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On Wednesday night, the Supreme Court took a break from its summer recess to allow the nation’s most restrictive abortion law to come into effect in Texas, alarming those who support the right to abortion – And even some that don’t.
Access to abortion in the United States has been declining for many years now: the legislative season of 2021 set a record for the most abortion restrictions signed in a single year in the United States, according to the Guttmacher Institute. So why is Texas law different and what does it portend for the future of abortion rights in the United States? Here is what people are saying.
A very unusual law
Known as Senate Bill 8, Texas law prohibits doctors from performing abortions if a fetal heartbeat is detected, which is usually possible four weeks after conception, or just two weeks after a missed period. . Because that’s before many even know they’re pregnant – and because the law makes no exceptions for rape or incest – it amounts to an almost complete ban on abortion in Texas.
In its level of restriction, the Texas law is not without precedent: several states, including Georgia, Kentucky, Mississippi and Ohio, have passed similar “heart rate bills” in recent years. .
But two Supreme Court precedents – Roe v. Wade, the 1973 decision which established a constitutional right to abortion, and Planned Parenthood v. Casey, the 1992 ruling that upheld this right – prohibit states from banning abortion before a fetus reaches viability, or about 20 to 22 weeks after conception, so federal judges have blocked it. entry into force of these laws.
Texas law, however, was designed to avoid constitutional challenge. As the Times’ Adam Liptak explains, plaintiffs seeking to block a law on constitutional grounds typically name state officials as defendants. But Texas law prohibits state officials from enforcing it, thereby bypassing Roe v. Wade.
Instead, the law directs individuals – including people outside of Texas – to sue anyone who performs the procedure or “aids and encourages”. The patient may not be sued, but the doctors, clinic staff, counselors, people who help pay for the procedure, even an Uber driver who takes a patient to an abortion clinic could all be. Complainants, who do not need to be related to the abortion in question, are entitled to at least $ 10,000 and legal fees. Defendants, on the other hand, have to pay their own way even if they win.
“It completely reverses the legal system,” Stephen Vladeck, professor of constitutional law at the University of Texas at Austin, told The Times. “He says the state will not be the one to enforce this law. Your neighbors are.
Roe v. Is Wade dead? Does he even need it?
As the Times’ David Leonhardt explained recently, the public has complicated and in many cases conflicting views on abortion: A majority of Americans say they support restrictions on abortion that Roe v. reign himself.
Indeed, toppling Roe could energize abortion rights advocates and fuel the cause for court reform, which is why many legal experts speculate that Supreme Court justices are loath to do so explicitly. “He’s the genius of Texas strategy,” Mary Ziegler, a professor at Florida State University College of Law in Tallahassee, wrote in The Times last week. “There doesn’t seem to be a trade-off between building on precedents and phasing out abortion rights.”
And eliminate abortion rights this law goes, say the suppliers. Even those who comply with the law can face lawsuits from plaintiffs seeking a reward of $ 10,000, and they will bear the financial burden of defending themselves in court. Abortion service providers who filed to block the law said it would ban care for at least 85% of Texas abortion patients, “likely forcing many abortion clinics to close. “. As of mid-August, the 11 Planned Parenthood health centers in Texas that offer abortions have stopped scheduling those prohibited by law, NBC reports.
Texas law could still be temporarily blocked by the Supreme Court, says my colleague Lauren Kelley. But for now, at least, abortion is almost illegal in Texas. And “it now seems likely that more laws like SB 8 will be passed, as other anti-abortion heads of state will surely try to follow Texas’ lead,” she predicts. “Why wouldn’t they do it?” The Supreme Court may not yet have ruled on the merits of the Texas law, as some anti-abortion activists no doubt would prefer, but the state’s savage ploy has clearly succeeded in threatening the future of clinics across the state. In this way, the court gave the green light to lawmakers around the world who have been eager for decades to overturn Roe v. Wade.
Even bigger than abortion
Orion Rummler notes in The 19th that Texas law could involve miscarriage management, which often uses the same procedure – dilation and evacuation, which Texas became the first state to ban last month – as second trimester abortions. . While miscarriage management is theoretically still legal if no cardiac activity is detected, the wording of the law does not directly address the issue and could create a deterrent among providers fearing civil liability.
“Any doctor who is going to remove a fetus from a uterus, after a miscarriage or without a miscarriage, will have to document that he has tested a fetal heart rate”, Rachel Rebouché, professor of law at Temple University and expert in jurisprudence on reproductive rights, said Rummler.
The Supreme Court also blessed a legal tactic that could be used to undermine virtually any constitutional right, Ian Millhiser of Vox explains, “Imagine, for example, New York City passed an SB 8 style law allowing individuals to sue for a $ 10,000 bounty against anyone who owns a gun. Or, for that matter, imagine if Texas passed a law allowing similar lawsuits against anyone who criticizes the governor of Texas. “
Times columnist Michelle Goldberg argues that one party is much more likely to maintain such vigilance than the other. She notes that in addition to touting the endangerment and even shooting of suspected liberals, Republican lawmakers have taken steps in recent years to legalize various forms of intimidation: Several states have given partisan conspiracy theorists access. election materials to find ways to corroborate the accusations. electoral fraud, for example, while others have granted immunity to drivers who hit people protesting in the street. “Texas law must be seen in this context,” she wrote.
The Supreme Court will look into this and other abortion cases in more detail when he returns from vacation in October. In addition to Texas law, judges should consider a law in Mississippi that prohibits abortions after 15 weeks of pregnancy (or about 13 weeks after conception).
There will be little room for judges to cover up in this case, predicted legal journalist Linda Greenhouse in July:. Maintaining a ban on abortion before viability is tantamount to overturning Roe v. Wade and Planned Parenthood v. Casey. It is that simple. And for once, a state says yes, that’s exactly what it wants.
Advocates of the right to abortion have noted that it is still in the power of the Democratic Party to enshrine the right to abortion in law: After all, Democrats still control two branches of government, points out Nikolas Bowie, a law professor at Harvard.
Some, however, believe that the current Supreme Court is so hostile to abortion rights that its power – or the power of its conservative judges, at least – must be diluted for abortion rights to stand up to judicial review. . “Frankly, as long as the Conservatives control the courts, there is no way to stop Texas, Mississippi or other states inclined to follow their example,” writes Elie Mystal for The Nation. “If you want to protect a woman’s right to choose, the only solution is to expand the Supreme Court.
On Thursday, President Biden announced that he would “launch a whole-of-government effort” to determine “what steps the federal government can take to ensure that women in Texas have access to safe and legal abortions.” But what those steps are – and whether a “whole-of-government effort” includes Congress – remains to be seen.
Do you have a point of view that we missed? Write to us at firstname.lastname@example.org. Please include your name, age and place of residence in your response, which may be included in the next newsletter.
“Supreme Court Leaves Texas Abortion Ban In Place” [Scotusblog]
“What the enemies of abortion in Texas want” [The Atlantic]