Beyond Lawsuits, Texas Providers Could Face Jail Time for Prescribing Abortion Pills

As Texas’s remaining 15 abortion clinics grapple with the fallout of last week’s implementation of the nation’s most restrictive anti-abortion law, which now allows private citizens to sue anyone who “aids or abets” a person seeking an abortion after six weeks, at least three facilities in San Antonio have stopped offering the procedure to avoid lawsuits.

With access to the procedure shrinking rapidly even for Texans under six weeks, pregnant people without the ability or resources to travel out of state, especially undocumented Texans, rural Texans and/or Texans of color, are already turning to self-managed methods. That doesn’t necessarily mean the kinds of desperate measures pregnant people have traditionally turned to in the past when abortions were illegal — although it doesn’t rule them out either. Most commonly, self-managed abortion has come to look like women obtaining abortion-inducing pills from online telemedicine sites and online pharmacies.

After decades of Republican-backed abortion restrictions, low-income and rural Texans were already turning to self-managed abortions as the number of licensed clinics in the state dwindled from 41 in 2008 to only 15 by 2020. In that time, abortion-inducing pills quickly became the most common method to terminate early pregnancies. According to the reproductive rights research organization Guttmacher Institute, 60 percent of early-term abortion-seekers elect to take a pill over having surgery.

But what many may have missed amid the flood of news coverage of the state’s harsh six-week abortion ban, Senate Bill 8 (SB 8), is that the state legislature also passed a separate bill, Senate Bill 4 (SB 4), that specifically targets medication abortion and is set to take effect in December. SB 4 creates a state jail felony offense for providers who prescribe medication abortions after seven weeks of pregnancy, effectively double banning medication-induced abortions in the state. The bill also bans abortion-inducing pills from being mailed in Texas.

If you’re wondering how abortions could be banned at both six weeks and seven weeks, you’re not alone. Kamyon Connor, who is executive director of the Texas Equal Access (TEA) Fund, which provides abortion funding to low-income people in Texas, tells Truthout that the new seven-week abortion pill ban, while compounding the harms of the six-week abortion ban, is also somewhat in conflict with it. “It allows for more than six weeks’ worth of abortion, which is weird. So already, the state is contradicting itself in some ways by saying, ‘At seven weeks it’s still OK to do, but actually it’s not because of this other thing,’” Connor says.

But the contradictions don’t lessen the bills’ threats. The combined impacts of the two bills have left the state’s most marginalized people to seek out abortion-inducing pills on their own, and Texas abortion facilities, support networks and reproductive rights advocates say they are still struggling to provide answers.

“People were already self-managing their abortions under the watchful eye of an abortion provider, something that’s completely safe for folks to do in the privacy of their own homes,” says Connor. “What the state is trying to do is intimidate folks who might turn to self-managed abortion care outside of the realm of traditional, clinic-based, provider-managed care for their abortions because they’re unable to access them [under SB 8] in our state.”

The TEA Fund is now mostly dedicating its support to assisting low-income Texans of color in traveling out of state for abortions, and Connor says the Fund has not yet received inquiries from clients or potential clients about how to pursue self-managed abortion or how to seek abortion pills outside clinic-based supervision. In fact, most of the Fund’s referrals come directly from the clinics themselves.

But it’s not just that the organization isn’t specifically receiving those inquiries; the Fund’s help line has seen an overall drop in call volumes since SB 8’s implementation last Wednesday. Connor says that decrease has been typical in the immediate aftermath of prior state-legislated abortion restrictions, such as Gov. Greg Abbott’s executive order at the onset of the pandemic, which banned abortions as a “medically unnecessary” procedure. (That order was later struck down by courts.) “There’s an adjustment period of where people are trying to figure it out,” Connor says.

If someone were to specifically inquire about self-managed abortion, the Fund’s staff and volunteers would try to redirect them by providing resources and support to find the person care out of state instead, Connor says. The impacts of both bills are something Connor says the Fund has been preparing to handle for months by retraining staff and strengthening connections to regional, out-of-state clinics, as well as beefing up safety and security protocols.

“Abortion funds have this unique muscle developed by having relationships with clinics outside of the state already because our clients have always had to leave the state due to harsh restrictions here, but also because we understand that people should be able to access abortion care however they want,” Connor tells Truthout.

Like SB 8, even if SB 4 is eventually overturned in the court system — an increasingly uncertain outcome amid the Trump-installed, conservative-majority Supreme Court’s refusal to block SB 8 from going into effect and soon weighing a Mississippi challenge to Roe v. Wade — barriers to medication abortion would remain. This is because of the way Texas regulated the procedure even prior to the passage of SB 4: Even as the COVID-19 Delta variant slams intensive care units in the state’s largest cities, Texas continues to prohibit appointments to obtain medication abortion via telemedicine, forcing women to see providers in person in order to be able to access abortion-inducing pills.

SB 4’s new restrictions do not align with the U.S. Food and Drug Administration’s (FDA) standards. The agency approved mifepristone in the U.S. for nonsurgical abortion in 2000, and the FDA’s 2016 guidelines allow practitioners to provide mifepristone and misoprostol, the two-drug combination prescribed for medication abortions, up to 10 weeks’ gestation.

The Texas Medical Association has called the Texas Legislature’s passage of two anti-abortion bills “unconstitutional” and an interference with the fundamental patient-physician relationship, while condemning SB 4 for containing “language that criminalizes the practice of medicine.”

“FDA standards dictate one thing, but apparently our Texas legislators feel it is upon their power to contradict medical expertise and limit medication abortion to seven weeks,” says Nancy Cárdenas Peña, who is Texas director of policy and advocacy the National Latina Institute for Reproductive Justice. “So we’ll have our hands full with SB 8, fighting against that legislation in courts, but we would still have yet another fight on SB 4, because while these attacks are connected, the fights against them can look a little different.”

The fight against SB 4, Cárdenas Peña says, must be more focused on destigmatizing conversations around what self-managed abortion really looks like in the modern era. More often than not — with the proper information, resources and guidance — self-managed abortions are completely safe and preferable for many people, especially those in rural areas who may have to travel hours just to see a provider, and undocumented people in border regions who may be unable to cross immigration checkpoints.

That latter issue is one Cárdenas Peña says must be lifted up in the fight against both SB 4 and SB 8. “The intersection of immigration and reproductive health care is more close together than people realize. In areas like the Rio Grande Valley, we have internal immigration checkpoints that prevent people from leaving, so this conversation about, ‘We’re just going to go to another state for abortion care,’ is not the same for everyone,” she tells Truthout. “So folks who are undocumented and do not have papers cannot cross these checkpoints and access health care anywhere else and are therefore subject to the state laws that are in place.”

The criminalization efforts we see in Texas’s new anti-abortion laws are similar to tactics that have long been deployed against undocumented people, Cárdenas Peña points out. Anti-abortion hotlines and websites that encourage people to report on those seeking abortion access in Texas mirror Immigration and Customs Enforcement tip lines that collect reports on undocumented people and those aiding and housing them. “So in the same essence that immigration hotlines seek for loved ones to report other people, we see the rise of ‘whistleblower’ websites within the anti-abortion movement asking people to report on each other and trying to attain this $10,000 bounty, which just a reminder, is the floor, not the ceiling, … that people can ask for in court,” Cárdenas Peña says.

The intersection between abortion travel and immigration is especially important to emphasize amid reproductive rights advocates’ bittersweet celebration of the Mexican Supreme Court’s Tuesday ruling that punishing women for abortion is unconstitutional. The precedent-setting decision annuls several provisions of a law passed by a northern Mexican state along the Texas border. It has immediate implications for Texas’s SB 8 and SB 4, too.

Mexico’s decision opens another option for Texans seeking legal abortions, both surgical and medication-induced. Even before the passage of SB 4, women in South Texas frequently crossed the border to go to Mexican pharmacies to buy misoprostol. With SB 4 limiting Texans’ ability to obtain both mifepristone and misoprostol beyond seven weeks in the U.S., Mexico is poised to see an explosion in abortion-seekers crossing the border — that is, among people with the ability to cross the border in the first place.

Texas’s most marginalized people, however, will be stuck with the impacts of its abortions bans, something reproductive rights advocates say needs remain central in the struggle for reproductive justice.

“These are direct attacks on Black folks, queer, trans people, Indigenous folks, migrants and immigrants along our borders,” the TEA Fund’s Connor says. “This is also a direct attack upon young folks, who often try to seek this kind of [self-managed] care — specifically for our young people who don’t necessarily have supportive guardians in their lives or any kind of parental figures.”