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Oct 7, 2021
Texas Abortion Providers Face ‘Cruel’ Risks Even With Law on Hold
(Bloomberg) -- Texas abortion providers had reason to celebrate after a federal judge temporarily blocked a ban on most procedures in the state, but they still face significant financial risks if the strictest such law in the nation is eventually upheld.
The law banning abortions after about six weeks of pregnancy -- before many women know they are pregnant -- is designed so that individuals rather than the state enforce it, making judicial review of the statute difficult. Under the law, known as S.B. 8, anyone in the country can sue anyone suspected of performing or aiding an illegal abortion in Texas. And the lawsuits, which offer bounties of at least $10,000 per procedure, can be filed as many as four years later.
Crucially, the law also strips abortion providers of protection for procedures they perform when the law is blocked by a court order that is later overturned. That would seem to blunt the effectiveness of the temporary injunction U.S. District Judge Robert Pitman issued Wednesday night in Austin, in a suit brought by the U.S. Justice Department.
Read More: Texas Abortion Ban Put on Hold by Judge Calling It ‘Contrived’
“We believe the abortion industry is taking a significant risk of future liability if they decide to continue their violent business as usual,” Kim Schwartz, of Texas Right to Life, said in an email. “We intend to ensure the law is fully enforced when this case is settled.” The group helped pass the law, which took effect Sept. 1.
Pitman touched on the issue in his ruling when he rejected Texas’ argument that the ongoing risk to abortion providers justified denying the injunction. The judge also expressed doubt that the retroactive nature of the law is legal.
“The state claims it is unlikely providers will be willing to resume abortion procedures upon an injunction, given that the retroactivity provision in S.B. 8 -- of questionable legality itself -- extends future liability to abortions facilitated during the operation of any preliminary injunction,” Pitman said. “There is no reason to assume providers will be so deterred.”
Even so, the American Civil Liberties Union acknowledged the risk of future lawsuits in a statement. Brigitte Amiri, deputy director of the organization’s Reproductive Freedom Project, said the retroactive provision is another “cruel tactic” woven into the law designed to “harass and intimidate pregnant Texans and their providers.”
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“Each provider will need to make their own determination of whether to provide in the face of the threat that they could be sued for serving their patients retroactively,” Amiri said. “But as the district court recognized, the retroactivity provision is on shaky legal ground and some providers have explicitly said that they will provide under an injunction.”
Amy Hagstrom Miller, president of abortion provider Whole Woman’s Health, said late Wednesday that she was making plans to resume abortions of pregnancies up to 18 weeks as soon as possible. Hagstrom Miller had no immediate comment Thursday on the continuing risk of liability under the law.
The Justice Department argued an injunction was warranted because Texas women were being forced to drive hundreds or thousands of miles to get constitutionally protected reproductive care in other states -- if they had the time and money to do so. In his ruling, Pitman said the federal government was likely to win the case, calling the law “contrived.”
Republican Texas Attorney General Ken Paxton has already appealed the ruling to the Fifth Circuit Court of Appeals, which leans conservative. Democratic President Joe Biden has condemned the law.
The case is U.S. v. Texas, 21-cv-00796, U.S. District Court, Western District of Texas (Austin).
©2021 Bloomberg L.P.
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