The Supreme Court’s approval of a Texas law banning most abortions is the largest curb to the constitutional right in decades. Republicans in other states are already looking at similar measures.
Once medical professionals detect cardiac activity, which is usually about six weeks before most women find out they are pregnant, the law prohibits abortions. While other states have had to impose similar restrictions due to court rulings, Texas’ law is different in that it allows private citizens to enforce the restrictions through civil lawsuits and not criminal prosecutions.
The new Texas law, which took effect Tuesday, provides information about how it works. Already, abortion clinics in neighboring States have reported a rise in the number Texas women who are seeking the procedure.
WHAT DO THE TEXAS LAW DO?
Any private citizen can sue Texas abortion providers that violate the law. There are no exceptions to the law for incest or rape. If they win in court, the plaintiff — who must not have any connection to the woman having an abortion — can claim at least $10,000 in damages.
HOW MANY PEOPLE CAN THE TEXAS LAW AFFECT?
Although precise estimates are difficult to make, the new Texas law could have an impact on thousands of women who seek abortions. In 2020, Texas facilities performed about 54,000 abortions on residents. Over 45,000 of these were performed within eight weeks of pregnancy. If they were performed before detection of cardiac activity, some of these abortions could still have been legalized under the new law.
HOW IS THE TEXAS LAW DIFFERENT FROM THOSE IN OTHER STATES THAT HAVE TRIED TO RESTRICT ABORTION EARLY IN PREGNANCY?
The enforcement mechanism is what makes the difference. Texas’ law allows citizens to sue abortion providers for alleged violations. Other states tried to enforce their laws through government actions, such as criminal charges against doctors who perform abortions.
Texas is one 14-state state that has laws banning abortion or prohibiting it for less than eight weeks. All other laws have been stopped by courts. A court recently stopped a new Arkansas law which would have prohibited abortions except in an emergency. Alabama, Georgia and Iowa are also affected by laws that prohibit abortions in early pregnancy.
HOW DID THE TEXAS ABORTION LAW COME ABOUT?
Texas has been a key battleground in abortion access and rights for decades. A 2013 law that closed over half the state’s 40 abortion clinics was stopped by the Supreme Court.
The 2020 election victory gave Republicans the impetus to pursue a hard-right agenda. This included loosening gun laws, and tightening some of the nation’s most stringent voting rules. The new law, according to anti-abortion groups, was created in protest at prosecutors refusing enforce other restrictions on abortion.
Before Republican Gov. Greg Abbott signed the law, but it was not the first time that a Republican governor.
WHAT WILL HAPPEN NEXT?
The 5th U.S. Circuit Court of Appeals is currently hearing a case. Circuit Court of Appeals, although the exact timing of future action remains unclear.
What IMPLICATIONS ARE AVAILABLE FOR ABORTION LAWS FROM OTHER STATES
However, the Supreme Court’s decision does not restore any other state’s abortion laws that are in danger. Steven Schwinn, a professor of constitutional law at the University of Illinois Chicago, said that “essentially, however, the Supreme Court now gives other states a roadmap to circumscribing Roe vs. Wade.”
Some Republican legislators are already talking about doing the same.
Arkansas Republican state senator Jason Rapert tweeted Thursday that he would file legislation to mirror Texas’ law, which the Legislature will consider when it meets this fall. It’s not clear if this will be allowed as the current agenda of the session is only about congressional redistricting or COVID-19 legislation.
Mississippi Republican state senator Chris McDaniel stated Thursday that he would consider filing legislation to mirror Texas’s law.
McDaniel stated that most South conservative states will view the inaction of the court as a sign that they are willing to take action on the issue.
The Mississippi Legislature will begin meeting in January. This fall, the Supreme Court will hear arguments on a 2018 Mississippi law which would ban abortions after 15 weeks. It is a case that directly challenges Roe v. Wade.
COULD STATES USE A SIMILAR “CITIZENS” ENFORCEMENT APPROACH to LAWS ON OTHER HOT BUTTON ISSUES
Some states have already turned to citizens for new laws enforcement.
Missouri’s law that went into effect last week allows citizens the right to sue local law enforcement officers who knowingly enforce federal gun laws. Fines up to $50,000 can be imposed on police and sheriff’s officers for each occurrence. Republicans backed the law because they fear that Democratic President Joe Biden could enact restrictive gun laws.
A new Kansas law, inspired by frustration at coronavirus restrictions, allows residents to file lawsuits against county mask mandates and public gatherings limits. The Kansas Supreme Court approved enforcement of the law last month while it considered an appeal from a lower court ruling declaring the law unconstitutional.
Utah adopted a similar strategy last year in pornography, adopting a law that allows citizens the right to sue websites that do not warn minors about the dangers of using “obscene material” to harass them. Although adult entertainment groups warned that it violated free speech, most sites have accepted the law to avoid a potential onslaught.
Travis Brandon, an associate professor at Belmont University College of Law, stated that citizens have long been allowed to file their own lawsuits in the area of disability and environmental law. For example, environmental groups can help businesses that violate federal pollution permits to file suit.
California’s Proposition 65 permits people who may have been exposed to potentially cancer-causing materials to file their own lawsuits, and to collect a “bounty” if the case is successful. Brandon explained that these laws are different in that people must prove they were directly affected by the law’s violation. This feature is missing from the Texas measure.
