Opinion | Has Texas Spelled the End of Abortion Rights in America?
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The Supreme Court late Wednesday night took a break from its summer recess to allow the most restrictive abortion law in the nation to take effect in Texas, raising alarm among people who support abortion rights — and even some who don’t.
Abortion access in the United States has been on the decline for many years now: The 2021 legislative season set a record for the most abortion restrictions signed into law in a single year in the United States, according to the Guttmacher Institute. So why is the Texas law different, and what does it portend for the future of abortion rights in the United States? Here’s what people are saying.
A very unusual law
Known as Senate Bill 8, the Texas law prohibits doctors from performing abortions if a fetal heartbeat is detected, which is usually possible four weeks after conception, or just two weeks after a missed period. Because that is before many even know they are pregnant — and because the law makes no exceptions for rape or incest — it amounts to a nearly complete ban of abortion in Texas.
In its level of restriction, the Texas law is not unprecedented: Several states, including Georgia, Kentucky, Mississippi and Ohio, have passed similar “heartbeat bills” in recent years.
But two Supreme Court precedents — Roe v. Wade, the 1973 decision that established a constitutional right to abortion, and Planned Parenthood v. Casey, the 1992 decision that affirmed that right — forbid states from banning abortion before a fetus reaches viability, or about 20 to 22 weeks after conception, so federal judges blocked those laws from taking effect.
The Texas law, however, was designed to avoid constitutional challenge. As The Times’s Adam Liptak explains, plaintiffs seeking to block a law on constitutional grounds would usually name state officials as defendants. But the Texas law bars state officials from enforcing it, effectively circumventing Roe v. Wade.
Instead, the law deputizes private individuals — including individuals outside Texas — to sue anyone who performs the procedure or “aids and abets” it. The patient may not be sued, but doctors, clinic staff, counselors, people who help pay for the procedure, even an Uber driver who takes a patient to an abortion clinic all could be. Plaintiffs, who do not need to have any connection to the abortion at issue, are entitled to at least $10,000 and attorney’s fees. Defendants, on the other hand, have to pay their own way even if they win.
“It’s completely inverting the legal system,” Stephen Vladeck, a constitutional law professor at the University of Texas at Austin, told The Times. “It says the state is not going to be the one to enforce this law. Your neighbors are.”
Is Roe v. Wade dead? Does it even need to be?
As The Times’s David Leonhardt explained recently, the public has complicated and in many cases contradictory views on abortion: A majority of Americans say they favor restrictions on abortion that Roe v. Wade would not permit, even as an even larger majority say they support the ruling itself.
Indeed, overturning Roe could energize abortion rights supporters and fuel the cause of court reform, which is why many legal experts speculate that Supreme Court justices are loath to do so explicitly. “That is the genius of the Texas strategy,” Mary Ziegler, a professor at the Florida State University College of Law in Tallahassee, wrote in The Times last week. “There seems to be no trade-off between relying on precedent and gradually eliminating abortion rights.”
And eliminate abortion rights this law will, providers say. Even those who comply with the law may face lawsuits from plaintiffs eager to collect a $10,000 reward, and they will bear the financial burden of defending themselves in court. Abortion providers who filed a request to block the law said that it would bar care for at least 85 percent of Texas abortion patients, “likely forcing many abortion clinics ultimately to close.” Since mid-August, all 11 of the Planned Parenthood health centers in Texas that provide abortions have stopped scheduling those the law prohibits, NBC reports.
The Texas law could still be temporarily blocked by the Supreme Court, my colleague Lauren Kelley points out. But for now, at least, abortion is all but illegal in Texas. And “it now seems likely that more laws like S.B. 8 will pass, as other anti-abortion state leaders will surely try to follow Texas’ lead,” she predicts. “Why wouldn’t they? The Supreme Court may not yet have ruled on the merits of Texas’ law, as some anti-abortion campaigners would no doubt prefer, but the state’s wild ploy was clearly successful in threatening the future of clinics across the state. In that way, the court gave a green light to lawmakers everywhere who have been itching for decades to overturn Roe v. Wade.”
Even bigger than abortion
Orion Rummler notes in The 19th that the Texas law could implicate miscarriage management, which often makes use of the same procedure — dilation and evacuation, which Texas became the first state to ban last month — as second-trimester abortions. While miscarriage management would theoretically still be legal if no cardiac activity is found, the law’s language does not directly address the matter and could create a chilling effect among providers fearing civil liability.
“Any physician who is going to either remove a fetus from a womb, after miscarriage or without miscarriage, is going to have to document that they have tested for a fetal heartbeat,” Rachel Rebouché, a law professor at Temple University and an expert on reproductive rights case law, told Rummler.
The Supreme Court has also blessed a legal tactic that could be used to undermine virtually any constitutional right, Vox’s Ian Millhiser argues: “Imagine, for example, that New York passed an S.B. 8-style law allowing private individuals to bring lawsuits seeking a $10,000 bounty against anyone who owns a gun. Or, for that matter, imagine if Texas passed a law permitting similar suits against anyone who criticizes the governor of Texas.”
The Times columnist Michelle Goldberg argues that one party is far more likely to nurse such vigilantism than the other. She notes that in addition to extolling the endangerment and even the shooting of perceived liberals, Republican lawmakers have taken steps in recent years to legalize various forms of intimidation: Several states have given partisan conspiracy theorists access to election equipment to search for ways to substantiate accusations of voter fraud, for example, while others have granted immunity to drivers who hit people protesting in the street. “The Texas law should be seen in this context,” she writes.
The Supreme Court will consider more fully this and other abortion cases when it returns from recess in October. Besides the Texas law, the justices are set to consider a law in Mississippi that bans abortions after 15 weeks of pregnancy (or about 13 weeks after conception).
There will be little room for the justices to dissemble in that case, the legal journalist Linda Greenhouse predicted in July: “What Mississippi’s brief has done is make it impossible for the court to place any kind of fig leaf over a ruling in the state’s favor. To uphold a pre-viability abortion ban is to overturn Roe v. Wade and Planned Parenthood v. Casey. It’s that simple. And for once, a state is saying yes, that’s exactly what it wants.”
Supporters of abortion rights have noted that it is still within the Democratic Party’s power to enshrine abortion rights in law: After all, Democrats still control two branches of government, Nikolas Bowie, a Harvard law professor, points out.
Some, however, believe that the current Supreme Court is so hostile to abortion rights that its power — or the power of its conservative justices, at least — must be diluted for abortion rights to withstand judicial review. “Frankly, as long as conservatives control the courts, there is no way to stop Texas, Mississippi or other states inclined to follow their lead,” Elie Mystal writes for The Nation. “If you want to protect a woman’s right to choose, the only solution is to expand the Supreme Court.”
On Thursday, President Biden announced he would “launch a whole-of-government effort” to determine “what steps the federal government can take to ensure that women in Texas have access to safe and legal abortions.” But what those steps are — and whether a “whole-of-government effort” includes the Congress — remains to be seen.
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“Supreme Court leaves Texas abortion ban in place” [Scotusblog]
“What Texas Abortion Foes Want Next” [The Atlantic]