High court lets Texas ban abortion at 6 weeks
WASHINGTON — A divided Supreme Court late Wednesday allowed the nation’s strictest state-level abortion ban to remain in force, letting Texas prohibit the procedure in most cases after six weeks of pregnancy.
The court voted 5-4 to deny an emergency appeal from abortion providers and others that sought to block enforcement of the law that went into effect Wednesday.
The Texas law, signed by Republican Gov. Greg Abbott in May, prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before most women know they’re pregnant.
“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges
to the Texas law, including in Texas state courts,” the court said in the unsigned order.
Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.
The law is part of a broader push by Republicans across the country to impose new restrictions on abortion. At least 12 other states have enacted bans that apply early in pregnancy, but all have been blocked from going into effect.
What makes the Texas law different is its unusual enforcement scheme. Rather than have officials responsible for enforcing the law, the state is authorizing private residents to sue abortion providers and anyone involved in facilitating abortions. Among others, that would include anyone who drives a woman to a clinic to get an abortion. Under the law, anyone who successfully sues another person would be entitled to at least $10,000.
Providers said the law effectively eliminates the guarantee in Roe v. Wade and subsequent Supreme Court decisions that women have a right to end their pregnancies before viability, and that states may not impose undue burdens on those decisions.
The law was specifically designed to turn away pre-enforcement challenges in federal courts. If the Supreme Court declines to intervene, then the most likely challenge would come after the law is utilized by a private resident. Then the person sued could contest the constitutionality of the law, with the backing of abortion providers and abortion-rights groups.
Longtime abortion opponents claimed Wednesday as a historic day in Texas, and some began soliciting tips on who might violate the ban.
“Starting today, every unborn child with a heartbeat will be protected from the ravages of abortion,” Abbott said in a statement posted on Twitter. “Texas will always defend the right to life.”
Abortion-rights advocates and providers decried the impact of the law on the women they serve.
“It’s just really unclear what the future will hold for women in Texas,” said Kathy Kleinfeld, the director at Houston Women’s Reproductive Services. “I really don’t know. I don’t feel pessimistic. I don’t feel optimistic. I’m just right in the middle, cautiously waiting.”
President Joe Biden said in a statement that “This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century.”
“And, outrageously, it deputizes private citizens to bring lawsuits against anyone who they believe has helped another person get an abortion, which might even include family members, health care workers, front desk staff at a health care clinic, or strangers with no connection to the individual,” he added.
The American Medical Association said it was deeply disturbed by “this egregious law.”
The law “not only bans virtually all abortions in the state, but it interferes in the patient-physician relationship and places bounties on physicians and health care workers simply for delivering care,” said a statement from Dr. Gerald Harmon, the association’s president.
The Pro-Life Action League, a coalition of anti-abortion groups, praised Texas for “implementing a creative new policy that recognizes the child in the womb as a member of the human family and protects her from the violence of abortion.”
“We encourage the other 49 states to catch up with Texas and continue this historic expansion of human rights,” the group’s statement said.
LEGAL BATTLES
The Texas case comes at a pivotal time for the issue of abortion, with Republican-led state legislatures around the country having enacted a string of increasingly restrictive laws, many of which have been blocked.
The Supreme Court this fall will consider one such statute — Mississippi’s ban on most abortions after 15 weeks. Anti-abortion activists have urged the court to use that case to overturn the 1973 Roe decision.
In addition, many states, including Texas, have passed so-called trigger bills, which would almost immediately outlaw all abortions within their borders if Roe were overturned.
Federal judges have cited Roe and other precedents in blocking six-week bans on abortion in other states before they took effect. But the lawsuits that stopped those statutes targeted government officials who would enforce the bans, which proponents dub “heartbeat bills” because the restrictions start when a doctor can first detect a fetal heartbeat. Doctors opposed to the bills dispute that description, saying the fluttering that is detected cannot exist outside the womb.
The Texas law, in contrast, empowers individuals to bring legal action in civil court against those who help women seeking prohibited abortions.
Abortion providers and advocacy groups challenged the Texas law in July, trying to prevent state court judges and county clerks from accepting paperwork required to sue those who assist women in getting abortions.
A district judge in Austin said the case could proceed and scheduled a hearing for Monday to consider whether to block the law. But the Texas-based U.S. Court of Appeals for the 5th Circuit called off the hearing.
That action led to the emergency petition to the Supreme Court requesting a stay of the law. Such requests don’t receive the full briefing and argument that accompany other Supreme Court actions, and they are done somewhat on the fly.
Other recent emergency petitions have led to the court ending a national ban on evictions that the Centers for Disease Control and Prevention said was warranted because of the pandemic, as well as part of a state ban in New York, and telling the Biden administration to reinstate a Donald Trump-era policy requiring asylum-seekers to remain outside the United States.
Lawyers for abortion providers told the Supreme Court on Tuesday that the statute, known by its bill number, Senate Bill 8, would “immediately and catastrophically reduce abortion access” in Texas and probably force more clinics to close.
About 85% to 90% of people who obtain abortions in Texas are at least six weeks into pregnancy, meaning the law would prohibit nearly all abortions in the state.
“Patients will have to travel out of state — in the middle of a pandemic — to receive constitutionally guaranteed health care. And many will not have the means to do so,” Nancy Northup, president of the Center for Reproductive Rights, said in a statement. “It’s cruel, unconscionable, and unlawful.”
In response, Texas Attorney General Ken Paxton, a Republican, said the Supreme Court does not have jurisdiction to act against the law at this point, and that any legal challenges would have to wait until someone actually filed a civil action against an abortion provider or someone who aids the woman.
“This Court cannot expunge the law itself. Rather, it can enjoin only enforcement of the law,” he wrote in his brief to the court, which did not mention Roe.
The abortion providers, Paxton wrote, “have not shown that they will be personally harmed by a bill that may never be enforced against them by anyone.”
Individuals who are sued under the ban could be required to pay the person who brought the lawsuit at least $10,000 for each abortion the defendant was involved in. Critics say the law places a “bounty” on the heads of those who assist with abortions.
Sen. Patty Murray, D-Wash., who chairs the Committee on Health, Education, Labor and Pensions, urged the Senate to “act legislatively to protect the legal right to abortion for every American, regardless of where they live.”
“If you disagree with the idea that a complete stranger could, legally, demand $10,000 from you just because they disagree with your personal decisions, you should find this Texas anti-abortion ban as much of a nightmare as I do,” she said in a statement.
EFFECT ON CLINICS
Abortion-rights advocates say the law will force many women to travel out of state for abortions, if they can afford to do so and also navigate issues such as child care and taking time off work. The Guttmacher Institute, a research organization that supports abortion rights, says that if legal abortion care in Texas shuts down, then the average one-way driving distance to an abortion clinic for Texans would increase from 12 miles to 248 miles.
Already, abortion clinics beyond the Texas border are feeling the effect. At the Trust Women clinic in Oklahoma City, there have been 80 appointments scheduled over the past two days, more than double the typical number of patients, said Rebecca Tong, co-executive director of the clinic. Two-thirds of those patients were from Texas, another sharp increase, and the earliest opening is now three weeks out.
“Oklahoma has just barely enough clinics for the amount of people here,” Tong said. “If anyone is thinking, ‘Oh, they can just go out of state, it’ll be so easy,’ a lot of clinics in the Midwest and South, we don’t do abortion care five days a week.”
Late into the night Tuesday before the ban took effect, clinics in Texas were filled with patients, said Amy Hagstrom Miller, CEO of Whole Women’s Health, which has four abortion clinics in Texas.
Twenty-seven women were still in the waiting room after 10 p.m. at one clinic, leaving doctors crying and scrambling over whether they would see all of them in time, she said. The last abortion at one of her clinics finished at 11:56 p.m. in Fort Worth, where Hagstrom Miller said anti-abortion activists outside shined bright lights in the parking lot after dark to look for wrongdoing, and twice called police.
“We were under surveillance. This is not abstract — this is real for our team,” Hagstrom Miller said. “This morning, I woke up feeling deep sadness. I’m worried. I am numb.”
Dr. Jessica Rubino, a doctor at Austin Women’s Health Center, a small, independent clinic in the state capital, said that at first, she wanted to defy what appeared to be an unconstitutional law. But she said she concluded that doing so would put her staff at risk.
“If this was a criminal ban, we’d know what this is and what we can and cannot do,” Rubino said. “But this ban has civil implications. It requires a lawyer to go to court. It requires lawyers’ fees. And then $10,000 if we don’t win. What happens if everybody is sued, not just me?”
A group of abortion opponents gathered outside the Austin Whole Woman’s Health clinic. Celie Harden knelt in the dirt, rosary in hand, and prayed, even as a man drove past yelling profanities at the group.
Harden said she thought it was “fantastic” that residents now have the ability to sue clinics and others who help facilitate illegal abortions. “It’s like a citizens arrest. If someone runs through a red light right in front of you, you go to a policeman and say, ‘Hey, did you see that?’”
Texas Right to Life began soliciting “anonymous tips” on its website and asking for volunteers to “join the team of pro-lifers working to enforce” the law. An online form asks tipsters to submit information about how the abortion ban may have been violated and to name a clinic or doctor potentially involved. The organization says it will “ensure that these lawbreakers are held accountable for their actions.”
Hagstrom Miller and other providers and advocates said they would keep fighting the law and pushing for access to a full range of reproductive health care for women, including directing women to other states where it is still legal to terminate their pregnancies.
“We have been here before, and we’ll continue serving our patients however we legally can and fighting for their right to safe, compassionate abortion care,” Hagstrom Miller said. Information for this article was contributed by Caroline Kitchener, Emily Wax-Thibodeaux, Robert Barnes, Ann E. Marimow and Donna Cassata of The Washington Post; by Jessica Gresko, Paul J. Weber and Mark Sherman of The Associated Press, and by J. David Goodman, Adam Liptak and Sabrina Tavernise of The New York Times.