When the Supreme Court voted in late June to topple Roe v. Wade, it set off Texas trigger law banning abortion from the moment of fertilization.
The trigger law is scheduled to go into effect 30 days after the court enters its judgment — which is separate from the opinion that was issued June 24. It’s unclear exactly when the court will enter its judgment that would trigger the 30-day countdown.
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Texas does not bar residents from seeking abortions in other states or countries where it is legal, however. Some employers, such as Apple and Dick’s Sporting Goods, say they will cover abortion-related travel expenses for their workers.
But residents in El Paso and the rest of the state still face uncertainty about legal risks.
The ambiguity of Texas abortion law is frustrating — and likely intentional — because it is open to manipulation, said David Donatti, an attorney at the American Civil Liberties Union, or ACLU, of Texas.
“We are in uncharted territory,” Donatti said. “We can tell you what our best read of the law is, and what our best expectation is of general circumstances. But with something that’s politically contentious, something volatile and quickly developing, we can’t say what every prosecutor will do in El Paso.”
While providing abortion services is no longer legal in Texas, people in El Paso still have several avenues they can take if they want to terminate their pregnancy. El Paso Matters spoke to legal experts about potential ways Texas abortion law could be interpreted.
Texas abortion law
Once the trigger law is in effect, abortion is outlawed in Texas except in cases where the mother’s life is in danger.
The law does not criminalize patients seeking abortion, but rather, the person providing the abortion. The law makes performing an abortion a felony crime and doctors could face life in prison, as well as fines up to $100,000.
On July 8, President Joe Biden signed an executive order to safeguard access to medication abortion and emergency care. Under federal law, doctors are required to provide abortion care in an emergency medical condition, such as miscarriage complications.
Texas Attorney General Ken Paxton’s office sued the Biden administration over this guidance on July 14, pitting the state and federal government against each other.
The Biden administration on July 13 also issued guidance to pharmacies, telling them they could be in violation of civil rights laws if they refuse to fill prescriptions for medications that could be used for abortions.
In reality, people in El Paso have been living in a post-Roe v. Wade landscape since Sept. 1, when Texas Senate Bill 8 went into effect, said Tanya Pellegrini, senior counsel at The Lawyering Project, an organization that aims to protect and improve reproductive health care access.
Known as the “sue thy neighbor” law among health advocates, SB 8 allows any member of the public, from neighbors to coworkers, to sue anyone who performs or facilitates an illegal abortion for a minimum of $10,000 per abortion, plus legal fees.
Although patients themselves shouldn’t face criminal repercussions, Texas has already criminalized people for their pregnancy outcomes, Pellegrini said. Pregnancy outcomes can include any pregnancies that don’t result in a live baby being born, such as a miscarriage or abortion, Pellegrini clarified.
In April in South Texas, 26-year-old Lizelle Herrera was charged with “murder” for a self-induced abortion, despite Texas’ murder statute explicitly prohibiting murder charges against a pregnant person for the “death of an unborn child.” Starr County sheriffs arrested Herrera on a $500,000 bond. The district attorney later dropped the charges.
Abortion services linger in Texas — but not for long
The Planned Parenthood health center in El Paso, the county’s only abortion provider, halted abortions after the fall of Roe v. Wade. The clinic remains open for other services, including birth control, emergency contraception and postpartum exams. Planned Parenthood refers patients seeking abortion services to abortionfinder.org to find the nearest clinic.
Abortions up to six weeks of pregnancy resumed at other clinics in several Texas cities, which sued to temporarily resume procedures. On June 28 a Harris County district court judge granted a temporary restraining order that blocked the abortion ban for two months at most.
Abortions could only resume at the clinics named in the lawsuit, which does not include Planned Parenthood in El Paso. But these Texas clinics have already begun to wind down services.
Attorney General Ken Paxton asked the Supreme Court of Texas to dismiss the temporary order and the court ruled in his favor.
New Mexico abortion clinics provide support
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Surgical abortions in all stages of pregnancy are legal in neighboring New Mexico. The state also doesn’t require parental consent for abortion.
For early-stage pregnancies, doctors can prescribe a medication abortion, a two-pill combination of mifepristone and misoprostol. The U.S. Food and Drug Administration approved this method of self-managed abortions for the first 10 weeks of pregnancy, though the World Health Organization now recommends 12 weeks as the cutoff.
The Women’s Reproductive Clinic of New Mexico is the nearest abortion provider, located near Sunland Park one mile west of El Paso. The clinic offers medication abortion to people who are two to 10 weeks pregnant, following a doctor’s exam. The service, including consultation, ultrasound and medication, costs $700 and patients must pick the pills up from the clinic, office staff said on June 30. The clinic does not accept insurance, Medicaid or payment plans.
This clinic is not a member of the National Abortion Federation, a professional association of abortion providers, according to the organization’s website. In the past, West Fund and Frontera Folx, two reproductive justice organizations based in El Paso, did not refer people to this abortion provider.
The next closest abortion provider is in Las Cruces, with more to come.
One of them is Jackson Women’s Health, which is relocating from Mississippi. The new clinic, which will be renamed Pink House West, is set to open sometime this summer. It will offer medication abortion up to 11 weeks of pregnancy and surgical abortion from six to 16 weeks of pregnancy.
Whole Woman’s Health is also raising funds to move its Texas operations to New Mexico near the state line. The health care provider offers first- and second-trimester abortions.
In March, Las Cruces approved a nonprofit business license for Planned Parenthood, but has not shared the location or timeline, reported the Las Cruces Sun-News.
Texans can also make a telemedicine appointment in New Mexico or another state where abortion is legal. Patients can pick up pills in-state or get it mailed, though clinics will likely require a New Mexico address.
Plan C, a project under the Women’s Health Network, suggests one workaround: Using a mail forwarding service, such as a virtual mailbox through PostScanMail.com, to forward the pills to their Texas address.
Under the Biden administration, the FDA lifted its restriction on receiving abortion medication by mail. Texas Senate Bill 4 criminalizes doctors for mailing abortion pills, but it’s unclear how the state plans to enforce this if New Mexico providers are mailing medication to a New Mexico address.
Protecting health care providers in New Mexico
New Mexico Gov. Michelle Lujan Grisham signed an executive order on June 27 to protect health care providers who help out-of-state residents receive abortions. The order prohibits state agencies from cooperating with another state’s investigation into a person receiving or providing reproductive health services.
New Mexico will also not cooperate with extradition attempts from other states where abortion is criminalized.
That said, it seems unlikely that a New Mexico provider would mail abortion pills directly to Texas and risk potential criminal prosecution or an arrest warrant, Donatti said. Even if New Mexico does not force extradition, there are still possible scenarios where the provider could face consequences in Texas, such as getting sued.
It’s not just providers who are on the hook. If a family member or friend in New Mexico mails the abortion pills to a patient in Texas, they could be subject to liability under SB 8 for aiding and abetting an abortion in Texas or SB 4, which criminalizes the mailing of abortion medication.
This is where Texas abortion law gets murky because where the abortion takes place matters — and there’s room for uncertainty about what counts as an abortion in Texas, Donatti said.If a Texas patient takes the first abortion pill, mifepristone, in New Mexico, and the second pill, misoprostol, in Texas, one might argue the abortion was initiated in New Mexico.
Even if the abortion takes place legally in New Mexico, conservative lawmakers in Texas are already threatening legislation that would punish private citizens and companies for paying for expenses related to an out-of-state abortion.
The laws are vague enough to sow confusion among Texas health care providers about what they’re allowed to do, and liability may depend on a case-by-case basis, Donatti said.
If a patient has the ability to complete as much of the abortion process in New Mexico, including taking the medication, that may be a better option for both the patient and the provider, he said.
Ordering abortion pills online in Texas
Some people may prefer to manage their abortions at home because they have other commitments, like children or work, that make it challenging to drive to an appointment, said Dana Johnson, a researcher at the University of Texas at Austin’s Project SANA, which studies self-managed medication abortions in the U.S.
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Medication abortions account for more than half of all abortions in the U.S., according to the Guttmacher Institute.
The website for Plan C offers options on how to order abortion pills online from Texas.
One option is Aid Access, a telemedicine service that connects patients to a licensed doctor in Europe for consultation and prescription for abortion medications mifepristone and misoprostol. A pharmacy in India then ships generic versions of the FDA-approved products.
Since Aid Access doctors are international, they fall outside Texas law enforcement’s jurisdiction.
Plan C also lists online international pharmacies that do not offer clinician support.
Abortions in Mexico and what to know about misoprostol
Mexico’s Supreme Court ruled in 2021 to decriminalize abortion, but abortion remains outlawed in the state of Chihuahua, which includes Ciudad Juárez.
There are exceptions in cases of sexual violence, if the woman’s health is at risk or if the abortion was accidental. Under Chihuahua’s criminal code, anyone who helps a person obtain an abortion can face a minimum of six months in jail.
But many Mexican pharmacies sell misoprostol — a medication that causes contractions to empty the uterus — over the counter as an ulcer treatment. For a medication abortion, doctors usually instruct patients to take misoprostol after taking mifepristone, but mifepristone is not readily available in Mexico and most countries. It is also more expensive than misoprostol.
Research and information from the World Health Organization, however, indicate taking misoprostol alone can be safe and effective in first-trimester pregnancies. Taking misoprostol alone is about 85% effective at terminating a pregnancy compared to about 93% for the two-drug regimen, El Paso Matters reported in a series about border abortions last fall.
El Paso residents routinely cross the international bridge into Juárez for cheaper medication and health services. A 28-pill box of misoprostol can run as low as $20.
Though misoprostol is more effective when taken earlier in the trimester, pregnant people may take their chances at the 11th or 12th week because after the first trimester, they have fewer options to end their pregnancy, Johnson said.
Although Mexico does not require a prescription for misoprostol, it is generally safer to consult a health professional first about any previous medical complications that may affect the safety of taking this medication.
Johnson recommends that people who purchase misoprostol internationally make sure the pills come in a blister pack, which have a higher likelihood of authenticity. Misoprostol also quickly loses its potency when it is exposed to air. Planned Parenthood lists online what people can expect after taking misoprostol.
People should look out for uncommon complications that may require hospitalization, such as discharge with a bad odor, bleeding through more than two pads after two hours or consistent fever, Johnson said. People should also get a check-up if they experience nothing, which may be a sign of rare, but serious ectopic pregnancy. Planned Parenthood lists other symptoms of ectopic pregnancy, such as cramping on one side of the pelvis.
Aid Access advises people to dissolve the medication under their tongue. Inserting the pill vaginally could open the doors to criminalization if found by a doctor, Johnson noted.
Questions about legal risks? Talk to a lawyer
If people have questions about legal risks surrounding abortion care, Pellegrini recommends talking to a criminal defense lawyer. Resources like If/When/How’s Repro Legal Defense Fund supports people who are investigated, arrested or prosecuted for self-managed abortions.
People can also call the Repro Legal Help Hotline if they have questions.
“I think what’s important to understand is that we live in really uncertain times,” Pellegrini said. “Right now, where we are in terms of the law — and laws that I think are really bad laws — there is nothing that is zero risk. Everything is kind of like in this gray area of things that are risky, things that are less risky.”
“The biggest takeaway is to know there are resources available, and organizations committed to making sure abortion is safe and acceptable and lawful for folks,” she continued. “You are not alone. There are a lot of us out here who are fighting and there are resources for people.”
El Paso Matters reporter Victoria Rossi contributed to this story.
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This post was last modified on December 12, 2024 6:38 am