Updated Friday, Sept. 3, at 9:30 a.m. PT.
While many states have come close, Texas on Wednesday achieved something no other state has: the banning of abortion at just six weeks gestation.
Legal scholars say the law in question—Senate Bill 8—flies in the face of Supreme Court precedent established in Roe v. Wade, which recognized a constitutional right to abortion. Yet, for almost 24 hours, the court remained silent in response to a request to block implementation of the law. As such, the bill became law at midnight on Wednesday.
Then, just before midnight on Thursday, by a vote of 5–4, the Supreme Court announced it would let the law stand. The unsigned majority opinion cited “complex and novel” procedural questions as the reason for its inability to block the law’s implementation.
“The callous indifference shown by a majority of the Supreme Court to the suffering in Texas today is appalling,” said Dr. Jamila Perritt, a D.C. ob-gyn and president of Physicians for Reproductive Health, on Thursday.
Chief Justice John G. Roberts Jr. joined the three liberal justices in dissent; he wrote that he would have blocked the law while appeals moved forward, calling it “not only unusual, but unprecedented.” In her dissent, Justice Sonia Sotomayor called the court decision “stunning.”
Tonight’s decision in a TikTok minute. pic.twitter.com/x11NqVXhwe— SCOTUSblog (@SCOTUSblog) September 2, 2021
On Tuesday night and throughout the day Wednesday, SB 8 was trending on social media, and the mood among reproductive activists and feminists has been fraught with fear, worry and rage.
A thread.— Wendy Davis (@wendydavis) September 1, 2021
Today, like many of my fellow Texans, I feel a tremendous sense of mourning accompanied by an indescribable rage.
The Supreme Court decided, overnight, that the protections of Roe didn’t need to apply to Texas women. But this tremendous encroachment on women’s right didn’t happen in a day. And that desire to degrade women, to put us in our place, is sadly bipartisan. https://t.co/hWnGOpNrL8— Jill Filipovic (@JillFilipovic) September 2, 2021
“It’s devastating for many families across the state,” Dyana Limon-Mercado, executive director of Planned Parenthood Texas Votes, told Ms. during an abortion rights demonstration at the Texas Capitol on Wednesday.
President Joe Biden too expressed outrage and concern both for the legality and real-world implications of the law. “This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century,” he said in a statement on Wednesday.
After the Supreme Court decision landed Thursday, the president further critiqued the court’s decision on the law, which “unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts.” Biden concluded with an announcement: the direction of a White House special counsel “to launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the federal government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’s bizarre scheme of outsourced enforcement to private parties.”
Further legal action on the law is imminent—but even if the Supreme Court or a lower court eventually intervenes to block the law, many say the damage is already done, as abortion clinics across the state have already begun the process of closing their doors.
“This law will end legal abortion in Texas. Allowing the state to do that and effectively close all abortion clinics—even if the law is ultimately struck down—will give the state what it wants,” Leah Litman, an assistant professor of law at the University of Michigan and expert in constitutional law, told The 19th. “Just allowing this law to go into effect is ending abortion in Texas.”
Texas joins seven other states—Georgia, Iowa, Kentucky, Mississippi, North Dakota, Ohio, South Carolina and Tennessee—that have sought to ban abortions at six weeks. But the other six-week bans have been thwarted by courts and lawyers who deemed such laws unconstitutional.
But the new Texas law has a unique twist when compared to former iterations: It allows private citizens (a relative, an abusive partner, a stranger, an anti-abortion extremist) to sue anyone who helps someone get an abortion after six weeks, and awards people who bring lawsuits $10,000 if they succeed. This provision makes it particularly hard to file lawsuits to block it, since it encourages private lawsuits rather than action from state officials. Of course, Texas lawmakers specifically designed it this way.
“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 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,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. “Worse, it will intimidate loved ones from providing support for fear of being sued.”
Midnight marked the moment the bill became law. In the hours leading up, women and pregnant people across the state rushed to get abortion care before it became outlawed. The scene at one abortion clinic, Whole Women’s Health in Fort Worth, was one of desperation: a lobby full of patients, many of whom had been waiting for hours, not knowing if they’d even be seen; a staff of only eight employees, who worked through the day and night with no breaks or meals; and a throng of anti-abortion protesters outside the clinic, shouting obscenities, flashing lights inside and watching.
From Whole Woman’s Health CEO @AmyHM: We have staff and doctors providing abortions in Texas – still at this hour – and they are all in to provide care until 11:59 tonight. Our waiting rooms are filled with patients and their loved ones. Right now.— Whole Woman’s Health (@WholeWomans) September 1, 2021
Abortion providers on Wednesday struck a somber tone—like Amy Hagstrom Miller, president and CEO of Whole Woman’s Health and Whole Woman’s Health Alliance:
“As Senate Bill 8 nearly closes down abortion care today, our ability to provide the best health care for our patients has been turned over to self-appointed vigilantes and whoever holds the power at any moment. Anti-abortion politicians in Texas can no longer hide behind the guise of health or safety—this is an abortion ban, plain and simple. It robs Texans of their ability to make decisions about their health and their futures. We have been here before, and we’ll continue serving our patients however we legally can and fighting for their right to safe, compassionate abortion care.”
“We hear every single day about the impact of state bans. Texas’s is by far the most alarming,” said Sylvia Ghazarian, executive director of the Women’s Reproductive Rights Assistance Project (WRRAP), the largest independent national abortion fund. “Abortion care can’t wait.”
Abortion is now largely inaccessible in Texas, and many people will be forced to travel out of state to access care. But Texans seeking an abortion won’t face abortion-friendly zones directly across state lines: Its western neighbor Louisiana is a state considered “very hostile” to abortion rights with a two-visit requirement for abortion patients, and the state is currently dealing with repercussions from Hurricane Ida, where residents and clinics are without power and could remain that way for weeks. Oklahoma to the north is another “hostile” state has with a 72-hour waiting period.
The law will no doubt have a greater effect on low-income Texans, Texans of color and undocumented immigrants, many of whom cannot overcome the logistical hurdles of such a trek, such as taking multiple days off from work and arranging for child care.
“This law hits hardest for low-income Texans and those working paycheck to paycheck—particularly people of color and women of color, who have suffered the most over the last decade of attacks on reproductive health and rights through the pandemic,” said Limon-Mercado.
“This all-out assault on reproductive health effectively bans abortion for the nearly 7 million Texans of reproductive age. Patients in Texas will now be forced to travel out-of-state or carry their pregnancy to term against their will,” said Vice President Kamala Harris in a statement. “This law will dramatically reduce access to reproductive care for women in Texas, particularly for women with low incomes and women of color.”
In-person and virtual protests took place across the state Wednesday.
The federal government can take several actions to protect the right to an abortion at the state level. In June, the Women’s Health Protection Act (WHPA) was reintroduced in Congress—federal legislation that would codify Roe v. Wade into law and establish the legal right to abortion in all 50 states. This particular reintroduction of the bill marks the highest number of original co-sponsors ever for the legislation. And on Thursday, House Speaker Nancy Pelosi announced that the U.S. House of Representatives will vote on the Women’s Health Protection Act (WHPA) later this month.
End the filibuster.— Katherine Clark (@RepKClark) September 1, 2021
Pass the Women’s Health Protection Act.
Eliminate Hyde for good.
“We must work to reaffirm Roe v. Wade and ensure that women have the right to access safe abortion care in this country by passing H.R. 3755, the Women’s Health Protection Act,” read a statement from the Democratic Women’s Caucus.
In July, the House of Representatives for the first time passed a federal spending bill that did not include the Hyde Amendment, which bars federal abortion coverage through Medicaid. Proposed as a response to Roe v. Wade, Hyde is known for its devastating impact on millions of low-income women and families. As it stands, the sans-Hyde bill faces a fierce uphill Senate battle.
“Everyone who believes people should be able to make their own decisions about their own bodies needs to tell everyone—everyone—they know what laws like SB 8 are: an attack on the personal freedom of every American, and an overreach that the vast majority of Americans will stand up and loudly reject,” said Sen. Patty Murray (D-Wash.).
“We know that when horrible laws like this pass in any state in the South, they replicate,” Barbie H., organizing and training manager for Planned Parenthood Texas Votes, told Ms. “You don’t want something like this to come to your state. So educate, elevate the message, share our posts on social media, and donate to Texas abortion funds if you can.”