The Texas Abortion Ban and its Far-Reaching Implications
On September 1st, the Texas law prohibiting most abortions after six weeks went into effect following the Supreme Court’s second consecutive refusal to block it. Despite Chief Justice Roberts’ dissenting opinion, the Supreme Court’s conservative majority allowed for a 5 to 4 vote in favor of upholding the fairly recent Texas law.
The law, also known as Senate Bill 8, is the most restrictive abortion ban in the nation[8;2]. It marks Texas lawmakers’ aim to circumvent federal courts through a unique enforcement mechanism, which effectively deputizes private citizens and allows them to impose the ban through civil lawsuits. The Supreme Court’s decision to uphold Texas’ abortion laws is immoral, unconstitutional, and proves to be yet another instance in which a woman’s right to autonomy over her own body has been stripped away.
These laws severely undermine Roe v. Wade, the landmark 1973 Supreme Court ruling that established a woman’s right to receive an abortion without the government’s intervention. If the Texas abortion ban remains upheld by the Supreme Court and similar laws continue to emerge, the precedent of Roe v. Wade will become increasingly uncertain.
In their construction of Senate Bill 8, Texas lawmakers specifically intended to draft a law that would more easily circumvent any potential challenges in federal courts. It does this by barring state officials from claiming the role of defendants in any future lawsuits attempting to block the new law for its unconstitutionality. Instead, the law tasks private individuals with the unwarranted responsibility of suing anyone who performs the abortion and even anyone who “aids and abets” it. Anyone ranging from a doctor to an Uber driver that took a patient to an abortion clinic could find themselves legally culpable. Average citizens– even those outside of Texas– are encouraged to sue those who “aid and abet” abortions, and are incentivized by a $10,000 reward and reimbursement of their legal fees.
Due to this unique enforcement mechanism, many clinics that had initially
intended to ignore the law have found themselves obeying it. The severe financial risks patients, doctors, and staff would incur are simply too great. At Austin Women’s Health Care, an independent clinic in Texas’ capital city, Dr. Jessica Rubino expressed her staff’s concern over the immense legal fees they’d incur should they have to defend themselves against civil lawsuits. Thus, granting citizens the prerogative to sue those that assist or abet abortions has effectively created an environment in which abortion clinics no longer operate due to the fear of lawsuits. In Texas, citizens are pitted against one another both ideologically and legally– often along partisan lines.
As mentioned previously, the law bans most abortions after six weeks of pregnancy, which is around the time that a fetal heartbeat is detected. This amounts to a near-total ban on abortions, as 85 to 90 percent of abortion procedures in Texas occur after six weeks into the pregnancy. This is due to the fact that most women are not aware of their pregnancy until after six weeks. Moreover, the law makes no exceptions for victims of rape or incest. It only makes exceptions to save the lives of pregnant people undergoing medical crises.
Piper Stege Nelson, the chief public strategies officer for the SAFE Alliance, an organization that aims to help survivors of child abuse, sexual assault, and domestic violence, points out that SB 8 is “further taking control and power away from the survivor right at the moment when they need that power and control over their lives to begin healing”. The government is essentially violating the survivor’s bodily autonomy and granting sympathy to the rapist instead.
The Supreme Court’s decision to uphold this law has spurred the creation of similar
(and at times even more restrictive) abortion laws throughout the nation. One such example of this can be seen in Ohio, where lawmakers have recently proposed House Bill 480, a law that – if passed – would make abortion completely illegal in the state[7;5]. Ohio lawmakers use an enforcement mechanism identical to the one utilized in Texas’ SB 8– demonstrating how the Supreme Court’s decision has effectively signaled that other states can implement similar legislation. Since the introduction of House Bill 480, lawmakers in 12 other states — including Mississippi, North Dakota, and Indiana — have pushed for abortion bans.
This does not bode well for the future of Roe v. Wade. On December 1st, the Supreme Court is set to hear a number of arguments in a Mississippi abortion case known as Dobbs v. Jackson Women’s Health Organization, which threatens to overturn Roe v. Wade. The law, which bans most abortions after 15 weeks, was blocked by a lower court because the Supreme Court had previously set a precedent that barred states from banning abortions prior to 22 weeks (the point at which a fetus becomes “viable”). However, it can be argued that the Supreme Court’s refusal to block SB 8 — a law that prohibits abortions after six weeks — has effectively set a new precedent for future abortion cases. If the Supreme Court continues to rule in favor of laws such as SB 8, Roe v. Wade risks becoming completely obsolete.
Despite the Supreme Court’s decision to uphold Texas’s abortion ban, it should be noted that the Court’s most conservative Justices (namely Amy Coney Barrett and Brett Kavanaugh) expressed concern over the law’s enforcement mechanism. They noted that the “loophole” the law uses to avoid scrutiny from federal courts (deputizing private citizens rather than state authorities to enforce the abortion ban) could theoretically be used to suppress other constitutionally protected rights– such as freedom of speech or freedom of religion. This critique by the Court’s most conservative wing suggests that the law (and those like it) will likely incur legal challenges in the future.
Debates surrounding an individual’s right to a safe and easily accessible abortion have fueled decades-long divisions. Oftentimes, the pro-choice position will be mistaken for a pro-abortion one, when this in fact is not what is being argued at all. Pro-choice advocates do not favor or let alone prefer abortions — rather, they are fighting for an individual’s ability to choose what to do with their own body. The government should not be interfering with an individual’s right to bodily autonomy. Instead of taking this right away, pro-choice advocates are in favor of better education and resources surrounding sex and contraceptives, which would serve to reduce the rate of unwanted pregnancies and abortions. The arguments surrounding abortions, both ideological and legal, are unlikely to dissipate or be resolved anytime soon, but the fight for the right to choose must continue, as bodily autonomy is a fundamental human right.
1. Breuninger, Kevin. “Supreme Court Will Hear Arguments in Mississippi Abortion Case Challenging Roe v. Wade on Dec. 1.” CNBC. CNBC, September 20, 2021. https://www.cnbc.com/2021/09/20/supreme-court-will-hear-mississippi-abortion-case-challenging-roe-v-wade-on-dec-1.html.
2. Liptak, Adam, J. David Goodman, and Sabrina Tavernise. “Supreme Court, Breaking Silence, Won't Block Texas Abortion Law.” The New York Times. The New York Times, September 1, 2021. https://www.nytimes.com/2021/09/01/us/supreme-court-texas-abortion.html.
3. Lopez, Ashley. “Federal Appeals Court Temporarily Reinstates Texas' 6-Week Abortion Ban.” NPR. NPR, October 9, 2021. https://www.npr.org/2021/10/08/1044512475/texas-abortion-ban-reinstated.
4. Lopez, Ashley. “How the Texas Ban on Most Abortions Is Harming Survivors of Rape and Incest.” NPR. NPR, November 15, 2021. https://www.npr.org/sections/health-shots/2021/11/15/1054710917/texas-abortion-law-harm-sexual-assault-survivors.
5. “Ohio HB480: 2021-2022: 134th General Assembly.” LegiScan. Accessed February 4, 2022. https://legiscan.com/OH/text/HB480/id/2440290.
6. Oxner, Reese. “Key U.S. Supreme Court Justices Express Concern about Texas Abortion Law's Enforcement.” The Texas Tribune. The Texas Tribune, November 1, 2021. https://www.texastribune.org/2021/11/01/texas-abortion-law-supreme-court/.
7. Smith, Talia. “Here's Why Ohio's Proposed Abortion Law Could Be Even More Harmful than S.B. 8.” NowThis News, November 19, 2021. https://nowthisnews.com/news/heres-why-ohios-proposed-abortion-law-could-be-even-more-harmful-than-sb-8.
8. “Texas SB8: 2021-2022: 87th Legislature.” LegiScan. Accessed February 4, 2022. https://legiscan.com/TX/text/SB8/2021.