Last week, Texas became the state with the most restrictive abortion law in the nation.
The Supreme Court is allowing the law to stay in effect while the battle over its legality continues, which surprised abortion-rights advocates who argue the law is clearly unconstitutional. What does the statute mean for legalized abortion in Texas, and what are the ramifications for the rest of America?
What does the Texas law say?
The law, which was passed in May and went into effect Sept. 1, says that any pregnancy in which a heartbeat is detected cannot be aborted. That effectively means if you’re six weeks pregnant, you cannot have an abortion in the state of Texas, because that is around when most fetal cardiac activity can be detected. (Doctors opposed to this legislation say that is misleading language, and that the fluttering detected isn’t always necessarily a heartbeat so early in a pregnancy.)
The law makes no exceptions for rape, sexual abuse or incest.
The law does something else novel: It effectively incentivizes the public to police abortions. It allows people — anyone living in the state of Texas — to sue an abortion provider or anyone else they suspect is “aiding and abetting” abortions after that six-week mark. And the law sets a $10,000 award for any successful lawsuit to stop an abortion.
Taken together, those decisions allowed Texas lawmakers essentially to end abortions in their state, abortion-rights activists say.
Texas Republicans don’t necessarily deny this. The law, said Republican Gov. Greg Abbott as he signed it in May, “ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.”
Abortion-rights advocates sued, and a newly ultraconservative Supreme Court declined to put the law on hold while lower courts argue the merits.
What did the Supreme Court do to keep the law in place?
It decided not to chime in on whether to stop the Texas law before it was enacted Wednesday. We don’t know why. The court simply let a midnight deadline pass without acting on a request to stop it.
Then late Wednesday, it went even further: The court announced that a five-person conservative majority had decided to let the ban stand. The court’s most conservative justices, including the three President Donald Trump nominated (Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch), decided to let the law stand. In a one-paragraph statement, these justices said there are “serious questions regarding the constitutionality of the Texas law,” but indicated that the way the law was set up, the court is unsure how to stop it from going into effect.
The three liberal justices, joined by Chief Justice John G. Roberts Jr., dissented. Roberts said he would stop the law from going into effect because it is so novel and far-reaching.
The justices didn’t say anything about whether the statute is constitutional. They just said it will stay in place while that question is litigated.
That was an unexpected move that could signal the court is ready to strike down Supreme Court precedent created nearly 50 years ago in Roe v. Wade that guarantees a woman’s right to abortion in the first half of her pregnancy before the fetus would be viable outside the womb, said Lisa Soronen, executive director of the State and Local Legal Center, which supports municipalities in cases before the Supreme Court.
“The justices know that this Texas law violates Roe v. Wade,” she said. “They all know that.” Keeping the law in place doesn’t overturn Roe, but it does make a “really big statement about what they think of it,” Soronen added.
What does this mean for abortion in other states?
A law like the Texas ban — and the Supreme Court’s reaction to it so far — was one of abortion-rights advocates’ worst fears when Trump filled the Supreme Court with three conservative justices, saying in the process that he wanted to end abortion.
Republican-led states have passed a wave of restrictive abortion laws in recent years. Two states this year — Montana and New Hampshire — have banned abortion after 12 weeks, and 17 others tried.
A backstop for abortion-rights activists was the courts. But can they count on the ultimate court, the Supreme Court?
The abortion landscape would drastically change if the Supreme Court were willing to revisit Roe v. Wade.
The Guttmacher Institute estimates that abortion could be severely restricted or illegal in as many as 22 states if the Supreme Court overturns its legal protections for abortion.
Could Roe v. Wade still stand?
When this court has debated restrictive abortion laws, it’s gone abortion-rights providers’ way. The court upheld the right to abortion with Roe v. Wade in 1973, followed by another landmark case, Planned Parenthood v. Casey, in 1992.
And last summer — when the court was 5-to-4 leaning conservative — it knocked down an abortion law in Louisiana.
That’s a lot of precedent the court would have to overturn to get rid of the right to abortion.
And the five conservative justices wrote that they understand that abortion-rights activists “have raised serious questions regarding the constitutionality of the Texas law.”
Where do things stand for women seeking abortions?
Abortion rights advocates estimate that 85 percent to 90 percent of women needing an abortion in Texas are at least six weeks into pregnancy.
And that means most abortions are effectively banned in Texas. The majority of Texans would find their next-closest abortion clinic in Louisiana, a 20-fold driving increase for many in the state, estimates the Guttmacher Institute, a research group that supports abortion rights. (Louisiana is also dealing with flooding from Hurricane Ida, abortion-rights advocates note.)
So without simply coming out and saying that most abortions are illegal, this Texas law basically does that.
Abortion-rights advocates say they are going to challenge the law on its merits, but it’s going to take awhile for it to weave through the courts: Texas lawmakers purposely designed the law to avoid getting blocked by courts before it went into effect.
The law sets up regular people to enforce the ban on abortions six weeks into pregnancy, as opposed to government officials. And typically government officials are the defendants in cases such as these. So for now, until someone sues a person who allegedly aided abortion, it is not clear who abortion rights activists can sue over whether the statute is constitutional.
What happens next in courts?
A few things are possible:
1. If a private citizen sues someone for allegedly violating the abortion ban, abortion-rights groups and providers will challenge that lawsuit, and the constitutionality of the new law will be heard in the courts. That case could get to the Supreme Court eventually.
2. Regardless of what happens with the Texas case, the Supreme Court will hear arguments in another abortion case this fall, a Mississippi law that bans most abortions after 15 weeks. Groups that oppose abortion hope that the high court will use that case to overturn Roe v. Wade, the decision that first established a woman’s constitutional right to terminate a pregnancy.
Or Congress could step in. There is no federal law protecting abortion rights. House Speaker Nancy Pelosi, D-Calif., said Thursday that the House would vote on such a bill soon. But it would almost certainly be blocked by Republicans in the Senate.