A court has blocked the Texas abortion ban but clinics are proceeding with caution

Clinics are juggling whether to resume full abortion services.
Clinics are juggling whether to resume full abortion services.
Image: Reuters/Ilana Panich-Linsman
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A federal judge has suspended a Texas law prohibiting abortion after six weeks, but not all clinics are resuming normal services just yet.

In an order issued yesterday evening (Oct. 6), US District judge Robert Pitman wrote that the law, which took effect Sept. 1, unlawfully prevented women “from exercising control over their lives in ways that are protected by the Constitution.” The anti-abortion legislation puts enforcement in the hands of private citizens, giving anyone the power to sue physicians performing the procedure past six weeks, as well as those assisting them, for $10,000 in damages.

The state of Texas quickly appealed Pitman’s decision, and the Fifth Circuit Court of Appeals—which previously paused proceedings on another lawsuit brought by providers—could soon render it moot. This puts abortion clinics in a limbo period as they wait to see whether the appeals court will allow the law to go into effect once again.

Clinics stop abortions in response to Texas law

The anti-abortion movement has for years sought to enact laws limiting access by criminalizing the procedure at a certain point in pregnancy or imposing targeted regulations with an eye toward shutting down clinics. But this new legal strategy presents a unique set of challenges for abortion clinics that do not comply with the six-week ban, as they could be sued by anyone in the country and face significant financial penalties.

In the weeks after the law took effect, three health centers operated by Planned Parenthood of South Texas stopped offering abortions altogether, even if they fell within the six-week period. Other clinics continued to offer the procedure but made clear on their websites that they could not perform an abortion beyond six weeks into the pregnancy even though many women do not know they’re pregnant at this point.

This is exactly what anti-abortion activists wanted to see happen, says Lucinda Finley, a law professor specializing in reproductive rights at the University of Buffalo. What’s more, she says with most abortions no longer being performed, there’s been “no incentive” for anti-abortion activists to actually sue providers who might be in violation of the law. As it stands, two lawsuits have been filed against Dr. Alan Braid, a San Antonio doctor who publicly stated in the Washington Post he was defying the six-week ban.

What providers risk by resuming services

While the Texas abortion ban is not currently enforceable, Joyce Alene, a University of Alabama Law School professor, noted the law has a provision that allows people to sue over abortions that take place even while the ban is enjoined.

This means providers could still be legally liable for abortions they perform even while the law is suspended.

Planned Parenthood said in a statement they want to resume services “as soon as possible,” but have not said when that might be. Amy Hagstrom Miller, CEO of Whole Woman’s Health, said in a press call today they had reopened their schedule for women to receive abortions after six weeks, but that the retroactive legal clause in the law was still a concern for some physicians in their network. There are just 15 abortion clinics remaining in the state, compared to 41 in 2008.

“My sense is that most clinics in Texas will wait a bit to see what happens with the appeals process, because the Fifth Circuit is notoriously very, very conservative on abortion,” says Finley. If the court of appeals sides with the state of Texas on this decision, as it did the last one, clinics could soon be back at square one.