Texas law bans abortion, opens women’s health providers to frivolous litigation

Texas’ unprecedented abortion ban, Senate Bill 8, went into effect, banning abortion at approximately 6 weeks, before many people even know they are pregnant, and granting almost any person the power to sue someone for “aiding and abetting” a pregnant person seeking abortion care and being awarded $10,000 or more for their vigilantism.

The ban went into effect after the U.S. Supreme Court failed to step in last night to block the blatantly unconstitutional law.

Texas has virtually ended abortion access after six weeks of pregnancy with the complicity of the US Supreme Court, which declined to stop the ban from taking effect at midnight on Wednesday.

“Under the cover of darkness, by choosing to do nothing, the Supreme Court allowed an unconstitutional abortion ban in Texas to go into effect last night,” said Hillary Clinton. “Their decision doesn’t change the fact that reproductive rights are human rights. We’ll fight for them.”

Although the law may be blocked or even overturned — it is still being appealed — judicial relief will almost certainly be too late for Texas abortion providers, many of which are expected to close their doors in response. 

“This law will end legal abortion in Texas. Allowing the state to do that and effectively close all abortion clinics — even if the law is ultimately struck down — will give the state what it wants,” said Leah Litman, an assistant professor of law at the University of Michigan and expert in constitutional law. “Just allowing this law to go into effect is ending abortion in Texas.”

The six-week ban is early enough to effectively ban abortion for many. Often, people do not realize at six weeks that they are pregnant. In 2018, the most recent year for which national data is available, almost two thirds of abortions took place after six weeks.

On Tuesday, President Joe Biden called the law “extreme” and said it “blatantly violates” the constitutional right to abortion, adding that his administration will protect and defend that right.

The Texas law, passed in May, bans all abortions in the state after about six weeks of pregnancy — well before many women even know they are pregnant.

The policy conflicts with the Supreme Court’s precedents, which prohibit states from banning abortion before fetal viability, usually between 22 and 24 weeks of pregnancy.

Texas’ new law is one of the most strict abortion bans in the nation.

It also allows private citizens to sue abortion providers and anyone else who helps a woman obtain an abortion, including those who give a woman a ride to a clinic or provide financial assistance in obtaining an abortion.

Private citizens who bring these suits don’t need to show any connection to those they are suing. If they prevail, the law entitles them to a minimum of $10,000 in damages, plus attorneys’ fees.

Any Texan can now be sued if they are so much as suspected of having helped a pregnant person seeking abortion care after about 6 weeks in pregnancy. This includes clergy members or counselors, abortion funds that assist someone in paying for abortion care, and even someone who drives a patient to their appointment—including family members, friends, and rideshare drivers. Anti-choice extremist group Texas Right to Life launched a website soliciting volunteers to initiate a flood of lawsuits aimed at shuttering clinics and intimidating pregnant people and those who support them.

While multiple states have passed laws banning abortion at this early point in pregnancy, until today, every state’s attempt to ban abortion at 6 weeks has been struck down by federal courts as unconstitutional. Texas’ SB 8 is different: Unlike bans in other states, which are enforced by state officials, SB 8 gives private citizens unprecedented authority to enforce its abortion ban.

The impact of SB 8 will reverberate throughout surrounding states as they experience an influx of Texans traveling to get abortion care no longer accessible in their home state. When anti-choice Republicans in Texas attempted to ban abortion in 2020 amid the COVID-19 pandemic, it resulted in a 1,200% increase in Texans visiting Planned Parenthood clinics in Colorado and a “more than sevenfold increase”—706%—in Texans visiting Planned Parenthood clinics in Colorado, New Mexico, and Nevada. The Guttmacher Institute estimates that SB 8 going into effect could increase one-way driving distance for abortion services from 12 miles to 248 miles, or 20 times as far.

The harm of SB 8 is likely to disproportionately impact Black, Latinx, Indigenous, and other people of color; LGBTQ+ people; immigrants; and people with low incomes, communities disproportionately targeted by both surveillance and barriers to abortion access.

The enactment of SB 8 is part of a broader onslaught of attacks on abortion access in Texas. Earlier this year, Texas Governor Greg Abbott signed into law a “trigger ban” that will automatically ban abortion across the state and criminalize doctors who provide abortion care if the anti-choice supermajority on the U.S. Supreme Court overturns Roe v. Wade (which they will have the opportunity to do this term in the Dobbs v. Jackson Women’s Health Organization case). Yesterday, anti-choice lawmakers in the Texas House of Representatives passed SB 4, a bill that attacks access to medication abortion care. The bill has already passed the state Senate and will now go to Governor Abbott for approval.

Texas’ SB 8 joins over 90 other restrictions on abortion access that have been enacted at the state level in 2021, making it the worst year for abortion rights since Roe was decided.

%d bloggers like this: