Battle over Texas abortion law leaves Black people behind

Trymaine Lee: On August 31, Marva Sadler stood outside of her abortion clinic in Fort Worth, Texas, ready to do her job.

Marva Sadler: And I'm met at 7:15 that morning with our physician, who is 83 years old. And we walked into the building together that morning and he and I decided that we were going to turn our phones off, that we were not going to pay attention to what was happening in the courts, and that we were going to see every patient that we possibly could until 11:59.

Lee: Marva Sadler is the clinical director for Whole Woman's Health, a reproductive health network that runs four abortion clinics in Texas and operates a handful of clinics in other states.

Sadler: And at 7:15 that morning, it was a joke that (LAUGH) we made, that statement that we're getting in here and we're getting it done. And then about 6:00 or 7:00, we realized, oh my gosh, we're really going to go until the very last minute and see as many patients as we possibly can.

Lee: Marva and her team were on a mission because August 31 was the last day before Senate Bill 8 went into effect. The so-called Texas Heartbeat Act bans abortions after fetal cardiac activity is detected in an ultrasound. That's around six weeks, before the heart is even developed.

Sadler: With a very small staff, but a very mighty staff, and that doctor and myself, we were able to complete 67 procedures that day and actually see over 50 follow up appointments of patients who had previously done the medication abortion, but wanted to come in and ensure that the medication abortion had worked, because if it didn't, the next day, no matter what the situation was, they were gonna have to continue with those pregnancies.

And so we saw our last patient that day at 11:56 p.m. was when the doctor walked out of the room, with four minutes to spare. And there was a moment with the staff where we were really rejoiceful. There were tears. We couldn't believe it.

We realized we hadn't ate all day. (LAUGH) You know, there was that moment. And that lasted maybe five minutes. And, I mean, really quickly at 12:00, we realized, "Oh my God, it's a new day. And tomorrow is gonna be totally different than today."

Lee: Starting September 1, SB 8 allowed private citizens the right to sue anyone who, quote, "Aids or abets a person getting an abortion after six weeks in Texas." And they could sue for a minimum of $10,000.

Sadler: You know, I think that six week window was very intentional, because most women don't even know they're pregnant at that six week mark.

Lee: Planned Parenthood estimates that 85% of the 55,000 abortions in Texas in 2020 were performed after six weeks.

Sadler: If you take it back to the bare basics of pregnancy and you think about it, by the time a woman has missed her period, even first day where the period is late, we're already at four weeks.

Lee: It's now been six weeks since SB 8 went into effect. And since then, a lot has happened. But really, not much has changed. It started when the Department of Justice sued Texas.

Archival Recording: Our position is set out in detail in our complaint. The act is clearly unconstitutional under longstanding Supreme Court precedent.

Lee: On October 6, a judge in federal district court sided with the DOJ and halted the law. But just 48 hours later, a higher court reversed that pause and SB 8 went back into effect. And the DOJ's lawsuit is continuing to make its way through the legal system, a process that could take years.

Texas has long led the fight to restrict abortion access. Henry Wade of Roe v. Wade, the man who was fighting to keep abortion illegal, was the district attorney in Dallas. Marva Sadler has watched as the restrictions have piled on over time.

Sadler: When I started this work 15 years ago, it was a one-day process where we had to play a recording for a woman to hear state-mandated information that was not necessarily accurate. And so we went from a one-day process to implementing wait times, the 24 hour wait period, the mandated sonogram, the mandated description of the sonogram.

Lee: And in 2013, Texas banned abortions after 20 weeks. And the State passed a law mandating strict rules for abortion clinics and providers, like requiring physicians to have admitting privileges at a hospital within 30 miles. Within about a year, more than half the clinics in the state shut down.

Sadler: We definitely saw an increase of women ordering medication online, by any other means, and doing many other things.

Lee: The Supreme Court ruled this 2013 law unconstitutional five years ago. But this time, Texas legislators wanted to craft an abortion ban that couldn't get struck down so easily. That's why SB 8 empowers private citizens to enforce the ban.

It creates a legally complicated situation that its authors believe will help their chances before the Supreme Court. So far, that bet has paid off. On September 1, the Supreme Court declined to grant an emergency request filed by Texas abortion providers, which would have stopped SB 8 from going into effect in the first place. Some Texans are left feeling the impact more than others.

Sadler: This will definitely affect women of color, the low-income community much more than it will affect those outside of that.

Michele Goodwin: Centuries ago, there were federal laws and state laws elsewhere that were being enacted, we call these fugitive slave laws, that made it legal for an individual to surveil, spy, and hunt down Black people. And you look at the Texas law, it's quite similar.

Lee: I'm Trymaine Lee and this is Into America. The six week abortion ban in Texas has drawn protest around the country, but often the faces of the abortion debate aren't ones that look like ours. So we're taking a look at how the country's toughest abortion ban will impact Black people and the ripple effect this could create across the country. When Marva Sadler thinks back to that last day before SB 8 became law, there's one person that really sticks with her, a woman that she wasn't able to help.

Sadler: She was a young lady, obvious drug problem, woman of color who had been previously found guilty of a crime, had been given permission to go home and get her children, affairs into order, and was due to report to prison on that Friday to start a five year sentence. Two children at home. Found out she was pregnant that morning and was 12 weeks pregnant. And because there is not only SB 8, there's also the 24 hour law.

Lee: In Texas, patients have to wait at least 24 hours after receiving a sonogram and state-mandated paperwork before they can end a pregnancy.

Sadler: I couldn't see her on the 31st and give her the first part of her visit and then see her on the first because after 12:00, she did not qualify. And of course, she could not leave the state. She was legally prohibited from leaving the state due to needing to report for prison.

And so I am certain that that young lady reported to start a five year prison sentence carrying an unwanted pregnancy. On so many levels, that's just so wrong. Sorry. She had enough on her plate already. And she was literally standing in my lobby, and I could help her. There was absolutely no medical reason why we could not help her. But yet, I had to turn her away. And that is heart wrenching.

Lee: You've been in this business a long time. But as you tell that story, I can hear the tears welling up in your eyes and your throat. What is it about this situation, this ongoing, worsening situation, that gets you to the point where you're still crying after all these years, that it still touches you?

Sadler: It's just not fair. You know, I just, I think I continue to do this work, you put your entire heart and soul into preparing a space and a place just for this woman to have a moment of love and peace without being judged. And you do that. You accomplish that, through all of the turmoil, all of the road blocks that come your way.

And it just seems like as soon as you accomplish that and you get there, here comes one more thing to just pull it away. You know, I compare it to having a truckload of food lined up, standing in front of a hungry family, and the door is locked. Like, it makes no sense. You can't make rhyme or reason for that. And I think sometimes my tears are sadness, but a lot of times it's anger. It's pure anger.

Lee: Marva says she's angry because in her experience, banning abortions will have consequences far beyond the nine months of pregnancy.

Sadler: And so I'm frustrated, Trymaine, if I have to be quite honest. I am uber frustrated that it just seems like no matter what you do and no matter how much you put in, that there's always something.

Lee: Do you have a sense, an inkling, that this will disproportionately affect Black women? Because I've said it before, I have a feeling that some wealthy white women and wealthy white daughters are gonna be able to get access to a safe and healthy abortion. Am I wrong I don't know--

Sadler: You're not wrong at all. (LAUGHTER) And this is why it affects us as Black women so much, right? Because that woman who doesn't know if she's gonna have a job when she returns is the woman that's working that minimum wage, 9:00 to 5:00 job.

That is us, right? You're absolutely right. Those who have means, this won't affect them at all because they'll be able to get the nanny to keep the babies, and get on the plane and fly over to the next couple of states over, if need be. But for the woman who is barely making, where the odds have already been stacked against us, where we don't have that infrastructure of protection and to take care of us from the start, this is impossible. So absolutely, this will definitely affect women of color, the low income community, much more than it will affect those outside of that.

Lee: Is there concern now that because it's gonna be harder for people to get procedures done, that it's gonna create pressure and dangerous situations down the line?

Sadler: Absolutely. I think history has shown us that over and over again. What we definitely know is because you make abortion inaccessible or illegal, it doesn't make it not happen. A woman who is pregnant and does not want to be pregnant will try her best to figure it out. We are preparing ourselves and doing everything we can to outreach to our patients to prepare for self-induced abortions. We've seen it happen in the past when other regulatory bodies have gone into effect. Absolutely.

Lee: Marva has been working in reproductive health care for a decade and a half.

Sadler: I've always told people, I really fell into this work. I took a job at Planned Parenthood I thought was going to be temporary. My thought was that I would work there as a medical assistant until I found a real job. And then on the first day, I was definitely approached by protesters there in the parking lot who told me that I was going to hell and how horrible of a person I was.

And I think I was living in a bubble up until that point, that I didn't realize that that was actually an entire movement against women happening out there. And so I was definitely bit by the bug from day one, for sure. I mean, if they were going to be out there fighting against it, there had to be friendly faces and the faces of right on the inside fighting for it.

And again, I really lived in a bubble. I grew up with my mom and my two sisters and my grandmother, an entire house full of really strong Black women who made their own mind up to do what they wanted to do. And I really lived in this bubble to think that that was the way the whole world worked. And so to get out of that bubble and realize that that was not the case, and that there were women who needed folks like me to stand up and to have that voice for them, it was definitely my mission from that day forward.

Lee: Often, the protesters get personal.

Sadler: I've had a protester follow me to my daughter's school and approach me as I was walking out of my daughter's school with my daughter to tell me that I did not deserve to have children. I've had them call my neighbors and tell my neighbors that there's a baby killer in the neighborhood.

I've had them show up at my son's little league football game to make sure that every other parent on the team knew that there was a baby killer's child playing on the team. The sheer fact that I can walk into that clinic at any day and there's a protester out there that is not only going to tell me my name, but he is going to name the name of all six of my children and my two granddaughters is scary.

Sadler: It's scary that somebody has enough resource and time (LAUGH) to do that type of research into you, and to not know what's coming next. So do they make me nervous? Absolutely. But can I let them make me scared enough to stop? Absolutely not.

Lee: Marva says SB 8, with its citizen enforcement, has made the situation feel even more hostile for her and her colleagues.

Sadler: I think for me, every day, working in this work is a fear of what the antis can do. A physical fear, a financial fear. We've always had that. But with SB 8, what I immediately felt like is there was a $10,000 bounty placed on my head. There was a $10,000 bounty placed on the head of my providers and my staff.

And when you walk into a clinic every day in an atmosphere where there are people standing on the sidewalk who it is there job every day to be out there on that sidewalk, who learn your first name, who know the names of your children, who know the names of your partner, and they speak those things to you every day, to now know that they are being given a $10,000 incentive to catch me doing what they perceive to be the wrong thing, so it's a different way of waking up every morning and going to work.

Especially for those folks who report to the clinic every day, and their faces are shown every day. And there're video cameras set up outside the clinic to record them every day. It's a big question of if. If it's worth it. If we can sustain it. Staff are definitely struggling with that. How much of a risk do they take to their own personal families at this point?

Lee: So as a provider, you know, you are there on the front lines. And you describe it as a bounty. That's how it feel, like a $10,000 bounty on your head, the heads of your employees and colleagues and family. It really feels that kind of violent?

Sadler: It absolutely feels that violent because they were coming for us for free. (LAUGH) They were coming for us with absolutely no reward outside of the legal system. So absolutely, that monetary value has absolutely been used as a tool to gain momentum on their end.

Lee: We'll be right back.

Goodwin: The state of Texas enacted a law that places a bounty within the context of the law, such that any person can sue an individual who aids or abets in the termination of a pregnancy.

Lee: Michelle Goodwin is a professor at UC Irvine. She specializes in the intersections of medicine, health, and law.

Goodwin: And what's interesting about this is the law is so broadly written. I've read and reread and reread again this law. It provides no definition for what it means to aid or abet, so it could mean Uber driver, Lyft driver, the person who gives you a couple dollars towards the termination of a pregnancy.

The person that you speak to at a clinic when you really just trying to figure out your options or when you learn that you're pregnant and you're just kinda talking about abortion and any other option. The law is so broad that it takes into all of that. And it rewards people who engage in this stalking, policing, surveilling, and so forth.

Lee: Professor Goodwin says this part of the law parallels another time in history.

Goodwin: So centuries ago, when our nation was tested about its moral values with regard to slavery, there were states that were dismantling their own laws that legalized slavery. And they were going a step further in protecting and providing for the safety and security of any Black people who got within their borders.

And if you got within their borders and you stayed within a particular period of time, you were simply free in those states, Pennsylvania being one of them. You were not going to be sent back. No one was going to be hunting you down. This was a place in which you could feel secure, free.

Take up a trade. Get a job. Raise your family. And live within the promise of equality and freedom. Instead, there were federal laws and state laws elsewhere that were being enacted, we call these fugitive slave laws, that made it legal for an individual to surveil, spy, and hunt down Black people. And you look at the Texas law, it's quite similar. It provides for an individual to be able to legally chase after people, surveil people, stalk them down, find out if they're aiding and abetting anyone seeking to terminate a pregnancy.

Lee: I don't wanna oversimplify this, but weaponizing citizenry like this, is it as bad as it sounds?

Goodwin: It is as bad as it sounds. And sadly, I think it's even worse than what our imaginations will allow us to take in.

Lee: Professor Goodwin is thinking about the many ways this law could play out.

Goodwin: You imagine a scenario where there is a 12- or 13-year-old person who is pregnant. Maybe that pregnancy comes from a mistake. Maybe that pregnancy comes from rape or incest. But at any rate, that person who is 12 years old or 13 years old, that girl, by this law, has to be fearful of talking to her mother.

Has to be fearful about talking to her sister or anybody else, fearful that they will somehow be harmed by this law, that they will be tracked down, that they will be sued, and then they will have to pay attorney's fees to some random person that they don't know.

You know, there are people who say, "Well, you're talking about fugitive slave laws. Well, white women weren't enslaved," completely forgetting the there are Black and (LAUGH) brown women who are in Texas who disproportionately already die because of state policies and practices in the state of Texas.

So, yes. Black women who are already disproportionately surveilled by the state, whether we're talking about in the civil context as mothers and charged with instances of neglect, or whether we're talking about the criminal law process and Black women who are stalked by police.

And others who would call the police on Black women for just going about their daily lives. You know, Trymaine, this is a backdrop that we already know, right? We knew this before the Texas law, how Black women were surveilled, right?

We knew that. "Say her name." Sandra Bland. Where is it that she died? She died in the state of Texas. So the very idea that somehow this could be disconnected from the lives and the experiences of Black women is just simply not speaking truthful to the realities that we know, both historic and contemporary.

Lee: You know, the policing and surveillance, those are two things that are gravely important. But let's also talk about the actual health of women in Texas. How does this factor into all of that?

Goodwin: Terminating a pregnancy is one of the safest procedures that a person could have. The World Health Organization has said that terminating a pregnancy is as safe as getting a penicillin shot. And research has long shown, a person is 14 times more likely to die by carrying a pregnancy to term than by terminating it. We could look at it in terms of health, and what this means, particularly in the state of Texas where already Texas is considered one of the most dangerous places in the developed world for a person to be pregnant.

Lee: In fact, the U.S. as a whole is the only industrialized nation where maternal mortality is rising. In Texas, as is the case across the country, Black people die from complications with childbirth at a disproportionately high rate.

Goodwin: And so with that backdrop, when the state says, "We're going to coerce you into pregnancy," what does that mean in a state that already doesn't do a good job of keeping people alive who are pregnant?

Lee: SB 8 had been in effect a little more than a month, until the evening of Wednesday, October 6, when a federal district judge sided with the Department of Justice and said the law was unconstitutional. The judge blocked Texas from enforcing it. Right away, Marva's clinic, Whole Woman's Health, saw a change.

Amy Hagstrom Miller: Phone call volume has increased. There's actually hope from patients and from staff. And I think there's a little desperation in that hope. Folks know that this opportunity could be short-lived.

Lee: This is Whole Woman's Health CEO Amy Hagstrom Miller talking at a press conference on Zoom on Thursday, October 9.

Hagstrom Miller: Last night, we reached out to some of the patients that we had on a waiting list to come in to have abortions today, folks whose pregnancies did have cardiac activity earlier in September, and we were able to see a few people as early as 8:00, 9:00 this morning right away when we opened the clinic.

Lee: Whole Woman's Health performed abortions just hours after the ruling. But that desperation the CEO mentioned wasn't misplaced. The Texas attorney general's office appealed the ruling and just 48 hours later, a higher court stayed that injunction, meaning the law went back into effect.

In a statement, a spokesperson for Whole Woman's Health said they were outraged by the decision, but not surprised. SB 8 will likely remain in effect as the DOJ's lawsuit against the state winds its way through the legal system, along with a few other legal challenges. But if the cases make it to the Supreme Court, the DOJ and other opponents of SB 8 may have a tough time proving their case. Professor Goodwin explains.

Goodwin: And largely, this has to do with the way in which Texas designed the law itself for exactly this effect. Most laws, overwhelmingly the majority of laws, when they are enacted, there is an agent of the state that is put in place to enforce the law.

Usually those people already exist. It's an attorney general. It's a secretary of state. It's the head of a particular agency. And that person is named as the enforcer of the law. What Texas did in order to make it difficult to sue essentially the state, the person who's representing the state and enforcing the law, what Texas did is to avoid all of that. And Texas basically deputized citizens and said, "Any citizen can enforce this law."

Lee: Do you get the sense that SB 8 will be used as kind of a template? Are there states that you're concerned about? Do you see this spreading beyond Texas?

Goodwin: Oh, absolutely. It's a playbook that sends a signal and message to other conservative state legislatures that want to roll back women's reproductive rights and interfere with reproductive health and justice. It basically says, "Do this very entangled, troubling civil procedure morass and you'll get what you want."

Lee: The logic has already held up once when the Supreme Court let SB 8 take effect back in September.

Goodwin: That is to say, when the Supreme Court refused to intervene in the Texas case, the court didn't make any judgments as to the constitutionality of the law. The court basically said, "Well, because of what they've done in this very rough civil procedural way, there's no reason for us to intervene."

Now, there were dissenting justices who said that there's every reason for you to intervene, including the Chief Justice himself. But we can see this as part of a playbook going forward. All you have to do is what Texas has done, and that is to deputize citizens to enforce these laws. That way, no one can go after the state for having imposed this law.

Lee: In Fort Worth, Texas, Marva Sadler isn't giving up. And she says she owes her strength to her faith.

Sadler: You know, I am a Rastafarian by choice. I don't consider it a religion. I consider it a way of life. But my faith is what keeps me doing what I do. It is my faith that has guided me in doing what I do. My relationship with God is amazing. I speak with him every day.

He strengthens me to do this work and to continue doing this work. I believe, again, in choice. I believe in freedom of religion. I believe in freedom of choice, freedom of practice. And I don't necessarily feel like everyone has to agree with abortion or everyone needs to be for abortion.

I'm absolutely okay if you disagree. Where I have a problem is when you attempt to force your opinions onto others. So my faith keeps me grounded. My faith makes me know that what I am doing is right. It keeps my heart full. And it's because of that that I can continue to do this work.

Lee: Now, I learned a long time ago when talking to people like you, who are so immersed in their work and pushing and fighting, not to ask if you have hope, right? Because people have always said, "If I didn't have hope, I wouldn't be doing this."

Sadler: That's right. (LAUGH)

Lee: And so I wanna ask in this way. What are your hopes for the future, even in this dark time? What are you hoping for?

Sadler: My hope is that if we can sustain, right now, my hope is really in the future leaders that I see coming after me. Not just necessarily in abortion, but in reproductive justice and in just justice all the way around. I have a huge hope in the youth.

I have began to pour a lot of my time and leadership into the youth, because I have a lotta hope that the new generation that is coming up is coming up to move us forward. I really hope that I could speak with my generation and really encourage us on how to encourage that and embody that, (LAUGH) versus pushing against it.

But that's really my hope. I do have a hope for change. I see it happening, little by little. I'm reminding myself to take notice of the small wins that we get, and not to brush over those looking for the huge victories. But I do have hope. I have hope in our future.

I have hope in our future leaders. I definitely have hope in the future of Black girl magic. (LAUGH) It is making headway and really feeding my soul and leading me through. But I believe that if we can maintain and hold down and keep us from sliding backwards, that the new generation will definitely carry us forth.

Lee: Amen and amen. Marva Sadler, thank you so much for your time.

Sadler: Thank you for having me. I appreciate it.

Lee: We reached out to the Texas State Attorney General's office for this story. But they didn't respond. We always wanna hear from you. You can tweet me @TrymaineLee, or write to us at intoamerica@nbcuni.com. That was intoamerica@nbc, and the letters U-N-I, dot com. Into America is produced by Isabel Angell, Allison Bailey, Aaron Dalton, Max Jacobs, Joshua Sirotiak, and Aisha Turner. Original music is by Hannis Brown. I'm Trymaine Lee. We'll be back next Thursday.