Amy Hagstrom Miller thought it would all be over in four to six weeks.
That was the estimate she gave last August for how long abortion clinics like hers might have to shut down as Texas leaders prepared to roll out the country’s first effective six-week abortion ban. “That’s if we can’t block it ahead of time,” said Miller, the president and CEO of Whole Woman’s Health.
“It’s hard to maintain hope in these kinds of situations in Texas, but we keep winning,” she said. “We’ve won before.”
Within a year, that optimism has turned to dread, as providers and abortion-rights supporters watched the U.S. Supreme Court not only uphold the Texas six-week ban but go much further, overturning Roe v. Wade on Friday and rolling back five decades of federal abortion protections.
Like other providers, Whole Woman’s quickly announced it would stop providing abortions at its four Texas clinics.
“Roe overturned,” Miller tweeted as the ruling dropped. “End times y’all.”
While Friday’s decision in Dobbs v. Jackson Women’s Health Organization involved a Mississippi law, Texas has offered the testing grounds for months now of a post-Roe nation, and it showed that the court’s conservative majority was willing to take radical steps in allowing states to regulate abortion.
“SB8 set the stage for it,” Jon Taylor, a political science professor at the University of Texas at San Antonio, said of the Texas law, Senate Bill 8. “It was a huge signal on the part of the court where they were going to rule with Dobbs.”
Republican-led states had tried for years to ban abortions after six weeks of pregnancy, or when doctors first detect cardiac activity in a fetus. But each of those efforts failed when challenged in court. Friday’s ruling allows more than two dozen states with GOP leaders to begin criminalizing all or nearly all abortions.
Texas broke through the blockade last fall by enforcing its six-week ban exclusively through private litigation. The Supreme Court’s conservative majority said it was helpless to intervene because the law wasn’t enforced by public officials.
The Texas law was novel because it not only enlisted private citizens to sue each other, but also clearly stacked the cards against abortion clinics. Litigants could file their lawsuits in any state court, giving them power to search out sympathetic judges. And even if abortion providers won, they were barred from recouping their legal expenses.
“I think the fetal heartbeat law made the Dobbs decision a lot more likely,” said Josh Blackman, a constitutional law professor at Houston’s South Texas School of Law. “It basically illustrated what the post-Dobbs world would look like before Dobbs.”
Road trips, pills by mail
The picture that emerged was one of vast new struggles for women who are seeking the procedure. Between September and December of last year, more than 5,500 Texans traveled to abortion clinics in surrounding states, according to an analysis from the University of Texas at Austin. That was a tenfold increase in monthly visits from before SB8 took effect Sept. 1 — and the study included data from only six neighboring states.
Meanwhile, Aid Access, a global nonprofit that ships abortion pills to women in the United States, saw three times as many Texas requests under the new restrictions.
The law “has not reduced the need for abortion care in Texas,” Kari White, lead investigator at the university’s Texas Policy Evaluation Project, said at the time. “Rather, it has reduced in-state access.”
Nearly every facet of reproductive health care in Texas has been entangled within SB8 and a companion bill, SB4, which restricts access to abortion-inducing pills until after seven weeks of pregnancy.
That medication — mifepristone and misoprostol, often taken in tandem — also can be used to manage a miscarriage, and some pharmacies hesitate or refuse to dispense it for patients who have already lost a pregnancy, said Dr. Kimberly Pilkinton, president-elect of the Texas Association of Obstetricians and Gynecologists.
She said some patients also have trouble obtaining methotrexate, the most common medication used to treat ectopic pregnancies, in which a fertilized egg implants outside the uterus and cannot survive. SB8 allows doctors to remove an ectopic pregnancy, but the language in SB4 is less clear.
The exemptions can be hard to interpret, Pilkinton said.
“There’s so much fear regarding some of these laws that some people are just not willing to engage in anything that might be construed as anything related to abortion care,” she said.
‘Everyone is freaking out’
The confusion has extended to major medical institutions, which must weigh civil liability and criminal penalties when considering how to treat pregnancy complications.
Though the new restrictions allow doctors to intervene to save a woman’s life or to prevent “substantial impairment of a major bodily function,” some hospitals have delayed care for women with potentially life-threatening conditions that warrant early termination.
When Dr. Judy Levison, a 72-year-old Houston OB-GYN, first learned about SB8, she “thought we were entering some kind of dystopia.” She felt it “flew in the face” of the civil rights progress in the 1960s and 1970s, but she still didn’t understand how profoundly it could affect her field.
Then colleagues began telling her that they couldn’t induce a pre-viable pregnancy, or perform an abortion procedure, to preserve the health of the mother.
“Suddenly they realized they couldn’t proceed in the way they had been trained to do — what was the medically correct thing,” she said. “For them, they had an early dawning. I think for others, it has taken a while to realize the impact.”
Dr. Lee Bar-Eli, a Houston family medicine doctor, was surprised early on by what she felt was a lack of national outrage over the Texas law. She knew it would most hurt women of color and those with low incomes, who have faced discrimination and who may lack the time and money to travel to a state where the procedure was still available.
Women who do have the resources to travel now face dwindling out-of-state options as more Southern states, including Oklahoma, move to outlaw abortion in the wake of the Roe decision. New Mexico likely will be the closest option, and Colorado OB-GYNs have already seen an uptick in Texas patients.
“It was a bit frustrating to have this nine-month period where we’ve been living this reality,” Bar-Eli said. “And now that Roe v. Wade is falling, everyone is freaking out.”
julian.gill@chron.com
jeremy.blackman@chron.com