Abortion law’s fate starting on uncertain path
Last month, Republican Gov. Greg Abbott signed into law one of the most restrictive abortion laws in the country, a prohibition on the procedure after six weeks of pregnancy.
While Texas isn’t the first state to enact a sixweek limit, it is the first to allow private citizens to enforce it by suing doctors and anyone else who helps provide abortions after six weeks, or when a fetal heartbeat is first detected. That makes the law difficult to preempt in federal court.
Advocates on both sides say the statute still faces an uncertain path, even if allowed to take effect as scheduled on Sept.1.
“There has been this very anticipated dance between the Legislature and the abortion industry when they pass pro-life laws,” John Seago, the legislative director for Texas Right to Life, said last month. “This is different. And I think that is what is worrying them the most — they’re not sure how these state judges are going to handle the complaints.”
Opponents say the state law amounts to an outright ban because most women either don’t know they’re pregnant after six weeks or haven’t completed all of the other prerequisites that Republican leaders have enacted in recent years. Some of those restrictions were overturned in court or remain in limbo pending litigation.
Abortion is currently prohibited after 20 weeks of pregnancy, except in
rare instances where there is a lifethreatening condition.
Dr. Kari White, the lead investigator of the Texas Policy Evaluation Project at the University of Texas at Austin, expects that the new law would exacerbate existing disparities.
“We know that women of color, women living on low incomes and those who live far from a facility are more likely to obtain care later in pregnancy,” she said. “These are the folks who are going to be most affected if this law is allowed to go into effect.”
The number of abortion clinics left in the state is just over half of what it was in 2013. In parts of West and Northeast Texas, women have had to travel more than 90 miles one way to access an abortion clinic. About 54,000 abortions were performed in the state last year.
In signing the new law, Abbott declared, “Our creator endowed us with the right to life, and yet millions of children lose their right to life each year because of abortion. In Texas, we work to save those lives, and that’s exactly what the Texas Legislature did this session.”
Valedictorian slams law
The issue gained renewed attention this week when a high school valedictorian in the Dallas area used her graduation speech to call out the new law.
“I have dreams and hopes and ambitions. Every girl graduating today does,” Paxton Smith said in a video of the remarks that went viral. “And we have spent our entire lives working toward our future, and without our input and without our consent, our control over that future has been stripped away from us.”
The Texas measure comes as the conservative-led U.S. Supreme Court has agreed to hear a case that could roll back parts of Roe v. Wade, the landmark 1973 decision that protects a woman’s right to an abortion before a fetus can survive outside of the womb.
Abortion rights advocates warn that a rollback of Roe could result in women lacking access to proven reproductive care in a vast expanse of the country, including Texas.
A federal judge on Wednesday gave an early glimpse into how courts may respond to the new Texas law when he dismissed litigation to block a similar local abortion ban in Lubbock. Like the state law, the new Lubbock ordinance is enforced through private litigation.
Hundreds of Texas doctors and lawyers have spoken out against the law, warning it would create chaos in the legal system, and not just for cases involving abortion.
Constitutional questions
Seth Chandler, a law professor at the University of Houston, said both the Lubbock ban and the state law fly in the face of two centuries of court precedent and about 20 Supreme Court opinions that prohibit people from suing another party if they weren’t directly harmed.
“If I were an abortion provider, I would not be stressed out by the Lubbock ordinance or by the Texas statute, because both of them are plainly unconstitutional insofar as they authorize non-injured parties to sue,” he said.
“Imagine if Texas said that anyone on earth can sue someone who murders another real, living person,” Chandler added. “That is attempting to regulate homicide in a way that is completely nontraditional.”
Neither the Lubbock ban, which was approved by voters, nor the state law makes exceptions for rape or incest.
Joshua Blackman, a constitutional law professor at South Texas College of Law Houston, predicted last month that litigants may go after groups that fund abortions and help with logistics, rather than providers themselves, because that would do the most damage to abortion services.
“It’s going to be very hard for Planned Parenthood to challenge this bill right away,” he said. “Basically, the abortion clinics have to sit and wait until someone sues them, and then they can argue that this bill is unconstitutional.”
Abortion providers have not said how they will respond to the state law when it takes effect in September, other than they plan to challenge it. In response to the Lubbock ruling, Planned Parenthood, which opened a clinic there last year, appears to be rolling back its abortion services.
“We will continue to fight to protect the rights of all Texans,” Adriana Pinon, a senior staff attorney at the ACLU of Texas, said in a statement. The clinic is still providing other sexual and reproductive health care services.