The most extreme anti-abortion law in the United States, a direct repudiation of Roe v. Wade, went into effect in Texas Wednesday despite legal efforts to block it. The U.S. Supreme Court, which pro-choice advocates had hoped would chime in, remained silent on the bill.
Senate Bill 8 bans abortion after about six weeks of pregnancy, well before many women realize they’re pregnant, even in cases where pregnancies result from incest or rape. Between 85% and 90% of abortion care in Texas takes place at least six weeks into pregnancy.
The bill also enables any U.S. citizen to sue Texas-based abortion clinics, doctors, and anyone who aids in an abortion, even Uber drivers who take a woman to a clinic. If successful, the petitioner, who does not have to reside in Texas, will receive a $10,000 award and the cost for attorney’s fees. There does not need to be any connection to the person they are suing.
Twelve other states have enacted bans on abortion early in pregnancy, but all have been blocked and deemed unconstitutional. Courts ruled that the bans violated Roe v. Wade, the Supreme Court verdict that says governments can not prohibit abortions during the first trimester of pregancy.
But by enabling citizens, not the government, to enforce the ban, Texas has found a “legal hack” to get around a quick court blockage.
Typically, an organization like Planned Parenthood would go to court and sue Texas Attorney General Ken Paxton over the bill, but because of the structure of this bill, it basically has to wait to be sued first.
Advocates fear that the plan will lead to groups of vigilante abortion bounty hunters. “Every citizen is now a private attorney general,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston. “You can have random people who are against abortion start suing tomorrow.”
Even if those accused of abetting abortion eventually prove themselves innocent, there’s worry that they’d be sued so frequently and frivolously that they would run out of resources and be forced to shut down. In the past, restrictive abortion laws in Texas like HB2, which banned abortions 20 weeks post-fertilization and mandated doctors who practice abortion have attending privileges at a nearby hospital, led Planned Parenthood of Texas to shut down nearly half of its health centers, from about 40 to 20 throughout the state.
Courthouses would also be inundated with lawsuits, said pro-choice advocates.
Texas Right to Life, an anti-abortion group, has already set up a website to allow people to submit anonymous tips about people they think are violating the abortion law. John Seago, who works with the group, said he’s already working with anti-abortion activists in other states to replicate the Texas law. In the past with targeted restrictions on abortion providers (TRAP) laws, red states have quickly followed each other’s leads; when one state succeeded in restricting access to abortion, others quickly adopted similar regulations of their own.
States like Mississippi, Missouri, North Dakota, South Dakota, and Wyoming, which have some of the toughest anti-abortion laws in the nation, are likely to pick up the mantle.
“Because of the coordinated and creeping nature of antiabortion tactics, it appears likely that hostile lawmakers in other states may try to pass similar legislation to S.B. 8 in the near future,” wrote pro-choice advocates at The Guttmacher Institute, a reproductive rights policy group. That poses new dangers for abortion rights, because this type of legislation is a new and untested approach that we may see used in ever more insidious ways to circumvent or challenge U.S. Supreme Court rulings upholding abortion rights.”
States have already passed more abortion restrictions in 2021 than in any previous year.
“Allowing the Texas law to stand could lead to even more disastrous results, spurring a torrent of new abortion restrictions from state lawmakers eager to make this essential health care inaccessible,” said Jamille Fields Allsbrook, Director of Women’s Health and Rights at the Center for American Progress.
Lawyers, elected officials, pro-choice advocates, and civil liberties groups scrambled Wednesday to figure out their next steps after the Supreme Court, which now has six conservative judges, missed its September 1st deadline to stop the Texas bill.
Some believe the court’s decision not to strike down a bill they say violates Roe v. Wade may indicate a willingness to overturn the 50-year precedent. Others say the deadline was arbitrary and that the Supreme Court could still rule at any time to temporarily stop the Texas law as cases make their way through lower courts. Multiple court challenges are currently underway, many in Texas state courts.
Congress, meanwhile, could pass the Women’s Health Protection Act, which would allow health care providers to provide abortion services without the more burdensome limitations that are imposed on the procedures.
“Let’s be clear about what just happened in Texas,” Massachusetts Senator Elizabeth Warren said Wednesday. “The second-largest state in America has effectively banned abortions. We can’t rely on the courts to protect our rights. It’s time for national laws to ensure reproductive freedom.”
President Joe Biden, meanwhile, said in a statement that his administration would do everything it could to protect Roe v. Wade.
Regardless of next steps, abortion after six weeks is now illegal in Texas and anyone who aids a women in obtaining an illegal abortion is at risk of being sued.
Texas residents, now unable to get an in-state abortion will have to travel considerably further to obtain out-of-state services, the average one-way driving distance to an abortion clinic for reproductive-aged Texans will increase from 12 miles to 248 miles, 20 times the distance, according to an analysis by Guttmacher. A Texan making minimum wage ($7.25) would have to use a full day’s earnings solely to pay for the additional amount of gas for each round trip. That doesn’t include the added costs of lodging, food, child care, time off work, and the cost of abortion.
“For those with means, access to abortion care out of state will not be a problem,” said Dr. Raegan McDonald-Mosley, CEO of pro-choice organization Power to Decide. “Unfortunately, this is not an option for those with limited incomes. People of color, people living in rural areas and people who struggle to make ends meet will bear the burden of this awful law as they face unique barriers to traveling and may lack resources to access care out of state.”
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