In a revolutionary order Wednesday night, the United States Supreme Court allowed an extremely restrictive Texas abortion law to go into effect. The law is widely acknowledged as the most restrictive in the country, banning abortions after six weeks under most circumstances, including incest and rape. The decision to allow the law to go into effect jeopardizes the staying power of abortion protections issued under the landmark 1973 Roe v. Wade Supreme Court case, which ruled abortion access to be a constitutional right.
The Texas law, officially titled S.B. 8, is not entirely unique in terms of its body. The legislation closely mirrors the contents of a standard “heartbeat bill”, which seek to ban abortion after six weeks of pregnancy, the point at which pro-life advocates claim a fetal heartbeat is first detectable. What makes S.B. 8 particularly groundbreaking is its enforcement mechanisms. The law takes advantage of legal loopholes and incentivizes what critics have called “vigilante” style justice. The act not only makes abortion after six weeks illegal under the majority of circumstances, but exposes to civil lawsuits any individual accused of engaging or partaking in “conduct that aids and abets” an abortion, or who even “intends” to do so. This includes individuals who provide information about abortion services or even taxi drivers who drop patients off at clinics. Plaintiffs do not need to know the individual they file suit against. “This bounty mechanism has made S.B. 8, so far, immune to judicial interference, because there is no clear entity that can be sued in order to block the law.” The state also provides financial incentives for plaintiffs, a $10,000 “bonus” to any individual or group who should win such a suit. This $10,000 comes at the defendant’s expense.
Analysts have noted the court’s conservative majority as a factor behind their decision to allow S.B. 8 to go into effect. During his term, 45th U.S. President Donald Trump appointed three Supreme Court justices, openly announcing his intentions to appoint individuals who would vote to overturn Roe v. Wade protections. These newly appointed justices shifted the court in favor of a conservative perspective. This conservative majority played a significant role in the passage of the ban, allowing the S.B. 8 to pass in a 5-4 vote.
This is not the first time a state has aimed to impose “heartbeat bill” abortion restrictions, but it is the first time it has passed. Eight states other than Texas (Georgia, Iowa, Kentucky, Mississippi, North Dakota, Ohio, South Carolina, and Tennessee) have previously aimed to pass similar legislation. The passage of S.B. 8 is particularly consequential in that it is likely a precursor to a wave of successful abortion restrictions utilizing S.B. 8-style enforcement mechanisms. Already, six traditionally Republican states – North Dakota, Mississippi, Indiana, Florida, South Dakota, and Arkansas – have announced their intentions to adopt similar legislation.
The consequences of passing S.B. 8 will inevitably be catastrophic. Whole Woman’s Health, which operates four abortion clinics in Texas, estimates that over 85% of abortion seekers in the state are at least six weeks into pregnancy. With the passage of S.B. 8, the vast majority of them would no longer be eligible for an abortion. Six weeks is exceedingly early in a pregnancy, and many people at that point do not yet know that they are pregnant. This becomes even more unlikely if the pregnant person is a teenager. Texas clinics already report a drastic decrease in calls, going from an average 30 to 50 calls a day to a mere 8 on September 1st, the day after the law officially took effect. This is not as a result of declining demand for abortions, but because those in need fear the repercussions of seeking help.
In contrast, abortion clinics in neighboring states cite an influx of panicked Texas-based patients hoping to book appointments, often with much difficulty. Previous attempts to restrict abortion access within several of these states have all but decimated reproductive healthcare infrastructure, making it far less accessible in terms of both cost and location. These systems are often fragile, and not equipped to handle the additional demand of abortion refugees from out of state. The consequences of these restrictions will disproportionately affect already-vulnerable populations, especially women of color (including undocumented immigrants) and those living in poverty. According to the Guttmacher Institute, about 70% of abortions in Texas in 2019 were provided to women of color and nearly half of abortion seekers live below the poverty line. Doctors cite particular concern about the laws’ potential impact on black women in Texas, who already face high maternal mortality rates.
The passage of S.B. 8 has been accompanied by mixed reactions. Pro-life advocates are exuberant, filled with glee at the prospect of a post-Roe world. Others are filled with fear for the imminent consequences that will inevitably befall thousands of women. President Joe Biden issued a statement criticizing the Supreme Court’s decision to allow the ban’s passage, saying it unleashes constitutional “chaos” against women. The Biden administration has since directed a gender-focused policy council in the White House to “launch a whole-of-government effort” to respond, vowing to investigate ways the federal government can protect pre-existing constitutional abortion laws.
The Biden administration’s support and acknowledgment of the severity of the issue at hand are a commendable and important show of solidarity in an era of increasingly jeopardized women’s rights. Ultimately, however, only time will tell the extent to which the federal government will actually be able to protect existing abortion laws. Codifying abortion rights into federal law would seem to be the simplest course of action, although unfortunately, highly improbable.
One possible course of action would be to bring S.B. 8 back to the Supreme Court, this time specifically targeting the legal loopholes its enforcement mechanisms rely upon. Supreme Court Justice Sonia Sotomayor issued a statement of strong dissent following the vote to allow the law’s passage, accusing the Texas Legislature of deputizing the State’s citizens as “heartbeat bill.” It is possible the law will be shot down when the ethics of this vigilante-style justice system specifically is scrutinized.
In the meantime, concerned individuals should contact their local officials expressing discontent with the new laws and opposition to similar legislature being passed in their own states. Donating to organizations accumulating funds for abortion refugees to seek assistance in neighboring states acts as direct aid to desperate women affected by the ban. Finally, citizens can rely on collective agency and their right to protest. The organizers of the 2017 Women’s March have announced nationwide protests to be held on 2 October 2021.
The victims of this ruling are American women, whose right to bodily autonomy and access to reproductive healthcare has been infringed upon. Regardless of political affiliation or feelings towards the ethics of abortion, women’s safety should be of utmost priority. This includes their physical, sexual, mental, and emotional well-being. S.B. 8 and legislation like it are in direct opposition with those values, with discriminatory consequences across gender, racial, and class lines. The demand for abortion will not cease to exist because of restrictions, it will just become exponentially more unsafe as desperation increases and women look to alternative methods of pregnancy termination. Protecting the future of Roe v. Wade is essential to protecting American women’s bodily autonomy and right to reproductive healthcare.
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