Anti-abortion forces in Texas seem supremely confident that the Roberts court will be willing to administer the killing blow to reproductive rights in America.
Anti-abortion forces in Texas seem supremely confident that the Roberts court will be willing to administer the killing blow to reproductive rights in America. The Supreme Court is already set to hear a major case on abortion rights, Jackson Women’s Health Organization v. Dobbs, later this year. It’s widely believed that the court’s six-justice conservative majority could hand down a ruling that sharply limits or overturns Roe v. Wade —an outcome that the state of Mississippi and its allies explicitly asked for last month. But it turns out that the court may have an even earlier chance this week to signal how far it will go to dismantle abortion rights. The case, Whole Woman’s Health v. Jackson, involves a Texas law known as S.B.8. It was signed into law in May and is set to go into effect on September 1. S.B.8 aims to effectively ban abortions after doctors can detect cardiac activity in the fetus, which usually occurs around six weeks after conception. In practical terms, the new law is a near-total ban on abortion since it falls well after most women realize they are pregnant. And in legal terms, it plainly violates the Supreme Court’s rulings on abortion rights since Roe was decided by effectively banning abortions that take place prior to viability. There’s a familiar rhythm to these cases, especially over the past decade: Anti-abortion state lawmakers pass a bill that explicitly restricts the procedure beyond what Roe and Planned Parenthood v. Casey would allow. Sometimes these laws are straightforward bans on abortion past a certain number of weeks, as in Dobbs. In other cases, the laws rely on the state’s health-and-safety powers to impose rules that make it impossible for abortion clinics to operate lawfully within the state, like the Texas law struck down in Whole Women’s Health v. Hellerstedt in 2016 or the Louisiana law struck down in June Medical Center v. Russo last year. So what makes S.B.8 so different? Most abortion-related cases, including the ones I mentioned above, involve state and local officials who try to impose limits on access to the procedure. S.B.8 takes a more convoluted approach. The statute is instead enforced by private citizens, who are empowered to file a civil lawsuit in Texas state courts against anyone who has performed an abortion, assisted in its performance, or may do so in the future. In fact, the statute explicitly forbids state and local officials from filing the lawsuits themselves. State courts must then issue an injunction against the defendant to bar them from doing so in the future. Under S.B.8, the abortion provider or assistant must also pay the person who sues them at least $10,000—a state-mandated bounty for anti-abortion litigation, if you will.
