On Wednesday, a U.S. District Court ruled in favor of the Department of Justice to confirm that Texas’ now-infamous S.B. 8 bill could not stand as it was, which in theory means that the previous consequences that could be enforced on those aiding and abetting abortions past six weeks of pregnancy (namely, a $10,000 fine) were, at least temporarily, lifted in Texas. And yet, two days later, it’s still very unclear who can get an abortion, who is providing abortions, and just exactly what’s happening in clinics right now.
Which is to be expected. When abortion becomes the subject of an intense legal battle with high-stakes consequences, any new development—even a positive one in the eyes of reproductive health care providers—leaves both doctors and patients confused and disoriented.
In his opinion blocking the enforcement of the law 36 days after it went into effect, Judge Robert Pitman called that it an “offensive deprivation of such an important right.” The provider Whole Woman’s Health, which operates four clinics in Texas, tweeted in celebration. “This is amazing news. Texans never once stopped seeking abortions—we’re thrilled there is a path to provide them.” But the very next tweet acknowledged the messiness of the situation: “Note: this block is temporary and we aren’t sure what this means for care yet. We will update as we know more—but this is good news.”
Soon, Whole Woman’s Health would announce that starting Thursday morning, they would begin to offer abortions again for women after fetal cardiac activity was detected, which happens at around six weeks of pregnancy. “In this climate, every single abortion we can provide is a win,” the company wrote on Twitter.
Headlines in local and national news soon announced that Texas abortion clinics were resuming services. But almost all the articles primarily quoted a press conference given by Whole Woman’s Health’s founder and CEO Amy Hagstrom Miller, in which she said the clinics began calling patients who had previously been turned away.
The remaining clinics waffled when asked about their plans. The Center for Reproductive Rights said its clinics “hope to resume full abortion services as soon as they are able” but didn’t say when that would be, instead noting that it was a “tenuous” situation. Planned Parenthood said it was “evaluating” and “waiting on next steps,” acknowledging in a statement that the fight was “far from over.” Other clinics, when contacted by Slate, either did not respond or declined to comment.
Almost all of the statements emphasized hesitancy over the very temporary nature of the injunction. As the Associated Press put it, “doctors across the state did not rush to resume normal operations with the court battle far from over.” If an appeals court reinstates the law in a matter of days, everything could change again, making the efforts to restart in vain. This seems possible—on Friday afternoon, Texas asked for an emergency stay of the district court’s order.
The evolving situation helps to explain why many doctors are still genuinely afraid. According to the Texas Tribune, the anti-abortion organization Texas Right to Life has indicated that it would retroactively sue providers for any abortions provided after Sept. 1 if Pitman’s order is eventually lifted. “We are going to be vigilant,” the organization told the Tribune. A senior staff attorney for the Center for Reproductive Rights told reporters that the retroactive provision “remains a serious piece of concern for physicians.”
At least one clinic has said that the decision not to immediately provide abortions again wasn’t just based on the worry over punitive lawsuits or any other financial hurdles: It accounted for the cost to women as well. According to Kathy Kleinfeld, an administrator for Houston Women’s Reproductive Services, the clinic is not providing abortions for the next few days in large part because of their experience during the earlier days of the COVID pandemic, when Gov. Greg Abbott shut down all abortion services by claiming they fell under the category of elective surgery rather than urgent medical care. An appeal led to an injunction from a judge, immediately followed—within a day—by an appeal to the conservative 5th Circuit. “So we had to call patients who were hours away from coming to their appointment after being turned away already,” she said. “The thought of having to do that again is really cruel, to do that to women when they’re in a really sensitive situation in their lives. So we thought it would be wise to wait a day or two before making changes.”
It seems likely that the situation will shift as clinics continue these conversations around risk. But even those clinics that have landed on a policy in response to the injunction are dealing with a logistical issue: Updating websites and voicemails and blogs and social media takes time. I called one clinic that, as you were on hold, informed you that the clinic planned to fight S.B. 8 before it was enacted in September; when I tried a different line, I was told that the law was already in effect. There was no hold information that mentioned that law was currently paused.
The confusion can easily deter patients, which clinics also understand. If you visit any of their websites, most will hit you with a pop-up reminding you that “abortion is still legal in Texas.” But, for the most part, they go on to clarify that abortion is legal in Texas for those who have discovered their pregnancy within the extremely narrow timeframe allowed under S.B. 8. Few had yet updated their language to reflect the latest injunction. And who knows when they’ll be able to: Many are already strapped, dealing with an influx of calls from confused and desperate patients. According to Kleinfeld, the clinic saw a surge in calls from women who had seen the news and wanted to know if they could schedule abortions. “We’ll schedule them next week, with the understanding that if there’s a change, we’ll have to notify them,” she said. “It’s not as easy as flipping a switch. There’s considerations for these women, who are impacted by these moves the state of Texas has done.”
In other words, the Texas abortion law is a method of intimidation as much as it is a legal strategy. As Slate’s Christina Cauterucci reported, when S.B. 8 went into effect, many clinics stopped providing abortions of any kind to avoid frivolous lawsuits. Now, it seems that even a legitimate legal victory is hampered by the fear, confusion, and dread that lingers .