As the state’s prohibition on most abortions after six weeks goes into action, women are being turned away from clinics, a law designed specifically to avoid being challenged in court.
Both supporters and opponents of Texas’ six-week abortion ban were hoping for the Supreme Court to act before the midnight deadline on Wednesday to prohibit what would be the most stringent abortion law since Roe v. Wade. However, the high court did not intervene, allowing Texas to criminalize most abortions six weeks into pregnancy—once a fetal heartbeat can be found, but before many women are aware they are pregnant—thus jeopardizing the freedom to choose. Although a court might still overturn the ban, law professor Stephen Vladeck said on Wednesday that the Supreme Court’s inactivity “is a rather worrisome omen of what’s likely to happen down the line.”
States are prevented from prohibiting abortion before viability, estimated to be around 22 to 24 weeks, per existing Supreme Court precedents.
According to the Washington Post, Texas’ six-week abortion ban, known as SB 8, “unquestionably contravenes this Court’s precedent” and is “unlikely to occur in any other state of the country in the decades since Roe.”
According to the Associated Press, at least a dozen other states have attempted but failed to enact similar six-week limitations. Suits targeting state officials entrusted with executing the law have hindered such efforts, according to the Post. The statute signed by Republican Governor Greg Abbott in May, on the other hand, was intended to circumvent such impediments by allowing anybody other than a Texas state officer to implement the law. The Associated Press says that “rather than having officials accountable for implementing the law, private residents have the authority to sue abortion clinics and anybody involved in enabling abortions.” “Depending on which side of the discussion you’re on, this statute is either clever or diabolical,” lawyer Danny Cevallos told NBC.
The enforcement scheme allows anyone, such as an anti-abortion activist, to file a lawsuit against anyone driving someone to an abortion facility, from an Uber driver to the patient’s spouse, and be entitled to at least $10,000 if they win the case. The stakes are significantly higher for abortion clinics, which are legally obligated to close if they lose a lawsuit. “Even if abortion providers win all of these lawsuits, they will still have to pay for lawyers to defend them in court,” Ian Millhiser of Vox writes. “SB 8 was built like an Escher staircase for litigators,” Dahlia Lithwick and Mark Joseph Stern of Slate described.
According to those who called on the Supreme Court to intervene, SB 8 would “quickly and severely decrease abortion access” if it were allowed to go into force. According to the Post, 85 to 90 percent of those who seek abortions in Texas are at least six weeks pregnant.
According to NBC News, “since mid-August, all 11 Planned Parenthood health centers in Texas that provide abortion services have stopped scheduling visits after Sept. 1 for abortions past six weeks of pregnancy,” and “all 11 Planned Parenthood health centers in Texas that provide abortion services have stopped scheduling visits after Sept. 1 for abortions past six weeks of pregnancy.” Planned Parenthood said after the bill went into effect, “We aren’t backing down, and we are still fighting.” Abortion should be available to everyone.”