Texas Abortion Ban Attempts an End Run Around Constitution

Protesters gather outside the Senate Gallery in June 2013, minutes before midnight to stall Senate Bill 5, another bill that would put strict regulations on abortion facilities, from going to a vote at the Texas State Capitol. (Lauren Gerson / Flickr)

On Sept. 1, the U.S. Supreme Court allowed an unconstitutional Texas abortion ban to go into effect. The law bans virtually all abortion, with no exceptions for rape or incest, and empowers private citizens to sue anyone who helps another obtain a prohibited abortion, rewarding them $10,000 or more plus attorney fees if they win a case.

The law prohibits abortion at six weeks, before most people know they are pregnant. Six weeks of pregnancy is four weeks after fertilization, which is two weeks after a missed period. People with irregular periods may have no sign they are pregnant. But even if they do, Texas has erected an obstacle course of restrictions—including waiting periods between required counseling and the abortion—delaying access.

As a result, Texas law now blocks 85–90 percent of abortions in the state. Most clinics in Texas have ceased offering abortion after six weeks. Patients now have to travel to neighboring states to obtain an abortion. The Guttmacher Institute estimates the law has increased average distance traveled to obtain an abortion 14 times—from 17 miles to 247 miles. This is particularly burdensome for low-income Texans, who are disproportionately Black and Latina.

While the Supreme Court did not rule on the law’s merits, the decision is a chilling harbinger of how they may rule in an upcoming case—Dobbs v. Jackson Women’s Health Organization—on whether previability abortion bans are unconstitutional. With former President Donald Trump’s three appointments to the Supreme Court, the new anti-abortion supermajority may overturn Roe v. Wade and end the constitutional right to abortion established almost 50 years ago.

The Texas law is part of an aggressive campaign by conservative states to restrict abortion, with hopes the Supreme Court will uphold these restrictions. In the first six months of 2021, states enacted 97 abortion restrictions in 19 states—more than in any other full year since the Supreme Court handed down Roe v. Wade in 1973. While most lower courts have followed precedent and struck down these restrictions, the Texas abortion ban has some unique features that make it harder for courts to block.

The law creates a bounty hunting scheme that deputizes private individuals to bring costly and harassing lawsuits against people they believe have violated the ban. Anyone helping another person obtain an abortion can be sued, including doctors, health center staff, abortion funds providing financial assistance and even a family member or friend. Advocates fear the law will lead to ceaseless lawsuits against abortion clinics that eat up their time and resources, ultimately shutting them down.

By delegating authority to enforce the law to private individuals, Texas hopes to evade judicial review because abortion rights are protected by the 14th Amendment, which applies to state action but not private action. This attempt to make an end run around the U.S. Constitution revives a legal strategy Texas used in the 1950s to block Black people from voting. At the time, Texas delegated authority to run elections to private organizations that excluded Black people. In the 1953 case of Terry v. Adams, the Supreme Court ruled against Texas, striking down the scheme because the effect of the law was “to do precisely what the Fifteenth Amendment forbids.”

If the Supreme Court reverses this precedent and allows the Texas abortion ban to stand, states could use this strategy to violate a wide range of constitutional rights, including voting rights, free speech rights and marriage equality.

Many are fighting back. On Sept. 9, the Department of Justice filed a lawsuit against Texas, arguing its abortion ban violates Roe v. Wade and Casey v. Planned Parenthood. Massachusetts Attorney General Maura Healey and 23 other state attorneys general filed a brief in support of this lawsuit, arguing the Texas law “represents a new and dangerous frontier in the quest by some State legislatures to restrict or eliminate abortion access in violation of well-established law.”

In Congress, Democrats are pushing the Women’s Health Protection Act—federal legislation that would codify Roe v. Wade in law and establish the legal right to abortion in all 50 states under federal law. The bill passed in the House last week in a historic vote, but it faces an uphill battle in the Senate unless Democrats move to eliminate or reform the filibuster.

A peer-reviewed study over 10 years shows that forcing women to carry an unwanted pregnancy to term leads to negative health and socioeconomic consequences, including a greatly heightened risk of death from childbirth, lower rates of employment and higher rates of poverty, negative impacts on the financial well-being and development of existing children, poorer maternal bonding and increased risk of physical violence from abusive partners.

With abortion rights under threat as never before, advocates have issued a “national call to mobilize and defend our reproductive rights” on Oct. 2, with protests happening across the country. If you care about women’s lives, health and well-being, please join us.

This article originally appeared in the Daily Hampshire Gazette.

Up next:


Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the Chair of 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.