Demonstrators rally against anti-abortion and voter suppression laws at the Texas State Capitol on October 2 Credit - Montinique Monroe—Getty Images
When a federal court injunction temporarily halted Texas’ controversial six-week abortion ban on the night of Oct. 6, one physician who provides abortions at an independent clinic in the state was already in bed. A text message arrived with the news and the physician’s heart started racing.
“This is what we’ve been planning for. This is great news,” the doctor remembers thinking. “It was always my intention that if we got the injunction, I would resume care as soon as possible.”
But that late-night decision—to resume providing abortions to patients who could not otherwise legally receive one—was extremely risky.
The Texas law, which is known as SB 8 and bans nearly all abortions after roughly six weeks, contains an unusual provision: if doctors perform abortions based on a court decision that is later reversed, they can be retroactively sued for up to four years. And if they’re found guilty, they could be held personally legally liable. Malpractice insurance does not typically cover breaking the law.
After weighing this considerable risk, the majority of the roughly two dozen abortion clinics in Texas decided they would not resume providing abortions past six weeks during the injunction. But a handful of physicians at roughly six clinics across the state, including that doctor reading text messages in bed, made a different calculation: the extraordinary personal risk was worth it to do what they believed was right.
“I was prepared to take the chance,” says another Texas doctor who resumed providing abortions just hours after the injunction went into effect. “I was not afraid of these guys trying to bully us. A time comes when you have to stand up and fight for what’s right.”
Less than 48-hours later, the legal window again slammed shut. On the evening of Oct. 8, the Fifth Circuit Court of Appeals issued an administrative stay of the lower court’s injunction. With SB 8 now back in effect, this tiny, secret group now holds the dubious distinction of being the few doctors to experience performing abortions under the most restrictive conditions any state has seen since Roe v. Wade in 1973.
Two of them talked to TIME this week about what that experience was like, why they opened themselves up to such significant personal and professional risk—and what comes next.
Massive legal risk
It’s never easy to break the law to do what you think is right. But SB 8 makes it even harder.
Under the law’s unique enforcement mechanism, any private citizen, regardless of whether they have personal knowledge of an abortion or live in Texas, can sue if they believe an abortion has taken place after cardiac activity was detected in the womb, which typically happens about six weeks into pregnancy. If plaintiffs win, they are entitled to at least $10,000 plus legal fees—a vigilante’s bounty, of sorts. The law also explicitly allows providers to be sued multiple times over a single abortion.
While most doctors carry malpractice insurance, that is not intended to cover cases like those that could be brought under SB 8, says Amy Hagstrom Miller, president and CEO of Whole Woman’s Health, which runs four clinics in Texas. Molly Duane, a senior staff attorney at the Center for Reproductive Rights, who represents a number of clinics in Texas challenging the ban, says she has been working with her clients’ malpractice insurance companies to determine whether they would cover a potential SB 8 suit. She declined to share details of the policies given the ongoing legal risk.
Most abortion clinics aren’t exactly financially flush either, and their staffs don’t all have access to lawyers or a means to pay high legal fees. “Independent abortion providers are largely mom and pop shops that don’t have huge resources, that don’t have the infrastructure that can support their staffs in that way,” says Duane.
Yet another consideration is the professional fallout from being sued. Even if someone files a frivolous lawsuit against a physician, the doctor would have to declare that when applying for new hospital privileges or a license to practice in a different state in the future.
Meanwhile, Texas Right to Life, an anti-abortion group that helped draft the law, has underscored its intention to use the enforcement mechanisms at its disposal. “Texas Right to Life intends to ensure the law is fully enforced and will act upon credible evidence of abortions that took place in violation of the Texas Heartbeat Act last week,” said Kimberlyn Schwartz, the group’s director of media and communication.
While abortion providers are accustomed to harassment, threats and sometimes violence, performing abortions past six weeks during the temporary injunction of SB 8 seemed to most a bridge too far. Whole Woman’s Health employs 17 doctors who provide abortions across all of its clinics, but the vast majority did not feel they could take this risk.
“Most of the doctors at our clinics are very young people who are just starting their practices, and they have other practices, they have privileges with the hospitals and all those kinds of things. And the private insurance companies, all of them are monitoring the doctors’ activities,” says a Whole Woman’s Health doctor who made the personal decision to perform abortions for patients who wouldn’t otherwise be able to receive one under SB 8 during the injunction last week.
This doctor and Hagstrom Miller emphasized that the choice was left up to each individual. Once they had a few doctors on board, Hagstrom Miller began asking the rest of the clinic staff if they were willing to work during those procedures, and the vast majority opted in. “We didn’t want to force a single one of our doctors to do it,” the doctor from Whole Woman’s Health says.
The other doctor from an independent abortion clinic framed the decision in terms of personal responsibility to protect people’s right to abortion: “Our philosophy has always been: we want to be a point of access, we want to help as many people as possible. We are going to go the extra mile in order to see every last patient that we can, because it is so important that we have that access available to patients who need it and have a right to it.”
‘Immense emotional weight’
The night the federal injunction went into effect, doctors could not immediately resume providing later-term abortions, as Texas requires clinics to provide an ultrasound and counseling session at least 24 hours before each abortion. But throughout September, clinic staff at Whole Woman’s Health had given patients the option to complete those requirements in case the law was blocked. So on Oct. 6, they leaped into action calling patients on their list to see whether those people still wanted an abortion and could come in the following morning.
“There was a lot of figuring out, can we even pull this off?” Hagstrom Miller says. “Do we have enough patients who have already had their statement and information with the right doctor, who could also be here tomorrow in a clinic where there was enough staff to open safely beyond six weeks? It’s a freakin’ miracle we were able to reopen so fast.”
With so few independent abortion providers in Texas, it’s a small community. But the legal situation was moving so quickly that many didn’t have time to be in touch with people outside their own organization. The Whole Woman’s Health doctor says they didn’t talk to doctors at other clinics, or even to extended family, about their choice. But when doctors found out others were taking similar actions, “it meant a lot to them,” Hagstrom Miller says. “That’s part of why they felt comfortable, is knowing that there were doctors and other places who are also doing the same thing.”
But the fact that the decision to provide abortions during the injunction had to take place in secret has been emotionally difficult.
The doctor at the independent clinic says that while the clinic is a “safe space,” it’s challenging to open up to friends or family outside of work.
“It’s intensely bonding but also very isolating … When you’re walking your dog down the street, you don’t necessarily know who you can talk to about this and who you can’t,” the doctor says. “Do they know I’m an abortion provider? To what extent do I feel safe telling people that?”
When the injunction ended on Oct. 8, the doctor says it was “devastating” for their team to call patients who had hoped to get abortions the next day and tell them their appointments would be canceled. “I know that we’re all feeling that immense emotional weight,” they say. “We’re banding together through all of this, but it’s a very dark time for everybody.”
Meanwhile, the uncertainty persists. The Fifth Circuit’s stay was temporary and it still has to consider the appeal by the state of Texas, but given its conservative track record, some legal scholars expect it to extend the stay. Many providers say they will not feel comfortable performing abortions past six weeks until the Supreme Court weighs in. That could take years, Duane says—a timeline that would likely result in some clinics closing up shop entirely.
“We went through Whole Woman’s Health v. Hellerstedt, which closed down half the clinics in the state. And while we eventually won that case before the U.S. Supreme Court, that victory came three years too late for all the clinics that closed and never reopened,” Duane says. “So I’m acutely aware every day of the risk of the same thing happening here. And there’s really not one clinic to spare at this moment.”
As for the doctors and other staff at abortion clinics, the prospect of continuing to operate under the risk from SB 8 is terrifying—but none expressed any doubt about their decision to offer the procedure during the injunction last week. “As draining as these last five weeks have been and as limited as that 48 hour window was, it felt right to be able to see the patients that we could during that time,” says the first doctor at an independent clinic.
Hagstrom Miller agreed. “It’s a little crazy to be put in this situation,” she says. “But we did the right thing.”
Correction, Oct. 14 The original version of this story misstated details about the care available at Planned Parenthood clinics during the injunction. Some Planned Parenthood clinics provided abortions past six weeks during that time.