Texas’ near-ban on abortions takes effect after Supreme Court fails to act

The Supreme Court did not take action early Wednesday on a request to block a Texas law prohibiting most abortions after about six weeks of pregnancy, allowing the most restrictive abortion law in the nation to go into effect.

The law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in Texas, one that will further fuel legal and political battles over the future of Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The law makes no exceptions for pregnancies resulting from incest or rape.

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An emergency application from abortion providers seeking to block the law remains pending, and the court is expected to rule on it shortly.

In the application, abortion providers wrote that the law “would immediately and catastrophically reduce abortion access in Texas, barring care for at least 85 percent of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics ultimately to close.”

Supreme Court precedents forbid states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 22 to 24 weeks.

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But the Texas law was drafted to make it difficult to challenge in court. Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants. But the Texas law bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.

The patient may not be sued, but doctors, staff members at clinics, counselors, people who help pay for the procedure, even an Uber driver taking a patient to an abortion clinic are all potential defendants. Plaintiffs, who need not have any connection to the matter or show any injury from it, are entitled to $10,000 and their legal fees recovered if they win. Prevailing defendants are not entitled to legal fees.

In its next term, which starts in October, the Supreme Court is already set to decide whether Roe v. Wade, the 1973 decision that established a constitutional right to abortion, should be overruled in a case from Mississippi concerning a state law banning abortions after 15 weeks.

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The Texas and Mississippi laws are among many measures enacted by Republican-controlled state legislatures intended to test the durability of Roe and Planned Parenthood v. Casey, the 1992 decision that affirmed Roe’s core holding and said states may not impose an “undue burden” on the right to abortion before fetal viability.

The lawmakers behind the various state-based measures are betting that the Supreme Court’s recent shift to the right will lead it to sustain the new laws. The court now includes three members appointed by former President Donald Trump, who had vowed to name justices prepared to overrule Roe v. Wade.

One of them, Justice Brett Kavanaugh, replaced Justice Anthony Kennedy, a cautious supporter of abortion rights. Another, Justice Amy Coney Barrett, replaced Justice Ruth Bader Ginsburg, who viewed access to abortion as essential to women’s autonomy and equality.

Senate Bill 8 was signed into law in May by Gov. Greg Abbott, a Republican. It prohibits doctors from performing abortions if a fetal heartbeat is detected.

Such activity starts at around six weeks, before many women are even aware that they are pregnant.