There were still 27 patients left in the waiting room at Whole Woman’s Health, an independent abortion provider in Fort Worth, at 10 p.m. on Augut 31 — two hours before most abortions would effectively be banned in the state of Texas. Marva Sadler, director of clinical services for the clinic and three others run by the Whole Woman’s Health Alliance, called the nonprofit’s president, Amy Hagstrom Miller, in a panic. “Both she and the doctor were crying and just asking me, ‘What can we do? How can we be sure we can see all these folks?’” Hagstrom Miller recalled, speaking to reporters the next morning.
All day, Hagstrom Miller says, the waiting room of the Fort Worth clinic had been filled with patients and their loved ones anxious to receive care before midnight, when a new law known as Senate Bill 8 was set to take effect. Similar scenes were playing out at health centers around the state of Texas, where patients were unsure what care they could still legally access and providers were rushing to remain in compliance with a law that could potentially bankrupt them.
SB8, signed into law by Republican Gov. Greg Abbott in June, empowers any private individual to sue anyone who “aids and abets” an abortion in Texas after six weeks gestation. (That’s roughly two weeks after a missed period, before many people realize they are pregnant.) Under the new law, anyone who helps a pregnant person terminate a pregnancy after that time — the law specifically targets doctors, but could also conceivably apply to a nurse, partner, pastor who offered spiritual guidance, or even an Uber driver who drove the patient to the appointment — is liable to be sued for $10,000 a piece, plus legal fees.
For years, anti-abortion activists around the country have tried and failed to craft a law that would outlaw abortion at six weeks gestation, around the time an embryo’s “heartbeat” can first be detected. (What anti-abortion activists call a “heartbeat” at this stage is just electrical activity — the heart does not finish forming until a month later, around week 10 of a pregnancy.) And, until now, those efforts have been unsuccessful. The Supreme Court has repeatedly spiked such six-week bans, citing legal precedent established by Roe v. Wade that protects a pregnant person’s decision to terminate before the point of viability, when the fetus can survive on its own outside the womb, or around 28 weeks.
The Texas law is different than the ones that came before it, though, because, while it effectively ends access to abortion in the state, it does not criminalize it. Abortion is still legal in the state of Texas. A doctor can’t be arrested for performing an abortion after six weeks, he or she can only be sued in civil court and forced to pay exorbitant penalties for every abortion they help provide. Fear of a deluge of lawsuits has been enough to scare many providers into changing their policies to stop performing abortions that will take place after the law’s six week cutoff, which is to say, the vast majority of abortions. (Advocates estimate that roughly 85 percent of pregnancy terminations take place after six weeks gestation.)
The difference between this six-week ban and the ones that came before it might seem subtle, but to legal experts, it’s not. “The difference here is that the state of Texas is ceding its responsibility to enforce a law passed by its legislature, signed by its governor, and instead is deputizing private citizens to enforce this new law of Texas,” Elisabeth Smith, chief counsel for policy and advocacy at the Center for Reproductive Rights explained to Rolling Stone earlier this year. “If a medical provider were to be sued post-September 1st, there are lots of defenses that will be available to that doctor. Namely: they are not breaking the law. They are providing medical care, access to which is a fundamental right under the federal constitution… But no one wants to be dragged into a Texas courtroom and have to spend the time and the resources to find representation and to go through a civil proceeding.”
The distinction was enough to convince a majority of the Supreme Court to allow the law to go into effect. Late on Wednesday, September 1st, the court issued an unsigned, one-paragraph order clearing the way for SB8 to remain law in Texas, despite what the majority characterized as “serious questions regarding the constitutionality of the Texas law.” At the time of the emergency petition, the majority wrote, it was theoretical whether anyone “can or will seek to enforce the Texas law … in a manner that might permit our intervention.”
The threat did not seem theoretical to the providers working late into the night at the Fort Worth clinic. Anti-abortion protestors were already gathered in the parking lot when the clinic opened at 8 a.m. on August 31. When it got dark, they brought in floodlights to keep watch. “We were under surveillance,” Hagstrom Miller said. “The protesters called the police twice and the fire department once … to try to say there were too many patients and to try to find some law we were breaking. Of course, we weren’t breaking any law — we were responding to our community and trying to care for the people that deserve access to safe abortion care.”
At 11:56 p.m. the clinic’s doctor completed the final procedure. As of September 1, Hagstrom Miller says, “We are fully compliant with SB8.” What that means is that Whole Woman’s Health is still offering ultrasounds, abortions to anyone “who has a pregnancy without embryonic or fetal cardiac activity.” Those patients whose pregnancies are more advanced, she added, “will receive the support and guidance from our clinic staff. Some folks may choose to go outside the state. Some folks may choose to wait and see…if we are able to get injunctive relief, and be able to reopen. And some folks may turn to self-managed abortion.”
“This is effectively a complete abortion ban for patients in marginalized communities, anyone who can’t access childcare, time off work, transportation and the resources needed to travel out of state,” Ken Lambrecht, president of Planned Parenthood of Greater Texas, said in a statement on Thursday. Those who can’t afford to go out of state may turn to self-managing their own abortions, with the support of organizations like AidAccess. Such organizations can help women obtain two medications, Mifepristone and Misoprostol, that can trigger a miscarriage. The pills can be taken at home with a low risk of complications if a pregnancy is less than 12 weeks along.
“The best reading of the law is that it would not apply to self-managed” or to those who assisted self-managed abortions, Marc Hearron, lead attorney on the case and senior counsel, Center for Reproductive Rights, said Wednesday. But, he added, a note of caution: “If this [law] were enforced by state officials, you could have some reliability that those officials would enforce the law… in a reasonable way, but because this law is enforced by literally any person who can initiate an enforcement action in any court across the state, there’s no telling whether someone would still try to sue someone” over a self-managed abortion.”
On Thursday, as Texas abortion providers were steeling themselves for a possible flood of lawsuits, users on Reddit and TikTok were strategizing ways to stymie the efforts of the pro-life groups behind SB8. Users were sharing an anonymous tip line created by the pro-life organization Texas Right to Life designed to help “enforce” SB8, and encouraging their followers to flood the site with bogus tips. One user even wrote an iOS script that sends a request to the site every 10 to 15 seconds. He told VICE he sent 300 requests before his IP address was blocked; he has since shared the code with more than 4,000 others.
Texas Right to Life, meanwhile, was in the midst of planning a big party to celebrate their victory — and raise more money to “replicate our success across the nation” by spreading the SB8 gospel nationwide.
“Our HISTORIC law took effect yesterday, and this decision means that Texas can protect preborn babies from abortion who have detectable heartbeats! No other state has accomplished this,” the organization crowed to supporters on Thursday. “Are you ready to celebrate?! …If you want to be on the inside of the most AGGRESSIVE, MUSCULAR, and IMPACTFUL Pro-Life organization in the world, come to one of the upcoming Celebration of Life galas!” Individual tickets for the events, set to take place later this month, start at $200, while VIP “Lifesaver” packages go for $50,000 a piece.