“My feeling right now is that they’re coming at us from all sides, honestly,” Amy Hagstrom Miller said.

When a federal appeals court ruled last week that a Texas law effectively banning the most common form of second trimester abortion could take effect, Hagstrom Miller was left wondering about next steps. Hagstrom Miller is the founder, president and CEO of Whole Woman’s Health, a network of abortion clinics operating across several states and the plaintiff in the case that challenged a 2017 law known as Senate Bill 8. 

With the law set to take effect on September 9, it was unclear what their operational plan would look like for providing second trimester care in Texas — or if they would have the option to provide abortions at all. Texas’ new ban on abortion after six weeks gestational age — also called SB8, from the 2020-21 session — is currently set to go into effect September 1. A challenge to the six week ban’s implementation will be heard before a federal court in Austin on August 30.

When it comes to Texas and abortion access, it’s not just that the hits keep on coming, but that none of these new legislative restrictions can be looked at in a vacuum. 

“It’s so clear that Texas politicians are trying to ban abortion by any means necessary,” Hagstrom Miller said. 

Molly Duane — the lead attorney in Whole Women’s Health v. Paxton, the fight over the 2017 SB 8 — told The 19th that the Fifth Circuit Court of Appeals’ ruling is the first time a court has allowed a state to ban a standard medical procedure, in this case dilation and evacuation abortions. 

“[It] was always part of a larger strategy,” she said, and one that she believes involves targeting other abortion procedures until there are none. “…There’s no stopping this strategy. The endgame is no abortion access in Texas, period.”

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To fully understand the current legislative maneuvers, Hagstrom Miller points back to a 2016 Supreme Court ruling on a case in which Whole Woman’s Health was again the lead plaintiff. In Whole Woman’s Health v. Hellerstedt, a sweeping set of restrictions on the operational standards of abortion providers and their physical facilities was found to be unconstitutional. With those kinds of restrictions no longer a viable legal means of restricting access, lawmakers took a new approach, she said: SB 8. 

SB 8 and its indirect attempt to ban dilation and evacuation abortions was introduced just days after the 2016 Whole Woman’s Health ruling. 

“They claimed this was all out of concern for the health and safety of the pregnant person without backing it up,” said Hagstrom Miller of the laws her clinics challenged in Whole Woman’s Health v. Hellerstedt. That case was in response to a law first passed by Texas legislators in 2013, HB 2, which required doctors to obtain admitting privileges at local hospitals no farther than 30 miles away from the clinic where they provides abortion care and requiring abortion clinics to meet the building specification of ambulatory surgical centers — essentially outpatient mini-hospitals. When HB 2 was passed, the lawmakers behind it insisted that these measures were necessary to guarantee the pregnant person’s safety while seeking out abortion care. Actual abortion providers, however, said that not only did these measures do nothing to enhance patient safety, but only served to shutter clinics that could not meet these standards. 

A week after the Supreme Court ruled that HB 2 was unconstitutional — creating an “undue burden” on Texans seeking abortion care by restricting the number of providers in the state as a result of regulations for which there was no basis for claims of enhanced safety — these same lawmakers turned their attention once again to passing laws restricting abortion access. This time, though, their focus was not on alleged safety concerns for the pregnant person and where they go to access an abortion, but on the fetus itself. Enter SB 8. 

Hagstrom Miller and Duance both say this timing is hardly coincidental. After the Supreme Court ruling on Whole Woman’s Health v. Hellerstedt, anti-abortion lawmakers knew that restricting abortion providers would no longer garner the kind of legal results they had sought. So instead, an intense focus on personhood — the belief that life begins at conception and that civil rights thus begin at the moment when a sperm fertilizes an egg — became the new path forward for pushing forward legislation meant to curtail abortion access.  Hagstrom Miller said that this redirection only underscores that the priority was never about anyone’s health and safety, fetus or pregnant person’s, and instead just about eliminating abortion by any means available. 

“There’s been this pivot from the health and safety of the pregnant person to this obsession with the fetus that forgets and on purpose leaves out the context of how a fetus exists,” Hagstrom Miller continued. “The pregnant person is no longer something [Texas lawmakers] are even talking about, even pretending to care about.” 

In just four years this strategy has escalated from trying to effectively ban abortion after 15 weeks to instead trying to ban it after 6 weeks, before most people even know they are pregnant. 

We shouldn’t have to be this resilient all the time.

Kamyon Conner, the executive director of the Texas Equal Access Fund, which helps with abortion-related costs

Kamyon Conner, the executive director of the TEA (Texas Equal Access) Fund, an abortion fund, told The 19th that even without the new bans on second-trimester abortion procedures and abortion after six weeks gestational age, Texans are already facing a slew of barriers.

The state mandates a 24-hour waiting period between a sonogram and abortion care. Patients must also be read a medically inaccurate script about the risks of abortion care and see the same provider for both their sonogram and their procedure itself. Abortion care patients must show a photo ID, meaning many migrant and immigrant patients are already barred from care. And because of the tremendous amount of restrictions placed on abortion providers in the state, there are only 23 providers in the entire state. Because of all of this, Conner said that many of the people that the TEA Fund works with travel, on average, 300 miles to receive abortion care. 

“The criminalization of abortion is really harmful, especially in our state,” said Conner. It’s expensive, too — for those who are able to access an abortion provider in Texas, the state’s ban on all insurance coverage means all abortion care is paid for out of pocket and typically starts around $500, a figure that increases with gestational age. 

Conner added that 50 percent of the people who apply to the TEA Fund are already parents, meaning that many abortion patients in Texas are also juggling these economic and logistical burdens around their current caregiving responsibilities, and with their children and families’ well-being in mind. 

The result of the constant onslaught of legislative attacks on abortion access, Conner explained, is that many Texans already assume that abortion is already illegal in Texas. Recent polling done by the TEA Fund found that 42 percent of Texas voters either thought abortion was already illegal in the state or didn’t know if it was legal.

“It has felt like blow after blow,” Conner said, adding,  “Folks in the reproductive justice movement are very, very agile, resilient, ready and determined to do what we can to ensure that people get the care they need, but also — we shouldn’t have to be this resilient all the time.” 

What happened with the Fifth Circuit this week, says Duane, is especially discouraging since past attempts at similar bans in other states have all hit legal roadblocks. 

“The Fifth Circuit is an outlier and hopefully it will remain that way,” she said. “But in terms of the six week ban, that’s entirely new. And if it worked in Texas it will undoubtedly spread elsewhere. When it comes to abortion access, what happens in Texas does not stay in Texas.”