Texans Denied Abortion ‘Should Be Compensated by the Government’

Justice Barrett’s nonchalant suggestion that people who can’t get abortions simply carry and birth a baby and then relinquish it via safe haven laws ignores the health risks of pregnancy, especially in the South. Hagstrom Miller noted that the maternal mortality rate in Texas is “abysmal”—the worst in the developed world. “You’re forcing people to continue pregnancies in a place that is dangerous, way more dangerous than an abortion at any gestation,” she said.

There’s no guaranteed sick leave for people to make prenatal appointments, no paid parental leave to recover from childbirth, then add an abortion ban that the Supreme Court essentially blessed and it’s time for the government to pay up, she said. “It would be powerful if it came as federal relief, like FEMA relief, like it’s a disaster,” Hagstrom Miller said. “We need to frame this as a healthcare disaster, not just enabl[ing] people to continue pregnancies they didn’t want to continue.” The administration could also step in and extend Texas’ postpartum Medicaid insurance coverage from six months to a full year, as medical experts recommend.

She’s thinking about executive, not legislative, actions because she’s skeptical that the Senate will act with any urgency to pass a bill that would codify Roe at the federal level and render bills like SB 8 illegal. “It feels really strange to sit back and say, ‘oh, they gotta knock down the filibuster in order to pass the Women’s Health Protection Act.’ I haven’t seen them act that quickly. I don’t know that that’s coming,” Hagstrom Miller said.

She has to be prepared for the future and think of the organization’s long-term finances, so she can care for the patients in the other states where she operates. The six-week ban has been in effect for all but two days since September 1, and Whole Woman’s Health’s four Texas clinics have been operating at 30 to 50 percent of normal income from patient care, she said. The organization been able to offset some of the losses from Abortion Care Network’s Keep Our Clinics fund, which is for non-Planned Parenthood independent clinics, but she only has that money until the end of January.

“I have two leases and two mortgages,” she said. “There’s a lot on my mind. I’ve already started [thinking about] ‘when are the leases up’ and worst-case scenario planning.” In the meantime, she’s trying to give Texas workers more hours by having them take calls for her clinics in other states—a tactic to avoid layoffs. Whole Woman’s Health is in four other states: Indiana, Maryland, Minnesota, and Virginia, and aside from the hostile Indiana, these are states where she might have to transition her operations depending on what happens at the high court.

She has some hope for the possibility of a longer game: Hagstrom Miller’s organization was the lead plaintiff in 2016’s big abortion case, Whole Woman’s Health v. Hellerstedt, and they won, which in turn struck down similar medically unnecessary clinic restrictions in 11 other states besides Texas. So as other states move to copy the Texas law, there will be more legal challenges that could end up at a Supreme Court that doesn’t have a 6-3 supermajority. But clinics would also have to still be open for it to make much of a difference—before the 2016 case, Texas had 44 clinics, and it now has just 20.

That strategy would also require time, and abortion could be outright banned in Texas in just a few months, which would render the fight over a six-week ban moot. Texas is one of 12 states with a so-called “trigger law” on the books, which would ban abortion outright if Roe falls. The Texas trigger law goes even further and says it would go into effect 30 days after a “Supreme Court judgment decision overruling, wholly or partly, Roe v. Wade.” Even if the court doesn’t fully overturn Roe but just upholds the Mississippi 15-week ban, it would have to throw out the long-held standard that states can’t ban abortion before a fetus is viable outside the womb, which is about 22 to 24 weeks. In that case, Hagstrom Miller thinks Texas would say that’s partly overturning Roe and try to enforce its trigger, and she’d likely be suing the state yet again.

Time is something pregnant Texans don’t have—their right to abortion has been effectively nullified since September 1, and SB8-style bills are starting to spread around the country, with more certain to come early next year. “​​Texas might be the first, but already there’s copycat bills and there’s a strategy from the Supreme Court,” Hagstrom Miller said, adding, “on some level, unfortunately, it feels like a dress rehearsal in Texas for what the country might face.”

It’s all the more reason for the Biden administration to do something—anything—for the people whose bodies will be commandeered by their states.