Abortion providers in Colorado saw the difference when Texas banned abortions at the start of the pandemic. More calls from Texas area codes. More Texas license plates. More stories about 16-hour drives.
Now, providers are preparing for what could be a far more sustained increase, as a near-total ban on abortion takes effect in Texas, effectively cutting off access to the procedure for millions of people in the nation’s second-most populous state.
Experts say the right to an abortion enshrined in the 1973 Roe v. Wade decision could be gutted, with repercussions far beyond Texas. The U.S. Supreme Court is set to soon hear a direct challenge to the case, and the Texas ban could inspire copycat legislation in other conservative states. While Colorado providers are concerned about the effect of the ban in Texas, changes nationwide could thrust more pressure on states like Colorado that have long been considered safe havens for abortion access.
The law is “completely unprecedented,” said Neta Meltzer, with Planned Parenthood of the Rocky Mountains.
Abortion providers in Colorado say they’ve already begun to see an uptick in calls from Texans, and some experts predict abortion providers in Colorado may become overwhelmed in the coming months if other states push for restrictions similar to the Texas ban. Officials in Florida and South Dakota are already weighing them.
Planned Parenthood of the Rocky Mountains will try to see everyone, but “the reality is that we’re not going to be able to meet the need alone,” Meltzer said.
Several of the organization’s clinics — spread across Colorado, Wyoming, New Mexico and Nevada — are already slightly busier than normal and scheduling abortion appointments two to three weeks out.
Texas’ law bars abortions around six weeks gestation — before many women know they are pregnant.
In a novel twist, the law is not enforced by state officials but by private citizens — from any state — who can sue for $10,000 any person they believe helped someone get an abortion, from a rideshare driver to a friend who loaned them money. The person suing would not need to have any connection to the abortion provider or the person who received an abortion, and those sued would be unable to recoup the money spent defending themselves from lawsuits in court, experts say.
Attorneys and legal scholars have warned the law undermines bedrock legal principles and weaponizes the judicial system.
“This is a crazy law that will have devastating effects on people seeking abortion in Texas,” said David S. Cohen, a law professor at Drexel University’s Thomas R. Kline School of Law. “It’s not like this is restricted to, say, the patient’s boyfriend or the patient’s mother can bring a lawsuit — this is anyone who can bring a lawsuit. A random person sitting on a beach in Hawaii can bring a lawsuit over an abortion in Texas. There’s nothing like it in the law.”
The U.S. Supreme Court declined to block the Texas ban before it took effect Sept. 1. The majority order said the decision was “not based on any conclusion about the constitutionality of Texas’s law,” which is now tied up in lower courts.
In a scathing dissent, Supreme Court Justice Sonia Sotomayor wrote the law “is a breathtaking act of defiance — of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas.”
John Seago, with Texas Right to Life, an ardent backer of the legislation, said it applies only to abortions performed after about six weeks in Texas. But some providers in Colorado are fearful the law’s vague language could leave them with a target on their back.
“We have no proof that that’s going to be the case,” said Dr. Rebecca Cohen, a Denver-area abortion provider. “What we do know is that people from outside of Texas can sue, they don’t have to be residents of Texas to bring a suit and there’s nothing that explicitly keeps us protected from being sued.”
Cohen is preparing for an increase in second-trimester cases and said the clinic she works at is talking about hiring more providers and about how to provide more pill-induced abortions via telemedicine.
There was immense uncertainty during Texas’ abortion ban in 2020, she said. People seeking abortions woud make 15, 20 or 30 phone calls to find an appointment, only to find out the next appointment wasn’t available for months or had been canceled, as the Texas ban ricocheted between courts. Some people couldn’t make appointments for financial reasons, language barriers or fears about their citizenship status, she said.
Planned Parenthood of the Rocky Mountains saw a 12-fold increase in Texas patients when the state banned abortions for a month in spring 2020.
Experts say the ban will disproportionately harm people of color and those with less means because traveling out of state can be inaccessible to people who have low incomes, can’t take time off work or can’t find child care. Providers are certain some people seeking an abortion will simply be unable to get one, exposing them to health risks or dangers if they try to terminate a pregnancy on their own.
“People who have resources will be able to get health care outside the state, and those who already experience oppression in their lives due to their race or ethnicity or their social class are the ones that are going to suffer the most,” said Kate Coleman-Minahan, a University of Colorado College of Nursing professor who has researched abortion issues.
Providers estimate between 85% and 90% of people who seek abortions in Texas are at least six weeks into their pregnancy. That’s about two weeks after a missed period.
Colorado is among the states with the least restrictive abortion access in the nation, and one of about a half-dozen with no gestational age cutoff for when abortions can be performed.
Voters shot down a ballot measure last year that sought to ban abortions after 22 weeks of pregnancy, the stage at which proponents argue that a fetus could survive outside the womb. It went down by a 19-percentage point margin.
The initiative’s supporters are still pushing for greater restrictions, and Colorado’s GOP chair cheered the action in Texas. “It’s a beautiful day in Texas,” Kristi Burton Brown wrote on Twitter.
Nicole Hunt, co-founder of the Coalition to Help Moms and Save Babies, said the Texas ban reflects a new era of abortion policy in America and could be a blueprint for conservative states to move forward.
“Here in Colorado, I think we’ve got a larger hill to climb. But I don’t think that those of us in the pro-life movement are discouraged by it,” she said.
Calling it now a post-Roe world, she said she expects abortion policy will start to differ by states rather than be set at the federal level.
President Joe Biden has said the law “unleashes unconstitutional chaos” and directed his administration “to launch a whole-of-government” response. U.S. House Speaker Nancy Pelosi said the chamber would vote on a bill to codify Roe v. Wade’s protections later this month.
Colorado lawmakers have stressed the need for federal action.
State Rep. Yadira Caraveo, a pediatrician now running for Congress, said that while she was in medical school she told a 14-year-old girl with chronic abdominal pain that the girl was pregnant.
“The very first part of the discussion that we had with this young woman was, ‘you’re pregnant, and now you have a choice to make,’” she said. “And that’s the discussion that we have with every single patient when we tell them that they’re pregnant, especially at the young ages that we see in pediatrics.”
She said the law would punish the young person in that situation, and impinge on doctors’ ability to speak openly with patients.
Abortion funds in Texas and other states help people pay for abortions, and the gas, lodging and other logistical expenses needed. Many are already stretched thin.
Karen Middleton with Cobalt, a Colorado abortion fund, said the group feels prepared for a potential increase in people seeking abortions, and the providers they work with are ready to “step up and do more.” They are following the lead of abortion funds and others in Texas, she said.
Mary Ziegler, a professor at Florida State University College of Law with expertise on the history of U.S. abortion law, said the Texas law is going to exponentially increase pressure on Colorado and other states that are surrounded by regions with more restrictive abortion policies. It will likely also make those states battlegrounds in the fight for abortion rights — with groups potentially pumping money into the state to help people obtain abortions there or to limit access.
“There’ll be some question about whether Colorado wants to do more to accommodate people who are traveling out of state,” she said. “That’ll raise legal questions about what happens if states like Texas argue that people are violating the law in Texas and Colorado, and whose law will get to apply.”
Anti-abortion activists experimented in the 1990s with using civil lawsuits to curtail abortion access, though those efforts were generally narrower, focused on pregnant patients suing providers for medical malpractice, she said.
“The theory was the same, which was that if you made it unbearably expensive for people to continue performing abortions, both in terms of actual damages folks had to pay and insurance costs … that that could shut down abortion providers regardless of what the Constitution was interpreted to say,” Ziegler said.
Amanda Stevenson, a sociology professor at the University of Colorado who has researched abortion and contraception, said Colorado has a fairly robust network of abortion providers but that there was no way it could meet the needs of all the people needing care in Texas and other states. She said it’s inevitable other states will try to follow Texas’ lead after the Supreme Court let the ban take effect, and that it’s “very likely that our providers will be overwhelmed.”
Dr. Warren Hern, who has performed abortions in Colorado for nearly 50 years, said the law is “catastrophic” for Texans. About 85% of his patients come from out of the state as he specializes in providing later-term abortions to people facing severe fetal abnormalities or other life-threatening complications.
“I think that those of us who help women and perform abortion in Colorado, will probably be somewhat busier,” he said. “There are lots of places where women can go outside of Texas. The problem is that many of the women who need to have this service don’t have bus fare, much less money for a plane trip to Colorado.”