Texas law restricting abortions enacted
Supreme Court has not acted to block legislation
A Texas law prohibiting most abortions after about six weeks of pregnancy went into effect Wednesday after the Supreme Court failed to act on a request to block it, ushering in the most restrictive abortion law in the nation and prompting clinics in the state to turn away women seeking the procedure.
The justices still may rule on the request, which is just an early step in what is expected to be an extended legal battle over the law. In the meantime, though, access to abortion in Texas has become extremely limited, the latest example of a Republican-led state imposing new constraints on ending pregnancies.
The law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in Texas, one that will further fuel legal and political battles over the future of Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The law makes no exceptions for pregnancies resulting from incest or rape.
In an emergency application urging the justices to intervene, abortion providers in the state wrote that the law “would immediately and catastrophically reduce abortion access in Texas, barring care for at least 85% of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics ultimately to close.”
Supreme Court precedents forbid states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 22 to 24 weeks.
But the Texas law was drafted to make it difficult to challenge in court. Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants. However, the Texas law bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.
The patient may not be sued, but doctors, staff members at clinics, counselors, people who help pay for the procedure, even an Uber driver taking a patient to an abortion clinic, are all potential defendants. Plaintiffs, who need not have any connection to the matter or show any injury from it, are entitled to $10,000 and their legal fees recovered if they win. Prevailing defendants are not entitled to legal fees.
California Gov. Gavin Newsom released a statement Wednesday: “I am outraged that the U.S. Supreme Court has allowed Texas’ ban on most abortions to take effect. Silently, in the dead of night, the Supreme Court has eviscerated the fundamental protection of a woman’s right to choose that Roe v. Wade has protected for the last 50 years. In California, we will ensure that women continue to have access to critical health care services, including abortion, and California will continue to lead the nation in expanding access to reproductive and sexual health care. And I will continue to appoint judges and justices who will faithfully follow the Constitution and precedent to uphold people’s rights, unlike this disappointing inaction from the high court.”
Amy Hagstrom Miller, chief executive of Whole Woman’s Health, which operates four clinics in Texas, said they would comply with the law and that no abortions would be scheduled for any patient whose ultrasound detects a fetal heartbeat.
She said the threat of being sued individually under the law was worrying for her staff, including doctors and administrators, and she did not want to expose them to that risk.
“Our staff and doctors would be put in the position of having to defend themselves against accusations of breaking the law,” she said. “It’s sobering. This is way beyond anything any of us had imagined.”
At Whole Woman’s Health of Fort Worth, the last patient appointment was completed at 11:56 p.m. Tuesday, said Marva Sadler, senior director of clinic services. She said doctors started early Tuesday morning and treated 117 patients, far more than usual.
“It was absolutely organized chaos,” said Sadler, who had come from San Antonio to help out. “Patients were waiting upward of five and six hours to have their procedures done.”
She said patients were waiting in their cars and also in the waiting room. Some were told to come back later. Anti-abortion protesters gathered outside the clinic. At some point, someone called the fire department — Sadler said she believed it was a protester — and fire department workers came to ask her about the clinic’s capacity.
As the law came into force, Democrats assailed it and pledged to fight to retain abortion rights in Texas and nationwide. In a statement, President Joe Biden said the Texas law “blatantly violates” the constitutional right to abortion established by Roe v. Wade.
“The Texas law will significantly impair women’s access to the health care they need, particularly for communities of color and individuals with low incomes,” he said. “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.”
Anti-abortion activists said they were cautiously optimistic that the Supreme Court might allow the law to stand for now and were awaiting word from Justice Samuel Alito, the member of the court who oversees the federal appeals court in question. (Alito can act on his own but would typically refer the providers’ application to block the law to the full court.)
“We’re not fully celebrating until we officially hear from Alito,” said John Seago, legislative director for Texas Right to Life, the largest anti-abortion organization in the state.