Texas abortion provider resumes services after judge blocks near-total ban

By Julia Harte and Maria Caspani

(Reuters) – A day after a federal judge blocked Texas’ near-total abortion ban, at least one provider in the state said it had resumed services on Thursday for patients seeking to terminate pregnancies beyond the law’s limit of about six weeks.

Amy Hagstrom Miller, chief executive of Whole Woman’s Health, told reporters that since the law went into effect on Sept. 1, the provider with four clinics in Texas had put patients on a waiting list if their pregnancies had advanced beyond the legal limit.

“So those folks were able to come in and we did provide them with abortion care today,” Hagstrom Miller said during a call on with reporters.

She did not say which clinics had resumed services or how many abortions they had provided.

U.S. District Judge Robert Pitman in Austin on Wednesday blocked the state from enforcing the law while litigation over its legality continues. The Republican-backed measure empowers private citizens to enforce the ban, and Texas immediately appealed the ruling to the conservative-leaning Fifth Circuit Appeals Court.

The law has become a flashpoint in a national battle over abortion rights as Republican lawmakers in other states try to pass similar legislation. In December, the U.S. Supreme Court will hear a Mississippi case testing Roe v. Wade, its landmark 1973 decision that established the nationwide right to abortion access.

Drexel University law professor David Cohen said Texas clinics that resume their previous abortion services while the law is blocked will be in a “very precarious position.” A clause in the law says providers can still be sued if the law goes back into effect after being struck down by a court.

Cohen said that even if Pitman’s injunction against the law were upheld by the Supreme Court on appeal, it could still be dissolved by a subsequent decision overturning Roe v. Wade, because that decision was the basis for Pitman’s ruling.

Hagstrom Miller said the retroactive clause was concerning for many medical professionals.

“Any abortion you provide, even with an injunction, could be seen as criminal a year from now, six months from now – and you could be held accountable for every one of those. It’s pretty daunting to think about that,” she said.

Anti-abortion advocates said that if Pitman’s ruling is reversed on appeal, they will sue providers who have resumed abortion services.

“As this case develops, if there’s an opportunity for lawsuits or for enforcement in the future, that’s something that the pro-life movement is very interested in,” said John Seago, legislative director for anti-abortion group Texas Right to Life.

Other Texas abortion providers acknowledged they were worried about the state’s vow to appeal the injunction to a conservative-leaning appeals court.

“Given the state’s appeal, our health centers may not have the days or even weeks it could take to navigate new patients through Texas’s onerous abortion restrictions,” the leaders of Planned Parenthood South Texas, Planned Parenthood Gulf Coast and Planned Parenthood Greater Texas said in a joint statement.

Molly Duane, an attorney with the Center for Reproductive Rights, which represents several Texas clinics fighting the law, said abortion providers were in a difficult situation.

“There are independent providers across the state that are working to reopen full services and are doing so wary of the fact that the Fifth Circuit may take away this injunction at any moment,” she said.

(Editing by Colleen Jenkins and David Gregorio)

Analysis-Judge’s ruling on Texas abortion ban a warning to copycats, for now

By Jan Wolfe

WASHINGTON (Reuters) – A U.S. federal judge’s decision blocking Texas’ near-total abortion ban is a warning to other states considering similar measures, though it too could be overturned by a higher court in the coming weeks.

Texas’ law banning the procedure from six weeks, a point when many women may not even be aware they are pregnant, took effect last month after the U.S. Supreme Court rejected a to halt it from taking effect, in a late-night decision that took no stance on the law’s constitutionality.

Rather, the Supreme Court allowed it to stand due to an unusual mechanism that leaves it up to private citizens to enforce the ban through civil lawsuits against anyone who “aids or abets” a woman obtaining an abortion – and provides a $10,000 bounty for those who do.

U.S. District Judge Robert Pitman in Austin late Wednesday blasted the law as a “flagrant violation” of Roe v. Wade, the landmark 1973 decision that recognized a constitutional right to abortion.

Pitman, who was appointed by Democratic President Barack Obama, said he was particularly troubled by how the law named S.B. 8 outsources enforcement to private citizens, calling this an “unprecedented and aggressive scheme” to limit legal challenges.

That, legal experts said, was a clear warning to at least 12 other states contemplating similar action, including Florida, South Carolina and South Dakota, that there is now a route for the U.S. Department of Justice to challenge the structure of the ban.

“We are still at the early stages, and a lot depends on the court and judge assigned to the case,” said David Noll, a professor at Rutgers Law School. “But this is a first cut at the what the DOJ can do in response to this sort of law.”

Since the law went into effect, the four Whole Woman’s Health abortion clinics across Texas have seen patient visits plummet, some staff quit, and recruitment efforts falter. After the decision it said it was making plans to resume abortions up to 18 weeks “as soon as possible.”


By deputizing enforcement to private citizens, the law deliberately tried to insulate Texas from legal challenges filed in the federal court system, Pitman said.

“Rather than subjecting its law to judicial review under the Constitution, the State deliberately circumvented the traditional process,” the judge wrote. “It drafted the law with the intent to preclude review by federal courts that have the obligation to safeguard the very rights the statute likely violates.”

Texas Attorney General Ken Paxton, a Republican defending the law in court, said in a statement that his office disagreed with Pitman’s decision and was appealing to the U.S. Fifth Circuit Court of Appeals.

“The sanctity of human life is, and will always be, a top priority for me,” Paxton said.

At a recent court hearing, Paxton’s office argued the law was not designed to evade judicial review, and that offering incentives for private lawsuits is neither unusual nor unlawful.

For now, Pitman’s ruling is “a warning” to anti-abortion lawmakers who want to mimic the Texas approach to enforcing an abortion ban, said Jessica Levinson, a professor at Loyola Law School in Los Angeles.

Florida Republicans have already introduced a copycat bill with this mechanism, and lawmakers in Georgia, Arizona and West Virginia have said they want to follow Texas’ private enforcement approach.

But Levinson cautioned that Pitman’s ruling could be reversed, either by the Fifth Circuit or eventually the Supreme Court.

“I hope I’m wrong but I just don’t see a long lifespan for Judge Pitman’s ruling,” said Levinson, who called the Fifth Circuit the most conservative of the intermediate federal appeals courts one step below the Supreme Court.

The Supreme Court, which has a 6-3 conservative majority, on Dec. 1 hears arguments in a separate case involving a Mississippi law that bans abortions after 15 weeks of pregnancy. Mississippi has asked the high court to overturn Roe v. Wade.

John Seago, the legislative director for anti-abortion group Texas Right to Life, said the organization believes Judge Pitman will be reversed on appeal.

“We believe Senate Bill 8 is going to be upheld,” Seago said, adding that a “typical route” for this sort of case is a federal judge in Western Texas ruling in favor of liberal advocates but then getting reversed on appeal.

Florida State Representative Anna Eskamani, a Democrat from Orlando, said Republican lawmakers in her state should take heed from Pitman’s ruling and drop their plans for copying S.B. 8’s approach to enforcement.

“This sends a really strong message to those politicians that this sort of scheme is unlawful,” she said.

(Reporting by Jan Wolfe; Editing by Scott Malone and Rosalba O’Brien)

Abortion providers ask U.S. Supreme Court to intervene in challenge to Texas law

By Andrew Chung

(Reuters) -Abortion providers in Texas on Thursday asked the U.S. Supreme Court to intervene on an urgent basis in their challenge to a state law imposing a near-total ban on abortion.

The providers asked the justices to hear their case before lower courts have finished ruling on the dispute because of the “great harm the ban is causing.” The Supreme Court, which has a 6-3 conservative majority, this month refused to block the law, which bans abortion after six weeks of pregnancy.

The Texas law is unusual in that it gives private citizens the power to enforce it by enabling them to sue anyone who assists a woman in getting an abortion past the six-week cutoff. That feature has helped shield the law from being immediately blocked as it made it more difficult to directly sue the government.

In their petition to the Supreme Court, the abortion providers including Whole Woman’s Health and other advocacy groups said that the justices should decide if the state can “insulate” its law from federal court review by delegating its enforcement to the general public.

The Supreme Court rarely agrees to hear a case before lower courts have had a chance to weigh in with their own rulings. But in the court’s 5-4 decision on Sept. 1 to let the law stand for now, the dissenting justices, including conservative Chief Justice John Roberts, expressed skepticism about how the law is enforced.

Roberts said he would have blocked the law’s enforcement at that point “so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.”

The providers said that the ban has eliminated the vast majority of abortions in the state given the threat of “ruinous liability,” causing Texans to have to travel hundreds of miles (km) to other states, causing backlogs there.

“Texans are in crisis,” they said in a legal filing.

Democratic President Joe Biden’s administration on Sept 9 sued Texas, seeking to block enforcement of the Republican-backed law, as his fellow Democrats fear the right to abortion established in 1973 may be at risk.

The Texas law is the latest Republican-backed measure passed at the state level restricting abortion.

The measure prohibits abortion at a point when many women do not even realize they are pregnant. Under the law, individual citizens can be awarded a minimum of $10,000 for bringing successful lawsuits against those who perform or help others obtain an abortion that violates the ban.

The providers said that they have been forced to comply with the law because defending against these lawsuits, even if they prevail, would amount to “costly, and potentially bankrupting, harassment.”

The Supreme Court already is set to consider a major abortion case on Dec. 1 in a dispute centering on Mississippi’s 15-week abortion ban in which that state has asked the justices to overturn the 1973 Roe v. Wade ruling that legalized abortion nationwide and ended an era when some states had banned the procedure. A ruling is due by the end of June 2022.

(Reporting by Andrew Chung in New York; Editig by Will Dunham)