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Abortion rights advocates march in Texas

Protesters hold up signs as they march outside the Texas state capitol on May 29, 2021 in Austin. (Photo: Sergio Flores/Getty Images)

Roe v. Wade in Grave Danger as Supreme Court Lets Texas Abortion Ban Take Effect

"Access to almost all abortion has just been cut off for millions of people. The impact will be immediate and devastating."

Jake Johnson

A draconian Texas law banning abortions beyond around six weeks of pregnancy took effect at midnight after the conservative U.S. Supreme Court did not act to block it on Tuesday, a decision that could have major implications for reproductive rights across the country.

While the Supreme Court could still grant an emergency request to suspend the law in the coming hours, the justices' decision to remain silent Tuesday allows Texas to begin implementing what rights groups have characterized as the most restrictive state-level abortion ban since the 1973 Roe v. Wade decision. Abortion providers estimate that the measure could bar care for "at least 85% of Texas abortion patients."

"This is a full-scale assault on patients, our healthcare providers, and our support systems."
—ACLU

Nancy Northup, president and CEO of the Center for Reproductive Rights, warned earlier this week that if the ban is permitted to stand, "Texas politicians will have effectively overturned Roe v. Wade."

Signed into law by Republican Gov. Greg Abbott in May, Senate Bill 8 empowers private individuals to sue anyone who performs an abortion after the sixth week of a pregnancy—before many people even know they're pregnant—or anyone who "knowingly engages in conduct that aids or abets the performance or inducement of an abortion." Plaintiffs who prevail in court are entitled to $10,000 as well as the recovery of their legal fees.

By deputizing private individuals instead of state actors to enforce the sweeping abortion ban, Texas Republicans have made it extremely difficult to challenge the law's constitutionality in court—a maneuver that other GOP-controlled states will likely attempt to replicate if the Texas law is upheld.

"SB8 will stop access overnight and will decimate the already vulnerable care infrastructure in place," warned Avow, a Texas-based abortion rights organization. "Most importantly, it will leave Texans who need access to compassionate care and support services scared to reach out for help, and advocates afraid to help them."

The ACLU—which, along with Planned Parenthood and other organizations, filed an emergency appeal to block the Texas law—said early Wednesday that "access to almost all abortion has just been cut off for millions of people."

"The impact will be immediate and devastating," the group continued. "Private individuals—including anti-abortion activists with no connection to patients—can now sue anyone who they believe is providing abortion or assisting someone in accessing abortion after six weeks... The law doesn't just allow these lawsuits—it actively encourages private individuals to act as bounty hunters by awarding them at least $10,000 if they are successful."

"This is a full-scale assault on patients, our healthcare providers, and our support systems," the ACLU added. "This abortion ban is blatantly unconstitutional. We won't stop fighting until it's blocked."

In addition to dramatically curtailing abortion rights in Texas, the Supreme Court's inaction Tuesday could also indicate that the body's six conservative justices are gearing up to attack established legal precedent that has protected reproductive freedoms nationwide. In its next term—which begins in October—the Supreme Court is set to hear a case involving a Mississippi abortion ban that poses a direct challenge to both Roe v. Wade and Planned Parenthood v. Casey.

As Buzzfeed's Zoe Tillman and Nicole Fallert explained Wednesday, "Because of how the Texas case reached the justices, Tuesday’s order 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 an abortion before a fetus is considered viable, meaning it can survive outside of a person's womb," the pair noted. "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."

Jessica Mason Pieklo, the executive editor of Rewire News Group—an online publication focused on reproductive health and abortion rights—wrote in a series of tweets early Wednesday that "the Supreme Court effectively overturned Roe v. Wade tonight for folks in Texas under cover of darkness."

"Instead of issuing a ruling blocking Texas' six-week abortion ban from taking effect, the court did nothing. But in this case, doing nothing is actually doing everything," Mason Pieklo argued. "Because by doing nothing, the justices said Roe is no longer good law."

"If SCOTUS was interested in upholding abortion rights precedent, it would have issued an order that says basically, 'Sorry Texas, Roe says you can't ban abortion at six weeks. Nice try.' SCOTUS didn't issue that order," she continued. "And by not issuing that order, SCOTUS signaled that the 6-3 conservative majority has no interest in upholding Roe as precedent. And it did so on the shadow docket."


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