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Texas 6-week abortion ban takes effect as Supreme Court stays silent
Abortion law

Texas 6-week abortion ban takes effect as Supreme Court stays silent

3 min. 01.09.2021 From our online archive
Texas law instantly became the country’s strictest abortion restriction
Demonstration against the controversial law in front of the state capitol in Austin, Texas in May
Demonstration against the controversial law in front of the state capitol in Austin, Texas in May
Photo credit: AFP

A Texas law barring abortion after the sixth week of pregnancy took effect at least temporarily on Wednesday as the US Supreme Court kept silent on a bid to block the measure, stoking worries among reproductive-rights advocates.

With the high court taking no action Tuesday night, the Texas law kicked in and instantly became the country’s strictest abortion restriction, prohibiting the procedure before many women even know they are pregnant. Challengers say the measure would ban abortions for at least 85% of the women seeking one in the second-most populous state. 

Opponents are asking the high court to block the law while a legal challenge goes forward. Although the Supreme Court could act on Wednesday, the justices do not have any firm deadline. 

While the delay could stem from the unusual nature of the law, which was designed to make legal challenges difficult, the court’s inaction “speaks volumes,” said Mary Ziegler, a Florida State University College of Law professor who wrote a book on the history of abortion law. “The court looked at the prospect of abortion being functionally banned in Texas and saw no emergency at all.”

A Supreme Court decision to allow the ban could indicate a readiness to fulfil a decades-old conservative dream and overturn the 1973 Roe v. Wade ruling, which legalised abortion nationwide. Abortion opponents came close to that goal in 1992, only to see the court instead reaffirm Roe and say a woman’s constitutional right is protected until the fetus becomes viable, sometime after the 20th week of pregnancy.

The court, which now has three Donald Trump appointees, is set to hear a Mississippi appeal that seeks to overturn Roe and the 1992 Planned Parenthood v. Casey ruling. The court will consider the case in the nine-month term that starts in October.

The advent of the Texas law cheered abortion opponents eager to see the court roll back Roe and Casey.

“It’s a new day in America,” said Kristan Hawkins, president of the anti-abortion group Students for Life Action. Roe “was judicial activism at its worst, as 62 million lives have been lost after a handful of judges found ‘abortion’ written in invisible ink in the Constitution.”

Private Enforcement

The Texas law, known as Senate Bill 8, bars abortion after a fetal heartbeat can be detected and puts clinics at risk of being shut down if they are found to be in violation.

The law’s novel enforcement mechanism is at the center of the fast-moving legal clash. The measure lets private parties sue anyone who helps a woman get an abortion - and collect a minimum of $10,000 in damages per procedure - but does not authorise government officials to sue alleged violators.

“As Senate Bill 8 nearly closes down abortion care today, our ability to provide the best health care for our patients has been turned over to self-appointed vigilantes and whoever holds the power at any moment,” said Amy Hagstrom Miller, president of Whole Woman’s Health, which has clinics in four Texas cities.

The enforcement provision left unclear whom challengers could sue to stop the law before it took effect. The defendants in the lawsuit include a state judge and clerk who the providers say will be responsible for handling cases filed in their courts. The complaint also names Mark Lee Dickson, an anti-abortion pastor who the clinics say has threatened to file suits against those who violate the act.

The defendants say the providers lack legal “standing” to sue at this stage because they can’t show an imminent injury stemming from the law. The government defendants also say they are protected from being sued by sovereign immunity. 

In a court filing Tuesday, Texas Attorney General Ken Paxton said the providers “have not shown that they will be personally harmed by a bill that may never be enforced against them by anyone.” A federal trial judge had been set to consider stopping the law from taking effect, but a three-judge panel of the conservative 5th U.S. Circuit Court of Appeals blocked the lower court proceedings from going forward.

The case is Whole Woman’s Health v. Jackson 21A24.

©2021 Bloomberg L.P.


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