U.S. Supreme Court refuses to block Texas’ six-week abortion ban

By Reese Oxner

The U.S. Supreme Court on Wednesday refused to block Texas’ new law banning abortions as early as six weeks into pregnancy, keeping in place at least for now perhaps the most restrictive abortion law in the country.

The decision came as major abortion providers in the state said they had canceled most of their abortion appointments as advocates fretted that abortions had been all but banned in the state.

The new restrictions went into effect at midnight Wednesday before the U.S. Supreme Court revealed its decision later that night. The vote was 5 to 4, with the court’s three liberals dissenting, joined by Chief Justice John G. Roberts Jr., who called the law “not only unusual but unprecedented.” The Supreme Court stated it was not ruling on the constitutionality of the bill, but rather it was refusing to block it at this point.

“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit,” the opinion read. “In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”

The law bans abortions as early as six weeks — a period before many women realize they are pregnant. It places responsibility for enforcing the rule on members of the general public, allowing anyone to sue for damages someone they suspect is “aiding and abetting” an abortion. That design was intended to get around the precedent set by Roe v. Wade, the landmark Supreme Court case that ensured women’s right to an abortion nearly a half-century ago.

Providers say that the law prevents at least 85% of the procedures previously completed in the state.

The law so far has not appeared to prompt a deluge of lawsuits against providers. John Seago, legislative director for the prominent anti-abortion group Texas Right to Life, told The Texas Tribune earlier Wednesday that his organization had prepared to begin filing lawsuits but hadn’t yet, as there wasn’t been evidence of violations so soon. He said abortion clinics had all said they would be following the new law.

Planned Parenthood of Greater Texas and Whole Woman’s Health, two of the largest providers in the state with clinics in multiple cities, told reporters on Wednesday morning would be abiding by the law and only offering services still allowed. No other clinics have publicly said they would defy the law.

Prior to the midnight deadline, before the law became effective, hundreds of people engulfed the clinics Tuesday. Twenty-seven women sat in the Whole Woman’s Health Fort Worth clinic at 10 p.m. to get an abortion, two hours before the procedure would become illegal in the state, said Amy Hagstrom Miller, CEO of Whole Woman’s Health. A doctor cried as they tried to perform all of the procedures before the clock struck midnight. Anti-abortion protesters crowded outside and attempted to stop the last legal abortions occurring in the state.

“This morning, I woke up feeling deep sadness. I am worried. I am numb,” Miller said. “[The law] robs people of their ability to make decisions about their health and their future.”

Texas anti-abortion advocates, meanwhile, celebrated the law as their biggest victory since Roe v. Wade. And they were gearing up to sue those they believe to violate the law. Texas Right to Life set up a whistleblower website, where anyone can file anonymous tips on illegal abortions.

Under the new law, Texans can sue providers or those who they suspect helped achieve an abortion performed after an ultrasound could detect what lawmakers defined as a fetal “heartbeat.” Medical and legal experts say the “heartbeat” term is misleading, however, because embryos don’t possess a heart at that developmental stage.

Abortion providers originally challenged the new law in July, arguing it violates the precedent established by Roe v. Wade. But the U.S. Fifth Circuit Court of Appeals put a hold on district-court proceedings, leading the providers to seek emergency relief in the Supreme Court. Many onlookers waited late into the night Tuesday, expecting an order from the high court before the law came into effect — but it didn’t come.

Abortion-rights supporters have feared the Supreme Court might rule against access to the procedure after the death of Justice Ruth Bader Ginsburg nearly a year ago. And while Roe v. Wade in 1973 established a constitutional right to have an abortion before the point of fetal viability, the law skirts that precedent by removing enforcement from the state — instead having private citizens be the mechanism to enforce the law through lawsuits.

Marc Hearron, senior counsel for Center for Reproductive Rights and lead attorney on the case, said the law is using intimidation tactics to stifle even legal abortions in the state. Suspicion alone could lead to lawsuits, he said.

The mechanism within the law allows numerous lawsuits to be filed on the same abortion case, with little consequences if they lose, Hearron said. Even if found not guilty, the law says those being sued cannot recoup their attorney fees — meaning a swarm of lawsuits could financially overwhelm someone or an entity even if they aren’t found guilty. He said it minimizes the risk of suing while removing protections from those being sued.

He said that although he believes this would not apply to those who help Texans get an abortion out of state, they could still potentially be sued and saddled with legal fees.

“We are unwavering in believing that Texans deserve abortion care in their own communities,” Miller said. “We will continue fighting, and do everything we can to protect Texans’ right to safe abortion and compassionate care.”

This story originally published by the Texas Tribune.