Both advocates and opponents of Texas’ six-week abortion ban were holding their breath up to a midnight deadline on Wednesday, waiting to see if the Supreme Court would act to block what would be the most restrictive abortion law since Roe v. Wade. But there was no intervention from the high court, allowing Texas to outlaw most abortions six weeks into pregnancy—once a fetal heartbeat can be detected, but before many know they’re pregnant—and imperiling the future of a woman’s right to choose. A court could still halt the ban, but the Supreme Court’s inaction “is a pretty ominous harbinger of what’s likely to come down the road,” law professor Stephen Vladeck wrote Wednesday.
Under existing Supreme Court precedents, states are prevented from banning abortion before viability, pegged at about 22 to 24 weeks. Texas’ six-week ban, known as SB 8, “unquestionably contravenes this Court’s precedent” and is “something that has never been allowed to occur in any other state of the nation in the decades since Roe,” abortion providers and their allies said in a brief, according to the Washington Post.
At least a dozen other states have tried to pass such six-week bans to no avail, the Associated Press reports. Such efforts, the Post notes, have been blocked by lawsuits targeting state officials charged with enforcing the law. But the law signed by Republican Governor Greg Abbott in May was drafted to thwart such obstacles by essentially empowering anyone other than a Texas state officer to enforce the law. “Rather than have officials responsible for enforcing the law, private citizens are authorized to sue abortion providers and anyone involved in facilitating abortions,” the AP reports. “This law is either brilliant or diabolical, depending on which side of the debate you’re on,” lawyer Danny Cevallos told NBC.
The enforcement scheme authorizes an individual, such an anti-abortion activist, to take legal action against, among other targets, anyone driving someone to a clinic to get an abortion, from an Uber driver to the patient’s spouse, and, if they win the case, be entitled to at least $10,000. The stakes are even higher for abortion providers, which are legally forced to close if they lose such a suit. “Even if abortion providers prevail in all of these suits, moreover, they will still have to pay for lawyers to defend themselves in court,” writes Vox’s Ian Millhiser. And as Slate’s Dahlia Lithwick and Mark Joseph Stern put it, “SB 8 was designed as an Escher staircase for litigators.”
Those who called on the Supreme Court to take action said SB 8 would “immediately and catastrophically reduce abortion access” if it were allowed to go into effect and cause more clinics to shutter. Roughly 85 to 90 percent of people who get abortions in Texas are at least six weeks pregnant, per the Post. Already some abortion clinics in the state have started to turn patients away, and “since mid-August, all 11 of the Planned Parenthood health centers in Texas that provide abortion services have stopped scheduling visits after Sept. 1 for abortions past six weeks of pregnancy,” NBC News reports. After the law went into effect, Planned Parenthood responded, “We aren’t backing down and we are still fighting. Everyone deserves access to abortion.”
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Texas’s Near-Total Abortion Ban Is Already Having an Impact - Vanity Fair
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