On September 1 — i.e., tomorrow — the state of Texas is set to more or less outlaw abortion. The new law, Senate Bill 8, is a labyrinthine anti-abortion rule that bans abortion at six weeks. While the law looks like a direct challenge to Roe v. Wade — the Supreme Court precedent that establishes a constitutional right to abortion and prohibits states from banning abortions before fetal viability at about 22 to 24 weeks — it’s actually designed to circumvent the landmark 1973 decision.
And that’s one reason why Senate Bill 8 may not be stopped by the Supreme Court — which would effectively overturn Roe v. Wade in the United States. Here’s what to know, and why what’s happening in the Lone Star State could affect people around the country, including children, people who can get pregnant, and many others. (And here’s what to know about the recent Texas district court decision by Amy Clark Meachum to temporarily stay the enactment of the law.)
How Senate Bill 8 Is Designed to Circumvent Roe v. Wade
The law outlaws abortions after six weeks, when most people are not yet aware that they are pregnant — it can take longer than that for a period to be missed. So, as a practical matter, the law effectively bans almost all abortions from the start.
If anyone gets an abortion after that six-week mark, private citizens — not police officers, government officials, government health employees, the courts, or any other public entities — are charged with enforcing the law. And because the law is enforced by individuals and not state officials, it avoids an immediate conflict with Roe.
Per Slate’s excellent explainer on SB 8, abortion providers typically file suit in federal court against those who are responsible for enforcing laws that violate Roe. Giving private individuals that responsibility means “there is no specific defendant to enjoin from enforcing the law,” which makes using this legal strategy difficult.
SB 8 also keeps all lawsuits out of federal court, locking them into state courts that now must ignore Roe because the state law bans abortions after six weeks. Texas abortion providers like Planned Parenthood cannot meaningfully challenge the unreasonable restrictions to abortion in the state, and they cannot file federal lawsuits to overturn the rule.
While patients are not the target of the lawsuits, anyone else can be — people who know people who have had abortions, those who drive people to abortion clinics, rape crisis counselors, abortion fund donors, clinic staff, and doctors who provide the abortion among them. And per Slate, anyone who forms an “intent to ‘abet’ the abortion can also be sued,” even if they don’t help in a material way. Individual anti-abortion activists can sue any of these people and win $10,000 per abortion in state court; those who are sued cannot win anything financially and have to pay for their own attorney fees. If someone sues a so-called abortion abetter or a provider and wins, the state is then legally obligated to close the abortion provider down.
Because of this labyrinthine set of rules, which Slate describes as an “Escher staircase for litigators,” review by a federal court is unlikely. Though it clearly violates Roe, SB 8 manages to sidestep enforcement, taking advantage of gaps in how Roe operates. All the Supreme Court has to do is not help abortion providers, and Roe will effectively be overturned nationwide, as other states with anti-choice legislatures and governors will almost certainly pass similar laws quickly.
The Supreme Court May Overturn Roe v. Wade in the Coming Months
Senate Bill 8 passed in May and is set to go into effect at midnight September 1, 2021 (unless Judge Meachum has a say). On Monday, abortion providers asked the Supreme Court to file an injunction against the law. The Court has yet to respond to the injunction.
Even in the case of a direct response to SB 8, the Supreme Court has already agreed to hear another lawsuit that directly challenges the constitutional nature of Roe v. Wade in the coming months. This is the first time the Supreme Court will have an opportunity to overrule the landmark law. Experts believe the current makeup of the court makes this a real possibility.
If the Supreme Court decides to not act on SB 8 and allow it to become law in the state of Texas, it will effectively end abortion in the state and give other states a path toward outlawing abortion without directly challenging Roe v. Wade.
What Happens if SB 8 Becomes Law?
Roe v. Wade would be effectively overturned, making abortion a state issue. Abortion access, which is already hard to come by for most Americans for issues of affordability and scarcity, will depend even more on where you live, how much money you have, and whether you can cross state lines in secret in order to terminate a pregnancy, with potentially catastrophic fallout for women, families, people who can get pregnant, and children.
Unwanted, unplanned pregnancies have the power to plunge people into poverty — most people who get abortions are already parents who simply cannot afford to have another child. But regardless of why someone chooses to have an abortion, which are immaterial, it is their constitutionally protected right to terminate a pregnancy before fetal viability. Roe v. Wade ensures that anyone is able to get an abortion for any reason, as a private medical procedure and family-planning tool.
In many ways, if SB 8 passes, anti-choice Texas politicians will have won — but it’s the people in the state and across the country who will suffer.
Is Anyone Stepping In to Stop It?
In the early afternoon of August 31, Travis County District Court Judge Amy Clark Meachum successfully enacted a temporary restraining order against SB 8 from becoming law. Morgan O’Hanlon, a reporter for the Dallas Morning News, said that two individuals named in the lawsuit, Seago and TX Right to Life, “cannot sue those abetting abortion” and that attorneys so far believe it could put a general hold on enforcement of the law.
(TX Right to Life has already set up a website for reporting those who may have helped people get abortions.) “Additionally,” O’Hanlon tweeted, “plaintiffs and attorneys are hopeful that the precedent set by the TRO will be a deterrent to other private citizens who could file their own lawsuits as early as tomorrow.”
This is a developing story.