Roe v. Wade, the landmark Supreme Court decision that protects a person’s right to an abortion without excessive restrictions, has been functionally overturned in Texas.
The state’s Senate Bill 8, one of the most restrictive abortion bans to be signed into law, bans all abortions after six weeks of pregnancy — including in cases of rape and incest — and allows any person to sue anyone who helps a woman in Texas seek an abortion. While people seeking an abortion won’t be the target of prosecution, any person who helps them seek an abortion in any capacity can be sued for a minimum of $10,000 by any person in Texas.
The law went into effect on Sept. 1, and late into the evening, the Supreme Court decided in a 5-4 decision not to take action on the Texas legislation.
President Joe Biden called the law blatantly unconstitutional. “It not only empowers complete strangers to inject themselves into the most private of decisions made by a woman—it actually incentivizes them to do so with the prospect of $10,000 if they win their case,” he wrote in a Sept. 2 statement.
Supporters of the law say that this will protect “unborn children” and argue that it also protects mothers because pregnant people themselves cannot be sued.
What is Texas Senate Bill 8?
Texas Senate Bill 8 bans abortions after a person is six weeks pregnant, a time at which someone may not even know they are pregnant, especially if they don’t have a regular period By the time they suspect a pregnancy, it could be too late to consider their options.
Laws aimed at essentially banning abortion are not unusual, especially in historically red states. Eleven states, including Louisiana, Missouri and Alabama, have attempted to pass what’s known as a “heartbeat ban” in the past. But what makes this Texas law novel is that instead of a state or government agency enforcing it, the law empowers private citizens to sue anyone who “aids or abets” an abortion. So that could mean someone who provides someone a ride to a clinic, money to pay for health care or even counsel about seeking an abortion could vulnerable to a lawsuit, as is a medical professional who performs abortions. Private citizens also do not need to have evidence that the abortion took place after six weeks to file a suit, so legal abortions — conducted before six weeks — are also vulnerable to these expensive civil suits.
The financial risk could make abortions in Texas prohibitively expensive for patients, dissuade medical centers from providing abortions or put providers out of business. The law strips away a pregnant person’s support system, as they are the only ones who cannot be sued for seeking an abortion.
“The other thing that can and will happen — and is the lived experience of every person with a uterus before Roe v. Wade — is aspects of the criminal law seeping into reproduction,” said Julie Gunnigle, a reproductive rights attorney in Arizona. “This isn’t just a law about abortion. This is a law that will allow people to investigate whether a miscarriage was, in fact, an attempted abortion or was a miscarriage.”
While Texas women can seek out-of-state abortions after six weeks, that option is not accessible to everyone. A pregnant person might need transportation, money for a hotel, and the ability to take time off work. Many of the states surrounding Texas have waiting periods of 24-72 hours between a consultation and an abortion, so that just adds to the time and money needed to get the procedure.
The dire consequences are “going to be felt by women of color, by women who are poor, by undocumented women and women who can’t really travel. That’s who’s going to feel the brunt of this. These rich women will always be able to get on a flight,” said Shyrissa Dobbins, a reproductive justice attorney and advocate. “The women who do not have those resources will not have that opportunity. And it’s going to create issues for generations.”
If someone can’t access a safe abortion, they may seek one through unsafe means, which could result in death. “The health care system isn’t ready for that influx of care, of emergency visits for people who are harming themselves or are harmed by these back-alley abortion providers,” Dobbins said, adding that the health care system in Texas is already stretched thin by fighting the COVID-19 pandemic.
The Supreme Court’s role
The Supreme Court holds a new conservative majority, after former President Donald Trump appointed three judges to the court. The latest, Amy Coney Barrett, was rushed to be confirmed eight days before the 2020 election following Justice Ruth Bader Ginsburg’s death. Barrett’s confirmation during an election year and her record on issues around abortion sparked reproductive rights protests nationwide.
When a state passes a law restricting abortion, usually a lawsuit is filed by advocacy and civil rights groups asking for an injunction against the government officials or agency that would be enforcing the law igniting a judicial review process. A judge of a lower appellate court or, depending on the case, the Supreme Court, can choose to grant the injunction or place a “stay order” on the law that blocks it from being enforced until the constitutional controversies of the law are debated. Lower courts can also recommend cases to the Supreme Court to review.
But there isn’t a specific person or agency that enforces this Texas law — the legislation gives that job to private citizens, aside from those who work for state or local government, so it’s difficult to know who exactly to file an injunction against.
The Texas law challenge was filed against several judges that would be presiding over these civil cases, but the Supreme Court majority said that judges were the wrong people to file the injunction against. Because of this technicality, the high court did not grant the injunction or a stay order on it to block it from being enforced, regardless of the constitutional concerns of the law.
In a dissenting opinion, Supreme Court Chief Justice Sonia Sotomayor wrote that the Texas legislature circumvented the Constitution by enlisting private citizens to enforce a law that the state constitutionally could not, and that the majority of the Court “opted to bury their heads in the sand” and let it happen.
“By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis,” Sotomayor wrote.
Advocates and constitutional law experts say that even if the majority did not want to grant any injunctions, they could have opted for a stay order that would have blocked the law while the constitutionality of the law and its private citizen enforcers could be properly debated.
In criticizing the Supreme Court’s decision, Biden added that the decision to not block the law from being effective without a hearing, an opinion from a lower court or consideration of the issues “insults the rule of law and the rights of all Americans to seek redress from our courts.”
The state of Roe v. Wade?
Roe v. Wade is legally still the law of the land, and this decision did not overturn it on a national level. But experts say this decision does lend to a stronger possibility of the decision being overturned by a forthcoming review by the Court of a Mississippi abortion law that challenges whether state laws that ban abortion before they are considered viable preganacies are unconstitutional.
Leah Litman, a constitutional law professor at the University of Michigan and podcast host of the Supreme Court-themed podcast Strict Scrutiny, told the NewsHour that what this decision did do was give a roadmap to other state legislatures showing how to sidestep the Constitution and prohibit abortions through the civil private citizen enforcement loophole.
“What’s so slippery about Texas’ law and, by corollary, Arizona’s newest abortion law, SB1457, is this creation of a private cause of action where it’s unclear who will be doing the enforcement,” said Gunnigle, the reproductive rights attorney in Arizona. “That’s why this law is going to be so difficult to defeat.”
Arizona’s law allows a grandparent or father of the unborn child to sue the abortion provider if they think the fetus was aborted because of a genetic abnormality, and Florida, among other states, is already considering copycat legislation of SB 8.
Constitutional law experts say this decision is setting a precedent where state legislators can get away with taking constitutional rights away by enlisting private citizens — possibly allowing lawmakers to use this approach with other issues, like guns.
“Where does the deputization of the private citizen stop if this constitutional challenge was not stopped at the Supreme Court level, was not issued a stay or temporary injunction?” Dobbins said. “It just opened the floodgates for a lot of legislation that allowed states to tiptoe around the constitutionality question because they put the power in the hands of another citizen versus the state actor.”