Texas’s Radical Six-Week Abortion Ban Challenged: “The Cruelty Is the Point—And We Will Not Let it Stand”

Advocates fear Texas’s six-week abortion ban will subject abortion providers, clinic staff and abortion funds to ceaseless lawsuits that eat up their time and resources, ultimately shutting them down.

texas-abortion-ban-lawsuit
Approximately 85–90 percent of people who obtain abortions in Texas are at least six weeks into pregnancy.  (Lorie Shaull)

A broad coalition of Texas abortion providers, doctors, clergy, abortion funds and practical support networks filed a lawsuit on Tuesday to block Senate Bill 8, a new six-week abortion ban in Texas. The ban is set to take effect on September 1.

Due to many barriers to abortion care in the state, approximately 85–90 percent of people who obtain abortions in Texas are at least six weeks into pregnancy, meaning this law would prohibit nearly all abortions in the state. 

“Texas has long led the country in passing extremist laws intended to chip away at Texans’ right to safe, accessible abortion care,” said Adriana Piñon, policy counsel and senior staff attorney at the ACLU of Texas, “from imposing long waiting periods, to forcing people to undergo an unnecessary ultrasound, to requiring people to listen to false information about abortions under the guise of ‘health consultations.’ Now the state is trying to prevent people from getting abortions, full stop.”

Courts have blocked six-week bans in eight other states, but Texas lawmakers specifically designed SB 8 to be difficult to block before it takes effect. In states with similar bans, plaintiffs have been able to directly sue the state officials responsible for enforcing the law. The Texas law instead allows private lawsuits to enforce the law in an attempt to evade legal accountability and prevent the federal courts from blocking this unconstitutional ban before it takes effect.

“Texas legislators have tried for years to completely—and unconstitutionally—ban abortion. Now they’re trying a new tactic: giving complete strangers the power to sue anyone who provides or helps someone get an abortion,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America. “This new law would open the floodgates to frivolous lawsuits designed to bankrupt health centers, harass providers, and isolate patients from anyone who would treat them with compassion as they seek out health care. The cruelty is the point—and we will not let it stand.”

The law allows private citizens—a relative, an abusive partner, even a stranger, including anti-abortion extremists—to sue anyone providing or assisting someone who gets an abortion after six weeks of pregnancy—even for just driving a patient to their appointment. The law encourages this vigilante justice by awarding people who bring lawsuits under the law with $10,000 if they succeed.

“This is what Texas politicians wanted when they passed this law: to turn anti-abortion extremists into vigilantes with the power to police clinics, their staffs and their patient support systems,” said Marc Hearron, senior counsel at the Center for Reproductive Rights at a press conference on Tuesday. “Indeed, the threats have already begun.”


This is what Texas politicians wanted when they passed this law: to turn anti-abortion extremists into vigilantes with the power to police clinics, their staffs and their patient support systems.

—Marc Hearron, senior counsel at the Center for Reproductive Rights


Advocates fear that if the law takes effect, abortion providers, clinic staff and abortion funds could face ceaseless lawsuits that eat up their time and resources, ultimately shutting them down.

“This cruel abortion ban isolates pregnant Texans from their communities and networks, robbing them of critical support and access to abortion care,” said Rupali Sharma, senior counsel and director at the Lawyering Project. “It was specifically designed to dodge constitutional review and encourages frivolous—yet damaging—lawsuits against anyone who assists Texans in accessing constitutionally protected abortions after six weeks of pregnancy.”

Increasing barriers erected by Texas lawmakers in recent years has made access to abortion harder and harder to achieve, especially for low-income and rural people seeking abortion health care in the state. The law would be particularly harmful to women of color in Texas, where 19 percent of Black women and 20 percent of Latinx women live in poverty. SB 8 will only increase abortion access disparity even further.

“When it comes to abortion access, we are living in two different Americas,” said Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance. “With every barrier that has been enacted over the last 30 years in Texas, it’s nearly impossible for pregnant people to access the quality abortion care they need. The right to abortion is affirmed on paper, but that right does not exist for those who cannot afford to navigate barriers like forced 24-hour waiting periods, no Medicaid coverage, and hours of travel to a clinic. SB 8 will be the biggest barrier yet.”


“The right to abortion is affirmed on paper, but that right does not exist for those who cannot afford to navigate barriers like forced 24-hour waiting periods, no Medicaid coverage, and hours of travel to a clinic. SB 8 will be the biggest barrier yet.”

—Amy Hagstrom Miller, president and CEO of Whole Woman’s Health


The lawsuit argues that the Texas abortion ban violates the constitutional right to privacy and liberty as established by Roe v. Wade in 1973 and Casey v. Planned Parenthood in 1992, the 14th Amendment right to equal protection under the law, and the First Amendment rights to free speech and access to the courts.

“If this oppressive law takes effect, it will decimate abortion access in Texas—and that’s exactly what it is designed to do,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “The state has put a bounty on the head of any person or entity who so much as gives a patient money for an abortion after six weeks of pregnancy, before most people know they are pregnant. Worse, it will intimidate loved ones from providing support for fear of being sued. And this is happening to Texans as we are fighting another direct challenge to Roe v. Wade in the Supreme Court, out of Mississippi. We will pursue every legal avenue we can to block this and other pernicious laws.”

The plaintiffs, led by abortion provider Whole Women’s Health, are represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, the Lawyering Project, the American Civil Liberties Union, the ACLU of Texas, and Morrison & Foerster LLP. Defendants in the lawsuit include every state court trial judge and county clerk in Texas, the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the attorney general and the Director of Right to Life East Texas.

“Abortion rights in Texas are under attack by hard right, mostly white, mostly male politicians, who do not represent the kindness, decency, diversity and shared values of the majority of Texas,” said Hagstrom Miller. “Make no mistake: We are in the majority. Recent polling shows that most Texans oppose this law and that overwhelmingly are appalled by its most extreme provisions.”

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman Chair of American Studies and a professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.