up about 24 weeks into a pregnancy.

Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health — a chain of clinics that provide abortions in Texas — said she’s been fighting abortion restrictions in the state for many years. She said it's shocking the law is still in effect.

“Even for someone so seasoned in this regulatory nightmare that is the strategy to try to basically chip away abortion rights over the last decade,” she said, “even with all that I am surprised by how long SB 8 has been enforced.”

State lawmakers wrote SB 8 to be enforced by private citizens, instead of the state, which is practically unheard of. That has made challenging the law complicated for abortion providers.

The courts haven't made things less complicated, Hagstrom Miller said.

In December, the U.S. Supreme Court kept the law in place but allowed her clinics and others to proceed with a limited lawsuit against some state agencies.

Stephen Vladeck, a law professor at UT Austin, said he knew as soon as the ruling came down that this was, at best, a hollow victory for abortion providers.

“It sort of kept their lawsuit alive,” he said, “but not in a respect in which it could accomplish anything.”

John Seago, the legislative director for Texas Right to Life, said it’s also clear to him that this particular legal challenge isn’t a real threat to the law.

“The federal case left doesn’t really have the potential to stop private individuals from suing the abortion industry,” he said, “because the Supreme Court whittled down who the proper and valid defendants are.”

Seago said the court narrowed down the list of defendants to state agencies and licensing officials, which are not tasked with enforcing the ban under SB 8.

“The Senate author, Bryan Hughes, made it very clear on the floor and multiple times that he doesn’t want any government to enforce this law,” he said.

Yet, this is the challenge currently before the Texas Supreme Court.

After the U.S. Supreme Court issued its ruling last month, the Fifth Circuit Court of Appeals — one of the most conservative appeals courts in the country — sided with Republican officials who asked the court to send the case to the Texas Supreme Court. That court is made up entirely of elected Republican judges.

Even if abortion providers prevail and judges say state agencies can’t enforce the law, Seago said it’s still a victory for anti-abortion groups.

“The reality is that at this point there is no legal vehicle in the works that the abortion industry could use to stop the Heartbeat Act from being enforced,” he said.

Vladeck said until there is a ruling from the Texas Supreme Court, the district court in Austin that previously heard the challenge can't do anything either.

“There is state court litigation,” he said. “But even as that moves ahead slowly, there are very few mechanisms for those cases to actually produce any ruling that would block SB 8. And so, we really are in this Kafkaesque purgatory where the law is in effect even though the law on the books would suggest it is pretty blatantly unconstitutional.”

Vladeck said what’s happening with this case should be a sign to people that the courts aren’t going to reliably vindicate constitutional rights.

“A lot of people will look at that and say it’s just because it’s about abortion,” he said. “And I think the point that needs to be said over and over and over again is: 'It’s abortion today, but it could be anything else tomorrow.’”

Vladeck said perhaps that means advocates should set their sights elsewhere, possibly with the state Legislature.

This is a realization Hagstrom Miller had been coming to as well.

“I have turned my gaze away from the courts to seek justice, which in this country is a real heartbreak of a thing to have to say,” she said. Instead, she has been looking to Congress and the White House to protect abortion rights.

“We should be able to rely on the justice system to stand up for the human rights of people in Texas, and I solidly think access to safe abortion is a human rights issue.”

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