Texas’s near-total abortion ban takes effect after Supreme Court inaction
Texas on Wednesday enacted the strictest anti-abortion law in the country after the U.S. Supreme Court declined to act on a request by abortion-rights groups to block the law banning the procedure after six weeks of pregnancy.
It was a victory for conservatives, who have long sought to eliminate abortion access in the United States.
Prominent Democrats including President Joe Biden voiced outrage, saying the Texas law violated the right to abortion access established by the Supreme Court’s landmark decision in Roe v. Wade in 1973.
“My administration … will protect and defend that right,” Biden said.
Abortion rights activists said such a ban has not been enacted in any U.S. state since that landmark ruling.
Texas abortion providers worked until almost the midnight deadline, when the 6-3 conservative-majority court’s inaction allowed the law to be enforced while abortion-rights groups further pursue their legal challenge to its constitutionality.
The justices could yet take action on the Texas case. But they have already agreed to hear arguments in Mississippi’s effort to overturn Roe v. Wade.
The law amounts to a near-total ban on abortion procedures given that 85% to 90% of abortions occur after six weeks of pregnancy, and would likely force many clinics to close, the abortion-rights groups said.
A majority of Americans believe abortion should be legal in the United States, according to Reuters/Ipsos polling. Some 52% said it should be legal in most or all cases, with just 36% saying it should be illegal in most or all cases.
But it remains a deeply polarizing issue, with a majority of Democrats supporting abortion rights and a majority of Republicans opposing them.
Texas’s Republican-controlled state legislature this week also passed a bill restricting voter access, following Republican former President Donald Trump’s election defeat, which he falsely blamed on widespread voter fraud.
Governor Greg Abbott has vowed to sign that bill into law.
Abortion opponents nationwide are hopeful the Supreme Court, which now has three Trump-appointed justices, will eventually take steps to reverse Roe v. Wade.
At Whole Woman’s Health in Fort Worth, Texas, clinic staff worked up to midnight, serving 25 patients in the 2-1/2 hours before the deadline. The national group said its Texas locations, also including Austin and McKinney, remained open on Wednesday.
“This morning I woke up feeling a deep sadness,” said Amy Hagstrom Miller, the organization’s chief executive. “This law opens up a bounty system, a vigilante kind of system that can call into question anyone who supports access to abortion.”
Whole Woman’s Health, Planned Parenthood and other women’s health providers, doctors and some clergy members challenged the law in federal court in Austin in July, contending it violated the constitutional right to an abortion.
The law, signed on May 19, is unusual in that it prevents government officials from enforcing the ban, instead giving private citizens that power by enabling them to sue anyone who provides or “aids or abets” an abortion after six weeks.
Citizens who win such lawsuits would be entitled to at least $10,000.
Abortion providers say the law could lead to hundreds of costly lawsuits that would be logistically difficult to defend.
In a legal filing, Texas officials told the Supreme Court justices to reject the abortion providers’ request, doubting it can be challenged before it has been enforced against them.
Texas is among a dozen mostly Republican-led states that have enacted “heartbeat” abortion bans, which outlaw the procedure once the rhythmic contracting of fetal cardiac tissue can be detected, often at six weeks – sometimes before a woman realizes she is pregnant. Courts have blocked such bans.
“Texas Right to Life is thankful that the Texas Heartbeat Act is now in effect. We are now the first state ever to enforce a heartbeat law. We still await word from SCOTUS,” spokeswoman Kimberlyn Schwartz said in a statement, using an acronym for the Supreme Court of the United States.
A court could still put the ban on hold, and no court has yet ruled on its constitutionality, Stephen Vladeck, a professor at the University of Texas at Austin School of Law, wrote in a tweet.
“Despite what some will say, this isn’t the ‘end’ of Roe,” he wrote.
‘BLUEPRINT FOR OTHER STATES’
In the Texas case, empowering private citizens helped shield the law from being immediately blocked as it made it more difficult to directly sue the government. It is a formula other states seeking heartbeat bans could potentially follow, legal experts said.
“Texas has certainly created a blueprint for other states,” said Mary Ziegler, an expert on abortion at Florida State University College of Law.
Those states may see that path as unnecessary, she said, given that the Supreme Court has already agreed to hear a major case over Mississippi’s 2018 law banning abortion after 15 weeks.
The justices will hear arguments in their next term, which begins in October, with a ruling due by the end of June 2022.
The Texas challenge seeks to prevent judges, county clerks and other state entities from enforcing the law.
A federal judge rejected a bid to dismiss the case, prompting an immediate appeal to the New Orleans, Louisiana-based 5th U.S. Circuit Court of Appeals, which halted further proceedings.
On Sunday, the 5th Circuit denied a request by the abortion providers to block the law pending the appeal. The providers then asked the Supreme Court for an emergency ruling.