The late-night Supreme Court decision letting stand a highly restrictive and uniquely structured Texas abortion law has kickstarted a national fight over one of the country’s most divisive political issues, leaving Democrats scrounging for options to battle the move while Republican lawmakers in other states consider copycat measures.
For conservative activists who oppose abortion, the high court’s action marks one of their biggest victories in decades of efforts to roll back abortion rights at the state level, the fruit borne from the presidency of Donald Trump and his three appointees to the high court.
For liberals who support abortion rights, it appears to be the beginning of the worst-case scenario, a signal that a Supreme Court stacked with conservative justices is prepared to take the step many feared, gutting the constitutional right to abortion until fetal viability.
Already, the Supreme Court’s action this week has kicked off conversations from Tallahassee to Birmingham, Ala., to Washington, D.C., about what abortion restrictions may now be fair game under a new court and a new paradigm brought on by the Texas decision.
“The pro-life movement is incredibly energized right now,” said John Seago, legislative director for the organization Texas Right to Life. Seago said he has heard from advocates in a number of other states who want to emulate the measure, which was designed in a novel way from past abortion laws to avoid being struck down by legal challenge.
The most restrictive in the country, the Texas law bars abortions after roughly six weeks, before many women even know they are pregnant. But it is its unique legal structure that has earned a prominent position on the national stage. Because Texas has deputized ordinary citizens to enforce the law, and barred state officials from doing so, the measure is difficult to challenge in court.
By a 5-4 vote, with Chief Justice John Roberts joining the court’s three liberal members, the Supreme Court late Wednesday night refused to grant an emergency petition to block the law, meaning it is likely to remain in effect while the legal battle continues in lower courts.
The justices did not rule on the constitutionality of the law itself, but their decision not to block it has triggered panic among reproductive rights advocates, who were already fretting over how the high court might rule on a legal challenge to yet another new state law, the Mississippi statute that bans abortion after 15 weeks of pregnancy. That is far earlier than the standard of fetal viability, considered to be about 24 weeks, set by the landmark Roe v. Wade decision.
Now, since the vast majority of abortions take place after the six-week threshold, access to abortion has all but disappeared in one of the country’s largest states. That burden will not fall equally: 70 percent of abortions in Texas in 2019 were provided to women of color, according to the Guttmacher Institute.
“The court has effectively overturned Roe v. Wade in the cover of night,” said Rebecca Hart Holder, executive director of NARAL Pro-Choice Massachusetts. “Since Trump was elected, we’ve known this was coming and it is devastating that it’s here.”
Democrats from Massachusetts to Colorado slammed the decision as barbaric and extreme on Thursday, but faced a limited menu of options to combat it. President Biden vowed to direct his administration to look into ways to protect Texans’ access to abortion without offering many details as to how his aides would do so.
House Speaker Nancy Pelosi announced she plans to bring up a bill that would codify the right to have an abortion into federal law later this month. But that legislation, which is expected to pass the House, faces an uphill battle in the Senate, where Democrats hold a very slim majority.
The abortion issue may kick off another fight in Congress over the filibuster, which effectively requires Republican support in the Senate for most legislation to pass. Assistant House Speaker Katherine Clark, a Melrose Democrat, said the high court’s action this week necessitates a response from Congress — and makes it clear that the Senate should abolish the filibuster.
“We have the slimmest of majorities in the Senate, but we have a majority and we have to do everything we can to make sure that we are not leaving women, their freedom, their right to make their own decisions about their health care, and their future, behind,” Clark told the Globe.
There are more legal steps to come in the case, and experts differ on whether they expect the high court to gut Roe entirely. In Massachusetts, abortion rights are secure because they are enshrined in state law.
Nevertheless, local activists and politicians are urging immediate action, while some Democrats are channeling their disappointment and fury through their pocketbooks. They’re writing checks to candidates who support abortion rights or to organizations that will pay for women in Texas and other restrictive states to travel to clinics that can still perform them legally.
“I wish there were one clear-cut next step,” said Jesse Mermell, a former Democratic congressional candidate and abortion rights advocate. She said abortion providers in places like Massachusetts should ramp up capacity to ensure they can serve patients traveling from other states.
Democrats are already signaling they’ll use the abortion issue to galvanize voters in next year’s midterm elections. And for Republicans, the restrictive law is not without its political risks.
Even in Texas, it was not universally embraced by antiabortion advocates; the Texas Alliance for Life, which is sometimes at odds with the separate Texas Right to Life group, was neutral on the measure, citing the likelihood that it would be struck down in the courts. Many prominent Republicans who support abortion restrictions, such as Senator John Cornyn of Texas, have so far refrained from celebrating the high court’s decision, a potential indication that they predict turbulent political waters for the law.
According to recent Pew Research Center polling, 59 percent of US adults say abortion should be legal in most or all cases, though there are sharp divides along partisan lines. Texas’s abortion law is unique in that it empowers private citizens to sue strangers over abortion, making its political impact hard to predict.
Still, Republican activists are crowing over the victory, celebrating it as the legacy of the Trump presidency and the early promise of a country where legal abortions are ever more difficult to obtain.
“We are ecstatic,” said Mike Gonidakis, president of Ohio Right to Life. The nation, he said, is moving closer to the “post-Roe America” he and his allies have envisioned for decades.
In Florida, state Representative Anthony Sabatini is planning to file a bill mirroring the Texas measure. Fellow Republicans in Tallahassee “are going to be receiving an enormous amount of pressure to join us,” he said, and the top Republican in the Senate has signaled they will take up such a measure.
Eric Johnston, an attorney in Birmingham who has written more than a dozen antiabortion laws in Alabama, including the ban on most abortions passed in 2019, said this week’s news could spur other states to challenge Roe.
“It is momentum,” he said. “When you have different cases around the country on the subject and different things are being done, the lawyers in those states and attorneys general in those states — it gives them encouragement to move them along.”