Is This How Roe v. Wade Dies?
By Lauren Kelley
Ms. Kelley is a member of the editorial board.
"In May, the Supreme Court agreed to take its first major abortion case since the death of Justice Ruth Bader Ginsburg — a direct challenge to Roe v. Wade, out of Mississippi. That news induced nausea in abortion-rights advocates around the country, as they waited to see what the court’s newly turbocharged conservative majority would do after oral arguments in the case expected to be heard this fall.
Three months later, it would be almost a relief if that case, Dobbs v. Jackson Women’s Health Organization, were the most immediate threat to American reproductive rights. On Tuesday night, the Supreme Court got away with something much more insidious: It all but ended abortion access in Texas, at least for now. It simultaneously dealt a blow to Roe v. Wade that could hasten its demise — by saying nothing and thus quietly allowing a state anti-abortion law, now the most restrictive one in the nation, to go into effect.
The law, SB8, bans abortions after six weeks of pregnancy — so early that many people don’t know they’re pregnant, and before some doctors will even provide an abortion.
Several states have already passed six-week abortion bans, sometimes called heartbeat bills, and other abortion restrictions with very early limits. A wave of such laws swept through several states in 2019, prompting calls for boycottsagainst doing business in those states. None of those laws are being enforced today because they’re obviously unconstitutional: Roe v. Wade guarantees the right to abortion until the point of fetal viability, or about 22 weeks of pregnancy. So while the laws created a splash, they didn’t affect many people’s lives. Until this week.
But SB8 is much more diabolical than the average six-week abortion ban. The law would allow just about anyone — truly, almost any person, anywhere — to sue people or entities who “abet” or even allegedly intend to “abet” abortions in Texas after six weeks of pregnancy. What does it mean to “abet” an abortion? The law isn’t entirely clear on that. But it’s easy to think of ways it could be interpreted: a friend gives a woman money for a procedure, a taxi driver drops someone off at an abortion clinic, a receptionist is stationed inside the front door. Plaintiffs who win their cases would get at least $10,000 each — a provision that seems destined to create a state full of abortion bounty hunters.
What, as they say, could go wrong?
The law was also written in such a way that it’s very difficult to fight in court. Because SB8 is supposed to be enforced by everyday citizens, there’s no single Texas official whom abortion rights advocates can sue to block the law, as they typically would in such cases. This issue was supposed to be heard last week by a Federal District Court, which could have issued an injunction blocking the law. But in a move that baffled many legal experts, a panel of judges on the U.S. Court of Appeals for the Fifth Circuit canceled that hearing at the last minute, paving the way for the law to go into effect this week.
The only option reproductive rights advocates had left was to go to the Supreme Court — the court that’s now dominated by anti-abortion justices, including three appointed by Donald Trump specifically to end legal abortion in America. So the advocates did just that, and then waited as the clock ticked past midnight Central time, with no word from the court to stop the law from taking effect.
What happens now? The Texas law could still be temporarily blocked by the Supreme Court. But for now abortion access in the state is in chaos. On Tuesday night, Whole Woman’s Health, which operates abortion clinics in Texas and elsewhere, tweeted that its Texas waiting rooms were full with patients desperate to get abortions in the hours and minutes before the law went into effect.
It now seems likely that more laws like SB8 will pass, as other anti-abortion state leaders will surely try to follow Texas’ lead. Why wouldn’t they? The Supreme Court may not yet have ruled on the merits of Texas’ law, as some anti-abortion campaigners would no doubt prefer, but the state’s wild ploy was clearly successful in threatening the future of clinics across the state. In that way, the court gave a green light to lawmakers everywhere who have been itching for decades to overturn Roe v. Wade.
As for the people of Texas, many of them will get abortions despite SB8, either by crossing borders or by purchasing abortion pills on the internet. This is a certainty. Abortion foes have long claimed that their aim isn’t to punish individual women, who they say are merely victims of dastardly abortion providers. But it is clear what happens in countries where abortions are outlawed: Women end up in jail.
As the court’s conservatives have chipped away at reproductive rights in recent decades, the central fear among supporters of those rights was that an emboldened hard-right majority would eventually overturn Roe v. Wade. What became painfully clear after Tuesday night is that it may not have to. Without even lifting a finger, the court showed what may well be America’s near future: a country in which Roe v. Wade is not only hobbled, but a dead letter altogether."
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