On September 1, 2021, the U.S. Supreme Court (5-4) declined an emergency petition to block the Texas abortion law SB. 8, known as the “Texas Heartbeat Act” allowing the law to take effect. The law, the most restrictive abortion law in the U.S., prohibits abortions after the presence of a fetal heartbeat is detected, which can occur as early as six weeks after a woman becomes pregnant, and only makes exceptions for medical emergencies. It allows any private citizen to sue Texas abortion “providers” who violate the law, as well as anyone who “aids or abets” a woman getting the procedure. Abortion patients themselves, however, cannot be sued. The law does not make exceptions for rape or incest. The person bringing the lawsuit is entitled to at least $10,000 in damages if they prevail in court.
ACP issued a press statement and joint statement with other allied organizations “opposing any laws and regulations that interfere in the confidential relationship between a patient and his/her physician. This new law will endanger health by not only criminalizing physicians who perform necessary medical care, but by allowing private citizens with no medical training or expertise to insert themselves on women’s reproductive health decisions. Moreover, this law jeopardizes women’s access to lawful, comprehensive care.”
ACP believes in respect for the principle of patient autonomy on matters affecting their individual health and reproductive decision-making rights, including about types of contraceptive methods they use and whether or not to continue a pregnancy as defined by existing constitutional law. Accordingly, ACP opposes government restrictions that would erode or abrogate a woman’s right to continue or discontinue a pregnancy. Women should have sufficient access to evidence-based family planning and sexual health information and the full range of medically accepted forms of contraception.
One of the interesting facets about the Texas abortion law is that it moves enforcement from the state to individuals. Citizen enforcement carries broad implications, if upheld, in that such laws could be applied by states in other contexts, such as means to controlling the types of guns sold.
ACP will carefully monitor developments in this area going forward and will advise chapters as appropriate on any recommended action they can take on the state level.
The Supreme Court decision could have significant implications on other states and may embolden some states to take similar actions. Republican officials in Arkansas, Florida, and South Dakota have already suggested that they may change their states’ laws to mirror the legislation in Texas. More copycat bills are expected to follow when most state legislatures come back into session in 2022. According to U.S. News and World Report’s A Guide to Abortion Laws by State, abortion “legislation signed between April 26-29 accounted for 46 percent of all legislation enacted up to that point during the year, propelling 2021 toward becoming the most restrictive year for abortion access since Roe v. Wade.” Since January, there have been 561 abortion restrictions, including 165 abortion bans, introduced across 47 states (as of June 7, 2021). Eighty of those restrictions have been enacted across 16 states, including 10 bans on abortions.
President Biden said that he would be looking at ways to counter the law. On September 6, 2021, under the directive of the President, Attorney General, Merrick Garland said in a statement that “the Justice Department will urgently explores all options to challenge Texas SB.8 in order to protect the constitutional rights of women and other persons, including access to an abortion”, and “will continue to protect those seeking to obtain or provide reproductive health services pursuant to our criminal and civil enforcement of the FACE Act.” The FACE Act is a 1998 law that prohibits threats to and obstruction of a person seeking reproductive health services or of providers.
Similarly, Speaker of the House of Representatives, Nancy Pelosi indicated she intended to bring legislation on reproductive rights, H.R. 3755, “the Women’s Health Protection Act” to a vote in the House this fall. It is unclear that the House has the votes necessary however to pass the legislation with such a slim majority of Democrats.
It is possible, though not probable, that the Supreme Court will strike down the Texas ban, in the future, with the conservative majority stressing it wasn’t ruling on the merits of the law when it turned away an emergency petition from abortion clinics to block the statute. They said “in reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit,” the court noted. “In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
In the fall, the Supreme Court will consider the constitutionality of a Mississippi abortion law, Dobbs v. Jackson Women’s Health Organization, which prohibits abortions after 15 weeks of pregnancy except in cases of medical emergencies or fetal abnormalities. Under the Casey v. Planned Parenthood standard, a ban on abortions at that stage is clearly an “obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Many believe that there are at least five votes on the court to change how undue burden is defined and potentially create a new standard — or simply leave it up to states. As of today, 22 states have laws that would further restrictabortion access if Casey is overturned.
- U.S. News and World Report: A Guide to Abortion Laws by State
- Guttmacher Institute: An Overview of Abortion Laws
- Guttmacher Institute: Abortion Policy in the Absence of Roe
- Guttmacher Institute: STATE LEGISLATION TRACKER: Major Developments in Sexual & Reproductive Health
- KFF Interactive: How State Policies Shape Access to Abortion Coverage