Texas’s new proposal shows why abortion law is a mess in America

July 24, 2021

IHALF A CENTURY since the Supreme Court ruled Roe v. Wade, Conservative state lawmakers have passed hundreds of laws to make it harder for women to get abortions. Neither was punished like the one recently imposed in Texas. As of September, the law, if it is not blocked, authorizes private individuals to sue anyone who “helps or promotes” the abortion of a fetus with a heartbeat, ie from about six weeks of pregnancy. For each successful case, it approves “damage payments” – in effect a bounty – of US $ 10,000.

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The law could ensnare myriad people, from insurance employees to pregnancy counselors to friends and relatives. A lawsuit aimed at blocking the law filed in a federal district court in Austin on July 13 by clinic operators and groups helping poor women pay dismissals also includes pastors fearing they will Advising a pregnant woman who then has a pregnancy Abortion could put her in legal danger.

Premature abortion bans are simply illegal. Roe and subsequent Supreme Court rulings state that on-demand (i.e., for any reason) abortion should be possible until a baby is viable (approximately 24 weeks or older). In the past few years, a dozen or so states have passed heartbeat laws, sometimes blocked by the courts in a matter of days.

But the new Texas law was designed to circumvent this process. Typically, opponents of laws that restrict access to abortion sue state officials who would enforce them. Since the Texas Heartbeat Act would be enforced through private civil suits alone, there is no obvious party to sue. Instead, the challengers are suing a wide range of defendants who may be involved in the enforcement process, including trial judges, district officials, and health officials.

It is not clear how this legal strategy will work. Julie Murray, attorney at Planned Parenthood, the largest abortion provider in the United States, says it is hard to imagine federal judges bringing an unconstitutional law into effect. Some clinic operators say they fear they will have to wait for the law to go into effect and sue someone so a court can block it.

Now, they say, the law is causing great hardship. Amy Hagstrom Miller, the founder and executive director of Whole Women’s Health, which operates four abortion clinics in Texas, says staff must reassure patients that abortion is still legal in the state. The workers themselves fear that they will be sued for their work from September onwards. It is easy for people who work in clinics to imagine protesters who yell at women when they come to have abortions, turning into angry trial lawyers.

Most Texans, like most Americans, don’t want to ban abortion in early pregnancy. Presumably few would like to see this right shot down in a private lawsuit. That a law encouraging such a thing should have been passed reflects, in part, the shift to the right by the Texan legislature. It also suggests that as the state rejuvenates and liberalizes, niches still remain with strong support for extreme measures against abortion. In May, voters in Lubbock, a town in a solid Republican district, approved a “Shelters Town for the Unborn” ordinance that allows individuals to enforce a ban on abortion. In June, after a lawsuit against Planned Parenthood, which has a clinic in Lubbock, a federal judge dismissed the case. Planned Parenthood has since stopped performing abortions in the city. She continues to negotiate the case.

The new Texas law is also part of a growing push to impose strict abortion restrictions across America. Encouraged by the Supreme Court’s super conservative majority, who maintain more restrictive abortion rules, lawmakers have passed a record number so far this year for pro-life. The Guttmacher Institute, an abortion rights group that keeps track of regulations at the state level, says 90 abortion restrictions went into effect in the first half of 2021, compared to the previous record of 89 throughout 2011.

The result of all of this is a broken system. America has one of the most permissive national abortion laws in the world: of 59 countries that allow abortion on demand, it is one of only seven that allow abortion after 20 weeks of gestation. But six states have only one clinic left, and a handful more women have to travel hundreds of miles to find a clinic. This seems to increase the polarization on this issue. Pro-life activists who believe abortion to be murder focus on the rules that have been violated by the courts. “People are frustrated … trying to show the courts that they have had enough,” said Joe Pojman, founder of the Texas Alliance for Life. Abortion rights activists and progressive lawmakers, meanwhile, are pushing hard in the opposite direction. At least seven states now have no laws governing when or for what reasons a woman can have an abortion.

Meanwhile, activists on both sides are monitoring the Supreme Court. In May, she announced that she would review a law in Mississippi banning most abortions after 15 weeks of gestation and see if “any pre-viability prohibition against dropouts is unconstitutional.” This suggests that the court could seriously weaken Roe. If so, it could be up to the states to make their own laws: days after the judges announced, Texas passed a law that would outlaw all abortions in this case. It is one of more than ten states that have such a “triggering law”. However the court decides, the gap between conservative and progressive states seems to be widening. ■

This article appeared in the USA section of the print version under the heading “Lubbock or Leave it”