In an effort to overturn Roe v. Wade, some states are passing laws that severely limit or prohibit abortion, hoping that the courts will uphold them. But when, instead, those new laws are thrown out, the state has to pay the legal expenses for the abortion advocates.
And the price tag is hefty.
In the past four years, taxpayers in states trying to restrict abortion access have paid almost $10 million in attorney fees for abortion providers. The cost is likely to keep growing as more abortion restrictions are challenged, including three in federal courts today.
This is the result of a special provision that allows the courts to order reimbursement to people who successfully challenge laws that violate civil rights.
The latest — and by far largest — recent reimbursement was ordered by a federal judge in Texas last month, awarding $2.3 million to the lawyers who successfully blocked a state law to limit abortions.
The judge in the Texas case, which was brought by the abortion provider Whole Woman’s Health, said too much of the financial burden of the abortion fight is falling on taxpayers.
“Whole Woman’s Health likely didn’t need the number of lawyers involved in the case,” Judge Lee Yeakel wrote. “Yet this court finds that the State’s tactics compelled an increase in manpower by Whole Woman’s Health. Both parties are culpable in driving the cost of this litigation to an extreme height, with the people of the State of Texas left to pay all of the expense of both sides.”
The clinic challenged a 2013 law that required doctors to have admitting privileges in a local hospital and required abortion clinics to be equipped as outpatient surgical centers. The Supreme Court ruled in the clinic’s favor in 2016.
The lawyers for Whole Women’s Health sought $4.5 million for 6,044 hours of work for the case, with hourly billing rates ranging from $265 to $995, for an average of $740.
The state claimed that the rates were too high, the bills were vague and the hours were excessive.
After reviewing the objections, Yeakel approved 5,745 hours of work and said a fair average price to pay for a lawyer in Austin was $400 an hour.
With Neil M. Gorsuch and Brett M. Kavanaugh’s appointments to the Supreme Court, states have rushed to pass additional restrictions that, if upheld, would overturn the 1973 Supreme Court ruling that created a constitutional right to abortion nationwide.
A trial started Monday over a two-day waiting period for abortions in Tennessee, and a federal court in Atlanta will hear arguments over a new Georgia law that would forbid abortion after six weeks. In San Francisco, a federal court will hear arguments from Planned Parenthood over the Trump administration’s rules on what doctors must tell pregnant women.
States are trying to limit the financial burden with novel strategies. Several recent abortion laws included a “trigger” provision that the law would not go into effect until a similar law had been upheld in another state or the Supreme Court had overturned Roe. If the new restrictions don’t go into effect, the state doesn’t have to defend them in court.
Critics of the laws have said that the costs of the states’ own lawyers, plus their outside legal counsel, and the attorneys fees awarded to the other side could all be used instead to promote the health of children and pregnant women.
They pointed to a 2017 study by the Center for Reproductive Rights and Ibis Reproductive Health that indicates that states that pass more abortion restrictions have worse health outcomes for women and children.
Although the Center for Reproductive Rights was part of the legal team that received the $2.3 million reimbursement award in Texas, senior staff attorney Jenny Ma said the money should be going elsewhere.