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Texas’ restrictive abortion law previews a post-Roe America

By Eleanor Klibanoff, The Texas Tribune

Texas’ restrictive abortion law previews a post-Roe America” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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When Politico published a draft opinion leaked from the U.S. Supreme Court on Monday, the nation confronted the reality that Roe v. Wade and constitutional protections for abortion may be overturned as soon as this summer.

But for many in Texas, that day is already here. The second-largest state in the country has been living under the nation’s most restrictive abortion law since Sept. 1, when legislators managed to skirt judicial precedent and ban all abortions after about six weeks of pregnancy.

“We have been living the last eight months in a post-Roe Texas,” said Neesha Davé, deputy director of the Lilith Fund. “It has been absolutely devastating for people seeking abortion care … As we have been navigating this, we have learned a lot.”

Texas offers a glimpse of what the future holds for the dozens of other states that plan to ban abortion if Roe v. Wade is overturned — and for the people left to navigate those increased restrictions.

In the months since the law went into effect, pregnant Texans have flooded clinics in neighboring states and found ways to order abortion-inducing medication online, while others have carried unwanted pregnancies to term. Clinics have pivoted to helping shuttle people out of state, and abortion funds have struggled to keep up with the need.

“We definitely hear from our clients a lot of frustration about how they have to work to access this medical care,” Davé said. “And we know it’s just going to get harder from here.”

The big pivot

When Texas first passed its ban on abortions after about six weeks of pregnancy, abortion clinics leaped into action. They’ve been trying to beat back these sorts of restrictions for years now.

First, they filed an emergency appeal to the U.S. Supreme Court and federal and state lawsuits seeking to block enforcement of the law.

While they waited on the courts, they tended to patients, providing their usual standard of care, right up until the moment the law went into effect. But when the clock struck midnight on Sept. 1, business as usual came to a halt. With one brief exception, clinics in Texas stopped providing abortions after the detection of fetal cardiac activity, usually around six weeks of pregnancy.

This is what experts anticipate will happen in the 26 states that intend to ban abortions if Roe v. Wade is overturned.

“The clinics will shut down if abortion becomes illegal, at least as far as providing abortions,” said South Texas College of Law Professor Charles “Rocky” Rhodes, in an interview last month. “Just like we’ve seen with [Texas’ law], they will not … risk the criminal consequences. There will just not be legal abortion providers in these states.”

In Texas, all of the clinics that were operating at the time the law went into effect have continued providing abortions up to that six-week mark. They’ve relied heavily on donations and, in many cases, had to change their focus significantly.

Whole Woman’s Health operates four clinics in Texas and five in other states. After Texas’ law went into effect, it opened a clinic near the airport in Minneapolis. If Roe v. Wade were overturned, Minnesota is expected to be a “haven state” for abortion.

“Right now, we’re already seeing about 30% of our clients in our Minnesota clinic come from Texas,” said Wendy Brown-Spaulding, development director for Whole Woman’s Health Alliance. “And we’re expecting to see that number tick up drastically. But we’re definitely prepared.”

Whole Woman’s Health has also invested heavily in its new “wayfinding program,” which helps Texans get to one of its other clinics in states where abortion remains more accessible. They work with abortion funds to help patients pay for travel and related expenses.

Brown-Spaulding said it’s too soon to know what the future holds for the organization’s four clinics in Texas, but it’s clear that it is investing in building clinics — and helping people access those clinics — in states that are safer bets for abortion access.

Continuing to access abortion care

Early data indicated that the number of abortions in Texas had dropped by more than half after the new law went into effect in September. But over time, it’s become clear that pregnant Texans are still finding ways to access abortions — even if they have to travel long distances or violate the law to do so.

The New York Times analyzed two studies from the University of Texas at Austin and found that out-of-state abortions and online requests for abortion medication made up much of the gap for pregnant people who otherwise would have sought an abortion in the state.

The Texas Policy Evaluation Project found that nearly 1,400 Texans each month obtained abortions at clinics in just seven nearby states after the law went into effect. That’s nearly equivalent to the number of Texans who traveled out of state for abortion care in 2017, 2018 or 2019.

Another study from Abigail Aiken, a professor at the University of Texas’ LBJ School of Public Affairs, found that requests for abortion-inducing medication from an international reproductive rights nonprofit skyrocketed after the law went into effect. Texas passed another law in 2021 that made it illegal to prescribe these medications via telemedicine or provide them through the mail, but that didn’t stop more than 130 Texans a day from requesting these medications.

These studies do not take into account pregnant people who sought abortion-inducing medication from other sources, went over the border to Mexico for an abortion or otherwise terminated a pregnancy.

“It’s clear from this research and many studies that just because you make abortion harder to get, it doesn’t mean the need for abortion goes away,” Aiken told The Texas Tribune in February. “And many people, they will look for other ways of doing that.”

But access to abortion outside of Texas will become much more difficult if Roe v. Wade is overturned. More than half of all states intend to ban or severely limit abortion, according to reproductive rights research group The Guttmacher Institute.

“And these states are not randomly distributed,” said University of Texas at Austin law professor Liz Sepper. “This would effectively end abortion access, at least in people’s home states in the South and Midwest.”

Nearly half of all Texans who left the state to access abortion went to Oklahoma, according to the Texas Policy Evaluation Project research, which last month passed a total abortion ban that will go into effect this summer. This week, Oklahoma followed Texas in passing a ban on abortions after about six weeks of pregnancy, which is similarly enforced through private lawsuits.

More than a quarter of Texans went to New Mexico, which is expected to continue to allow largely unfettered access to abortion if Roe v. Wade is overturned. But Las Cruces, the nearest city with an abortion clinic, is a 10- to 12-hour drive from most of Texas’ population centers.

“Folks who have resources will always be able to access the care they need, even if they have to jump over or navigate countless barriers to be able to do so,” Davé said. “But it is absolutely lower-income folks [and] people of color … who are disproportionately impacted by abortion bans.”

She said that’s what they’ve seen play out under Texas’ law, and that’s what they expect to see happen as restrictions tighten across the country.

“It’s logistically very difficult [to travel] when you are already caring for children, when you are working, when you don’t have paid time off of work,” she said. “We will absolutely see people who are forced to remain pregnant against their will.”

Abortion opponents feel unprepared

Some of those people will turn to crisis pregnancy centers, nonprofits that counsel pregnant people against abortion. Some provide counseling, job training and baby items; some have been accused of using deceptive practices to lure in vulnerable people looking for abortion care.

Texas has invested over $100 million into crisis pregnancy centers, more than any other state. Abortion opponents have argued that makes Texas more prepared to handle an increase in people carrying their pregnancies to term. The program has little government oversight.

Vincent DiCaro, chief outreach officer of Care Net, said the group’s 82 Texas crisis pregnancy centers have seen more clients since the law went into effect — and a different kind of client.

“They’ve had more clients that feel a little bit more desperate than they might have before that law passed, or feel sort of a little bit more pressure to make a decision,” he said.

DiCaro said this surge in demand in Texas has shown his organization that the current network of crisis pregnancy centers isn’t ready to meet the needs of the people they hope to serve.

“We think crisis pregnancy centers are awesome, of course,” he said. “But if that’s the only solution, we’re not going to have enough manpower to help all of the people who are going to need help if Roe v. Wade gets overturned.”

He would like to see churches step up and fill in that gap and points to the pregnant people continuing to seek abortions outside of Texas as evidence that they’re not doing enough to meet the need.

“We need to have that support network running at full steam, so that whenever somebody is facing an unplanned pregnancy and doesn’t know what to do, they know that there’s somebody that they can turn to in their community,” he said. “A lot of people that would consider themselves to be pro-life say that winning is overturning Roe v. Wade. … Our question is, are we actually prepared to win?”

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Correction, May 4, 2022: A previous version of this story included a quote from Whole Women’s Health Alliance saying that the organization would pay for travel to its clinics. The organization now says an executive misspoke and that it works with abortion funds to help patients pay for travel but does not provide the funding.

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