Texas abortion providers in limbo as they await word from the Supreme Court on state ban

Washington — Abortion providers in Texas have found themselves in limbo waiting for a thicket of legal issues raised in challenges to the state's restrictive abortion law to become untangled, as the Supreme Court weighs whether to block its enforcement.

The high court could as soon as Thursday respond to an emergency request from the Justice Department to reinstate a decision from a federal district court judge that paused the law, which bans most abortions in the state. A decision by the Supreme Court halting enforcement of the Texas measure while the legal battle over its constitutionality continues would be a victory for abortion providers, who argue the law deprives women of the constitutional right to an abortion and will force many clinics to close.

But the dispute between the Biden administration and the state of Texas is in the preliminary stages and no court has issued a ruling on the constitutionality of the law yet, raising questions of whether abortion clinics have a chance of getting relief in the near future.

"They are in this limbo," said Jessie Hill, a law professor at Case Western Reserve University who has litigated challenges to state restrictions on reproductive rights. "They can't proceed with abortions beyond six weeks and are living in constant fear now. Even if they're obeying the law, I'm assuming they can only keep going on like this for so long."

The request from the Justice Department pending before the Supreme Court is providers' "last best chance to get relief for a while," she said.

"We're at this moment where the Supreme Court either acts on this request to put the injunction back in place and things can return to how they were somewhat in Texas, or there's no relief in sight for quite some time," Hill said. "They may prevail ultimately, but it's going to be a while most likely."

The dispute has landed before the justices weeks after the Biden administration filed its lawsuit against Texas in early October, arguing the law was enacted "in open defiance" of the Constitution. The law, the nation's most restrictive, prohibits abortions after embryonic cardiac activity is detected, usually at about six weeks and often before many women are aware that they are pregnant.

The Justice Department first asked a federal district in Austin to temporarily block enforcement of the law while legal proceedings continue. The judge there, Robert Pitman, agreed to do so on October 6, writing in a scathing 113-page ruling that women "seeking abortions face irreparable harm when they are unable to access abortions; these individuals are entitled to access to abortions under the U.S. Constitution."

Pitman's order granting the Biden administration's request for a preliminary injunction allowed abortion providers in the state to resume services, albeit the victory for clinics and the Justice Department was brief. 

Amy Hagstrom Miller, president and CEO of Whole Woman's Health, which operates four clinics in Texas, said her organization was prepared for the possibility of a court order that would give providers the green-light to resume abortions. 

Clinic staff reached out to women who were past six weeks pregnant and had signed consent forms to see if they wanted to begin satisfying Texas' other requirements to undergo the procedure, which positioned them to be prepared in the event the court halted enforcement of the law.

The other requirements include that a women seeking an abortion must have at least two visits to an abortion provider, first for an ultrasound and then for the procedure. The state also requires patients to wait 24 hours after receiving their ultrasound and required paperwork before having an abortion.

"We prepared our patients as best we could," Hagstrom Miller told CBS News. "Many people are in a wait-and-see, are we going to knock this law down kind of place? While they're waiting, their pregnancies are advancing."

In all, six women got abortions at Whole Woman's Health while Pitman's injunction was in effect, Hagstrom Miller said. Roughly 48 hours after he blocked enforcement of the law, the 5th U.S. Circuit Court of Appeals froze his decision, reinstating the state's ban on October 8. 

Acting in compliance with the law, staff at Whole Woman's Health canceled appointments for patients scheduled for abortions after the 5th Circuit allowed the law to go back into effect.

"Our staff are being put in the position against their will of being agents of the state, and they're having to carry out and enforce the law that's putting them out of a job," Hagstrom Miller said.

The Supreme Court could pause enforcement of the law again, granting the request from the Biden administration to reinstate Pitman's order and clearing the way for abortions after six weeks to resume.

Marc Hearron, senior counsel at the Center for Reproductive Rights, which is representing Whole Woman's Health and other providers in a separate challenge to the Texas ban, said if the Supreme Court lifts the stay issued by the 5th Circuit, there will be abortion clinics throughout the state that will begin to provide abortions after six weeks again.

"Whether it will look the same as it did before is hard to say, because even if a clinic makes a decision they're going to start providing again, maybe not every single physician who works in that clinic or every staff member makes that same choice," he said. "It's hard to say exactly what it's going to look like."

The Texas law leaves enforcement to private citizens, who are deputized to file civil lawsuits in state court against anyone who performs an abortion after embryonic activity is detected or "aids or abets" them. If a suit is successful, the plaintiff is entitled to at least $10,000 from the violator.

Because of this enforcement scheme, it's not just clinics who face legal jeopardy.

"It's the physician, the nurses, it's also the staff who works at the front desk," Hearron said. "Every single person has to think about and make that choice for themselves."

The law's enforcement scheme made doctors reluctant to provide abortions when the measure was blocked, as it allows clinics and providers to be sued retroactively for procedures performed even when an injunction was in place, if it is later lifted.

Hagstrom Miller estimated at least six physicians in Texas provided abortions when Pitman's order was in effect, but most opted not to do so because of the potential for retroactive lawsuits.

A decision by the Supreme Court halting enforcement of the law, however, could leave providers more willing to resume abortions.

If the court says in response to the Justice Department's case that the law "is blatantly unconstitutional and we're putting it on hold, people will feel differently about moving forward than" if the court issues a brief, one-paragraph opinion, Hill said.

Meanwhile, clinic staff in Texas have been discussing with patients the option to travel to clinics in neighboring states like Oklahoma or Louisiana for abortions, though that, too, is not without challenges. Clinics in other states have been inundated with women from Texas, Hagstrom Miller said, leading to four-to-six week delays in securing an appointment.

"It's not affecting patients not just in Texas, but in other states who are being delayed their own access," Hearron said. "It's pushing first trimester abortions into second trimester abortions, causing significant delays in multiple states. It's heartbreaking. This really has to come to an end. It's far past time."