Protesters against Texas Bans Abortion Laws, who gather and demonstrate in Times Square on Saturday afternoon on September 4, 2021 in New York City. (Shutterstock)
By Zoe Tillman and Nicole Fallert, BuzzFeed News
WASHINGTON — A Texas law banning abortions in the state at 6 weeks of pregnancy — and leaving it up to private citizens to enforce it — went into effect Wednesday after the US Supreme Court took no immediate action the night before to block it.
As of 12:01 a.m. Texas time on Wednesday, the justices had made no ruling on the matter, allowing one of the strictest state abortion laws in the country, known as SB 8, to go forward while a constitutional challenge is pending in the lower courts. The justices may still rule on the law, but just allowing it to go into effect, however briefly, marks a monumental shift in abortion rights in the United States. The case had reached the justices on an emergency basis over the weekend after an appeals court stopped a federal judge in Austin from deciding whether to temporarily block the law before the Sept. 1 start date.
Though US courts have for decades held that abortion is a right before a fetus is viable, generally around 24 weeks of pregnancy, Texas’s SB 8 makes abortion illegal once a heartbeat can be detected, which is typically around week 6. At that point, just two weeks after a missed period, many people may not even realize they’re pregnant.
The law relies on private individuals — not law enforcement or other government officials — to enforce the ban. People who suspect a violation of SB 8 can bring a lawsuit to stop abortion providers from operating at all and demand they pay a monetary award to the person who sued. It does not allow lawsuits against the person who received the abortion, but abortion rights advocates have warned that it could create anti-abortion vigilantes who demand a price from anyone who “knowingly engages in conduct that aids or abets the performance of inducement of an abortion,” such as someone who drives someone else to an abortion clinic or helps pay for the procedure.
And people will have a monetary incentive to enforce the ban. Anyone who successfully sues under SB 8 can receive a reward of $10,000 or more for “statutory damages” per abortion. “Medical emergencies” are exempt from the ban, but cases of rape or incest are not.
Like other laws aimed at limiting abortions, SB 8 will have the biggest impact on people who are already vulnerable. It opens victims of abuse up to further control and would make abortion largely inaccessible for people who can’t afford to travel outside of Texas. According to data from the Texas Health and Human Services Commission, more than 53,000 abortions were administered in Texas in 2020. The largest proportions of patients were Hispanic, Black, and white people, respectively, signaling the ban would disproportionately affect communities of color.
The law going into effect is the latest in a watershed moment for reproductive rights and sets the stage for a major ruling on abortion in 2022. In the Supreme Court’s next term, which starts in October, the justices are set to hear a challenge to Mississippi’s 15-week abortion ban. The Mississippi case, Dobbs v. Jackson Women’s Health Organization, poses a direct challenge to Roe v. Wade and Planned Parenthood v. Casey, two landmark decisions that established the right to abortion in the United States.
Because of how the Texas case reached the justices, Tuesday’s lack of action only affects that state, at least for now. But in the Mississippi case, the justices are set to consider whether it can be constitutional for any state to ban abortion before a fetus is considered viable, meaning it can survive outside of a person’s womb. Lower courts for years have applied Roe and Casey to mean that previability bans are unconstitutional, blocking the Mississippi law and other similar ones optioned in over 10 states during the Trump administration. The Supreme Court’s willingness to consider the case at all signaled a potentially massive sea-change in abortion rights.
The court has yet to schedule an argument date for the Mississippi case. Over the past month, the fight over Texas’s 6-week ban unfolded in the lower courts at lightning speed and suddenly leap-frogged over the Mississippi case to land before the justices for an immediate order.
Texas Gov. Greg Abbott signed SB 8 in May, and Texas abortion providers filed suit on July 13. They asked the judge to declare the law unconstitutional, and specifically to stop any parties who might try to act on it, including Mark Lee Dickson, the director of the anti-abortion group Right to Life of East Texas. Dickson had indicated that he planned to bring the kind of private lawsuit that SB 8 would allow to enforce the 6-week abortion ban, according to court filings.
State abortion bans normally leave enforcement up to government actors — health officials who regulate clinics, for instance. When abortion providers go to court to challenge those laws, they simply sue that state. But by leaving it up to private individuals to enforce the new Texas ban, there was no state action to ask a judge to halt. Providers could fight individual civil lawsuits permitted by SB 8 once they’re filed, but that would be a whack-a-mole situation with no clear avenue to get the law itself struck down.
The abortion providers in Texas instead sued parties that they argued would be responsible for carrying out various provisions of the law: the state and local judges and clerks who would preside over SB 8 lawsuits; the medical licensing authorities who would be compelled to take action against health professionals found to have violated the law; Texas Attorney General Ken Paxton, whose office could pursue civil penalties against abortion providers; and Dickson.
On Aug. 7, the abortion providers asked for a temporary restraining order to at least stop the law from taking effect while the judge considered whether to strike it down entirely. US District Judge Robert Pitman scheduled a hearing for Aug. 30, and in the meantime considered the Texas defendants’ first round of legal challenges to the validity of the lawsuit itself.
On Aug. 25, Pitman denied the Texas defendants’ first attempts at getting the case tossed out. The defendants immediately appealed to the 5th Circuit, and asked Pitman to pause the case — and cancel the Aug. 30 hearing on the temporary restraining order — in the meantime. The judge agreed to pause some, but not all, of the proceedings, and the Texas defendants raced to the 5th Circuit to fight that.
The 5th Circuit on Aug. 27 issued a temporary order known as an “administrative stay” that put the district court case fully on hold, including the Aug. 30 hearing. The abortion providers filed an emergency request asking the 5th Circuit to stop SB 8 from taking effect while the appeals court considered the case and to place the appeal on a speedier schedule than normal; a three-judge panel denied those requests on Aug. 29.
The abortion providers then filed an emergency petition in the US Supreme Court on Aug. 30. They asked the justices to either stop SB 8 from taking effect until the case was fully litigated in the lower courts, or to at least lift the 5th Circuit order that prevented Pitman from ruling on whether to issue a temporary restraining order blocking the law. Justice Samuel Alito, who handles emergency petitions coming out of cases in the 5th Circuit, gave the Texas defendants until Aug. 31 at 5 p.m. to respond.