After a Month of Chaos, Abortion Care Returns to Texas
Clinics, patients, and the law get put through the ringer over care
In late March, staff at the Planned Parenthood clinic on East Ben White Boulevard in South Austin were thrown into havoc. Texas Attorney General Ken Paxton – guided by an executive order from Gov. Greg Abbott that banned “non-essential” health care procedures to conserve medical resources and equipment amid the COVID-19 pandemic – singled out abortion care among those prohibited procedures on March 23. Clinic staff spent days scrambling to make emotionally difficult calls to patients, informing them that Planned Parenthood and other providers could no longer provide their time-sensitive care – indefinitely.
The only exception, said state officials, was when a woman's life was in danger. Failure to comply could result in fines of up to $1,000 or 180 days in jail – the punishments set in statute for violating emergency orders during a disaster, even to access otherwise legal and needed health care. Across the Planned Parenthood of Greater Texas clinics in Austin, Dallas, and Fort Worth, about 260 appointments were canceled. The health centers received more than 1,800 calls from patients seeking abortion services after the ban went into effect.
Then, a glimmer of hope: Following a legal challenge from PPGT, Whole Woman's Health, and Austin Women's Health Center, U.S. District Judge Lee Yeakel granted a temporary restraining order one week later on March 30, allowing abortion to resume in Texas. Feeling relief, the South Austin clinic staff stayed extra late that day to call back patients and reschedule appointments. However, halfway through the following day – with a roomful of patients in the waiting area and mandatory sonograms already completed – the conservative U.S. 5th Circuit Court of Appeals granted Paxton's urgent request to quash Yeakel's order. Again, staff were forced to send confused and distraught patients away, some whom were scheduled for abortion procedures that afternoon.
"We were in complete disbelief. How could this happen so quickly? It had just been 24 hours since the judge's order," said Dr. Amna Dermish, Planned Parenthood South's abortion provider. Dermish, also PPGT's regional medical director, recounts how painful it was to be forced to decline to see an Austin woman who was 14 weeks pregnant with a fetal anomaly. "I now had to face patients and tell them 'I am banned from taking care of you' for a second time – it's such a difficult place to be in as a health care provider."
However, the dizzying back-and-forth didn't end there; a series of further hard-to-believe legal twists sent local abortion providers and patients on a roller coaster ride of confusion and panic. Yeakel granted a second order blocking Paxton's ban on April 9. The 5th Circuit overruled him again a day later. Providers then appealed to the U.S. Supreme Court. On April 13, the 5th Circuit reversed course and allowed medication abortion up to 10 weeks of pregnancy. On April 20, the 5th Circuit had second thoughts and banned it once more.
Following our initial interview, Dermish navigated those further legal obstacle courses. Her staff say they were "blindsided" and "hit extra hard" by the 5th Circuit's sudden reversals on medication abortion. "Our patients didn't want to leave Austin, [and] to risk their own health during a pandemic, to travel to other states for care, but they felt like they had no other choice."
However, on April 22, the restrictions in Abbott's initial executive order expired. According to a legal filing from Paxton, the governor's subsequent executive order allowing non-COVID health care (which remains in effect as of press time) applied to abortion care providers, who were free to resume services. But that doesn't mean local providers have returned to work with ease: "We feel anxious, there's a lot of trepidation," Dermish tells the Chronicle. "We are very excited to provide services again, but we are also pretty terrified that it may go away tomorrow."
The Worst It's Ever Been
Texas' GOP leadership has spent the last decade trying, and often succeeding, to create barriers to abortion access and harm the operations of reproductive health providers. This includes the notorious and disastrous House Bill 2 of 2013, eventually overturned by the Supreme Court's decision in Whole Woman's Health v. Hellerstedt. But Paxton's quick crisis-jacking of the COVID-19 emergency marked the first time since Roe v. Wade in 1973 that abortion was outright illegal throughout the state. Dermish, who started her job in the thick of the post-HB 2 turmoil, says the COVID-19 ban "blows it out of the water." When HB 2 was in effect, she could at least refer patients to (an albeit narrowed list of) other clinics that were still operating in Texas. This time, Planned Parenthood was forced to tell its patients to make a potentially dangerous trek out of state during a public health crisis. She says patients have traveled up to 15 hours to Colorado and Virginia for care.
"This is the worst it's ever been. We've been forced into a situation where Roe v. Wade is basically null and void in the state of Texas," said Dermish. "It's horrific, it's unconscionable, it's putting our patients at risk, and it's all under the guise of protecting public health during a pandemic."
An Austin mother of two, devastated, decided to attempt her own abortion at home after a clinic was forced to cancel her appointment. Amy Hagstrom Miller, CEO and founder of Whole Woman's Health, told the Chronicle that within 24 hours, the ban had been temporarily lifted and the woman, unsuccessful at her attempt to self-induce, could proceed with her clinic appointment – thankfully unscathed. But Miller suspects that more women, unable to get access during the few brief windows of time the ban had been lifted, may have resorted to taking matters into their own hands.
In a typical week, 30 out of 60 of the Austin WWH clinic's patients come in for surgical abortion. While medication abortion – involving two drugs, one taken at a clinic, the other at home – resumed for a brief period of time, (at least) half of WWH's patients still couldn't access care. The Austin clinic on Duval has had to turn away more than 100 patients, WWH told the Chronicle. WWH's three Texas clinics were forced to cancel 200 scheduled visits.
"We are being used as an arm of the state in a really cruel way – we are being forced to comply with orders we don't agree with," says Miller. "I wish [Paxton and Abbott] could be on the other end of our calls with patients and hear the sadness, anger, and despair in their voices. Some patients were literally begging us for services with more money."
This is all on top of the absurdly burdensome patchwork of rules and regulations placed upon abortion care in Texas – the required 24-hour pre-abortion sonogram; a ban on abortion coverage in state-approved insurance plans; a hard 20-week gestational age limit on all abortions. An established Texas network of reproductive health providers has been decimated by HB 2, by the ejection of Planned Parenthood from Texas Medicaid, and now by a prohibition on public funds of any kind being used for any services delivered by any organization that delivers abortion care. Once Paxton's ban took effect, the average one-way driving distance to an abortion clinic for a woman of reproductive age in Texas jumped from 12 miles to 243 miles, according to data from the Guttmacher Institute.
Echoing Dermish, Miller says while HB 2 was inarguably a major crisis fraught with uncertainty and disaster, the COVID-19 ban was unprecedented. "Here we have a ban amid a full-scale pandemic, people losing their jobs, their health insurance, their child care – the multiple layers make this exponentially harder for patients. It's like nothing I've ever seen."
The Ban They Always Wanted
The state's argument for a COVID-19 abortion ban was, and may again be, the need to conserve personal protective equipment and hospital capacity to manage the pandemic, but providers easily debunk that logic. Abortion patients rarely require hospitalization – just 3% of abortions occur in hospitals, according to the Guttmacher Institute. Whole Woman's Health had only a single hospital transfer in Austin during all of 2019, according to court documents.
Medication abortion doesn't require any PPE, while surgical procedures use little. Neither WWH Austin or Planned Parenthood of Greater Texas use any N95 respirators, the masks in greatest demand and shortest supply for treating COVID-19 cases. Prior to the ban, as the scale of the pandemic became clear, abortion clinics – like most health care providers outside the hospitals – took extensive steps to conserve PPE, including limiting the number of individuals present for any procedure that would require PPE and deferring non-abortion services that were less time-sensitive (like routine STD tests).
Eliminating timely access to medical and surgical abortions at early gestational ages would actually be completely counterproductive to the state's supposed goals. Some women were pushed further along in their pregnancies, beyond the 10-week limit for medication abortions; others will now continue their pregnancies all the way to delivery. Each of those outcomes would require far more PPE and medical resources than would access to legal abortion care. A March study from the Texas Policy Evaluation Project found that many Texans would be forced to delay or forgo abortion altogether, and those who could travel out of state for abortion during the pandemic would create additional health risks for themselves and anyone they came in contact with, leading to further strains on health care resources.
"There is no doubt in my mind that delaying a pregnant patient's abortion by weeks or months will result in a net increase in the consumption of PPE because the imaging and laboratory tests alone needed during early pregnancy require the use of more PPE than is typically used in connection with an abortion," says Dr. George Marcones, chair of the Department of Women's Health at UT's Dell Medical School, in court documents.
But anti-choice state officials ignored these facts when given the chance to transparently exploit the COVID-19 crisis to ban abortion, their ultimate objective for years, say reproductive rights advocates. While Texas' measures were among the most extreme in the country, we weren't alone; Louisiana, Arkansas, Oklahoma, and Tennessee have sought to take similar action, thus extending the distance one would need to travel beyond Texas borders for legal and needed health care.
"There is no way this argument could be rooted in health and safety," says an exasperated Miller. "State officials have clearly used this pandemic as an excuse to ban abortion. They are saying women have to continue their pregnancies against their will during a public health crisis – it's cruel and it's shocking."
Now that Paxton can no longer rely on Abbott's emergency orders to ban abortion care, the attorneys from Planned Parenthood Federation of America, the Center for Reproductive Rights, and the Lawyering Project who took the state to court say they've withdrawn their request for a preliminary injunction. But they are keeping the litigation active in case Texas tries to take enforcement action under any of the orders issued by state officials.
Aimee Arrambide of NARAL Pro-Choice Texas says state officials should be using their time to work on lifting myriad restrictions already in place that hinder abortion care during the pandemic, including the telemedicine abortion ban, the mandatory 24-hour waiting period and sonogram, and the need for multiple in-person follow-up appointments. Arrambide applauds the latest victory but points out that before the ban, Texans experienced the longest period of time without access to abortion care in their state since Roe v. Wade. And even with the ban lifted, many women still won't be able to access care.
"For many Texans this clarification comes too late – they may be too far along to receive an abortion or might not have the resources to travel out of state if they are past the gestational limit," Arrambide told the Chronicle. "Governor Greg Abbott and indicted Attorney General Ken Paxton will use any excuse, including a public health crisis to advance their anti-abortion ideology, even if that means putting Texans' lives at risk."