Abortion Rights Are Going From “Bleak To Bleaker” — Texas Is Ground Zero

On September 15, 2021, Madi* found herself in the bathroom of her sorority house, holding a positive pregnancy test. The first thought that went through her head when she saw the double lines was, This can’t be happening. She took four more tests to be safe, hoping it was a false positive. But they all confirmed that she was pregnant. The next day, Madi made an appointment with a nearby Planned Parenthood to have an abortion. The earliest slot was in eight days. 

That small window of time had the potential to change her life. About two weeks earlier, Texas, where Madi lives, had implemented a controversial law known as Senate Bill 8, or S.B. 8. It effectively banned abortions after six weeks. 

Madi estimated that she was just four-and-a-half weeks pregnant at the time of her positive test, leaving her with just enough time to get an abortion. But when she arrived at a Houston-area Planned Parenthood on Sept. 23, she learned that she was closer to 11 weeks. “I realized I was going to have to figure out how to do this outside of Texas,” she tells Refinery29. “I was terrified.”

When S.B. 8 first started getting attention, some called the Texas abortion ban “novel.” Others describe it as downright “diabolical.” The unprecedented law encourages private citizens to sue anyone who helps a person end their pregnancy in the state after a fetal heartbeat is detected, usually at about six weeks and long before viability, the point at which a fetus can survive outside the womb. That means anyone but the person who receives the abortion — including doctors, nurses, Uber drivers taking pregnant folks to clinics, or those helping pay for the abortion — can be taken to court. And if those filing complaints (“bounty hunters,” as they’ve been called) win, they are entitled to  $10,000 or more.

S.B. 8 has been in effect for six months and counting now. There was an approximately 60% drop in abortions in the state within the first 30 days of its implementation, the Texas Health and Human Services Commission reported. Meanwhile, there was a corresponding increase in neighboring states, as Texans in need of abortions were forced to travel, in some cases hundreds of miles, to find care. 

Abortion funds and activists are doing everything they can to help people in Texas get the healthcare they need. But the situation is “unsustainable,” says Rosann Mariappuram, executive director at Jane’s Due Process, which helps teens confidentially access sexual and reproductive healthcare. Fund Texas Choice, the only statewide practical support abortion fund in Texas helping people seeking abortions cover costs of travel and lodging, confirmed to Refinery29 in February that since S.B. 8 took effect, call volume has quintupled, and the average round trip for their clients seeking abortions went from 807 miles to 1,160 miles. “To live in a state where we’re expected to have private charities come in and be the safety net for the failures of our state government is impossible,” Mariappuram says. 

Meanwhile, anti-abortion groups see S.B. 8, which makes no exceptions for pregnancies resulting from rape or incest, as a win. ​​"State lawmakers should be able to regulate abortion as the people of the state see fit," Katie Glenn, the government affairs counsel at Americans United for Life, told Refinery29 in a statement. "The Supreme Court improperly seized authority away from the legislative branch in Roe v. Wade, and the last five decades have proved it was a mistake."

Many others say that S.B. 8 is the mistake, one that can’t be easily corrected and that will have life-altering and cataclysmic effects on pregnant people.

And S.B. 8 isn’t just a Texas problem. Copycat bills, almost identical to the one in Texas, have been proposed in other states such as Missouri and Oklahoma (many Texans have traveled to the latter to have an abortion since S.B. 8). And, on March 14, Idaho became the second state to pass a Texas-style abortion ban.

What’s happening in the Lone Star State now may be a “dress rehearsal” for what life could look like in half the states in the U.S., says Amy Hagstrom Miller, the president and CEO of Whole Woman’s Health, which has abortion clinics nationwide, including in Texas. 

The Supreme Court is currently deciding a case, Dobbs v. Jackson Women’s Health Organization, which considers a Mississippi law that prohibits nearly all abortions after the 15th week of pregnancy and directly challenges the precedent set in Roe v. Wade, the 1973 ruling that protects a pregnant person’s ability to choose to have abortions.

The Court is expected to make its decision by early summer, and if it overrules or dismantles Roe, the Guttmacher Institute predicts that 26 states would be certain or likely to ban abortion outright, leaving more than half the country without access to crucial healthcare. “[That would affect] about 36 million women of reproductive age, and that pool is larger when you include trans and non-binary individuals,” says Elizabeth Nash, Guttmacher’s principal policy associate for state issues. “All these people will be living in a state without an abortion clinic. Things could go from bleak to bleaker.”

And legal scholars, including Laurence H. Tribe, university professor emeritus of constitutional law at Harvard Law School, predict that the Supreme Court’s decision on Dobbs will further curtail access. Its ruling may eliminate the fetal viability line, and let states set limits on abortions at whatever week they deem fit, as Texas already has done through what’s been called the “vigilante loophole."

Abortion clinics that attempted to challenge S.B. 8’s constitutionality in federal court have largely seen their efforts cut off at the knees, and on March 11, the Texas Supreme Court effectively smacked down what abortion rights activists saw as a final, partial path to dampening the effects of S.B. 8. Meanwhile, the Democrat-backed Women’s Health Protection Act (WHPA) attempted to preserve the right to abortion through a federal law, which many activists saw as the most direct road to keeping abortion accessible throughout the country. But in a vote in the Senate on Feb. 28, it failed.

Few expected the bill to advance, but it was still a blow to abortion activists in Texas who’d been rallying to support the legislation. Unless Congress passes a similar law to the WHPA or a constitutional amendment that would render S.B. 8 unenforceable, there’s very little that can be done to legally reverse it at this point. “The situation in Texas in terms of getting relief from S.B. 8 is completely hopeless,” Tribe says. “It’s tragic, but not complicated.” 

On the wall of the Planned Parenthood of Greater Texas in Austin is a clipping from The Austin American newspaper. It describes a city council vote over whether the clinic should be expelled from the local hospital where it opened because “the matter [of birth control] is a highly controversial one.” That article was published in 1938, a year after the health center (then called the Maternal Health Clinic) was opened. 

This goes to show that, long before S.B. 8 passed, Texas led the way in America’s abortion restrictions, and, today, there is evidence of the state’s continued attempts to control people’s bodies all over this Austin-based Planned Parenthood. 

On my tour, Sarah Wheat, a spokesperson at Planned Parenthood of Greater Texas, points out intense-looking medical equipment such as an oxygen tank and a gurney. Most of this, Wheat says, isn’t necessary for performing an abortion. But having extraneous medical equipment and building design — having janitors’ closets and hallways that are specific dimensions, for example — became necessary in Texas abortion centers after the state mandated clinics doing any kind of abortions be licensed “ambulatory surgical centers” (ASCs). This law passed in 2013, and resulted in half the clinics in Texas closing due to the burdens of making unnecessary changes, and many others to make costly design updates. (The Supreme Court overturned the rule in 2016, but the clinic Refinery29 visited kept its ASC license.)

Wheat also hands me a large green and blue booklet with “A Woman’s Right To Know” printed on the cover, which the Planned Parenthood of Greater Texas is required by law to give to patients 24 hours before an abortion. It contains unscientific claims – including one that links abortions to breast cancer, which the American Cancer Society notes is not backed up by research studies — and has pages of information on “your baby’s development” by week with accompanying pictures. 

Beginning in 2012, Texas also began requiring people to have an ultrasound performed 24 hours before obtaining an abortion. Now, S.B 8 requires a second ultrasound on the day of the actual abortion.

Not only do these mandatory delays make it difficult for people who can’t easily take time off work or who are traveling far distances, but fetal “cardiac motion” (or a fetal “heartbeat,” which would prohibit someone from having an abortion in Texas under S.B. 8) can also develop in this 24-hour window, meaning a patient can essentially lose their right to an abortion overnight in Texas.

Doctors like Amna Dermish, MD, an abortion provider at Planned Parenthood of Greater Texas, have seen this exact situation play out since S.B. 8’s implementation. For one of Dr. Dermish’s patients, the first ultrasound showed that she could have an abortion in Texas, but the second detected fetal cardiac activity. “She was a recent immigrant and English wasn’t her primary language, and it was just one of those really hard things to explain,” Dr. Dermish remembers. “She was just like, ‘But there wasn’t anything yesterday, how could there be something today? Why did you have to do the ultrasound? Why couldn’t you just do it yesterday? I promise not to tell anybody. Please. Please.’” 

Here, Dr. Dermish gets emotional. “It was just one of those moments where, I’m the one who’s there having that conversation with her, trying to explain these laws that are inexplicable,” she says. “They don’t make any sense. Why couldn’t we just do it yesterday? I have to ask myself, ‘How can you do this and maintain your humanity?’... This is not why I became a doctor.” 

Many providers grapple with these questions. “It’s very difficult to go from a place of being able to help people to essentially feeling helpless,” says Bhavik Kumar, MD, a provider at Planned Parenthood Center for Choice in Houston. “[Shortly after S.B. 8 was passed,] I’d think, This is a patient that I would have been able to help yesterday or the week before, and this is routine care — but all of a sudden, I’m not able to do it,” he says. “Now, if you’re too far along, there are many patients we can’t help, and we have to tell them to go out of state. Patients are asking, ‘Where am I going to go? How far? How am I going to get there?’ We can help answer questions and connect people to resources, but we don’t have any firm answers.” 

“My job has gotten a lot harder because I have to turn so many people away,” Dr. Dermish adds. “It feels I’m going against my own moral code, in order to follow the law.” 

And as hard as it is for doctors turning folks away, it’s even harder on the people seeking reproductive care, as Madi knows. After learning that her pregnancy was past the six-week mark, she started reaching out to clinics out of state. But it turned out to be a challenging proposition. 

“I called like 30 clinics total,” Madi says. She found one, in Mississippi, that could see her in two weeks. She booked it, but continued to call clinics in Nevada, Alabama, Missouri, Georgia, Tennessee, Kansas, California, and Louisiana to see if she could find an earlier appointment. She couldn’t. "That was disheartening, to know I'd have to wait even longer to get the healthcare that I needed,” she says, looking down at her bright teal shoes with the words “Howdy, Y’all” emblazoned on them.

Madi acknowledges that she had many privileges on her side: She ultimately told her parents that she was pregnant and wanted an abortion, and they supported her and helped her pay for the travel expenses. These totaled around $2,000, partly because she had to make two trips to the clinic in Mississippi, due to logistical problems caused by a waiting period required by Mississippi law.

The planning and travel made her miss days at her job, her internship, and school. She was forced to drop a class, and ultimately had to push her graduation date back a semester.

Many people face even more barriers to access and worse final outcomes. Only about 43% of folks have their abortions within six weeks (because, like Madi, many don’t know they’re pregnant by then), which leaves more than half of those seeking abortions in the lurch. Fund Texas Choice reports that with transportation, gas, childcare, and hotels, it typically costs about $1,000 to get an abortion in another state, not including costs associated with the abortion itself (which can total $550 at 10 weeks, and more for later-term pregnancies). Many people can’t afford such a trip, or can’t make it logistically — because of a job, an unsupportive parent, trouble finding childcare, an abusive partner, or a lack of resources or knowledge. Because of this, “for many people in Texas, it’s already like living in a post-Roe world,” says Mariappuram, of Jane’s Due Process.

“These abortion bans are racist,” she added in late February. “Eighty-five percent of our clients seeking abortion care identify as Black, Indigenous, or youth of color. This shows that the disproportionate impact of restricting reproductive health care, specifically abortion, falls hardest on Black and brown communities.” 

And, as Madi found, even if a person has the time, money, and access to travel for reproductive care, they may have trouble finding an appointment at the overwhelmed clinics in nearby states. At the end of February, Hope Medical Group in Louisiana confirmed to Refinery29 that 64% of the patients they were seeing were from Texas. Out-of-state clinics are struggling to keep up with the demand. If Roe is overturned or curtailed, the idea that all the people in up to 26 states could get out of state to get the care they need is just a “fantasy,” says Laurie Bertram Roberts, executive director of the Yellowhammer Fund in Alabama and co-founder of Mississippi Reproductive Freedom Fund.

And the consequences of not having access to reproductive care can be devastating. Carrying a pregnancy to term can come with risks. During December’s oral arguments for Dobbs v. Jackson Women’s Health Organization, Supreme Court Justice Sonia Sotomayor noted: “Forcing women who are poor — and that’s 75% of the population and much higher percentage of those women in Mississippi who elect abortions before viability — they are put at a tremendously greater risk of medical complications and ending their life.”

Despite the bleak landscape, Mariappuram says that now is a particularly important time for people to take action and not get discouraged, whether they live in Texas or elsewhere. While abortion access hasn’t always been available to all, for the past 49 years, abortion has been a legal right in the U.S. “There’s been a cultural shift, and it’s harder to return to the dark ages when people have gotten a glimpse of the light,” according to Tribe, the constitutional law professor.

To his point: Most Americans —including 35% of Republicans, say they support the right to abortion. Although the Women’s Health Protection Act, the federal bill that would have codified the right to an abortion, failed in the Senate on February 28, the fact that there was a vote on it at all was historic. It showed that Democrats were making abortion a priority, and got Republicans to state their stances on the record. Other future bills or constitutional amendments could someday protect the rights Roe provides, even if Roe itself is overturned. Meanwhile, advocates are still pushing for Congress to end the Hyde Amendment, which blocks federal Medicaid funding from being used for nearly all abortions, effectively forcing those who are already struggling financially to pay the most for care. 

For those who want to help, Mariappuram recommends starting by educating yourself about what’s happening in your state (Guttmacher has a helpful state legislative tracker). Call state representatives if there’s an abortion bill moving forward in your state legislature, and vote for folks who support reproductive rights. Donate to an abortion fund or independent clinic, or volunteer your time. You could also try speaking to the prosecuting attorney in your county to encourage them not to prosecute people who self-manage their abortions, Bertram Roberts suggests. 

Madi says that even though the last six months have been “a struggle,” she’s grateful she was able to get the abortion she knew she needed. She’s in control of her own future, and the experience has prompted her to volunteer and get involved with women’s health organizations. She’s even considering making it a career. “I’d love to work for a tiny clinic in the HR department, and just know that I’m helping in some kind of way," she says.  

For now, Madi is sharing her story with friends and family. She says that she wants folks to know the reality, and how hard these controversial laws are making it on people who need access to critical healthcare. And, she wants to warn people that, depending on future rulings and laws, her reality could be the future of millions of people across the country. “It scares me to think about that future,” she says. "But just because you make things difficult, it doesn’t mean that people won’t go to great lengths to get what they need.”