As Texas’s infamous six-week abortion ban loomed over the state’s abortion providers in the summer of 2021, some planned to fight it the only way they could: by getting themselves sued. If they provided abortions to patients after six weeks of pregnancy, private citizens could—and most likely would—sue them, as the ban encouraged them to. The clinics and providers could then countersue, which would give a federal judge an opportunity to step in and block the law. They would have to pay at least $10,000 plus legal fees, but what was that when they were challenging one of the most punitive abortion bans in the country?
Then a major, well-funded national abortion rights group issued an ultimatum: Comply with the ban, or your low-income patients will lose our financial assistance.
The National Abortion Federation (NAF) is a nonprofit, professional association of abortion providers that had a budget of more than $7 million in 2020. NAF doesn’t own any clinics or perform any abortions; however, it provides resources directly to clinics, and that assistance is crucial to independent clinics who don’t have the name recognition of Planned Parenthood to spur donations when bad news breaks. It also operates the country’s largest abortion fund, the Justice Fund, which helped more than 100,000 patients pay for their procedures in 2020. “Justice Funds keep many clinics afloat,” explained Pamela, an abortion provider in Texas who isn’t using her real name due to fears of professional retaliation.
Providers have been vocal that the barrier to defying Texas’s ban is not a lack of will from people on the ground—it’s money. According to four abortion clinic workers familiar with the situation, NAF was so worried about getting sued under SB 8 for “aiding and abetting” abortions done after six weeks that it threatened to pull patient financial aid from clinics unless they followed its strict compliance guidelines. Without NAF’s patient funding, some clinics would shutter. Abortions would be even more difficult to access. One clinic worker in Oklahoma described NAF’s new requirements to Jezebel as “blackmail-ish.”
NAF has not only tied the hands of providers by forcing them to follow the law—essentially stepping aside instead of helping providers challenge a ban they find both morally and strategically corrupt—it also reportedly put additional restrictions on how providers who accepted its funding comply with SB 8, like a second, unnecessary ultrasound that has forced even more people to travel out of state. And, as Oklahoma lawmakers consider Texas-style bans, clinic workers allege the group has suggested that providers use experimental protocols on some patients.
This national organization, funded by ultra-wealthy donors including Warren Buffett, has a grip on abortion providers dealing with real people, forcing them to go against their conscience. In an alternate universe, Texans could be getting abortions in their home state right now.
NAF tied clinics’ hands and limited legal strategy
Two workers at an indie Oklahoma clinic told Jezebel that NAF patient funding makes up 25 to 50 percent of its monthly operating budget. “We need their money. Our patients need their money. We wouldn’t be able to operate without that income,” said Janice, who isn’t using her real name for fear of professional retaliation. The clinic where she works would have basically no choice but to halt abortions after six weeks whenever the Oklahoma ban goes into effect. In Texas, NAF told clinics that if any individual provider defied the law, it wouldn’t fund any abortion procedures done at that clinic, including ones before the six-week limit, Pamela said. It was an all-or-nothing offer.
Jezebel sent NAF a detailed list of the allegations made in this story; a spokesperson for the organization did not address the allegations individually but sent the following statement in response: “The National Abortion Federation runs the largest national non-profit fund supporting people who need abortion care. In this time of unjust and rapidly changing laws, we are working with our clinic members to help them see as many patients as possible. Since 9/1/21, the day Texas SB 8 took effect, we have financially supported approximately 10,000 Texans to access abortion care in Texas and across the country.”
Before Texas enacted SB 8, clinics in anti-abortion states would sue officials tasked with enforcing an abortion restriction, and often were able to get it blocked before it went into effect. But SB 8 is written so that private citizens enforce it after it goes into effect via civil lawsuits—until a private citizen sues, there’s nothing for a court to block. The workers Jezebel spoke to said that, since the Supreme Court did nothing, clinics need to provide abortions and draw a civil suit, like Dr. Alan Braid of San Antonio did, so a court can rule on the law’s constitutionality. (Braid provided one abortion in defiance of the Texas law, and his clinic, Alamo Women’s Reproductive Services, did not return Jezebel’s request for comment on this story.) Aside from that one abortion, no other clinics have said they violated the law, including ones owned by Planned Parenthood. Thus, no civil lawsuits.
Hannah, another abortion provider at a Texas clinic who spoke on the condition of anonymity, also wanted to defy the law and said she was disappointed that her clinic ultimately complied with NAF’s directives. “It was designed for this exact thing that’s happening: to scare all of us so that none of us could [provide abortions],” said Hannah (not her real name). “Then you don’t move it through the courts—you don’t do anything. You’re just totally paralyzed.”
University of Texas-Austin health law professor Elizabeth Sepper said anti-abortion groups have signaled that they prefer outright compliance rather than clinics defying the law and generating lawsuits. “Dr. Braid revealed he had performed an abortion in violation of SB 8, but none of the big groups, including John Seago and Texas Right to Life, filed an SB 8 suit,” Sepper told Jezebel.
Braid’s defiance aside, Sepper said the law is working exactly as the anti-abortion movement intended: It’s drastically reduced the number of abortions performed in Texas. But even though the Texas Supreme Court lowered the stakes for providers a bit—ruling in March that while anyone who defied the law may still be sued for at least $10,000, they wouldn’t lose their state medical license—no one has openly defied the ban. “The [medical license] was something that was really a concern, I think, to healthcare providers, because that’s a substantially greater loss than $10,000,” Sepper said.
Hannah said she fears that Texas clinics’ lack of fight is having ripple effects for other states intent on copying the law. “This is the worst precedent we could have set. We have really just shot ourselves in the foot with this,” she said. “All the states around us, it’s getting worse because they know they can now.”
Just this week, Oklahoma’s Attorney General said that passing a Texas-style ban is a priority because it “has not been overturned by the courts.”
NAF restrictions have made people leave Texas unnecessarily for abortion care
As Oklahoma eyes Texas’s ban—and the lack of fight clinics seem to be putting up against it—the alleged new NAF policies have pushed Texas patients into Oklahoma to seek abortions.
Texas has a 24-hour waiting period for abortions, so providers typically do a Doppler ultrasound on the patient’s belly at the first appointment, then the abortion the next day. But before the Texas law went into effect, NAF said that a new condition of funding was a second ultrasound performed the day of the procedure to make sure there are no fetal heart tones, the providers told Jezebel. Again, this was because NAF was worried about getting sued for “aiding or abetting” abortions after six weeks. But the text of SB 8 doesn’t require two ultrasounds, it just says providers must follow “standard medical practice” for detecting heart tones.
Not only that, but NAF said the second ultrasound had to be transvaginal—meaning a probe in the vagina. “That’s when I kind of lost it. I was like, ‘Have you lost your minds?’” Hannah said. Yes, there are patients who require vaginal ultrasounds based on their anatomy, but a blanket policy is inappropriate in her view. “You are asking me to assault my patients. That is assault.”
The second, unnecessary ultrasound has also led to canceled procedures: Some patients have cleared the first ultrasound and were moments from getting their abortion when the second one detected fetal heart tones, and they were turned away. One high-profile example in the New York Times detailed the story of a Houston-area woman who was on the table for her abortion but failed the second ultrasound and had to go to Oklahoma. She didn’t have childcare, so her partner and son went with her, but her partner’s employer didn’t approve his time off request, and he lost his job. Plus, NAF was fully covering the costs of abortions that were able to be done in Texas, but when this woman went to Oklahoma, NAF only provided partial funding, as is standard, so she had to find the rest of the money.
NAF’s second ultrasound requirement set off this chain reaction, according to Janice, who is familiar with that case. It’s not known how many people this has happened to, but Janice said the Houston woman is far from the only one. “That’s only one of, like, dozens of patients that I’ve heard that from,” she said. “It’s probably one patient every day that tells us that.”
Janice added that people tripped up by NAF’s second ultrasound requirement are getting care later in pregnancy, too, which is more expensive thanks to both the procedure itself and travel costs. “They’re having to make all these arrangements to travel out of state and still come up with money,” she said. “NAF is dictating medical policy in independent clinics even though they’re not a medical provider.”
NAF suggested Oklahoma clinics use experimental protocols on patients
As Texas copycat bills were being considered in Oklahoma this spring, including ones that would take effect immediately after Governor Kevin Stitt signed them, NAF became increasingly worried about how the laws might affect two-day abortion procedures. When people are later in their pregnancies, they need their cervix dilated the day before, and NAF was concerned that Oklahoma’s ban could be signed overnight between days one and two of a later abortion. NAF floated to at least two providers that they use a drug called digoxin to induce fetal demise in those cases so there wouldn’t be a heartbeat the next day, allowing them to complete the abortion, according to Janice and Amy (not her real name), the other worker in Oklahoma.
A NAF staffer allegedly went so far as to suggest that using digoxin injections for those procedures was a condition of continuing to receive its financial support if a Texas-style bounty-hunter ban took effect. The staffer said things like, “‘Oh, I would hate to see you lose the NAF funding’—some really toxic white lady shit,” Amy said, calling the suggestion “another medically unnecessary procedure just to cover NAF’s ass.” NAF even asked them to use digoxin before 18 weeks of pregnancy, despite the fact that it hasn’t been studied before then. “Our patients are not experiments,” Janice said. “They’re human beings, and we don’t do experimental medicine on them.”
NAF’s suggestions seem to go against its own clinical policy guidelines, which state that “induced fetal demise should be provided using an evidence-based regimen.” And the American College of Obstetricians and Gynecologists and the American Medical Association argued in a 2018 legal brief about a different Texas abortion restriction that “it is medically inappropriate to require physicians to attempt fetal demise.” The brief points out that digoxin isn’t medically appropriate for all patients, has associated health risks, and isn’t guaranteed to work anyway—it has a failure rate of 5 to 10 percent. The groups also said that they “are not aware of any reported studies that show the effects of the drug prior to 18 weeks, making it impossible for physicians to determine whether the procedure is appropriate or safe for patients in that stage of pregnancy.”
None of NAF’s suggestions are in the patients’ best interest. They appear to have been made in the interest of avoiding liability.
These allegations speak to a larger problem in the repro movement, and philanthropy overall
NAF doesn’t say who its philanthropic donors are, but it’s an open secret in the repro world that its biggest anonymous donor is the Susan Thompson Buffett Foundation, the organization billionaire Warren Buffett founded in 1964 and renamed in honor of his late wife. The Buffett Foundation’s most recent tax filings show that, from 2018 to 2020 alone, it donated $117 million to NAF. ProPublica reported that the group gave NAF an additional $168 million between 2001 and 2014. The Buffett Foundation did not respond to Jezebel’s request for comment on this story.
The fact that the group seemingly holding abortion providers hostage has backing from one of the 10 wealthiest people in the country—someone who could afford to pay the legal expenses for clinics that get sued for providing abortions after six weeks—is too much for some clinic workers to bear.
“It pisses me off so much, because NAF can be like, ‘We’re taking a stand, and we are gonna stand with our providers and dissent and demand that somebody try and sue us’ because they have Warren Buffett behind them,” Amy said. “They have the privilege and the power to do that.”
If every person in the U.S. had health insurance that covered abortion, NAF wouldn’t have this stranglehold on independent clinics to begin with, Janice said, noting that billionaires like Buffett not paying appropriate taxes is one of the obstacles to passing universal healthcare.
“Our patients are smart, capable people, and they should just be able to get the care that they need without us having to force them to do stupid shit to get abortion care,” she said. “These are the groups that get money, and then they tell people that are actually doing the work what to do with it. That’s systemic in a lot of the nonprofit world.”
In the workers’ view, it’s not just NAF that’s backing away from the fight: Planned Parenthood recently got a record $275 million donation from MacKenzie Scott. Amy said Planned Parenthood “can take the brunt of a lot of legality, especially with MacKenzie Scott money. They should be taking a massive stand and paying for Texas clinics to reopen, and for the staff and for the legal fees, and eventually Oklahoma.” Like the clinic workers told Jezebel: There’s will to fight these restrictive bans on the ground, instead of bending to them. What’s lacking is the money.
Pamela doesn’t know who to be more upset with right now: “Is it the assholes that continue to pass these laws, or is it the people in our own movement, seeing how they act in times of pressure?”
Hannah knows exactly where to direct her anger. “I already know who’s after me here in this state, I know who’s gunning for us—that’s fine, we know those enemies. But when your enemy is the person that helps take care of your patients, I no longer trust them,” she said. “We got a problem.”