An abortion arms race is unfolding in Texas. It kicked off on Tuesday when SB8 went into effect — the Texas law that bans abortion after a fetal heartbeat can be detected.
Texas’ ban is different from the rest. Most red states are gunning for Roe v. Wade by passing laws they know are unconstitutional. The strategy is obvious: Antiabortion lawmakers want the Supreme Court to change how it interprets the Constitution. Texas lawmakers, by contrast, came up with a way of protecting the state’s pocketbook. Other states had forked out hundreds of thousands of dollars of attorneys’ fees to Planned Parenthood once courts deemed their abortion laws unconstitutional. So Texas legislators made an end run by forbidding any state official from lifting a finger to enforce SB8. Instead, the state leaves the job of enforcement to private citizens (any private citizen) who can sue abortion providers and anyone who “knowingly” aids or abets someone providing an abortion in violation of the law. If successful, these private citizens can recover at least $10,000 for every instance anyone broke the law.
The Supreme Court issued an order Wednesday night that allowed Texas’ law to stand. By a 5-4 vote, the court went to considerable trouble to explain that it was not addressing whether the law was constitutional. Instead, the majority wrung its hands over a procedural matter: Abortion providers had not established that they had identified the right people to sue, and there was nothing the court could do.
Now that abortion after roughly six weeks of pregnancy is illegal in Texas, the question is how the law will be implemented. There is a race to shape that implementation between people seeking to circumvent the law and people seeking to enforce it.
Organizations such as AidAccess have mobilized to provide people in states like Texas access to medication abortion online. Medication abortion is a two-drug regimen taken before 10 to 11 weeks of pregnancy. Abortion advocates have anticipated near-total bans going into effect and have organized to deliver medication abortion directly to patients regardless of what state law provides. The same movement has organized transportation and funding to move people across state lines for care. And it remains to be seen whether Texas physicians can provide medication abortions after six weeks of pregnancy from outside the state’s borders.
At the same time, Texas legislators and anti-abortion advocates undoubtedly will closely monitor abortion providers and invite lawsuits against physicians and allies. Texas Right to Life, for example, has built websites encouraging anonymous tips about abortion providers who are suspected of violating the law. Moreover, Texas has already passed laws that restrict access to medication abortion by, among other things, banning telemedicine for abortion.
Texas will have a tough time maintaining that it isn’t trying to punish women when enforcement efforts intensify. Though SB8 does not penalize patients for violating the statute, various criminal laws could lead to prosecutions of women who self-induce abortion. And when abortion providers are hit with lawsuits, the human costs, beyond the heavy burdens imposed by the denial of abortion care, will become clear. The same is true of suits against family members, partners, and community members deemed to “aid or abet” abortion.
As those costs become evident, the movement to repeal SB8 will gain momentum and strength, as will any workarounds of the law. Mounting political pressure, in fact, might bear fruit.
At the moment, it’s unlikely to happen at the federal level, however. With Joe Manchin, a self-described pro-life Democrat, holding a deciding vote in the Senate, legislation protecting abortion rights seems dead in the water, even with Congress considering the federal Women’s Health Protection Act (WPHA), which would preempt laws like SB8. Moreover, even if Congress did pass a law like WHPA, a conservative Supreme Court may well strike it down. The Supreme Court hardly seems sympathetic to abortion rights, especially given its willingness to take up a challenge to a Mississippi abortion ban this term. That statute bans abortion before viability — in contravention of precedents that have protected the right to an abortion before viability — the point at which the fetus’s survival is possible outside the womb. If anything, it seems likelier that the court will have reversed or gutted Roe v. Wade before Texas’ case reaches the court a second time.
If history teaches us anything, it’s that grassroots pressure can make more of a difference than a court decision. Texas passed its law because lawmakers expected to reap the political benefits. Though it may seem farfetched at the moment, the opposite may occur: The consequences of SB8, over time, are so dramatic and so cruel that Texas is shamed into repeal or revision. The antiabortion movement learned the limits of the Supreme Court’s power long ago, pressing Republican-dominated state legislatures to do what the Supreme Court, at least at the time, would not: curtail abortion rights. Advocates supporting abortion access now have learned the same lesson. The Supreme Court may seem to have the final word, but it might not take long to prove the justices wrong.
Rachel Rebouché is the interim dean and a professor at Temple University School of Law. Mary Ziegler is a professor at Florida State University College of Law and author of “Abortion and the Law in America: Roe v. Wade to the Present.”