abortion

What’s Next for the Extreme Texas Abortion Ban?

Photo: Sergio Flores/Getty Images

In May, Texas governor Greg Abbott signed into law an abortion ban that feels inconceivably extreme, even by his state’s standards. Senate Bill 8 banned abortion past the point of fetal “cardiac activity” — in practical terms, around six weeks — even in cases where pregnancies result from incest or rape. Though cruel, this type of ban is not uncommon, particularly not in a year that saw state legislatures pass at least 90 abortion restrictions in six months. But S.B. 8 takes the unprecedented step of empowering private citizens to police their neighbors, placing at least a $10,000 “bounty on people who provide or aid abortions, inviting random strangers to sue them,” according to a federal lawsuit challenging the policy. So on top of being unconstitutional, S.B. 8 incentivizes vigilantes to sue strangers on suspicion of abetting abortion.

Lawmakers deliberately engineered S.B. 8 to withstand legal challenges, and indeed, federal courts declined to award abortion providers an injunction before the law took effect on September 1. Although abortion providers filed an emergency application with the U.S. Supreme Court asking the bench to block the law, it declined to do so. But now, with other conservative states mulling similar legislation, the Justice Department has stepped up to do what the Supreme Court would not: On September 9, the DOJ filed a lawsuit against Texas, arguing that the law bars federal employees involved in the administration of abortion services from doing their jobs and violates abortion patients’ constitutional rights. Days later, the department filed an emergency motion to block S.B. 8’s enforcement. “When other States have enacted laws abridging reproductive rights to the extent that S.B. 8 does,” the motion observes, “courts have enjoined enforcement of the laws before they could take effect.”

Here’s everything you need to know about this latest brand of anti-abortion extremism and what happens next.

What does S.B. 8 do?

Speaking purely in terms of the law’s effect, S.B. 8 does the same thing any six-week ban aims to do: outlaw abortion well before many people even realize they’re pregnant. In Texas specifically, S.B. 8 would make at least 85 percent of abortions performed in the state illegal.

The six-week mark is pegged to the fallacy — beloved by anti-abortion groups — that a human heart begins to beat about six weeks into pregnancy. But the existence of a heartbeat implies the existence of a heart, something embryos don’t have. Abortion antagonists have never been in it for accuracy, and in evoking the specter of a heartbeat, they seek to play on emotions. Still, six-week bans are typically hard to route around the Supreme Court, which currently — under terms set by Roe v. Wade — ensures the procedure remains legal until viability, at around 23 weeks.

How is S.B. 8 different than bans in other states?

S.B. 8 specifically takes enforcement of the law out of the state’s hands, deputizing any private citizen who does not work for the government to do that job instead. Under the new law, random people would be incentivized to sue in civil court — to the tune of at least $10,000 in damages per termination — not only abortion providers, but also anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” The latter category seemingly includes insurance companies, along with abortion funds that help people pay for the procedure and its attendant hidden costs. “Obviously we have a target on our back being abortion funds,” Cristina Parker, communications director of Texas’s Lilith Fund, told Jezebel. “We’ve got support on deck for if and when we get sued, but there’s not much to prevent folks from doing it.”

In short, Texas’s unprecedented tactic mobilizes untold private bounty hunters (complainants do not even need to live in Texas, necessarily, or be at all connected to the people they accuse), offering them a financial reward in exchange for policing clinics, physicians, aid groups, and other people who might, for example, agree to a favor as small as driving their friend to an appointment, or accepting the Uber fare. The law promotes a stunning degree of interpersonal surveillance, and unfortunately, that winds up being its strength. In dividing up the enforcement task between so many as-yet-unnamed players, lawmakers preserved the policy against injunction. As Jezebel notes, legal groups and/or providers typically sue state officials when faced with an unconstitutional abortion ban, blocking the law from taking effect on grounds that it violates precedent established by Roe v. Wade. But in this case, there is no clear defendant to name; just the credible threat of expedient action from anti-abortion zealots who are ready to act immediately. Providers did still try to stop S.B. 8 from taking effect before September 1, but they were not successful.

So, citizens’ arrests on suspicion of abortion? How is that legal?

For now, the tactic seems to be legal because the governor just signed it into law, and no court has taken up a challenge. In April, 370 Texas lawyers argued in an open letter that S.B. 8 represents an “unprecedented abuse of civil litigation,” and would “have a destabilizing impact on the state’s legal infrastructure” if it became law. In July, over 20 abortion providers in the state filed a lawsuit — naming defendants in the judiciary, on state medical and nursing boards, in health and human services, and the attorney general, Ken Paxton — in the U.S. District Court for the Western District of Texas, hoping to block the policy from taking effect. But on Friday, August 27, the (very conservative) Fifth U.S. Circuit Court of Appeals abruptly canceled a hearing on the measure. A day later, it denied an emergency motion to either send the case back to the district court or issue a stay.

As a last resort, attorneys for the providers filed an emergency application to the U.S. Supreme Court — specifically, to Justice Samuel Alito — emphasizing that the law unconstitutionally outlaws pre-viability abortion, and would “immediately and catastrophically reduce … access in Texas,” forcing many clinics to close. However, SCOTUS refused to block S.B. 8, and the measure went into effect on September 1.

What has the law meant for abortion access so far?

Legislation like this reliably sows confusion and distress among patients, who see headlines about abortion on the brink of extinction in their state, and assume their access to legal care has already been cut off. But in this case specifically, so many lawsuits leveraged against already-underfunded providers could prove financially ruinous. And then there are the abortion funds, which offer patients money to cover not only the procedure but (often) things like gas, travel, child care, lodging — all crucial components of access in Texas, a massive state already plagued by myriad restrictions, including but by no means limited to waiting periods. In implicating such a broad range of targets, lawmakers ensured that S.B. 8 would make abortion prohibitively difficult to access from all angles. And already, the measure has created overflow for beleaguered clinics in neighboring states as distraught patients scramble to reschedule appointments.

What’s more, there’s precedent for this maneuver in Texas: Establishing Lubbock as a “sanctuary city for the unborn” in May, a local ordinance not only banned abortion but also gave the fetus’s “mother, father, grandparents, siblings and half-siblings” power to sue anyone who helps a patient terminate. So far, Lubbock’s religious right has succeeded in shutting down abortion services at a Planned Parenthood there.

On top of all that, there’s the fact that Texas Right to Life, the anti-abortion group behind S.B. 8, has been actively preparing for the law’s enactment.

“This whole mechanism only works if there is a credible threat of lawsuits being brought against an industry if they decide to ignore the law,” said John Seago, the legislative director for Texas Right to Life, told CNN. “So, we have been working to make sure that all those pieces are in place, that if we do have reports, that we do see evidence that they’re violating the law, then we can actually enforce the law ourselves.”

The group has a tip line in place to collect the information it needs, though in practice, that hasn’t proved as effective as abortion opponents had hoped. TikTok users quickly deluged ProLifeWhistleblower.com with fake complaints in a successful bid to tank its work. Also, no website-registration provider seems to want to host it. Go figure.

What happens now?

Setting aside S.B. 8 for a minute, the Supreme Court already plans to rule on a Mississippi law that would ban abortion at 15 weeks, well before the 23 to 24 benchmark laid out in Roe. In the event that the Court overturns Roe, Texas is among the states with a “trigger law” already on the books, which would immediately outlaw abortion across the state as soon as the bench hands down its decision. SCOTUS, which currently has a 6-3 conservative majority, is expected to issue its ruling sometime next summer.

Meanwhile, the U.S. House of Representatives plans to vote on legislation that would ban restrictions before viability, effectively codifying Roe; this bill seems unlikely to make it through the Senate. But on September 9, the Department of Justice waded into the fight. In a news conference, Attorney General Merrick Garland announced a civil suit against the state of Texas, explaining that its “statutory scheme” purposefully aims “to prevent women” — and anyone else seeking to terminate a pregnancy — “from exercising their constitutional rights by thwarting judicial review for as long as possible” and shuttering clinics.

Garland also noted that S.B. 8 affects federal employees and partners involved in the provision of health care, potentially barring them from fully carrying out their professional duties. But beyond the obvious, and intentional, implications of the law, there’s also the broad precedent it sets. “This kind of scheme, to nullify the constitution of the United States, is one that all Americans, whatever their politics or party, should fear,” Garland said. “If it prevails, it may become a model for action in other areas, by other states, with respect to other constitutional rights and judicial precedents. Nor need one think long or hard to realize the damage that would be done to our society if states were to implement laws that empower any private individual to infringe on another’s constitutionally protected rights in this way.”

The DOJ filed its lawsuit in Austin and seeks to have the law declared invalid and have a permanent injunction block its enforcement. Earlier this week, Garland also promised to “provide support from federal law enforcement when an abortion clinic or reproductive-health center is under attack” in Texas, in keeping with federal law. And on September 14, the DOJ followed-up with an emergency request for a temporary restraining order or preliminary injunction, asking the same federal court to intervene while its case is decided. The motion reiterates many of the points made in the lawsuit, noting that the courts have repeatedly ruled to uphold Roe, affirming a constitutional standard that Texas found a creative way to flout. The DOJ wants a judge to step in and restore protected access to abortion while its case proceeds.

What’s Next for the Extreme Texas Abortion Ban?