WASHINGTON — At least one healthcare provider in Texas confirmed Thursday that they had resumed performing abortions for patients past week six of pregnancy, after a federal judge temporarily halted enforcement of the state’s ban on those procedures.
Whole Woman’s Health operates four clinics in Texas that perform abortions along with other healthcare services. CEO Amy Hagstrom Miller spoke with reporters on Thursday afternoon to address their operating status after Wednesday night’s court action, and said that at least some of their doctors had performed abortions for patients who already completed the state’s 24-hour waiting period in recent weeks in anticipation of an injunction that would lift the ban, even temporarily.
Miller declined to specify how many doctors had performed abortions so far or where they were located in the state, saying her organization expected to be targeted by anti-abortion activists going forward.
The law, SB 8, prohibits nearly all abortions after fetal cardiac activity can be detected, which is typically around week six of pregnancy. The Justice Department filed a constitutional challenge last month after Whole Woman’s Health and other abortion providers in the state unsuccessfully tried to pursue their own case to stop the law from taking effect on Sept. 1. In the DOJ case, US District Judge Robert Pitman in Austin issued a 113-page preliminary injunction that blocked any further enforcement of SB 8 while the legal fight went forward.
It wasn’t immediately certain if providers in the state would begin providing the abortions that the law prohibited, however. Texas filed notice that it would appeal the ruling, and the law makes it risky to perform or assist with abortions as long as any litigation is pending. Planned Parenthood, which also provides abortion services in Texas, released a statement from its CEO, Alexis McGill Johnson, saying they were “hopeful” the ruling would allow providers to perform post-week-six abortions again, but wasn’t specific about what the organization would do in the meantime; a spokesperson told BuzzFeed News that Texas affiliates were “evaluating their next steps.”
SB 8 also includes disincentives for performing abortions while legal fights are pending. The law states that people who are sued and accused of violating the six-week ban can’t claim as a defense that they were following a court ruling in effect at the time — for instance, Pitman’s injunction — if that ruling is later reversed.
Miller said that in addition to performing abortions for patients who had already gone through Texas’s waiting period, Whole Woman’s Health had also contacted patients who were past week six and had expressed interest in getting an abortion to see if they’d want to initiate that process.
Miller said that since SB 8 took effect, Whole Woman’s Health clinics continued to perform a smaller number of abortions that complied with SB 8, but had turned away hundreds of patients. She said staff and providers remained fearful of being sued, and had been under surveillance by anti-abortion activists trying to identify violations of the law; she said “fake” patients had come in trying to test their compliance.
Miller said that call volume had gone up on Thursday and that patients and staff were expressing “hope” mixed with “a little desperation.” She said they were grateful that a judge had stepped in for now, but knew that the “back and forth” would continue in the courts.
“Folks know that this opportunity could be short-lived,” she said.
Texas appealed Pitman’s decision to the US Court of Appeals for the 5th Circuit just over an hour after he released the injunction, but the state attorney general’s office did not immediately ask that court to pause the injunction. Texas had asked Pitman to put his own ruling on hold if he sided with the Justice Department, but Pitman declined to do so.
“This Court will not sanction one more day of this offensive deprivation of such an important right,” the judge wrote.
A spokesperson for the Texas attorney general’s office did not immediately return a request for comment.
SB 8 is unusual in that it deputizes private citizens to enforce the law by bringing lawsuits against anyone they suspect of performing or aiding an abortion after week 6; other Republican-led states have tried, and failed, to survive legal challenges to early-term abortion bans that left enforcement solely to the state. Pitman’s injunction explicitly prohibits state court judges and clerks from taking any action to facilitate the enforcement lawsuits that SB 8 allows and provides financial incentives for bringing.