The Oklahoman

States test limits of Roe v. Wade

Texas’ abortion ban is among dozens in play

- John Fritze USA TODAY

WASHINGTON – When it comes to approving abortion restrictio­ns, Texas is far from alone.

The Lone Star State drew considerab­le attention Wednesday for a law that bans most abortions after six weeks of pregnancy, a prohibitio­n that took effect while the U.S. Supreme Court was considerin­g an emergency appeal asking that the law be blocked.

Texas is one of several states to approve a wave of laws in recent years seeking to roll back abortions. Most of those laws are designed to test the Supreme Court's commitment to its 1973 Roe v. Wade decision and the high court's rulings that followed it.

“The point of the bill was to give the Supreme Court a chance to revisit Roe v. Wade,” said Mary Ziegler, a Florida State University law professor.

State lawmakers have enacted 90 abortion restrictio­ns this year, roughly the same as in 2011, the previous year with the record number of such laws, according to the Guttmacher Institute, a research group that supports abortion rights.

“This law paves the way for antichoice extremists to turn their dystopian vision into a horrifying reality – not just in Texas but around the country,” said NARAL Pro-Choice America acting President Adrienne Kimmell.

Anti-abortion groups celebrated the Texas ban and said it could be a model for other conservati­ve states.

Marjorie Dannenfels­er, president of the anti-abortion group Susan B. Anthony List, said the ban “reflects the scientific reality that unborn children are human beings” and applauded the “courage of the Texas Legislatur­e, and all our pro-life allies in statehouse­s across the nation.”

Experts say the rise in state abortion restrictio­ns took off when President Donald Trump named Associate Justice Brett Kavanaugh to the Supreme Court in 2018. The movement was buoyed further last year when Trump nominated Associate Justice Amy Coney Barrett, handing conservati­ves a 6-3 edge for the first time in decades.

Some of those laws require a woman to wait 48 hours before obtaining an abortion. Others ban the procedure if it's for a certain reason, such as a genetic abnormalit­y.

But it is the bans on abortion at a certain point in a pregnancy that got the most attention recently. Georgia, Iowa, Kentucky, Mississipp­i, North Dakota, Ohio, South Carolina and Tennessee have joined Texas in trying to prohibit abortions after about six weeks. The difference in those other states is that federal courts quickly stepped in to block enforcemen­t of the laws.

What makes the Texas law distinctiv­e is its unusual enforcemen­t mechanism: Rather than having the state government enforce the ban, the Texas law encourages private citizens to sue anyone who helps a woman receive an abortion after a heartbeat is detected. A successful litigant in such a case could receive at least $10,000 in damages from the abortion provider or others.

That means providers would have to allow themselves to be sued before raising the constituti­onal right to an abortion under Roe as a defense.

“They can raise the right to an abortion if they are sued, but that puts them in a very difficult position,” said Michael Dorf, a law professor at Cornell University. “It means they have to go ahead and provide abortions and risk being sued.”

The Texas law technicall­y bans abortions once a fetal heartbeat is detected, generally around six weeks. Ziegler noted that some states attempted to criminaliz­e abortions after that point but that Texas embraced the unusual enforcemen­t route after those other laws were struck down in other courts.

Nearly 50 years ago, the Supreme Court ruled in Roe v. Wade women have a constituti­onal right to an abortion during the first and second trimesters but states could impose restrictio­ns in the second trimester. About two decades later, the court allowed states to ban most abortions at viability, the point at which a fetus can survive outside the womb – about 24 weeks.

But a growing number of conservati­ve states have sought to draw the line earlier.

The Supreme Court surprised some observers in May by announcing it would hear an appeal from Mississipp­i, one of several states banning abortion before the point a fetus is viable outside the womb. Lower courts tossed Mississipp­i's law, which bans most abortions after 15 weeks, asserting it ran afoul of the high court's precedent.

The Mississipp­i case could have profound implicatio­ns for abortion rights because by setting a date after which abortions are no longer permitted, the state challenges the viability standard, which guarantees women a right to an abortion before a fetus can survive outside the womb.

“Roe's viability line is arbitrary,” the state's attorneys told the court last year. “It makes little sense to say a state has no interest in protecting the infant's life.”

Several legal experts predicted that the outcome of the Mississipp­i case may influence whether other states embrace the enforcemen­t approach used by Texas. If the court significantly undermines Roe and its other major precedent from the early 1990s, they may not have to, Ziegler said.

“The only question going forward is: Are conservati­ve states confident enough that the Supreme Court is going to give them what they want, or do they want to do what Texas has done as a fail-safe?”

 ?? AMERICAN-STATESMAN JAY JANNER/AUSTIN ?? Women protest the six-week abortion ban at the Texas Capitol in Austin on Wednesday. The state’s law went into effect Wednesday.
AMERICAN-STATESMAN JAY JANNER/AUSTIN Women protest the six-week abortion ban at the Texas Capitol in Austin on Wednesday. The state’s law went into effect Wednesday.

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