Forty-nine years ago today, a Texas woman using the name “Jane Roe” to protect her privacy won her case in the Supreme Court and access to abortion became a right protected by the Constitution. In Texas today, and elsewhere, the Roe v. Wade anniversary finds that right to be in peril perhaps as never before – especially because of a changing Supreme Court.
Four times in recent months, the Court’s new conservative majority has refused to block Texas from enforcing the nation’s strictest law against abortions. The state law, known as “SB 8,” is clearly unconstitutional if judged by the terms of Roe v. Wade. SB 8, in fact, was enacted as an explicit test of the durability of the Roe precedent. It forbids abortions after six weeks of pregnancy; Roe does not allow a ban at any time before about 24 weeks.
Across the nation, 21 states are already planning to impose total bans or broad restrictions on abortion, if the federal constitutional right were to be ended by the Court.
A new study by the Guttmacher Institute, which tracks reproductive health policy, shows 12 states have already passed laws that would ban all or nearly all abortions if the Roe decision were overturned, and nine others have laws that currently are blocked by court rulings and probably would be put back into effect.
Only 15 states and Washington, D.C., now have laws to protect a right to abortion. In September, the U.S. House of Representatives passed a bill to codify the basic principle of the Roe decision – that abortion would be protected up to the point that the fetus could survive outside the woman’s body, if delivered. That is at the 24-week point. The aim of the measure is to secure abortion rights nationwide, even without the mandate of Roe v. Wade.
That bill, however, is given almost no chance of getting past a Republican filibuster in the Senate. It would take 60 votes to end a filibuster, and abortion rights do not have that much support in that chamber.
Even if that bill were enacted, it almost surely would face a court case testing whether Congress had the authority to regulate that medical procedure. The measure would have to pass muster with the Court’s large conservative majority, which is growing increasingly skeptical of energetic uses of federal power in areas where states traditionally act. And the bill might well lose some of its constitutional underpinning if there were no longer a federal constitutional right to abortion.
For now, the situation in Texas remains the most threatening to abortion rights. Under SB 8, all but a very few pregnant women in that state have lost, at least temporarily, the option to obtain an abortion and there are diminishing prospects that the right would be restored there soon.
Complications have set in for lawsuits strung across federal and Texas state courts over the constitutionality of Texas’s SB 8. The anniversary of Roe today closes out a week during which the challenges to SB 8 clearly lost momentum in the courts.
Just yesterday, a federal appeals court that covers Texas said it would consider simply taking no action on a Biden Administration lawsuit that is attempting to restore abortion rights in the state. The idea would be to wait to see how the Supreme Court rules later this year on abortion, in a pending case from Mississippi. (That state has explicitly asked the Justices to cast aside Roe v. Wade.)
The Administration’s lawsuit, aimed directly at the state government of Texas, had been the challenge that seemed most likely to move forward against the Texas ban, especially since a separate lawsuit by abortion clinics has now been temporarily sidetracked by that same appeals court, which sent it to the Texas Supreme Court to get clarification on a point of state law. (That Texas court agreed on Friday to respond, to decide whether the clinics can sue anybody in Texas to try to stop SB 8. The Texas court may well be unwilling to allow the lawsuit.)
Although the appeals court will go ahead in the Biden Administration’s case with the study of legal briefs and with a public hearing on SB 8, it is expecting the lawyers on both sides to include in their arguments the option to just sit on the case while the Supreme Court works its way toward a decision in the Mississippi case. The Justices held a hearing on December 1 on that case, and are now studying it.
Only the Supreme Court would have the authority to undo the Roe precedent. It is not uncommon for a lower federal court, when an issue before it could be affected by coming action by the Supreme Court, to hold off in the meantime.
Still, the option to await what the Justices might do provides a convenient way for supporters of SB 8 to put off a reckoning in the lower courts on its validity.
In fact, the suggestion for the appeals court to wait was made by four individual Texans who have entered the case to defend SB 8. Each of them has said that they plan to sue in state court if abortion clinics or others supporting those clinics violate the state ban. One odd feature of SB 8 is that it assigns enforcement to private individuals, not state officials.
Until yesterday, the Biden Administration had been attempting to get the appeals court to send its case back to a federal trial judge in Austin, in hopes of getting SB 8 blocked based on the Administration’s arguments that it violates Roe v. Wade, that it unconstitutionally shuts the federal courthouse door to abortion clinics seeking to challenge SB 8, and that it interferes with federal policies and programs that depend upon abortion rights remaining intact.
The judge in Austin did block enforcement earlier, but that order was set aside by the appeals court. The Supreme Court has now allowed the law to remain in effect for nearly five months, passing up four chances to temporarily put it on hold.
In its order yesterday, the appeals court said it will simply keep under advisement, for the time being, the Administration’s request to return the case to the Austin judge.
As a result of all of these developments, clinics across Texas have stopped performing any abortions unless they can be sure that a woman’s pregnancy has not continued for longer than six weeks. The medical reality is that many women do not even know, at that very early stage, that they are pregnant.
Thousands of Texas women, who have the means and the opportunity, have been traveling to neighboring states and causing overloading of abortion clinics in those states.
As of January 22, no relief from that situation is imminent.