How the New Texas Abortion Law Turns the Public Into Enforcers
(Bloomberg) -- The strictest abortion law in the U.S. took effect on Sept. 1 in Texas. It’s seen by abortion-rights supporters as an end-run around Roe v. Wade -- the 1973 Supreme Court decision that legalized abortion nationwide -- and a possible blueprint for other states to make policy by encouraging neighbors to sue each other. Texas’ nearly two dozen abortion clinics reported turning away hundreds of patients in the first days after the law took effect, but one doctor came out publicly to declare that he had performed an abortion in defiance of the law.
1. What does the Texas law do?
It prohibits a physician from performing an abortion from the moment cardiac activity is detected, something that generally occurs around six weeks after conception -- which is before a lot of people realize they’re pregnant, according to abortion providers. More broadly, the law bars any individual from “aiding and abetting” an abortion after six weeks, which includes helping pay for it or merely trying to help a woman obtain one. The law’s only exception is for abortions that are necessary for treatment of a medical emergency. Abortions of pregnancies caused by rape or incest are among those prohibited after six weeks. So are abortions prompted by fetal health problems that make it unlikely the child will survive after birth.
2. How is it enforced?
The law is unusual in that it tasks private citizens, rather than the state, with enforcement. It says that “any person,” other than a government official, may file a civil lawsuit to enforce the law against anyone who performs or intends to perform a prohibited abortion, or who aids or abets one. The law provides for at least $10,000 in “statutory damages” for each abortion performed, which is payable by the abortion provider and/or anybody who aided or abetted. There is no cap on the amount of damages a court can award to a citizen who sues to enforce the law. Other provisions of the law meant to hamstring abortion providers include rules on where they might have to travel to defend themselves in the second-largest U.S. state and limits on the defenses they can present in court.
3. What can happen to women who have abortions after six weeks?
Nothing. The Texas law doesn’t hold the woman liable -- just those who help her.
4. What’s happened so far?
Abortion activists continued with their lawsuits to stop enforcement of the law, in both federal and state courts. President Joe Biden’s administration filed its own suit against the Texas law Sept. 9, arguing, among other things, that it interferes with the federal government’s “obligations to provide access to abortion-related services to persons in the care and custody of federal agencies,” including those in prison or immigration custody. In an opinion column published in the Washington Post, Alan Braid, a doctor who provides abortion care in San Antonio, volunteered that he had performed an abortion on Sept. 6 that violated the Texas law. “I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care,” he wrote. Braid’s disclosure could make him a target to be sued by any Texas citizen.
5. Why is enforcement left to private citizens?
By keeping government officials out of enforcement, advocates of the law hoped to insulate it from review by federal courts. Governments are generally constrained by the U.S. Constitution, but private citizens aren’t. Texas argues that even if the new law is found to be unconstitutional, courts would lack any basis to issue an order blocking it. If the Texas law is upheld, other states might pass similar measures encouraging strategic lawsuits by residents.
6. How many abortions would become illegal in Texas?
Most of them, judging by nationwide statistics. Only about 40% of abortions in the U.S. are performed within the first six weeks of gestation, according to the most recent data collected by the U.S. Centers for Disease Control and Prevention. Abortion providers who fought the law to the U.S. Supreme Court claimed it would bar care for at least 85% of Texas abortion patients and likely force many abortion clinics to close.
7. What does the Supreme Court say?
By a 5-4 vote, the court refused to block the law while legal challenges against it continue in lower courts. The majority said abortion providers had “raised serious questions regarding the constitutionality of the Texas law” but hadn’t shown they could overcome the thicket of procedural obstacles stemming from the law’s unusual delegation of enforcement powers to private parties. The law faces a number of additional challenges, including in Texas state courts.
8. What does this mean for Roe v. Wade?
The Supreme Court has generally prohibited restrictions on abortions until “viability” -- when a fetus is capable of surviving outside of the womb. The court has suggested that takes place around 23 or 24 weeks. Already on the docket for the high court’s fall term is a challenge to a Mississippi law that would outlaw most abortions after 15 weeks. Mississippi argues that viability is “not an appropriate standard for assessing the constitutionality” of abortion laws.
The Reference Shelf
- Bloomberg’s story on the law taking effect on Sept. 1.
- The CDC’s latest look at abortion in America.
- A QuickTake on the Mississippi abortion law that will get a Supreme Court hearing.
- Writing in the New York Times, professors Laurence H. Tribe and Stephen I. Vladeck called the law “an assault on our legal system.”
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