News Update

What is the Texas abortion ban and why does it matter?

Forty-eight years later, there is now one state where that law no longer stands: Texas.
How did a nation that sees itself as a champion of women’s rights get here and where does it go next?

What’s happened in Texas?

On Wednesday September 1, 2021, a law in the southern US state banning abortion providers from carrying out terminations after fetal cardiac activity is detected — usually around six weeks into a pregnancy — came into force after the Supreme Court declined to intervene.
The law makes no exceptions for rape or incest, forcing women to carry a pregnancy to term even under traumatic circumstances. The only exception that allows for an abortion to be obtained after six weeks is a “if a physician believes that a medical emergency exists,” according to the language of the bill.
What’s more, the law will not be enforced by the state government — but rather policed by citizens, who can sue abortion providers for alleged violations. The plaintiff will receive $10,000 from the accused if their case is successful.
First introduced to the Texas House of Representatives and Senate in March, the ‘Heartbeat Act’ — a name that some medical professionals have said is intentionally misleading — was signed into law by Republican Governor Greg Abbott in May.
However, it only came into force after the Supreme Court declined to rule on an emergency request to block the bill, filed by abortion providers. On Wednesday, the court’s conservative majority issued a formal denial of the request, saying the law could not be blocked at this stage due to “complex” and “novel” issues — though it acknowledged that the clinics had raised “serious questions regarding the constitutionality of the Texas law.”

Why is it significant?

What’s happened in the Lone Star State is not the first attempt by conservative policymakers to shrink the time available for abortion. In fact, at least 12 other states have passed six-week bans, but these were blocked from taking effect. Texas now has some of the most restrictive abortion laws in the US — and in the world
The news has sent shockwaves around the world because it invalidates Roe v. Wade and is said to take the power away from pregnant people and give it to vigilante anti-abortion activists who, determined to catch any violations of the law, have set up websites encouraging tipoffs about alleged violations.
The human cost is likely to be made even greater by the incredibly tight timeframe which has been imposed.
At just six weeks, many women don’t even realize they’re pregnant. Dating not from conception but the beginning of the menstrual cycle, that’s only enough time to have missed one period. As such, the ban is just about as close as anti-abortion activists can get to a total prohibition of abortion.
It is hard to know exactly how many people will be affected. In 2020, according to Texas Health and Human Services, nearly 54,000 abortions were performed in the state. According to opponents of the law, up until the ban, 85 percent of abortions in Texas took place after six weeks.
Speaking of those who would be most affected, journalist Shefali Luthra said people who sidestepped the ban by accessing abortions in other states would be “people who have the means, who are able to travel, who don’t need childcare, who aren’t necessarily marginalized by income, by race, by immigration status, by all these factors.”
Of course, criminalizing abortions doesn’t stop people from seeking them. Instead, women who can’t travel out of state will be forced to resort to clandestine abortions, putting their health and safety at risk. According to the World Health Organization, up to 13.2 percent of annual maternal deaths are due to unsafe abortions — and Texas might risk adding to that statistic.

How did the United States get here?

Every year since Roe v. Wade in 1973, anti-abortion activists have marched on Washington D.C. on its anniversary to demand an end to abortion rights. They have worked in coordination with conservative lawmakers, providing them with templates so identical bills can be tabled across numerous states.
For the most part, it has been small amendments to the law that have most limited access to abortion services. The Hyde Amendment of 1976 was the first which — with a few hard-won exceptions — prevents the funding of abortions through the Medicaid program. This in turn makes it difficult for women on low incomes to acess abortion services.
While more recent attempts by Republicans to ban abortions have been described as “extremely aggressive” by the Center for Reproductive Rights, they are by no means a reflection of what American people themselves actually want. A 2019 poll revealed that three quarters of Americans want to keep Roe v. Wade, even though people who identified as “pro-life” and as “pro-choice” were both dissatisfied with US abortion policy. Despite this broad support, former President Donald Trump became the first US President to ever attend or speak at an anti-abortion march.
Over the past decade, several Republican states have attempted to impose further restrictions on abortion. North Dakota was the first state to pass a Heartbeat Bill in 2013, but several others including Mississippi, Alabama, Louisiana and South Carolina have followed. Though these attempts have been blocked, of the Texas ban and the overturn of Roe v. Wade, Democratic New York representative Alexandria Ocasio-Cortez said: “Millions of peoples’ bodies, rights, and lives are sacrificed for far-right minority rule.”
As for the role of the Supreme Court, its rulings have often reflected the ideologies of its justices. With six conservative justices, the Supreme Court is now the most right-leaning it has been since the 1930s.

What has the reaction been?

President Joe Biden has fiercely criticized the Texas law, saying it “blatantly violates” a woman’s constitutional right to abortion as outlined in Roe v. Wade. He further added that it was “communities of color and individuals with low incomes” that would be most affected, and that the law “outrageously deputizes private citizens” by allowing them to pursue lawsuits against clinics.
Liberal Supreme Court Justice Sonia Sotomayor said the new rule was a “flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights.” Jackie Speier, a Democratic representative from California, put it more plainly, saying the law effectively “tells a woman that she has no control of her body.”
In an opinion piece for CNN, journalist Frida Ghitis said the system of civil enforcement was reminiscent of “fascist regimes.” And while many have surely thought it, 75-year-old Vietnam War veteran Robert L. Graham wrote to the LA Times to say: “Who are we to judge the Taliban when governments in our own country can take control of a woman’s body? A world apart from Afghanistan, the United States must take a good look at itself and ask the hard question: Are we so different when it comes to how we treat women and girls?”

So, where do women’s rights in the United States go from here?

In Texas, lawmakers are now moving to pass a bill that could also restrict “medication abortions” — using pills — which are still currently legal up to 10 weeks into pregnancy. The Texas Tribune reported that a bill limiting access after seven weeks is close to passing, despite Democrats’ attempts to prevent it.
On the six-week ban itself, it is still possible that the Supreme Court could still turn around and declare it unconstitutional — but given that it has now gone into effect, a precedent has been set.
Perhaps the most pressing question is this: what now becomes of Roe v. Wade across the nation? In the upcoming term, Supreme Court justices are set to rule on whether a Mississippi ban on all abortions after 15 weeks is constitutional. However, the state has also asked the court to overturn Roe v. Wade completely, calling it “egregiously wrong.”
Whether or not they will comply remains to be seen, but fierce opposition from the liberal justices and pro-choice campaigners can be expected.
The data and conclusions shared in a year-old Jezebel article, newly making the rounds on social media, present an even more pressing question.
Referencing a 2020 IPSOS survey, abortion rights reporter Marie Solis wrote: The majority of 18- to 34-year-olds supported expanding abortion access, but few saw it as a top priority, ranking it behind issues like climate change, Medicare for All, and student debt.”
She goes on: “If that poll were conducted today, in the aftermath of the police killings of George Floyd and Breonna Taylor, they might rank police brutality above abortion access as well.”
So the question from many of those watching events unfold in the US is this: will Texas’ abortion ban catalyze Americans to come together across political ideology, and across other distinctive struggles, to protect a woman’s right to make choices about her own body — or without a coordinated, broad base, supported by the Supreme Court, will conservative states continue to pick away at abortion rights?
Only time will tell.
*Header image caption: Pro-choice protesters march outside the Texas State Capitol on Wednesday, September 1, 2021.
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