The Supreme Court failed to take action as a Texas law went into effect at midnight Wednesday that bans the majority of abortions in the state.
The state law, Senate Bill 8 (SB8), is considered one of the most restrictive abortion bills in the country and it follows a string of ultra-conservative laws Texas has been passing in its recent history.
SB8 bans abortions as early as six weeks— before some women even know they’re pregnant. Worse, it incentivizes private citizens to act as deputies to enforce the law, allowing them to sue anyone who “performs or induces an abortion in violation of” SB8 or “aids or abets” these abortions. Just intending to do these things is illegal under SB8, even if they haven’t been done yet. In return, the person who sues can be awarded at least $10,000.
Another key provision is that SB8 prohibits any government official from enforcing the law. So if you want to sue the government, you can’t. Instead, an abortion provider (or anyone else who violates SB8) has to wait to be sued by a random citizen and defend themselves in court in order to provide an abortion. This makes abortions way more complicated than they need to be, tying up abortion access in the courts, and creating a chilling effect on those who want to provide or receive them.
It’s estimated that 85% of abortions in Texas are for women who have been pregnant for at least 6 weeks, so SB8 would effectively ban the majority of abortions in the state.
There’s a class component here as well: “Most women in Texas who can afford it will get their abortions out of state,” Lawrence Gostin, a constitutional law professor at Georgetown, told the Texas Tribune. “But for poor and rural women, the effects on their physical and mental health could be devastating.”
SB8 follows a string of related laws, so-called fetal heartbeat bills, many of which were blocked by the courts because they run counter to what was permitted under the landmark Roe v. Wade decision.
Roe permits an abortion until a fetus is “viable,” which is around 24 weeks. These “heartbeat” bills instead prohibit abortions around the time advanced technology can detect an embryo’s flutter, which is generally at 6 weeks. Meaning these “fetal heartbeat” bills apply to abortions where neither a fetus nor a heart is present, since an embryo doesn’t have a heart. In effect, Roe v. Wade is nullified in Texas even though it has yet to be officially overturned.
The Texas law is one of the few laws of its kind that wasn’t blocked, likely because of the states’s unusual legislative scheme. Texas legislators passed the bill in May 2021, and it was set to be effective September 1, 2021. Abortion providers tried to get an emergency order against SB8 to block it from going into effect Wednesday. But lawyers for Texas were able to argue that the providers who asked for the order named government officials who “explicitly do not enforce the law,” (since it’s illegal for them to enforce it under SB8), and it would thus be beyond the Supreme Court’s authority to step in.
So the law can stay on the books for now, and whether SB8 is constitutional is a question that won’t be addressed until a private citizen sues a provider and the courts hash it out. That is, unless the federal courts decide to eventually act on the emergency order.
But the failure of the Supreme Court to act before the law went into effect Wednesday suggests the conservative majority is perfectly fine permitting restrictive state laws like those in Texas to continue unabated, and it may explicitly overturn Roe v. Wade in the future.
