This article is part of the Debatable newsletter. You can sign up here to receive it on Tuesdays and Thursdays.
The Supreme Court took a break from its summer break late Wednesday night to bring the nation’s most restrictive abortion law into effect in Texas and raise the alarm among people who support abortion rights – and even some who don’t.
Access to abortion in the US has been declining for many years: According to the Guttmacher Institute, the 2021 legislative period set a record for most abortion restrictions in a single year in the US. Why is Texas law different and what does it mean for the future of abortion law in the United States? Here is what people are saying.
A very unusual law
Known as Senate Law 8, the law prohibits doctors from performing abortions if a fetal heartbeat is detected, which is usually possible four weeks after conception or as little as two weeks after a missed period. Because that’s before many even know they are pregnant – and because the law doesn’t make any exceptions for rape or incest – it amounts to a near-total ban on abortion in Texas.
Texas law is not unprecedented in its limitations: several states, including Georgia, Kentucky, Mississippi, and Ohio, have passed similar “heartbeat laws” in recent years.
But two Supreme Court precedents – Roe v Wade, the 1973 ruling that established a constitutional right to abortion, and Planned Parenthood v Casey, the 1992 ruling that upheld that right – prohibit states from banning abortions before a fetus is viable, or about 20 to 22 weeks after conception, federal judges prevented these laws from entering into force.
However, Texan law was designed to avoid constitutional challenges. As Adam Liptak of the Times explains, plaintiffs who tried to block a law on constitutional grounds would typically name state officials as defendants. But Texas law prevents state officials from enforcing it, thus making Roe v. Wade is effectively bypassed.
Instead, the law empowers individuals – including those outside of Texas – to sue anyone who conducts or “favors” the trial. The patient cannot be sued, but doctors, clinic staff, counselors, people paying for the procedure, even an Uber driver taking a patient to an abortion clinic, can all be. Plaintiffs unrelated to the abortion in question are eligible for a minimum of $ 10,000 and attorney fees. On the other hand, the defendants have to pay their own way even if they win.
“It’s completely transforming the legal system,” Stephen Vladeck, professor of constitutional law at the University of Texas at Austin, told the Times. “It is said that the state will not be the one to enforce this law. Your neighbors are. “
Is Roe v. Calf dead? Does it even have to be?
As David Leonhardt of the Times recently stated, the public has complex and, in many cases, contradicting views on abortion: a majority of Americans are in favor of abortion restrictions that Roe v. Wade would not allow himself to rule, even if an even larger majority said that they supported this.
Indeed, Roe’s repeal could stimulate abortion rights advocates and advance the cause of judicial reform, which is why many legal experts speculate that Supreme Court justices do not specifically do so. “This is the genius of Texas strategy,” wrote Mary Ziegler, professor at Florida State University College of Law in Tallahassee, in the Times last week. “There doesn’t seem to be a compromise between relying on precedents and phasing out abortion laws.”
And this law will eliminate the right to abortion Vendors say. Even those who abide by the law can face lawsuits from plaintiffs seeking a $ 10,000 reward, and they bear the financial burden of defending themselves in court. Abortion providers who moved to block the law said it would ban care for at least 85 percent of abortion patients in Texas, “which will likely force many abortion clinics to close eventually.” As of mid-August, all 11 Planned Parenthood Texas health centers that offer abortion have stopped scheduling abortions that the law bans, NBC reports.
Texas law could still be temporarily blocked by the Supreme Courtstresses my colleague Lauren Kelley. But for now, at least, abortion is all but illegal in Texas. And “it now seems likely that more laws like SB 8 will be passed, as other anti-abortion leaders will certainly try to follow Texas’s lead,” she predicts. “Why shouldn’t they? The Supreme Court may not yet have ruled on the merits of Texas law, which some anti-abortion activists would no doubt prefer, but the state’s savage ploy has clearly succeeded in threatening the future of clinics across the state. In this way, the court has given the go-ahead to lawmakers everywhere who have been eager for decades to see Roe v. To overthrow calf. “
Even bigger than abortion
Orion Rummler notes in The 19th that Texas law could imply miscarriage management, which often uses the same procedure – dilation and evacuation, which Texas became the first state to ban last month – as second trimester abortions. While treatment for miscarriages would theoretically still be legal if cardiac activity is not detected, the wording of the law does not address the issue directly and could have a dissuasive effect on providers fearing civil liability.
“Any doctor who removes a fetus from the uterus, either after a miscarriage or without a miscarriage, must document that they have tested a fetal heartbeat,” said Rachel Rebouché, law professor at Temple University and an expert in reproductive rights justice, said Rummler.
The Supreme Court has also blessed a legal tactic that could undermine virtually any constitutional right Vox’s Ian Millhiser argues, “For example, imagine that New York passed SB 8-style law that allows individuals to sue anyone with a gun for a $ 10,000 bounty . Or imagine if Texas passed a law allowing similar lawsuits against anyone criticizing the governor of Texas. “
Times columnist Michelle Goldberg argues that one party is far more likely to be vigilant than the other. She notes that in recent years Republican lawmakers have not only boasted of endangering and even shooting alleged liberals, but also legalizing various forms of intimidation: several states have given partisan conspiracy theorists access to electoral equipment in order to find ways to make accusations underpin electoral fraud, for example, while other drivers have given immunity to beating people protesting on the street. “Texan law should be seen in this context,” she writes.
What’s next
The Supreme Court will look into this and other abortion cases in greater depth when it returns from hiatus in October. In addition to Texas law, judges are considering a law in Mississippi that prohibits abortions after 15 weeks of pregnancy (or about 13 weeks after conception).
In this case, the judges will have little leeway to pretend, the lawyer Linda Greenhouse predicted in July: “The Mississippi mandate has made it impossible for the court to put any fig leaf over a verdict in favor of the state.” Maintaining an abortion ban means lifting Roe versus Wade and Planned Parenthood versus Casey. It’s that simple. And for once a state says yes, that’s exactly what it wants. “
Proponents of abortion law have noted that it is still within the power of the Democratic Party to legislate abortion law: After all, the Democrats still control two branches of government, says Nikolas Bowie, a law professor at Harvard.
However, some believe that the current Supreme Court is so hostile to abortion law that its power – or at least the power of its conservative judges – must be weakened in order for the right to abortion to stand up to judicial review. “Frankly, as long as conservatives control the courts, there is no way to stop Texas, Mississippi, or any other state from following their example,” writes Elie Mystal for The Nation. “If you want to protect a woman’s right to vote, the only solution is to expand the Supreme Court.”
On Thursday, President Biden announced he would “launch a state 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 “state-wide effort” includes Congress – remains to be seen.
Do you have a point of view that we overlooked? Email us at [email protected]. Please include your name, age and place of residence in your reply, which may be included in the next newsletter.
CONTINUE READING
“Texas Supreme Court Enforces Abortion Ban” [Scotusblog]
“What anti-abortionists in Texas want next” [The Atlantic]