Has Texas’ Abortion Law Outsmarted Roe v. Wade?
In 1973, Jane Roe, an unmarried pregnant woman, filed a lawsuit on behalf of herself and others to challenge Texas abortion laws. The suit eventually reached the Supreme Court and became the now famous Roe v. Wade ruling on women’s rights to abortion. Now almost 50 years later, Texas has introduced a law that abortion rights activists consider the most extreme abortion restricting bill since the Roe v. Wade lawsuits. So what is Roe v. Wade and how has Texas’ new law managed to circumvent and retract rights gained through that decision in 1973?
Before the Roe v. Wade decision, it was a crime to receive an abortion or attempt one in the state of Texas unless it was performed to save the mother’s life. After the lawsuit was filed several arguments were brought forward to the Supreme Court. Texas defended its restrictions primarily by stating that a fetus is a person protected by the 14th amendment and that the protection of the fetus from the time of conception is a compelling state interest. Jane Roe and others argued that the restriction infringed on a woman’s right to liberty and marital, familial, and sexual privacy granted by the 14th amendment and the bill of rights.
Anti-Abortion Protesters in Texas
The Supreme Court was able to come to its decision by finding a middle ground between both arguments presented for and against abortion. It was decided that under The United States Constitution, a fundamental right to privacy is provided that protects a woman’s right to choose whether to have an abortion. However, Roe v. Wade also included the exception that the right to abortion is not absolute, it must be balanced against the government’s interests in protecting women’s health and prenatal life. This ruling meant that while abortion was legal nationwide, states had the ability to set some restrictions during the second and third trimester of pregnancy if it aligned with the state government’s interests.
Abortion rights rally at the Capitol in Austin, Texas
What is Senate Bill 8?
In May of 2021, Texas Governor Greg Abbott passed Senate Bill 8, a law that prohibits abortion after a fetal heartbeat can be detected, stating, “Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion.” The first detection of fetal heartbeat typically occurs at 6 weeks of pregnancy. Abortion-rights activists have argued this is essentially a ban on all abortions as most women are unaware they are pregnant at this time. The ban also applies in cases of rape and incest, with an exception only for medical emergencies.
Many attempts at passing like-minded bills in various states have occurred over the years. However, the vast majority are blocked after abortion-rights activists or abortion providers sue the state official responsible for enforcing the law on the grounds that it infringes on rights granted by Roe v. Wade.
How is this law different? Rather than having government officials enforce the law, private citizens from anywhere in the USA have the power to sue abortion providers or anyone who attempts to get an abortion. The plaintiff does not need any personal connection to either patient or provider to organize a suit. For the Supreme Court, this raises the question not of whether the law is constitutional but whether it can be challenged in court.
“Planned Parenthood can’t go to court and sue Attorney General [Ken] Paxton like they usually would because he has no role in enforcing the statute. They have to basically sit and wait to be sued.”
Josh Blackman, consititutional law professor at South Texas College of Law
Who will be most affected?
This bill is a milestone for pro-life groups as experts believe this bill could prompt other conservative states to try to pass similar laws. For pro-choice and women’s rights groups this is a massive step backwards, forcing Texan women to cross state lines in order to obtain an abortion. Abortion providers in Texas believe that 85% of patients seeking an abortion are at least 6-weeks pregnant meaning that the law will impact thousands of women. Those who are poor or part of a marginalized group will be affected disproportionately.
Some of the most vulnerable groups to this new bill include:
- Teenagers who are often unaware that they are pregnant until later in their pregnancy.
- Low-income people who may struggle to procure the $550 dollars needed to pay for the procedure until it is too late.
- People of colour who represent approximately 70% of Texas’ abortions and face higher maternal mortality rates than their white counterparts.
- Immigrants without legal status who encounter greater risks when moving around the state or crossing state lines in order to find care.
A “Bans Off Our Bodies” protest at the Capitol in Austin, Texas
Since the passing of Senate Bill 8 protests have ensued across Texas, and those who oppose the law show no sign of slowing down in their efforts to enact change. The permanence of this law and the effect it will have on the power of Roe v. Wade across the United States is still to be seen and the future of a woman’s right to abortion hangs in the balance.
Sources
Texas passes law banning abortion after six weeks
Texas’ ban on abortions as early as six weeks becomes law
Texas Abortion Ban: What It Means and What Happens Next
Texas Abortion Law Paused by Federal Judge
Explained: Who will be most affected by Texas abortion law?
Most Abortions in Texas Are Banned Again After Court Ruling Roe v. Wade Case Summary: What You Need to Know – FindLaw