Kathy Kleinfeld has never been a fan of roller coasters. But since March 31, as the administrator at Houston Women’s Reproductive Services, she feels like she’s been riding one.
When Texas Attorney General Ken Paxton banned a host of procedures he deemed “medically unnecessary,” including abortion, Kleinfeld turned dozens of women away. Since then, she’s been watching the fight play out in the courts: The ban was temporarily lifted, then reinstated, then lifted on a limited basis, with clinics permitted to provide the abortion pill but not surgical abortions. The pill was then banned for a third time, on April 10, before the Texas Court of Appeals ruled to allow it two days later.
This week, the situation finally seemed to be “getting back to normal,” said Kleinfeld: Texas clinics could give patients the abortion pill, facilitating a medical abortion. Abortion access was still severely limited — women can only have a medical abortion up to 10 weeks gestation — but at least it was something, Kleinfeld said.
But on Monday afternoon, Kleinfeld got a call from the clinic lawyer: The court reversed its decision again. She had to cancel all the appointments she had scheduled for Tuesday.
“If we just wait another minute,” she wrote in an email, “everything could change again.”
Eight states — Iowa, Ohio, Alaska, Alabama, Tennessee, Arkansas, Oklahoma and Texas — have restricted abortion access during coronavirus. These bans on abortion — either surgical or medical, or both — have been legally challenged by abortion clinics, which argue that all abortion care is medically necessary. In almost all of these places, clinics have succeeded in convincing courts to issue a temporary stay, allowing clinics to stay open while courts determine whether the restrictions are legal. As of Tuesday night, Texas is the only state where courts have allowed a complete ban to stand.
Abortions in Texas could start up again as early as Wednesday, when at midnight, the original executive order that banned all “nonessential” medical procedures in Texas will expire, to be replaced with new legislation that allows nonessential medical practices to reopen, as long as they refrain from using state-issued personal protective equipment. While this seems to suggest that abortions will be permitted to resume, no one can say for sure, said Molly Duane, a staff attorney for the Center for Reproductive Rights. Clinics have been requesting clarification from government officials since Friday, but haven’t heard anything.
After all the “legal whiplash” that clinics have experienced this month, it’s hard to trust the state government, said Kleinfeld. In her more than two dozen years working for Texas abortion clinics, she says she’s never experienced anything like it.
“This ping-ponging is unheard of,” said Duane. “This sort of minute-to-minute, hour-to-hour change in what is and is not legal is something I have never seen before.”
When a district court judge issues a temporary restraining order (TRO), that order is typically upheld until the courts can fully address the underlying legal issues, said Nancy Northup, president of the Center for Reproductive Rights. Sometimes officials will try to fight the TRO in the circuit court, which happened with abortion bans that were temporarily suspended in both Ohio and Oklahoma. But unlike Texas, the circuit courts responsible for handling cases from Ohio and Oklahoma refused to hear those cases.
“Both courts said they lacked jurisdiction,” said Northup. “Which is their way of saying, ‘It’s not appropriate for you to be taking this up to us.’ If [Texas] was following normal court practice, they would not be rushing up to the Court of Appeals.”
Antiabortion organizations say Texas state officials have been doing what’s best for covid-19 patients. The abortion clinics have been abusing the court system for their own gains during coronavirus, said Jonathan Saenz, president and attorney for Texas Values.
“Many sacrifices and closures were made for a wide variety of surgeries, but abortion doctors chose to file lawsuits instead of respecting the common good,” he wrote in an email.
Over the past month, Duane has been regularly calling Kleinfeld, updating her on the latest legal news. As much as Kleinfeld appreciates these phone calls, she has started to dread them, knowing she might have to cancel appointments with women who have already tried to come in two or three times before.
“It’s increasingly difficult to have faith when you make the appointment. I’m telling women, ‘We can schedule you to take the pill tomorrow.’ But in the back of my mind I’m waiting for the state to flip-flop,” Kleinfeld said.
It’s particularly hard to make those calls, Kleinfeld says, because this is such a difficult time for so many people. Many women have lost their jobs, or fear being pregnant in the middle of a pandemic. It must feel like “somebody keeps moving the carrot,” Kleinfeld says: The care you need is within reach, but then someone says that you can’t have it.
The roller coaster takes a mental toll on people who work in abortion care, as well as the patients, said Kamyon Conner, the executive director at the Texas Equal Access Fund, an abortion fund based in Dallas. She and her staff made the decision not to update their volunteers on every piece of legal news. The volunteers are the ones speaking directly with women seeking financial aid for their abortions, Conner said.
“Working in this field, many people have their own experience with abortion. We feel the mental weight of this back and forth,” said Conner. “We didn’t want our volunteers to feel that.”
Conner isn’t sure what will happen next. She certainly isn’t convinced the ban will vanish on Wednesday.
“Our state officials have given us no reason to trust that would be the case,” she said.
Wednesday morning, there will be women in the waiting room at Houston Women’s Reproductive Services. Clinic lawyers told Kleinfeld that she could schedule appointments, so she did. She knows she might have to send women home.
When the phone rings — as it surely will at some point — she’ll be afraid to answer it.