The largest and most damaging crack in the Roe v. Wade bulwark of abortion access was breached Sept. 1, when the U.S. Supreme Court’s inaction allowed the state of Texas to ban abortions after six weeks of gestation.
There are no exceptions for rape or incest. The law gives about any person in the nation the right to sue the abortion provider and anyone else who assisted someone with abortion care.
This blow could be followed by the Supreme Court deciding in favor of Mississippi’s ban of abortions after 15 weeks of pregnancy. The court will hear oral arguments Dec. 1.
“All eyes are on Texas, but the Supreme Court is also expected to hand down a decision on Mississippi’s 15-week abortion ban. A decision to uphold it will lead to states banning abortion entirely in areas of the South and Midwest,” says Julie Rabinovitz, MPH, president and chief executive officer of Essential Access Health in Berkeley, CA.
Overnight, Texas providers stopped performing abortions for most of patients who sought their care. On Oct. 6, as Contraceptive Technology Update was going to press, U.S. District Judge Robert Pitman suspended Texas Senate Bill 8, saying Republican lawmakers had contrived a scheme to unlawfully prevent women from exercising control over their lives, depriving them of a right that is protected by the U.S. Constitution. Despite the court’s hold on the six-week abortion ban, it was unclear whether abortion services would resume, as Texas officials said they would seek a reversal from the 5th U.S. Circuit Court of Appeals. They also indicated they could possibly allow people to sue abortion providers who perform post-six-week abortions while the ban was suspended.1,2
“One provider would typically see 30 patients a day who are seeking an abortion. The first day after the Texas law went into effect, the provider only saw six patients, and half were past the six-week limit,” says Lauren Kokum, spokesperson and associate director of health media with Planned Parenthood Federation of America. “The three patients past the six-week limit had to find care elsewhere, which meant going out of state.”
“This has been the most hostile year since Roe v. Wade was first decided, even though the majority of Americans — including Texans — want legal abortion,” Kokum adds. “We’ve seen more than 90 restrictions enacted in 2021 alone by state legislators. They’re effectively pushing abortion out of reach for patients in some states.”
Senate Bill 8, passed by the Texas legislature, is similar to other states’ bans on abortions at six weeks of pregnancy. But the difference is in how the ban is enforced.
Other states made medical boards or nursing boards the enforcers of the law. Organizations, such as the American Civil Liberties Union (ACLU), would sue the entities that enforced the law and stop the laws from going into effect, says Chelsea Tejada, JD, Justice Catalyst legal fellow with the ACLU Reproductive Freedom Project.
“This law makes it for private citizens to enforce, and that makes it difficult,” she explains.
The law gives enforcement power to everyone in the United States, so there are no specific individuals for reproductive rights organizations to sue.
“We sued many individuals to get it blocked, but we haven’t been able to [block the law],” Tejada says. “We were working on this before the law went into effect on Sept. 1, but the Supreme Court turned its back on the people in Texas and refused to block the law.”
The Supreme Court’s comment on its refusal to act was that the law presents complex procedural issues, Tejada adds.
“I think that with what happened in Texas, the United States has taken a huge step back — not just in abortion care, but in protection of gender equality and gender rights,” says Jina Dhillon, JD, MPH, associate director for access with Ipas in Chapel Hill, NC. “Prior to what happened in Texas, the United States was similar to many other places in the world, in that abortion care gets regulated more restrictively than other healthcare. It’s a political power wedge issue, and that’s true in most places.”
Whether people can access legal and safe abortion care depends on local laws and where they live. “That’s true of Roe. There are many barriers in the U.S., including waiting periods, ultrasounds, and restricting access. We’ve exported this kind of political power dynamic associated with abortion in our foreign policy and foreign aid,” Dhillon explains.
What happened in Texas with SB 8 was a huge step backward and out of step with what is happening in the rest of the world, Dhillon adds.
For instance, Argentina legalized abortion in 2020. In Septemher, Mexico’s Supreme Court ruled the country’s criminalization of abortion was unconstitutional. The Republic of Ireland legalized abortion Jan. 1, 2019, following a referendum supported by two-thirds of voters.3-5
“In Mexico and Argentina, feminist movements demanded accountability from the powers and the criminal justice system that abortion is decriminalized,” Dhillon says. “It’s concerning what’s happening in the United States. This is the beginning of bigger backsliding, and that’s what we’re all waiting and watching for.”
When legal and safe abortion care is prohibited, vulnerable women completely lose access to care, Kokum says. Vulnerable people include those who live in medically underserved areas, in contraception deserts, and far from abortion providers. Also, people who are low-income, undocumented, uninsured, or underinsured will potentially lose access to care entirely.
“Those with higher means can access care by going out of state and navigating barriers to care, the costs related to child care, and staying overnight in another state when a waiting period is required,” Kokum adds. “Those without means will not make the trip.”
Abortion providers already are seeing this dichotomy between those who can still access care and those who cannot as it plays out in Texas. “We’re seeing patients who, when they’re told they’re past the six-week limit and they’ll have to travel out of state to get immediate access to abortion care, say, ‘That’s not an option’ because they might be a single parent and have kids at home,” Kokum says.
Before the Texas law took effect, 85% to 90% of abortions were performed after six weeks of pregnancy. “The vast majority of people who need access to an abortion are not able to access them at this time,” Tejada says.
It might be too late even two weeks after a missed period, even if the person notices it, Tejada adds. Remaining options for those who cannot access legal abortions are self-managed abortions — some of which might be dangerous.
“You’re more likely to see women do harmful things to their bodies,” Dhillon says. “There are about 55 million abortions every year, globally, and 35 million of them are unsafe.”
Although it is possible the Texas law will be blocked in court sometime in late 2021, its damage to reproductive healthcare clinics that provide abortion care is evident.
“At this point, standard abortion care has stopped beyond six weeks for most people because of a fear of lawsuits,” Tejada says. “Everyone is afraid of those lawsuits, so providers have been forced to comply with these bans.”
A notable exception came in September when Alan Braid, MD, provided a woman with an abortion after six weeks and made his action public through an opinion piece.6
As soon as his story was released, two people filed lawsuits against Braid. The plaintiffs do not live in Texas, and both are disbarred attorneys who are not actively involved with anti-abortion organizations.7
Braid’s public stance on providing a banned abortion, followed by the two lawsuits, shows how damaging the law is to Roe v. Wade and its 50 years of legal abortion nationwide.
“The fact that he has been sued by multiple people shows how nefarious this law is, allowing any person to sue and collect a minimum of $10,000 if they succeed,” Tejada says. “One individual is seeking $100,000 with no connection to the case.”
Oscar Stilley of Arkansas filed a suit asking for $100,000 and for an injunction prohibiting the defendant from performing any more abortions that violate SB 8. Stilley also acknowledged that he is disbarred as an attorney (convicted of tax evasion and conspiracy in 2010), and he is 12 years into a 15-year sentence under home confinement. His lawsuit claims the Texas law does not prevent out-of-state felons from filing civil suits against suspected abortion providers.8
“This goes to show how devastating this law would be,” Tejada says.
There is no limit to the amount of people who can sue an abortion provider or other people who help a woman obtain an abortion, nor are there jurisdictional limits.
“We’re at a difficult point with reproductive rights in the United States,” Tejada says. “We have the Supreme Court turning its back on citizens in Texas, allowing this law to go into effect, and there’s a direct challenge to Roe v. Wade with the Mississippi ban.”
On a positive note, the ACLU has succeeded in blocking abortion bans in the past, and the current case also might eventually succeed.
“Every case we have brought that reached [the point of presenting] the merits, we have been able to get blocked. We’re confident they’ll all be struck down as unconstitutional,” Tejada says.
REFERENCES
- Weber PJ. Judge orders Texas to suspend new law banning most abortions. Associated Press. Oct. 7, 2021.
- Marimow AE, Wax-Thibodeaux E. Federal judge blocks enforcement of Texas law banning abortion as early as six weeks. The Washington Post. Oct. 7, 2021.
- Politi D, Londono E. Argentina legalizes abortion, a milestone in a conservative region. The New York Times. Dec. 30, 2020.
- Romo V. Mexico’s Supreme Court has voted to decriminalize abortion. NPR. Sept. 8, 2021.
- Abortion Rights Campaign. Abortion law in Ireland. Viewed Sept. 28, 2021.
- Braid A. Opinion: Why I violated Texas’s extreme abortion ban. The Washington Post. Sept. 18, 2021.
- Donegan M. Two disbarred lawyers sued a Texas doctor who performed an abortion. Flustered ‘pro-lifers’ are backpedaling. The Guardian. Sept. 26, 2021.
- Freiman J. Texas doctor who wrote op-ed about intentionally violating state’s abortion ban sued under new law. CBS News. Sept. 21, 2021.
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