The nationwide battle over abortion is now focused squarely on Texas after the state's "fetal heartbeat" law went into effect Wednesday.
While opponents were hoping the Supreme Court would intervene before the midnight deadline, the inaction by the justices means the second most populous state has the country’s most restrictive abortion law, one that curtails access for millions of women.
Anti-abortion groups are celebrating enactment of the statute as the state law offers a glimpse of a potential post-Roe v. Wade world for the first time in almost half a century.
Reproductive rights advocates and providers, meanwhile, are sounding the alarm with warnings of cascading effects in and beyond Texas. They’re also keeping their eyes on the Supreme Court and the 5th U.S. Circuit Court of Appeals, which covers Texas.
“We're still hoping to hear from the courts today,” Marc Hearron, a lead attorney for providers and the senior counsel of the Center for Reproductive Rights, told reporters on a call Wednesday. “And we will keep fighting. We're obviously not giving up.”
The Supreme Court’s inaction comes ahead of the court's review next term of a Mississippi law that bans abortion after 15 weeks, posing a direct challenge to the landmark Roe v. Wade ruling. The eventual ruling is almost certain to play a role in the 2022 midterm elections.
In Texas, representatives from providers Whole Woman’s Health and Planned Parenthood told reporters on Wednesday that they’re complying with the new state law by not offering abortions following the detection of fetal cardiac activity. But the organizations said they plan to continue to challenge the legislation in the court system.
Some reproductive rights experts said the Supreme Court’s lack of intervention suggests it might uphold state restrictions on abortions.
“The fact that the Supreme Court decided not to enter intervene I think really sends a very clear signal that, at least so far, that they will allow states to do pretty much whatever they want to limit access to abortion care," said Daniel Grossman, a professor in the department of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco.
But that inaction from the high court is sparking cautious optimism among anti-abortion activists, who hope the new law “gives the pro-life movement a way how to move forward,” said John Seago, legislative director for Texas Right to Life.
“We're optimistic that the Supreme Court has not intervened yet,” he added. “We are kind of watching closely, and we're not fully celebrating that the Supreme Court hasn't stepped in yet. We're gonna wait to see what they do with the motion that's pending in front of them.”
President Biden denounced the Texas law in a statement Wednesday, saying his administration plans to “protect and defend” the “constitutional right established in Roe v. Wade.”
“This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century,” the president said. “The Texas law will significantly impair women’s access to the health care they need, particularly for communities of color and individuals with low incomes.”
The legislation, which Texas Gov. Greg Abbott (R) signed into law in May, prohibits physicians from conducting abortions after fetal cardiac activity is recorded, with an exception for medical emergencies. That detection can happen as early as six weeks, before some people know they’re pregnant.
Abortion rights groups cite statistics showing that about 85 to 90 percent of people who get an abortion in Texas are at least six weeks into their pregnancy. Providers warn that the law will force women to consider seeking reproductive care in other states, if they have the financial means. In particular, young women, women of color and immigrant women are expected to be disproportionately impacted by the legislation, they said.
The Oklahoma City and Wichita branches of the organization Trust Women have seen a rise in appointments from Texas patients seeking abortions in recent weeks, the group said in a news release.
Other six-week bans have been tested in the courts, but experts describe the Texas law as “unique” because it’s enforced by private citizens instead of public authorities. Under the new statute, private residents are incentivized to sue anyone who provides or aids and abets in an abortion, with the possibility of receiving at least $10,000 if their lawsuit is successful.
That level of civil enforcement “has never been tried to this extent before,” said Joe Pojman, the executive director of Texas Alliance for Life.
“I think the nation may well be looking to see whether this method of enforcement will survive federal and state court challenges,” he said. “This may be a dress rehearsal for the time in a matter of months that the Supreme Court does allow states to fully protect unborn babies from abortion.”
Hearron, of the Center for Reproductive Rights, cautioned that the enforcement method could have implications well beyond the abortion debate.
“Regardless of what someone thinks about this issue, everybody should be very concerned that Texas can do this because a state can simply outsource its enforcement authority to private citizens and … deputize them to sue people for simply exercising a fundamental right that’s recognized by the Constitution and the Bill of Rights,” he said.
Several abortion providers filed a lawsuit against the legislation in July, hoping to prevent it from taking effect. But the U.S. Court of Appeals for the 5th Circuit effectively paused the legal challenge, prompting the challengers to file an emergency request to the Supreme Court to block the law. As of Wednesday evening, the justices had not acted on the request.
“It felt a little bit like ping pong in the last number of days as we've hopped around various parts of the judiciary,” said Elizabeth Sepper, a professor of law at the University of Texas at Austin. “I think it's going to continue to feel that way, at least for the foreseeable future.”
Sepper said “it’s clear” the law is “unconstitutional” because it violates the almost 50-year-old precedent set by the Roe v. Wade ruling, which prohibits states from banning abortion before a fetus is viable, typically around 24 weeks of pregnancy.
But the landmark 1973 decision could be in jeopardy as the Supreme Court prepares to review the Mississippi case next term, with a decision expected by next summer, just months before the midterm elections.
Former President Trump’s nomination of Justice Amy Coney Barrett gave the court a conservative 6-3 majority, emboldening anti-abortion legislation and sparking new legal challenges.