"Clock is ticking": Texans to navigate hurdles under abortion law before many know they're pregnant

The law is worrisome for abortion rights advocates due to a legal provision that leaves clinics vulnerable to repeated litigation.

ByHeidi Pérez-Moreno, The Texas Tribune
Tuesday, August 10, 2021
Fetal 'heartbeat' abortion ban heads to Gov. Abbott's desk
The Texas governor expressed his intent to sign the bill that would ban abortions at six weeks.

Lying on an exam table at a Planned Parenthood clinic in Houston, Brittany tried listening to the ultrasound monitor for any sounds resembling a fetal heartbeat. Instead, she could hear only her own - thumping hard and fast.

Seeing only a clump of cells resembling a blood clot, she wasn't able to visually identify a fetus. The thought of being pregnant was still a shock because, she said, her partner at the time lied about using protection.

After breaking up with him, Brittany - whose last name is being withheld because she fears harassment - chose to have a pill-induced abortion after weighing her options. She was already taking care of an 8-year-old daughter and, because she was out of work, didn't have the financial means necessary to raise another child.

"I found out extremely early - that was all by chance," Brittany told The Texas Tribune. "When I found out, I didn't even know how far along I was. I could have been eight, six or four weeks, and it ended up being four. I got lucky."

Most abortions in America don't happen as early into a pregnancy as Brittany's, according to data from the Centers for Disease Control and Prevention. But in Texas, the amount of time people have to decide to undergo the procedure - currently set at 20 weeks into a pregnancy - is about to shrink.

"Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion," Gov. Greg Abbott said when he signed Senate Bill 8 into law.

That bill's provisions going into effect Sept. 1 will ban abortions after an ultrasound can detect what lawmakers defined as a fetal heartbeat. That can sometimes be as early as six weeks into a pregnancy, when many people don't yet know they're pregnant.

"The clock is ticking the minute you find out you're pregnant," Brittany said.

Abortion rights advocates say the new Texas law is the most restrictive ban on abortion in the nation, and it is expected to limit access to the procedure.

It is also among a slate of legislation passed this year targeting the procedure. Abbott signed a bill nearly two months ago that would outlaw all Texas abortions if a Supreme Court ruling or constitutional amendment were to give states the authority to prohibit them.

He also wants lawmakers to prohibit abortion-inducing medications through the mail or delivery services during a special legislative session that began Saturday.

RELATED: Republican lawmakers push to make Texas' anti-abortion laws among the most restrictive in the nation

"Something so extreme"

Medical and legal experts say Republicans' nickname for SB 8 - the "heartbeat" bill - is a partisan tactic meant to humanize embryos at a development stage when they don't possess a heart.

Dr. Sara Imershein, clinical professor of obstetrics and gynecology at the George Washington University School of Medicine, said sounds resembling a heartbeat reflect the motion of electrical pulses stimulating muscle cells in a tube that will eventually become part of the heart.

"They came up with this expression particularly to mislead people into believing this is further along in pregnancy than it is," Imershein said.

But John Seago, legislative director of Texas Right To Life, said it is still accurate to identify those sounds as a heartbeat because it indicates the organ is developing inside an embryo.

"The point is what you're listening to is a sign of life," Seago said.

Most abortions occur in the first trimester, with 2017 research from the Guttmacher Institute showing that nearly 60% of women obtained abortions between five and eight weeks. A 2018 report from the CDC showed 36% of abortions occurred at or before six weeks.

Women reported, on average, discovering their pregnancies at the five-week mark, while those who obtained abortions during their second trimester reported discovering their pregnancies around the nine-week mark, data shows.

"This is the first time that I've felt something so extreme and the first time that I've been this worried about what people are going to do when it comes to accessing abortion," said Bhavik Kumar, a doctor who provides abortion services in Texas. "Essentially, this law is a complete ban on abortion."

SEE ALSO: Lubbock votes to become the state's largest 'sanctuary city for the unborn'

A rare legal strategy

The new Texas law is worrisome for abortion rights advocates due to a first-of-its-kind legal provision that makes it harder to block the law and leaves abortion clinics vulnerable to repeated litigation. Stripping Texas officials of their usual enforcement roles, the ban allows private citizens to sue providers who aren't complying with the new law.

The person suing wouldn't need to have an immediate connection to the person having the procedure. And they could sue anyone who knowingly "aids or abets" an abortion when it is prohibited under state law - which can include an abortion provider, insurance companies or even the person driving someone to a clinic.

Amy Hagstrom Miller, head of Whole Woman's Health, said protestors have sued clinics for false violations like having the wrong water heater permit or not following social distancing protocols. Legal experts predict the lawsuit provision in the ban could lead to "hundreds, even thousands" of lawsuits that could underfund abortion clinics, harming smaller clinics that serve those who earn low incomes and are from rural communities.

"We don't know how the anti-abortion movement plans to deploy this new weapon that they have in their arsenal to block people from getting safe access to abortion in Texas, and who they plan to sue in order to threaten and intimidate people out of providing abortion," Hagstrom Miller said.

Similar bans on abortion so early in a pregnancy have passed in other states - including Iowa, Kentucky and North Dakota. But they have either been blocked in courts or not yet gone into effect. A similar law in Oklahoma, which does not include an enforcement provision relying on citizens' lawsuits, is set to go into effect in November.

David S. Cohen, a law professor at Drexel University's Thomas R. Kline School of Law, said the bill is a response to similar bans, and is intended to make it harder to block the measure. He sees the provision appearing in future state laws, such as those involving second amendment rights and freedom of speech.

"It's hard to sue ahead of time to try and stop the law from taking effect," Cohen said.

Still, more than 20 abortion providers responded to the ban with a lawsuit last month against Texas court, government and medical officials.

The lawsuit states that although citizens initiate proceedings for civil lawsuits, judges, clerks and health officials are still involved in hearings and proceedings. These laws can't be enforced without them, even if private citizens serve as direct enforcers, Cohen said.

Texas 114th District Court Judge Austin Reeve Jackson, a defendant in the case, called the lawsuit "cancel culture at its finest."

"I am 100% committed to seeing this frivolous lawsuit dismissed," Jackson said at a press conference last week.

Jackson filed a motion that seeks to do just that Wednesday afternoon. The deadline to respond is Wednesday.

RELATED: An Iowa bill would let women sue doctors who perform their abortions

Limiting access

Obtaining an abortion in Texas already can be cumbersome and time consuming, especially for those who must drive long distances to a clinic, arrange child care or take time off from work.

The nearest clinic to Brittany was a Houston-based Planned Parenthood - about 45 minutes from where she lives. She made a total of four trips to the clinic to have a pill-induced abortion, the most common method of abortion in Texas over the past two years.

The first visit was a state-mandated consultation where she underwent a sonogram and obtained resources on risks, alternatives and developmental stages. Doctors told her she was lucky to identify the pregnancy at such an early stage.

After an initial visit, Texas requires a 24-hour waiting period, although this can be waived if a patient lives at least 100 miles away from a clinic.

On Brittany's second visit, she was given mifepristone, a pill that blocks the hormone needed to maintain pregnancy. She was also given misoprostol, to take at home 24 to 48 hours after the visit, to terminate the pregnancy.

At a checkup two weeks later, doctors found that Brittany had light blood clotting near her uterus. She felt slight cramps, but nothing too painful.

Her last appointment was an additional checkup in response to the clotting symptoms. In total, the procedure cost around $600, which she paid for in cash. It would have cost her more had it not been for assistance she received through a private charity fund that Planned Parenthood connected her with.

"I still feel the loss: I think I always will," Brittany said. "But I am glad that I took it upon myself to make the decision I made and do it alone."

Kumar said existing waiting periods and a limited number of clinics performing the procedure already make accessing abortion difficult. The new law, he said, will make it even more of a challenge.

"There are very few people who will be able to access abortion at a time that is meaningful within Texas," he said.

The video above is from a previous report.

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