Texas abortion ban one of dozens intended to challenge Roe v. Wade

Anti-abortion protesters wait outside the Supreme Court for a decision on Russo v. June Medical Services on June 29, 2020.  Louisiana voters will decide whether to enshrine anti-abortion language in the state constitution.
John Fritze

WASHINGTON – When it comes to approving abortion restrictions, Texas is far from alone.

The Lone Star State drew considerable attention Wednesday for a law that bans most abortions after six weeks of pregnancy, a prohibition that took effect while the U.S. Supreme Court was considering an emergency appeal asking that the law be blocked.

Texas is one of several states to approve a wave of laws in recent years seeking to roll back abortions. Most of those laws are designed to test the Supreme Court’s commitment to its 1973 Roe v. Wade decision and the high court's rulings that followed it.

"The point of the bill was to give the Supreme Court a chance to revisit Roe v. Wade," said Mary Ziegler, a Florida State University law professor. 

State lawmakers have enacted 90 abortion restrictions this year, roughly the same as in 2011, the previous year with the record number of such laws, according to the Guttmacher Institute, a research group that supports abortion rights.

"This law paves the way for anti-choice extremists to turn their dystopian vision into a horrifying reality – not just in Texas but around the country,” said NARAL Pro-Choice America acting President Adrienne Kimmell.

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Anti-abortion groups celebrated the Texas ban and said it could be a model for other conservative states.

Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, said the ban "reflects the scientific reality that unborn children are human beings" and applauded the "courage of the Texas Legislature, and all our pro-life allies in statehouses across the nation."

Experts say the rise in state abortion restrictions took off when President Donald Trump named Associate Justice Brett Kavanaugh to the Supreme Court in 2018. The movement was buoyed further last year when Trump nominated Associate Justice Amy Coney Barrett to the court, handing conservatives a 6-3 edge for the first time in decades.

Some of those laws require a woman to wait 48 hours before obtaining an abortion. Others ban the procedure if it's for a certain reason, such as a genetic abnormality.

But it is the bans on abortion at a certain point in a pregnancy that have received the most attention recently. Georgia, Iowa, Kentucky, Mississippi, North Dakota, Ohio, South Carolina and Tennessee have joined Texas in trying to prohibit abortions after about six weeks. The difference in those other states is that federal courts quickly stepped in to block enforcement of the laws.

What makes the Texas law distinctive is its unusual enforcement mechanism: Rather than having the state government enforce the ban, the Texas law encourages private citizens to sue anyone who helps a woman receive an abortion after a heartbeat is detected. A successful litigant in such a case could receive at least $10,000 in damages from the abortion provider or others.

That means abortion providers would have to allow themselves to be sued before raising the constitutional right to an abortion under Roe as a defense.

"They can raise the right to an abortion if they are sued, but that puts them in a very difficult position," said Michael Dorf, a law professor at Cornell University. "It means they have to go ahead and provide abortions and risk being sued."

The Texas law technically bans abortions once a fetal heartbeat is detected, generally around six weeks. Ziegler noted that some states attempted to criminalize abortions after that point but that Texas embraced the unusual enforcement route after those other laws were struck down in other courts.

Nearly 50 years ago the Supreme Court ruled in Roe vs. Wade that women have a constitutional right to an abortion during the first and second trimesters but that states could impose restrictions in the second trimester. About two decades later, the court allowed states to ban most abortions at viability, the point at which a fetus can survive outside the womb – about 24 weeks.

But a growing number of conservative states have sought to draw the line earlier.

Abortion rights advocates at the Supreme Court in 2020.

The Supreme Court surprised some observers in May by announcing it would hearan appeal from Mississippi, one of several states banning abortion before the point a fetus is viable outside the womb. Lower courts tossed Mississippi's law, which bans most abortions after 15 weeks, asserting it ran afoul of the high court's precedent.

The Mississippi case could have profound implications for abortion rights because by setting a date after which abortions are no longer permitted, the state challenges the viability standard, which guarantees women a right to an abortion before a fetus can survive outside the womb.

"Roe's viability line is arbitrary," the state's attorneys told the court last year. "It makes little sense to say a state has no interest in protecting the infant's life."

Several legal experts predicted that the outcome of the Mississippi case may influence whether other states embrace the enforcement approach used by Texas. If the court significantly undermines Roe and its other major precedent from the early 1990s, they may not have to, Ziegler said.

"The only question going forward is: Are conservative states confident enough that the Supreme Court is going to give them what they want, or do they want to do what Texas has done as a fail-safe?"