RESPONDING TO THE LATEST ABORTION CRISIS: TEXAS HALTS ABORTIONS, EVADES ROE
Citizens for Choice met with other allied members of the California Coalition for Reproductive Freedom in September, 2021, discussing common concerns arising from Texas’s law banning abortions after about 6 weeks – and how to mobilize to address them. This draws on that discussion, taking into account events since then.
TEXAS 6-WEEK ABORTION BAN: WHAT IT DOES
An individual has a right under the Supreme Court case of Roe v. Wade to make her own decision about whether or not to terminate a pregnancy before a fetus is viable (i.e., before it can survive outside the womb). Right? Well, maybe not – or maybe it doesn’t matter. If you acknowledge and respect that right, you may be confused and angry to learn that Texas has found a way around it, with SB 8. The state has succeeded, at least for now, in stopping access to abortion care after fetal cardiac activity is detected — generally about 6 weeks — BEFORE most women are aware of their pregnancies.
The law’s enforcement method is unique. ANYONE can sue a provider or someone who helps a woman in any way to get an abortion after a so-called heartbeat. And the enticing reward is $10,000 to be paid by anyone who is sued and loses in court, to the successful plaintiff, the person suing. Abortion providers, clinic staff, clergy, family and friends, Uber drivers, organizations providing counseling, funding or other supportive resources, people who donate to Texas abortion funds, all may potentially be sued and become liable to pay the $10,000 penalties. The threat of enforcement has been effective, devastating abortion access in Texas.
What does the ban mean for Texas women wanting to terminate their pregnancies after 6 weeks? Nearly all must travel out of state for abortion care. Planned Parenthood reports that its clinics in neighboring Oklahoma are seeing five times the usual number of women seeking abortions. Abortion Funds and support networks are being overwhelmed. Despite these efforts, sadly, many women simply cannot arrange and pay for the necessary travel, time off from work, childcare for mothers, out-of-state lodging and available abortion providers.
HOW THE COURTS ARE RESPONDING
The discouraging news is that appealing to federal courts to stop the unconstitutional Texas ban has met with no success to date.
The Center for Reproductive Rights, the ACLU, Planned Parenthood and other legal representatives, filed the main lawsuit seeking to stop the law after SB 8 was enacted, in July of this year. The case — Whole Woman’s Health v. Jackson — began in a Texas federal district court, seeking relief on behalf of a coalition of Texas abortion providers, their patients, clinic staff, abortion funds, practical support networks and clergy. The U.S. Supreme Court (SCOTUS) denied the plaintiffs’ request for emergency relief on September 2, allowing the law to go into effect. While the case remains pending in lower courts, the plaintiffs again filed an emergency petition in the Supreme Court to enjoin the law on September 23, pointing to the devastating impact on abortion access in Texas since the law went into effect. SCOTUS has not yet acted on that petition.
The U.S. Department of Justice filed a separate case on September 9, United States v. State of Texas, asking that the law be declared unconstitutional and that it be blocked. The DOJ lawsuit relies in part on the Supremacy Clause and the 14th Amendment. The case rests with the same Austin district court judge as the Whole Woman’s Health case does.
LEGISLATIVE RESPONSE: CODIFYING ROE V. WADE INTO FEDERAL LAW
The best and easiest way to preserve the rights to abortion and women’s autonomy over the choice to end a pregnancy may be to enshrine them in federal law. The Women’s Health Protection Act (WHPA) would do that. First introduced by Rep. Judy Chu (C-CA) in 2013, it quickly gained greater support after Texas’s 6-week abortion ban. The bill passed in the House of Representatives on September 24, by a vote of 218-211, largely along party lines. (The lone Democrat voting against it was from California, Rep. Scott Peters.) The Senate version of the bill, however, is unlikely to pass, needing a 60-vote majority. And even Democrats are not united, with Sen Bob Casey and Sen. Joe Manchin likely holdouts.
Another approach is to strengthen laws outside Texas to protect women’s abortion access. Laws may be passed in other states to directly improve abortion access in those states, to assist women being denied abortion care in Texas, and to protect those from other states who assist Texas women from legal liability.
IMPLICATIONS OF THE TEXAS BAN FOR CALIFORNIA AND OTHER STATES
One near term impact will be copycat bills, already introduced in Florida and Oklahoma, using the same enforcement mechanism as SB 8 to skirt around Roe’s constitutional protections of abortion rights.
One implication of SCOTUS’s refusal to enjoin a law that undeniably violates Roe is that the court may be signaling its willingness to overrule Roe. It has the opportunity to do that in a Mississippi case, involving a law banning abortion after 15 weeks, Dobbs v. Jackson Women’s Health. SCOTUS held arguments on that case on December 1. The questioning of the more conservative justices and particularly the most recent justices to join the Court – Neil Gorsuch, Kavanaugh and Amy Coney Barrett – showed an apparent willingness to let the Mississippi law stand. Because they now constitute a solid majority of six justices (including also Chief Justice John Roberts, Clarence Thomas and Samuel Alito), the most likely outcome is an outright overruling of U.S. Constitution-based abortion rights (under Roe v. Wade and Planned Parenthood v. Casey), or a ruling that severely curtails abortion rights. A very real possibility is that the Court will turn the issue over to individual states, for each state to decide whether and how to regulate abortion or to protect abortion rights.
If Roe is overturned and the states are allowed to decide what abortions are legal under what circumstances, what next? Abortion may become illegal in about HALF of the states. And, that could happen within the next 12-18 months. A major impact, should that occur, is that states like California, with strong legal protections for abortion access, may well become abortion havens.
RESPONSES BEYOND LEGISLATION: MOBILIZING FOR ABORTION ACCESS
Members of the California Coalition for Reproductive Freedom have taken an important step beyond legislation by creating a Future of Abortion Council. The “California Future of Abortion Council”—CA FAB Council for short—is comprised of reproductive freedom and sexual and reproductive health care allies, partners, and leaders. The FAB Council includes the NARAL Pro-Choice California, Planned Parenthood Affiliates of California (PPAC), National Health Law Program (NHeLP), Black Women for Wellness Action Project, and ACCESS REPRODUCTIVE JUSTICE. This Council will convene to determine key policy proposals and solutions for the State to ensure greater abortion access and stability in California, and to reinforce California’s critical role in offering sexual and reproductive health care, including abortion. [See the September 22 announcement of the Council at https://healthlaw.org/news/on-heels-of-texas-abortion-ban-california-reproductive-rights-and-justice-organizations-announce-efforts-to-protect-expand-access-to-abortion/
Many supporters of women’s rights to abortion access are taking direct action: a nationwide Women’s March was held on October 2, 2021. Multiple marches were held in various states and cities, including in Sacramento and Nevada City. Lynn Wenzel from Citizens for Choice and Claire Miller, the Women’s Health Specialists manager of our Grass Valley Clinic, were among the speakers.
CITIZENS FOR CHOICE SUPPORTERS: HOW YOU CAN RESPOND
There are specific actions you can take today, to support the women in Texas and abortion access generally: Call on our U.S. senators to ramp up their support for the Women’s Health Protection Act; donate to an organization providing abortion care, funding or practical support; or donate to Citizens for Choice to support our local clinic and its reproductive health and abortion services (using the donate button on our website). For details, go to https://citizensforchoice.org/citizens-for-choice-urges-action-fight-the-texas-abortion-ban/.
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Public Policy Director