When Texas abortion providers met with Vice President Kamala Harris last September to discuss ways the Biden administration might be able to help Texans struggling under a near-total abortion ban, they felt hopeful and heard.
Seated in the Eisenhower Executive Office Building just days after a Texas law banning abortion after around six weeks went into effect, providers offered Harris a slate of ideas for mitigating the crisis. Although federal law largely bars providing federal funding for abortion care, providers were optimistic that the administration could find creative ways to support Texans.
The government, they thought, could send federal disaster funds to abortion-seeking patients who were forced to venture out of state to help with child care, lodging and travel, and to abortion clinics in Texas, which are operating at low capacity and are fearful about their continued survival. More outside the box, the White House could dispatch Navy medical ships to the Gulf Coast and allow providers to treat patients in international waters that could be exempt from state law, or even hire abortion providers as federal employees, which could provide immunity from lawsuits by private citizens under Texas’s new abortion law.
That law, Senate Bill 8, which took effect last September, prohibits abortion once embryonic cardiac activity is detected, which typically occurs around six weeks — before many know they are pregnant, and amounts to a near-total ban for the overwhelming majority of abortion-seeking Texans. It also defers enforcement to private citizens rather than the state, empowering vigilantes to sue providers or anyone who “aids or abets” abortions for damages of at least $10,000.
The providers who traveled to D.C. stressed to Harris the urgency to act, given the law’s immediate consequences should there not be some type of intervention. However, seven months later, providers have yet to see any of the ideas they discussed attempted. They say the federal government has done little to assist in what they consider a public health crisis.
“We feel ignored and abandoned by the federal government, especially after promises to help were made early on,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, an abortion provider and plaintiff in the federal case challenging the law. Whole Woman’s, which still provides abortions to those who are six or fewer weeks pregnant, is making only 40 percent of its normal income prior to the ban. “It’s really disappointing and makes us feel invisible as we navigate this health-care disaster.”
The U.S. Supreme Court denied a plea to halt the law while it heard oral arguments in Whole Woman’s Health v. Jackson, instead allowing the measure to take effect on Sept. 1. Calling the Supreme Court’s decision not to block the law an “unprecedented assault” on women’s rights and a violation of the precedent set in the landmark Roe v. Wade, a 1973 Texas case that established the constitutional right to abortion care, President Joe Biden assured Texans in September that he would launch a “whole-of-government” effort to protect abortion.
Biden asked the Department of Health and Human Services and the Department of Justice to see what steps the national government could take to “insulate women and providers.” The Justice Department subsequently filed suit against Texas to block the law. However, in December the U.S. Supreme Court dismissed the federal government’s legal challenge, finding it did not have standing and was “improvidently granted.”
After more than half a year, the law has inflicted devastating consequences on the reproductive health network of the state. The ban has forced an average of nearly 1,400 Texans a month to travel out of state for abortion care, roughly equal to how many did each year between 2017 and 2019, according to research from the University of Texas’s Texas Policy Evaluation Project. Researchers note that out-of-state travel is only possible if patients can secure the necessary resources, including time off work, child care, transportation to cross state lines and lodging, within the narrow six-week window — and that the ban disproportionately impacts low-income Texans and people of color.
“Senate Bill 8 has not reduced the need for abortion care in Texas. Rather, it has reduced in-state access,” said Kari White, an associate professor of social work and sociology at the University of Texas at Austin. “Thousands of pregnant Texans are traveling hundreds of miles to abortion facilities in other states to get care and being deprived of the emotional, logistical and medical support that could be found closer to home.”
Attorneys say there is “no end in sight” to the law, as the courts have stripped abortion providers of their main legal avenues for challenging the measure — ruling that they don’t have standing to sue state clerks, judges or licensing officials enforcing the ban —thus allowing it to remain in place indefinitely. When asked what action the federal health services department had taken to assist providers and patients in Texas living under SB 8, a Health and Human Services spokesperson pointed to Secretary Xavier Becerra’s enforcement of employment-discrimination amendments that protect health-care workers who have performed abortions; the reinforcement of a federal law that requires all pregnant patients to receive appropriate medical treatment, and expanded funding to organizations that offer contraception and family planning services and receive funds through Title X of the Public Health Service Act. “Every American, no matter who they are or where they live, deserves access to quality, affordable health care, including safe and legal abortion,” said Becerra in September. “Texas law SB 8 is dangerous and dubious.”
However, abortion providers in Texas say those actions fall short of directly supporting abortion care. For instance, federal law bans the use of Title X funds for abortion procedures. “The irony is that if you are an abortion provider you cannot accept Title X money,” says Hagstrom Miller. “And while prevention is very important, it’s not the way to help those who are already pregnant and seeking abortion care. It’s really missing the point.”
Mary Ziegler, a professor at the Florida State University College of Law and visiting professor of constitutional law at Harvard Law School, says the underwhelming response from the administration reflects the limited options it faces, and might also signal a lack of political will from national Democrats, who seem to have not made abortion rights a major priority. “The Biden administration in theory could try several steps that are legally uncertain, such as leasing federal land to abortion clinics, which might be exempt from state laws,” said Ziegler, author of “Abortion and the Law in America: Roe v. Wade to the Present.” “The tricky thing is that these strategies are largely untested, which means that they may not survive a court challenge, but many are frustrated with the Biden administration for failing to try.” White House officials did not reply to requests for an interview.
Adding salt to the wound for many pro-abortion rights Texans, Biden failed to explicitly mention the word “abortion” during his March State of the Union address, despite pleas from national reproductive-rights groups, and he failed to address the public health crisis unfolding in Texas. “This makes our work feel invisible and completely ignores the experiences of people seeking abortion care,” says Amanda Williams, executive director of the Lilith Fund, a group that helps finance abortion care for low-income Texans. “Silence is stigmatizing. And stigma is a big part of why we’re in this mess to begin with.”
In late February, Senate Republicans and Democratic Sen. Joe Manchin of West Virginia blocked efforts to pass the Women’s Health Protection Act, which would have essentially codified Roe into federal law. The failure to pass the measure comes at a pivotal time nationally, as the seminal abortion-rights ruling hangs in the balance with the U.S. Supreme Court. The high court is poised to undermine or overturn Roe in its decision, expected in June, on a 15-week abortion ban passed in Mississippi. Texas, which passed a “trigger law” last year, is one of 21 states that would ban abortions if Roe were overturned or fundamentally weakened.
Providers say that by not helping Texas, which is home to 10 percent of reproductive-age women in the U.S., the federal government has also “missed an opportunity” to plan a response to the expected rise of abortion bans throughout the nation. “We have a pilot situation on the ground in Texas right now, [through which the administration] could be learning how to prepare to help other states,” says Hagstrom Miller.
In the meantime, other states are following in Texas’s footsteps, adding to the burden on the nation’s reproductive health network: lawmakers in 13 states have either prefiled or introduced similar abortion bills. In March, Idaho became the first state to pass a Texas-style ban into law, while Oklahoma, which accounted for nearly half of the Lone Star State’s displaced patients, is on track to do the same.
“It’s hard not to feel hopeless. It’s hard not to feel extremely terrified,” said North Texas abortion provider Ghazaleh Moayedi. “We saw the previous presidential administration often use executive powers to oppress people. We are wondering when this current administration may use those powers to help human rights here in Texas.”
Mary Tuma is a contributing writer based in Austin. This article was co-published with Texas Monthly.