Article and by Indira D’Souza and Rebecca Hooley
New Abortion Law Takes Effect in Texas
September 1, 2021, marked a troubling day for those concerned about abortion rights, as the United States Supreme Court allowed Senate Bill 8 to take effect in Texas. The law bans all abortions, including those resulting from rape or incest, as early as six weeks into pregnancy. Six weeks is so early in a pregnancy that most women do not even realize they are pregnant.
S.B. 8 marks a radical departure from the law established by the 1973 landmark case Roe v. Wade, which protects the right to abortion prior to fetal viability at 24 weeks. Without precedent, this extreme law recruits private citizens for enforcement, allowing them to sue anyone who provides an abortion, who “engages in conduct that aids and abets” an abortion, or who even intends to do so. The minimum reward for successfully bringing such a lawsuit is $10,000.
By some estimates, this abortion ban will prevent up to 85% of women seeking access to safe abortion services in Texas from obtaining such care. It also will likely lead to the harassment of health center staff, patients and anyone who helps a person get an abortion. Disturbingly, the effects of S.B. 8 are not contained to Texas. Legislators in numerous other states have followed Texas by seeking to adopt similar legislation. And the U.S. Supreme Court’s failure to prevent S.B. 8 from taking effect indicates that Roe itself may be at risk, threatening abortion rights across the U.S.
Access to Reproductive Health Care in Texas Is Severely Limited by S.B. 8
Even before S.B. 8, Texas was a notoriously difficult state in which to seek abortion care, due to a host of state laws passed by the Republican-dominated legislature. The state has a 24-hour waiting period between visiting a healthcare facility and receiving an abortion procedure, a 20-week abortion ban, restrictions on telemedicine, and a prohibition on using health insurance to cover the cost of an abortion except in extreme situations. It also has numerous abortion deserts, areas where the nearest abortion care facility is more than 100 miles away.
In addition to shortening the window when pregnant women are eligible for an abortion, S. B. 8 has the effect of further restricting access to abortion services by causing abortion clinic closures. Because physicians do not want to risk civil lawsuits, abortion-seeking patients will be forced to travel out of state for care. The Guttmacher Institute reports that this will result in a 14 fold increase in the average distance to an abortion clinic, from 17 miles to 247 miles one way, or almost 500 miles round trip. This increase represents a significant burden on low-income women and women of color, who may find it difficult to take time off work for the trip or require funding for additional travel and childcare costs.
Further Restricting Access to Reproductive Health Care, S.B. 8 Is Copied by Other States
Only days after S.B. 8 took effect in Texas, Republican leaders in six other states jumped to follow Texas’ lead and pass similar legislation. North Dakota, Mississippi, Indiana, Florida, South Dakota, and Arkansas have taken steps to consider bans as severe as Senate Bill 8. To make S.B. 8-type bans more palatable, advocates misleadingly refer to the legislation enacting the ban as a “heartbeat” bill because six weeks is when cardiac activity first appears in an embryo, although the heart organ is not formed or beating.
Legal Challenge to Abortion Rights in the Supreme Court
This past July, abortion care providers and civil rights organizations filed suit in federal district court to stop S.B. 8 from taking effect. Before the district court could hold a hearing on whether to block enactment of the law, the conservative Fifth Circuit Court of Appeals cancelled the hearing. When the matter was appealed to the Supreme Court for emergency relief, the Court’s 5-4 conservative majority voted to allow the law to take effect on September 1st.
Dissenting Justice Sotomayor wrote, “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.” The Biden Administration and the U.S. Justice Department have also spoken out against the Texas abortion ban and filed an additional lawsuit against Texas. A hearing is set for October 1st on the Justice Department’s emergency motion to temporarily block enforcement of the law. While most abortion providers in Texas are currently complying with the law to avoid being sued, a doctor in San Antonio was recently sued by out of state residents after he authored an article about performing an abortion that was not in compliance with S.B. 8.
This strategy of passing unconstitutional abortion bans is a way to encourage federal lawsuits that will eventually make their way to the U.S. Supreme Court. The goal of this strategy is to give the right-leaning high court the opportunity to overturn Roe v. Wade and make abortion care illegal in the United States, posing a direct threat to women’s reproductive health and freedom. The U.S. Supreme Court will be considering one such case this term in Dobbs v. Jackson Women’s Health Organization, addressing Mississippi’s 15-week abortion ban.
Connection to International Human Rights
United Nations human rights experts have denounced S.B.8, noting that the ban violates international law by denying women autonomy over their own bodies, and forcing them to potentially seek unsafe abortion procedures. Melissa Upreti, chair of the UN’s Working Group on discrimination against women and girls, criticized the bill as “structural sex and gender-based discrimination at its worst.” Reem Alsalem, the UN’s Special Rapporteur on violence against women, stated “Through this decision the supreme court of the United States has chosen to trample on the protection of women’s reproductive rights, thereby exposing them and abortion service providers to more violence.” Human rights bodies confirm that denying a woman’s right to reproductive health care is a form of inhumane treatment, even as new restrictive abortion laws in the United States continue to erode women’s legal and human rights.
IANGEL Stands in Solidarity
IANGEL stands in solidarity with women and families in Texas who are affected by the new law. We continue our work to advocate for and advance reproductive justice locally, nationally, and globally. IANGEL has joined amicus briefs in cases addressing reproductive rights like the Manuela case concerning the criminalization of abortion in El Salvador and the Dobbs case referred to above. We also advocate for legislation protecting access to reproductive healthcare like the Global HER Act, to permanently repeal the global gag rule. IANGEL is also committed to teaching future generations about the precarious nature of reproductive legal rights through our Teen Information Project on Reproductive Justice.