Texas recently passed the most draconian abortion law in the United States, one that quite intentionally violates Roe v. Wade. A federal district court was about to have a hearing on the law, one that would probably have resulted in a stay on the law while the legal case against it is decided.
But the U.S. Court of Appeals for the 5th Circuit — the most conservative of the federal appeals courts — stepped in and canceled that hearing. The plaintiffs suing to stop the law made an emergency appeal to the Supreme Court, which the justices chose not to act on before Sept. 1, when the law was slated to go into effect.
So now it has.
The Texas law is both radical and creative in how it attempts to make abortions impossible for women to obtain. First, it outlaws almost all abortions six weeks after the first day of the woman’s last period — a time at which many women don’t even know they’re pregnant.
Second, rather than having the state enforce the law, it establishes a system of legal vigilantism whose purpose is nothing less than terrorizing and financially ruining not just abortion providers but also anyone who helps any woman get an abortion.
It allows anyone to sue not just an abortion provider but someone who “aids or abets” an abortion. So for instance, if you give your friend a ride to the abortion clinic, any random person in America could sue you for a minimum of $10,000. Even if you won the case — say, because your friend managed to get in her abortion five weeks after her last period, or because you never gave anyone a ride anywhere — you’d still have the legal bills to contend with.
But the vigilante provision’s real target is the providers. If they lose even one case — i.e., if a jury decides that they gave someone an abortion six weeks and one day after her last period — the state is required to shut down the clinic.
“There’s no reason in the world that any clinic would continue to perform abortions in these circumstances” with the Texas law in effect, Kathryn Kolbert, the attorney who argued Planned Parenthood v. Casey before the Supreme Court, told me. That’s the 1992 case that established the parameters of when and how states can and can’t restrict abortion access.
Doctors at clinics in Texas were reportedly staying on duty until 11:59 Tuesday night to provide abortions to women frantically rushing in to get them before the deadline.
For the past few years, some observers (including me) thought that the more politically savvy of the Supreme Court’s conservative justices, wary of backlash against the Republican Party, would find a way of eviscerating Roe v. Wade while claiming that in some way it’s still the law of the land, just as they did to the Voting Rights Act.
By allowing the Texas law to take effect, they’re showing that they may not even bother. Either they will overrule Roe outright, or they’ll smash it to pieces so emphatically that no one will be able to claim that it exists in any meaningful way. And before they issue a full ruling on the constitutionality of the Texas law, they have another case, involving a Mississippi ban on abortions after 15 weeks, that is another straightforward assault on Roe.
That case “is a direct challenge to the viability line,” Kolbert says, referring to the standard established in Roe that states can’t outlaw abortion before the point at which a fetus can survive outside the womb.
If the conservative justices uphold that ban, other conservative states may use it as a model, partly because it’s likely to be decided before the Texas case concludes. Kolbert predicts that the nearly two dozen states “trifecta states" — where Republicans control the governorship and both houses of the legislature — “will enact bans on abortion in the next few months."
But to be clear, while the Supreme Court has let the Texas law take effect for now, it’s possible that in the next few days it could grant emergency relief and put it on hold. Even allowing it to take effect temporarily, however, is significant — especially given how obviously unconstitutional it is.
“They’re sending a message that the court has changed,” Kolbert says. Among the intended recipients of that message are GOP-controlled state legislatures, who will now look to come up with creative ways to stop women from being able to access abortion.
The result — barring the unlikely eventuality of Democrats passing legislation at the national level that undoes these laws — is a new and more restrictive era for women’s rights.
“This is all about control,” Kolbert told me. “It’s not about medical care. It’s not about helping women. It’s not about religion. It’s all about control. The courts are sending a strong message that we don’t really care. We are going to control women however we want.”