Texas Law S.B.8. is officially in effect, and the Supreme Court has declined to block it
What does S.B.8 say?
S.B.8. is now the most restrictive abortion law in the United States, banning abortion after cardiac activity is detected, which is usually around 6 weeks before most people are aware that they are pregnant. There are no exceptions given for cases of rape or incest. The law gives completely unprecedented power to uninvolved citizens to enforce the law: anyone may sue a person or organization they believe has performed an abortion or “aided or abetted” someone in obtaining an abortion. For each instance of abortion, a private citizen filing a lawsuit can collect at least $10,000 (plus a theoretically unlimited amount in punitive damages, and reimbursement of legal fees). The goal of this “outsourcing” of the enforcement to private citizens was “to evade legal challenges to the law before it took effect,” because if government officials are not the enforcers of the law then they cannot be ordered by the courts to stop enforcing it. (Scotusblog.com).
Ironically, this little trick seems to have worked, at least for now. In a dissenting opinion, Associate Justice Sotomayor declared, “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.” (Dissent)
For more detail about SB8 and its legal ramifications:
Supreme indifference: What the Texas case signals about the court’s treatment of abortion
SCOTUS Blog | Mary Zeigler | September 1, 2022
What will the effect be on people seeking abortion care in Texas?
While abortion is still technically legal (ie, not criminalized), SB8 allows any citizen to sue for at least $10,000 in civil court for each abortion after a heartbeat is detected. According to the emergency petition to overturn the law, 85% of the people who would get abortions in Texas will not be able to do so. (Texas Policy and Evaluation Project) For those who are able to obtain an abortion, the average one-way driving distance traveled for an abortion will increase from 12 to 248 miles, which also increases the costs and logistical barriers to getting care (see Guttmacher link below). These burdens disproportionately affect people with low incomes, who are already more likely to need of an abortion (Guttmacher).
For more about potential harmful effects of S.B.8 on Texans:
Texas Senate Bill 8: Medical and Legal Implications
Texas Policy Evaluation Project
Impact of Texas’ Abortion Ban: A 20-Fold Increase in Driving Distance to Get an Abortion
For more about the effects of restrictive abortion laws on Black women in Texas:
Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008
What will the effects be on abortion providers?
Because S.B.8 allows lawsuits to be filed by literally anyone who even suspects that the law has been violated, abortion providers, clinics, and abortion funds are expected to face many lawsuits quickly. Regardless of whether the defendants are found guilty of violating SB8, the legal fees are likely to mount and force clinic closures. If the provider loses the suit, they must also pay the plaintiff’s legal fees, even though the defendants are responsible for their own legal fees regardless of the outcome.
Perhaps even more importantly, by allowing the law to stand while the challenges make their way through the courts, SCOTUS has made it incredibly difficult for abortion clinics to remain open for long. Once an abortion clinic closes, it is very unlikely to open again, as we learned by previous Texas restrictions—even once overturned, very few of the clinics that were shuttered were re-opened.
This article, also listed above, dives into the potential effects that SB8 will have on abortion providers in Texas:
Want to know what happened last time a restrictive abortion law in Texas shuttered clinics?
Even if Texas’ six-week abortion ban is overturned, clinics will close
The 19th News | Shefali Luthra | September 1, 2021
Is S.B.8 constitutional?
SB8 violates five decades of precedent based on the standards set in Roe v. Wade and Planned Parenthood v. Casey. In fact, the authors of the bill acknowledge that it is in direct opposition to Supreme Court precedent, because directly opposing Roe v. Wade is the core of their strategy. So far, 14 other states have passed 6-week abortion bans in an attempt to get a single one up to the Supreme Court and possibly overturn Roe v. Wade. All have been blocked.
This time, their strategy appears to have worked. For now, the Supreme Court let this law stand in a 5-4 vote, citing a legal quirk of SB8 and the fact that abortion providers at Whole Women’s Health who moved to block the law did not fully address its new method of enforcement (private citizens, rather than government officials, suing alleged violators). Ironically, the short decision clarified that SCOTUS was not ruling on the constitutionality of the law at this time, and would wait for the legal battles in the lower courts to play out.
President Biden has condemned S.B.8 as an “unprecedented assault on a woman’s constitutional rights under Roe v. Wade” and “unconstitutional chaos”. He has pledged to combat the law but remains to outline a specific plan to do so.
Read more about President Biden’s response to S.B.8 here:
President Joe Biden says Texas’ new abortion law “unleashes unconstitutional chaos”
Texas Tribune | Abby Livingston | September 2, 2021
This news article goes into greater depth on the majority and dissenting opinions released by the Supreme Court:
Supreme Court, Breaking Silence, Won’t Block Texas Abortion Law
New York Times | Adam Liptak, J. David Goodman, Sabrina Tavernise
Interested in the opinions themselves? Find the full-text majority opinion and four dissent letters here:
Whole Women’s Health et. al. v. Austin Reeve Jackson, judge. et.al. On Application for Injunctive Relief
SupremeCourt.gov | Supreme Court Justices of the United States | September 1, 2021
For another good explanation of the legal landscape of this law, but for the non-lawyer:
Texas’s radical anti-abortion law, explained
Vox.com | September 2, 2021
What will the effects be on future abortion law?
It is highly likely that other anti-choice states will enact similar laws quickly, shuttering abortion clinics throughout the Midwest and Southern United States. Because S.B.8 uses citizens to enforce the law instead of the federal government, it provides a back door evasion of the constitutional right to an abortion outlined in Roe v. Wade and Planned Parenthood v. Casey. If this method of subversion survives judicial scrutiny, it could be used to challenge many other federally guaranteed rights as well.
This news article discusses S.B.8’s precedent in evading constitutional precedent:
Even people who oppose abortion should fear Texas’s new ban
Washington Post | Julia Kaye, Marc Hearron | July 19, 2021
Read more about the wide-reaching legal effects of S.B.8 and how it might be used by other states to limit abortion care here:
The Texas Abortion Ban Is A Dangerous Blueprint For Other Red State Lawmakers
Huffington Post | Alanna Vagianos | September 1, 2021
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