Groups mobilize as Texas abortion ban takes effect

Supreme Court plans to hear separate case on abortion ban this term

A protester holds up a model of a fetus as she and other anti-abortion activists demonstrate in front of the Supreme Court on June 29, 2020. The Supreme Court on Wednesday allowed a Texas law banning most abortions after six weeks to take effect.  (Caroline Brehman/CQ Roll Call)
A protester holds up a model of a fetus as she and other anti-abortion activists demonstrate in front of the Supreme Court on June 29, 2020. The Supreme Court on Wednesday allowed a Texas law banning most abortions after six weeks to take effect. (Caroline Brehman/CQ Roll Call)
Posted September 1, 2021 at 2:58pm

The waiting rooms of all four Texas locations of Whole Woman’s Health abortion clinics were full Tuesday night until 11:56 p.m. when the last abortion was performed, physicians said.

As of midnight, most abortions are now illegal in the state.

Abortion rights advocates are scrambling and abortion opponents are cheering after the Supreme Court declined to block the implementation of a Texas law banning abortions if a fetal heartbeat can be detected, which occurs around the sixth week of pregnancy. The state law, which does not make exceptions for rape or incest, essentially flouts the constitutional right to abortion established in the 1973 Supreme Court case Roe v. Wade.

“This morning, I woke up feeling deep sadness and worry. I'm numb,” said Amy Hagstrom Miller, the CEO of Whole Woman’s Health and Whole Woman’s Health Alliance, which operates nine clinics including the four in Texas. “We had a physician who has worked with us for decades in tears as we tried to complete the abortions for all the folks who were waiting in our Fort Worth waiting room.”

Whole Woman’s Health and Planned Parenthood both confirmed they will continue providing abortions in Texas that fall within the legally permitted window when no fetal heartbeat is detected.

[Democrats say Texas abortion ban spotlights Senate battle in 2022]

Many patients may not know they are pregnant until after a heartbeat can be found. About 85 to 90 percent of Texas abortions occur after six weeks of pregnancy.

“The state of Texas has been the first state since Roe v. Wade to enact and have a six-week ban that goes into effect. The longer-term circumstances, we’ll just have to wait and see what the Supreme Court does,” said Marc Hearron, lead attorney on the case and senior counsel for the Center for Reproductive Rights, which said lawyers are evaluating next steps. “We could still get a decision later today or in the coming days.”

Anti-abortion groups praised the Supreme Court’s decision not to block the law.

“States have the right to act on what science and ethics clearly tell us, which is that these children have their whole life ahead of them and deserve our protection,” said March for Life President Jeanne Mancini. “The law currently in effect in Texas highlights the humanity of children in the womb who have a detectable heartbeat by six weeks.”

It’s unclear what, if anything, the Supreme Court will do next since an application from abortion providers to block the law is still pending. The justices could still step in and halt implementation of the law, or make it clear they will allow it to remain in effect until at least later in the legal challenge process.

The Supreme Court could issue an order either way, with some justices writing dissents that could be fiery and lengthy because of the unusual structure of the Texas law and the strange way it got to the high court.

Texas lawmakers designed the law to evade both the Supreme Court’s longstanding constitutional rulings that prohibit bans on abortion before viability, when a fetus could survive outside the womb, and the typical way legal challenges could stop it.

The Texas legislature did not set up a typical system where state officials would enforce the law, such as making abortion a crime. Instead, the law allows private citizens to sue abortion providers, physicians, patient support networks and anyone who supports someone getting an abortion, even by driving them to a clinic.

Those “citizens' suits” mean the law deputizes ordinary people to terrorize women with lawsuits against their abortion providers, friends, partners and other doctors, said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund.

“In essence allowing zealots to do the work of overturning Roe by intimidation," Ifill tweeted Wednesday.

Any individual can bring suit in any Texas court if they suspect someone “aided” in an abortion. The plaintiff would receive a $10,000 “bounty” in the event of a guilty verdict.

“The way that this law is structured, it is not simply that you can raise your constitutional challenges and you’ll win every case,” Hearron said. “If you provide one abortion, there are going to be multiple lawsuits.”

Throughout the lawsuit over the Texas law, state officials and others named as defendants argued that the case against them should be dismissed.

A district court rejected that argument and held that the case should go forward, and set a hearing about whether to prevent the law from taking effect as the legal challenge proceeded, a lawyer for abortion advocates said.

But the defendants appealed that lack of a dismissal to the U.S. Court of Appeals for the 5th Circuit, which entered an order taking control of the case and canceling the injunction hearing.

That meant abortion providers had to ask the Supreme Court to stop the law from taking effect while it was still early in the legal case's proceedings, even before a district court had determined whether to block it.

Because of that, what happens in the Texas case does not directly affect what the Supreme Court will do in a major abortion case it is set to hear next term that deals with whether Mississippi can ban abortions after 15 weeks of pregnancy, with some exceptions.

In that case — Dobbs v. Jackson Women’s Health Organization — the justices are poised to decide if all pre-viability prohibitions on elective abortions are unconstitutional.

Still, supporters of the Texas law see its implementation as a win ahead of those arguments and the lack of action by the Supreme Court as a showing of justices' leanings.

“This is an historic moment in the fight to protect women and children from abortion,” said Marjorie Dannenfelser, president of Susan B. Anthony List. “With the Dobbs case on the horizon, we hope that the Court is finally ready to let this debate move forward democratically, restoring the right of states.”

The Dobbs case could reshape abortion laws nationwide if the justices erode or wipe out the right to abortion first established in the Roe v. Wade decision, as Republican-led states pass more restrictive reproductive laws.

Abortion rights watchers also say other states are likely to copy the Texas law.

“Texas could give us a preview of what is coming in much of the South and Midwest — specifically, what the state will do when women travel out of state or manage their own abortions,” tweeted Florida State University College of Law professor Mary Ziegler, who published two books on America's history of abortion. “Today, it's Texas. By the end of next summer, it will be roughly half the states.”

Congressional interest

There’s little indication that the non-intervention from the Supreme Court in Texas will move the needle much in Congress, where Republicans have enough votes under longstanding Senate rules to block any major abortion legislation, and Democrats don’t appear to have the votes to change those rules.

Speaker Nancy Pelosi of California called the law “radical” in a tweet Wednesday and vowed to fight it.

But many Democrats have not backed a bill to expand the number of Supreme Court justices from nine to 13. Pelosi said in April she had no plans to bring it to the floor.

President Joe Biden has not backed those efforts to add seats to the court either, and instead launched a commission to study Supreme Court expansion and other federal court issues.

In a statement Wednesday, Biden criticized the Texas law but did not offer any concrete steps against it.

“My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right,” Biden said.

Brian Fallon, the executive director of Demand Justice, a group that backs the push to expand the number of Supreme Court justices to change its 6-3 conservative tilt, said other remedies such as making Roe a law would be good. But they would still give the conservative justices the last word on abortion, and that’s “a recipe for failure,” Fallon tweeted.

Democrats have renewed a push for a bill to protect access to abortion and providers' ability to offer it, though it faces an uphill climb.

“With the Court’s inaction, it is clearer than ever that Congress must take bold action to preserve and expand abortion access in the wake of these existential threats,” said House Oversight and Reform Chairwoman Carolyn B. Maloney, D-N.Y., in a statement calling for action on the bill.

The Democratic Women’s Caucus released a statement in favor of the bill, but it did not suggest any way to bypass a Senate Republican filibuster.

Senate Health, Education, Labor, and Pensions Chair Patty Murray, D-Wash., also called for Congress to act legislatively to “protect the legal right to abortion for every American, regardless of where they live.”