Texas abortion ban stays in force as justices mull outcome

WASHINGTON >> More than two weeks have passed since the Supreme Court’s extraordinarily rushed arguments over Texas’ unique abortion law without any word from the justices.

They raised expectations of quick action by putting the case on a rarely used fast track. And yet, to date, the court’s silence means that women cannot get an abortion in Texas, the second-largest state, after about six weeks of pregnancy.

That’s before some women know they’re pregnant and long before high court rulings dating to 1973 that allow states to ban abortion.

There has been no signal on when the court might act and no formal timetable for reaching a decision.

The law has been in effect since Sept. 1 and the court has been unable to muster five votes to stop it, said Mary Ziegler, a legal historian at Florida State University’s law school. “While there is some sense of urgency, some justices had more of a sense of urgency than others,” Ziegler said.

Meanwhile, the justices are two weeks away from hearing arguments in another abortion case with potentially huge implications for abortion rights in the United States.

The court will take up Mississippi’s call to overrule the two major Supreme Court rulings that, starting in 1973, have guaranteed a woman’s right to an abortion. The state law at issue bans abortions after 15 weeks, well before the point at which a fetus can survive outside the womb.

Viability, typically around 24 weeks, has been the dividing line: Before it, states can regulate but not ban abortion.

Even before the justices decide what to do about Mississippi’s law and the fate of Roe v. Wade and Planned Parenthood v. Casey, Texas’ law has effectively changed the standard at least for the time being.

It bans abortion after cardiac activity is detected in the fetus, usually around six weeks, and deputizes ordinary citizens to enforce the law in place of state officials who normally would do so.

The law authorizes lawsuits against clinics, doctors and anyone who “aids or abets” an abortion that is not permitted by law.

It was designed to make federal court challenges difficult, if not impossible. Federal courts have had no trouble preventing other bans on abortion early in pregnancy from taking effect when they have relied on traditional enforcement.

The Texas law is doing what its authors intended. In its first month of operation, a study published by researchers at the University of Texas found that the number of abortions statewide fell by 50% compared with September 2020. The study was based on data from 19 of the state’s 24 abortion clinics, according to the Texas Policy Evaluation Project.