In the past four years, taxpayers in states trying to restrict abortion access have paid almost $10 million in attorney fees for abortion providers. That price tag is likely to keep growing as more abortion restrictions are challenged, including three in federal courts today.

In an effort to overturn Roe v. Wade, these 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. That puts taxpayers in the position of having to pay for the attorneys on both sides of abortion battles that often last for years.

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.

In the last four years, states have

paid at least $9.8 million in abortion

providers’ attorneys fees

When abortion limits are overturned, the courts can order states to pay the lawyers for the other side. The figures below don’t include fees for the state’s legal team.

Year

State

Amount

2019

Texas

$2,297,860

2019

Alaska

$98,625

2019

Ohio

$382,530

2019

Mississippi

$755,274

2017

Arizona

$550,000

2017

Missouri

$156,000

2016

North Carolina

$1,043,316

2016

Alaska

$995,000

2016

Alabama

$1,700,000

2016

Wisconsin

$1,600,000

2016

North Dakota

$245,000

Source: Center for Reproductive Rights, media reports

DAN KEATING/THE WASHINGTON POST

In the last four years, states have paid at

least $9.8 million in abortion providers’ fees

When abortion limits are overturned, the courts can order states to pay the lawyers for the other side. The figures below don’t include fees for the state’s legal team.

State

Amount

Year

Texas

$2,297,860

2019

Alaska

$98,625

2019

Ohio

$382,530

2019

Mississippi

$755,274

2019

Arizona

$550,000

2017

Missouri

$156,000

2017

North Carolina

$1,043,316

2016

Alaska

$995,000

2016

Alabama

$1,700,000

2016

Wisconsin

$1,600,000

2016

North Dakota

$245,000

2016

Source: Center for Reproductive Rights, media reports

DAN KEATING/THE WASHINGTON POST

In the last four years, states have paid at least $9.8 million in

abortion providers’ attorneys fees

When abortion limits are overturned, the courts can order states to pay the lawyers for the other side. The figures below don’t include fees for the state’s legal team.

State

Amount

Year

Lead Organization

Texas

$2,297,860

2019

Center for Reproductive Rights

Alaska

$98,625

2019

Plannned Parenthood

Ohio

$382,530

2019

Plannned Parenthood

Mississippi

$755,274

2019

Center for Reproductive Rights

Arizona

$550,000

2017

Center for Reproductive Rights

Missouri

$156,000

2017

Planned Parenthood

North Carolina

$1,043,316

2016

Planned Parenthood and ACLU

Alaska

$995,000

2016

Center for Reproductive Rights

Alabama

$1,700,000

2016

ACLU

Wisconsin

$1,600,000

2016

Planned Parenthood

North Dakota

$245,000

2016

Center for Reproductive Rights

Source: Center for Reproductive Rights, media reports

DAN KEATING/THE WASHINGTON POST

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.”

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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.


Abortion rights advocates celebrate outside the Supreme Court in June 2016 after the court's ruling in Whole Woman's Health v. Hellerstedt. (Michael Reynolds/EPA)

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 starts today 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.


People wait Aug. 12 in Nashville for the start of a Tennessee state Senate hearing on a "fetal heartbeat" abortion ban. (Mark Humphrey/AP)

How often does the Supreme Court overturn precedents on civil rights?

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.

New laws are widening the gap in access to abortion

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.

“The saddest part is that these states are spending hard-earned taxpayer money defending lawsuits,” Ma said, “when they could be using those funds to support their citizens.”