Amy Hagstrom Miller is furious. “It’s a righteous kind of fury that I’m feeling,” she told reporters on a July 13 press call. “That we have to go back into the courts to plead with them to protect the people of Texas from extremists who hijacked the state Legislature.”
At issue is Senate Bill 8, which seeks to ban all abortion in Texas after six weeks of pregnancy, well before many people know they’re pregnant. Roughly 90 percent of people who obtain abortion care in Texas are at least six weeks into pregnancy. While similar bans enacted in 11 states have been blocked by federal courts for contravening nearly 50 years of precedent upholding the right to abortion before fetal viability — roughly four months beyond the six-week mark — the Texas law is designed to circumvent constitutional protections.
Instead of making the ban enforceable by a state actor — say, the head of the state health department or the attorney general — S.B. 8 allows literally anyone to bring a private civil suit against an abortion provider they believe may have violated the ban or a person they believe has aided or abetted a patient seeking an abortion after six weeks. That could include a friend who lends a patient money or drives them to a clinic.
The point of all this is to try to prohibit providers and patients from going to federal court to block the law from taking effect, what’s known as a pre-enforcement challenge. If there’s no obvious state official to sue, the thinking goes, the efforts of providers and their allies will be stymied. S.B. 8 is slated to take effect on September 1.
But this week, a coalition of providers — including Hagstrom Miller, president of Whole Woman’s Health Alliance — nonetheless filed suit in federal district court in Austin in an attempt to block the law. The providers were joined in the suit by other supporters of abortion access, including six abortion funds, which provide assistance to those seeking abortion; two abortion doctors; and two religious leaders who regularly counsel abortion patients.
“We’ve beaten back these attacks before,” Hagstrom Miller, who runs four clinics in Texas, said of the plethora of abortion restrictions state lawmakers have enacted over the years. “We can and will do it again.”
A Truly Dangerous Precedent
Back in March, John Seago, legislative director for Texas Right to Life, the state’s largest anti-abortion group, told the Senate’s State Affairs Committee that S.B. 8 was “crafted to lead to judicial victories” and “succeed where 11 other states have failed.”
In response, the coalition behind the lawsuit — which includes the Center for Reproductive Rights, Planned Parenthood Federation of America, the Lawyering Project, and the American Civil Liberties Union of Texas, among others — hasn’t just gone after the attorney general and state health department. Also named as defendants are state judges with jurisdiction over civil court cases and the county clerks tasked with accepting civil lawsuits under S.B. 8. The argument is that these state actors have been conscripted into lawmakers’ attempts to violate constitutional rights and thus are the appropriate individuals to sue.
“Texas has essentially roped judges and clerks into the enforcement of this, so they’re the proper defendants in this lawsuit because of the way the Texas Legislature has structured this law,” said Marc Hearron, senior counsel at the Center for Reproductive Rights and the lead attorney in the case. “I do note that if this is not blocked, if this is successful, it would set a truly dangerous precedent because states could eviscerate their own citizens’ federal constitutional rights by creating a private lawsuit to do what their own officials couldn’t do.”
The law deputizes anyone, from anywhere in the country, to bring a suit based on mere speculation that S.B. 8 has been violated.
The law deputizes anyone, from anywhere in the country, to bring a suit based on mere speculation that S.B. 8 has been violated. It does so by flouting how civil litigation usually works, which is that the person suing must have been harmed in some way. The law also incentivizes people to bring these suits by awarding at least $10,000 in damages, if their suit is successful, per abortion performed in violation of the law.
“In effect, SB 8 places a bounty on people who provide or aid abortions, inviting random strangers to sue them,” the lawsuit reads. In attempting to prove an allegedly illegal abortion took place, the lawsuits allowed under SB 8 also pose a threat to individuals’ right to privacy in health care.
The harassment has already begun, the suit notes, with two anti-abortion activists trespassing onto the Whole Woman’s Health Alliance property in Austin to distribute a letter telling staff that they could be sued for violating the law and encouraging them to rat each other out.
Hagstrom Miller said that her staff and physicians “are terrified. The teams are on edge; they’re very worried. They’re under so much stress. I mean, they’re already under surveillance and uncertainty.” The sonographer who works in the Austin clinic recently told her that 80 percent of the patients she’s served over the last month are asking “while they’re in the clinic, on the day of their abortion, if it’s legal,” Hagstrom Miller said. “Can you imagine what that feels like as a patient and as a staff person on the ground in Texas already? And this law hasn’t even gone into effect yet.”
Sanctuary Cities for the Unborn
There’s reason to believe that lawsuits under S.B. 8 will materialize as the abortion providers, advocates, and lawyers fear. Named as an individual defendant in their suit is a man named Mark Lee Dickson, the director of Right to Life East Texas. A veteran abortion clinic protester, Dickson has spearheaded attempts to get cities across Texas to adopt ordinances that would ban abortion within their boundaries, an effort he calls the “Sanctuary Cities for the Unborn Movement.”
His first success was in tiny Waskom, Texas, which has an aging population of fewer than 2,000 people. The city council there eagerly passed Dickson’s ordinance, catching a lot of attention thanks to a photo that ran in the Marshall News Messenger, which depicted the all-white, all-male council as they unanimously approved the new law. Since then, a handful of little towns across Texas have adopted Dickson’s proposed ordinance, which was crafted with the assistance of state Sen. Bryan Hughes, who represents Longview, where Dickson lives. Hughes was also the author of S.B. 8.
So far, the largest city in Texas to dub itself a sanctuary city for the unborn is Lubbock, in the state’s Panhandle and home to Texas Tech University. After debate, the city council declined to adopt the ban, noting that it was unconstitutional, and tossed the decision to voters. In a special May election where there was practically nothing else on the ballot, voters adopted the measure, which took effect June 1. Like S.B. 8, the city ordinance gives residents the right to bring civil lawsuits to enforce the ban.
The measure is deeply troubling to Angela Martinez, health center manager at the Lubbock Planned Parenthood. She really didn’t think it would pass. “It was silly of me to be surprised,” she said.
The clinic had only recently reopened. It was shuttered back in 2013 after lawmakers restructured how family planning money was allocated — money that provides preventive services and birth control to low-income and uninsured people — as a way to deny funding to Planned Parenthood, the single largest provider of such services. That year the clinic was also hamstrung by the unending string of draconian, and unnecessary, restrictions on abortion that led to the closure of half of the state’s abortion clinics. With the clinic closed, the nearest in-state abortion provider was some 300 miles away, in Fort Worth. Lubbock is a health care desert, so the fact that the clinic was able to reopen in 2020 was a big deal.
At the time the ordinance passed, the clinic was only providing medication abortion, which is available early in pregnancy, but had plans to start providing procedural abortions as well. They’re still providing family planning services but have stopped providing abortion services because of the city’s new law. “The schedule filled up so quickly that you knew you were doing something right,” she said. “You were fulfilling a need. These people aren’t having to travel. We’re able to assist them closer to home.” Now, many patients will again have to travel for services.
This appears to have pleased Dickson, who posted a video to Facebook on June 1 to herald Lubbock’s new ordinance — and to stage a call to the clinic to see if they would accept an abortion client. In the video, Dickson is wearing a backwards baseball cap and a dark blue suit jacket over a turquoise plaid pearl-snap shirt. He smiles smugly after a woman answering the phone at the clinic says she can’t book an abortion appointment. But he also looks a tad bewildered, as if surprised by his success, kind of like a high school freshman who won the race for class president and can’t quite believe it.
In the wake of the ordinance’s passage, Planned Parenthood sued the city in federal court to block it from taking effect, but a federal judge dismissed the suit, saying he lacked jurisdiction to stop it. Planned Parenthood has since asked the judge to reconsider his ruling.
Since S.B. 8 passed, Dickson has posted messages to Facebook lauding the new law. In March, before the bill was even signed, he was encouraging folks to file lawsuits. “You will be able to bring many lawsuits later this year,” he wrote. “Let me know if you are looking for an attorney to represent you if you choose to do so. Will be glad to recommend some.”
On Tuesday, Dickson posted several times about the lawsuit filed by providers and advocates, adding the hashtag #unbornlivesmatter. “Today several who desire to end the lives of precious babies with heartbeats sued myself and others,” he wrote. “The only thing more ridiculous than this lawsuit is the fact that we have people, right here in Texas, who are fighting to end the lives of innocent unborn children.”
A Stark Choice
There was plenty of outrage to go around as plaintiffs and their attorneys addressed reporters during the call to announce the lawsuit.
“I’ve never felt more outraged or angry than I did when this egregious and inhumane law was passed,” said Dr. Bhavik Kumar, who provides abortions at Houston’s Planned Parenthood clinic. “I have helped thousands of people safely end their pregnancies with the dignity, respect, and compassion they deserve. What I have learned from my years of training is that abortion care is extremely safe and very common. I’ve also seen firsthand how many people don’t expect they will need abortion care until they do.”
Kumar and others noted that the ban on abortion would disparately impact low-income people and people of color who already struggle to secure reproductive health services and face high rates of maternal morbidity and mortality when carrying pregnancies to term. “Racial and ethnic disparities in health care are especially prevalent in Texas and are exacerbated by policies that restrict access to the full range of reproductive health services,” said Adriana Piñon, policy counsel and senior staff attorney at the ACLU of Texas. The state, she said, “has one of the highest maternal mortality rates in the nation. If this law takes effect, people struggling to make ends meet will not be able to travel out of state to obtain abortion care and will be forced to continue their pregnancies against their will. And the consequences may be horrific.”
“The law threatens to interfere with what we as faith leaders can and cannot talk about.”
Rev. Daniel Kanter, senior minister of First Unitarian Church in Dallas, provides counseling and spiritual support to pregnant people considering abortion. He worries that S.B. 8 will set a dangerous and unconstitutional precedent that would chill free speech. “My question to Texans today is whether you want … the courts in the room when your ministers or clergy counsel you. The law threatens to interfere with what we as faith leaders can and cannot talk about,” he said. “And we might all ask this question: What’s the next thing we won’t be allowed to talk about in the privacy of our counseling sessions? The idea that the state gets to decide what we can discuss in the protected confessionals and faith-based conversations … is frankly un-American and unethical.”
Because of the way S.B. 8 is written, he said, any discussion a faith leader has about abortion could be subject to a civil lawsuit. Indeed, the lawsuit filed by reproductive rights advocates challenges S.B. 8 on First Amendment grounds. The law, the attorneys argue, must be found to run afoul of the Constitution. “Otherwise, states and localities across the country would have free rein to target federal rights they disfavor,” the suit reads. “Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase. Churches could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them.”
Hagstrom Miller said the state is facing a “stark choice between a nightmarish future in which extremist politicians succeed in banning abortion and turning Texans against each other. Or a much brighter one in which people facing unplanned pregnancies can get the advice, support, and care they need.”