Austin, Texas – The Supreme Court, which allows a new Texas law banning most abortions, is the biggest restriction on the constitutional right to abortion in decades, and Republicans in other states are already considering similar measures.
The law prohibits abortions once medical professionals can detect cardiac activity, usually about six weeks – before some women know they are pregnant. Courts have prevented other states from imposing similar restrictions, but Texan law differs significantly in that it leaves private individuals to enforce through civil actions rather than law enforcement.
Here’s what you should know about the new Texas law, which went into effect Tuesday and which already has abortion clinics in neighboring states, reporting an increase in the number of Texan women applying for the procedure:
WHAT DOES THE TEXAS LAW DO?
It allows any private individual to sue Texas abortion providers who violate the law, as well as anyone who “helps or supports” a woman who is going through the trial. The law makes no exceptions for rape or incest. The person filing the lawsuit – who need not have a connection to the woman who had the abortion performed – is entitled to at least $ 10,000 in damages if they prevail in court.
HOW MANY PEOPLE CAN BE AFFECTED BY THE TEXAS LAW?
New Texas law could affect thousands of women seeking an abortion, although accurate estimates are difficult. In 2020, Texas facilities performed approximately 54,000 abortions on residents. More than 45,000 of these occurred in the eighth week of pregnancy or less. Some of these abortions could still have been legal under the new law if they had occurred before cardiac activity was detected.
HOW IS LAW DIFFERENT IN TEXAS FROM THAT IN OTHER STATES THAT HAVE TRIED TO RESTRICT ABORT IN EARLY PREGNANCIES?
The main difference is the enforcement mechanism. Texas law is based on citizens suing abortion providers for alleged violations. Other states attempted to enforce their statutes through government measures, such as criminal charges against doctors who perform abortions.
Texas is one of 14 states with laws that prohibit abortion either entirely or after eight weeks or less of pregnancy. The rest of the dishes were put on hold. Recently, a court in Arkansas halted a new law that would have banned all abortions unless it was necessary to save the mother’s life in a medical emergency. Other states with blocked laws that prohibit early pregnancy abortion include Alabama, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, South Carolina, Tennessee, and Utah.
HOW DOES THE TEXAS ABORTION LAW COME UP?
Texas has long been a major battleground for abortion rights and access, including a 2013 law that closed more than half of the state’s 40+ abortion clinics before being blocked by the Supreme Court.
Encouraged by victories in the 2020 elections, Republicans responded this year with a far-right agenda that included relaxing gun laws and further tightening the nation’s already toughest electoral rules. Anti-abortion groups say the new law is a response to frustration over prosecutors refusing to enforce other abortion restrictions that are already on the books.
Before Republican Governor Greg Abbott signed the bill in May, voters in Lubbock, Texas passed an ordinance that would similarly ban abortion in the city by allowing family members to sue an abortion provider.
WHAT HAPPENS NEXT?
A case is pending before the 5th US Court of Appeals, but the timing of future action is unclear.
What are the implications for abortion laws in other countries?
The Supreme Court action does not reinstate tarnished abortion laws in other states. But “in essence, the Supreme Court has now given other states a roadmap to narrow down Roe vs. Wade,” said Steven Schwinn, professor of constitutional law at the University of Illinois Chicago.
In fact, some Republican lawmakers are already talking about following this example.
In Arkansas, Republican Senator Jason Rapert tweeted Thursday that he was planning to propose bills that mirror Texas law so the legislature can go into effect when it convenes again this fall. However, it is unclear whether this is permissible as the meeting’s agenda is currently limited to the redistribution of Congress and COVID-19 legislation.
In Mississippi, Republican Senator Chris McDaniel said Thursday that he would “absolutely” consider putting forward laws that comply with Texas law.
“I think most conservative states in the south will look at this inaction by the court and perhaps see it as an opportunity to move forward on this issue,” said McDaniel.
The Mississippi Legislature is due to meet in January. The Supreme Court will hear arguments this fall on a 2018 Mississippi bill that would ban most abortions after 15 weeks of gestation – a case that Roe v. Wade directly questions.
COULD STATES TAKE A SIMILAR APPROACH TO IMPLEMENTING “CITIZENS” IN LAWS ON OTHER HOT BUTTON ISSUES?
Some states have already reached out to citizens to enforce new laws.
A law in Missouri that went into effect last week allows citizens to sue local law enforcement officials whose officials knowingly enforce all federal gun laws. Police and sheriff’s departments can face fines of up to $ 50,000 per incident. The bill was backed by Republicans who fear the government of Democratic President Joe Biden may impose a restrictive gun policy.
In Kansas, a new law sparked by frustration over coronavirus restrictions allows residents to file lawsuits against county-imposed mask mandates and restrictions on public gatherings. Last month the Kansas Supreme Court allowed the law to be enforced while examining an appeal against a lower court ruling ruling the law unconstitutional.
Utah also followed a similar strategy on pornography last year, passing a law allowing citizens to sue websites that do not display warnings about the effects of “obscene material” on minors. Although adult entertainment groups warned it was a violation of freedom of expression, many websites have adhered to the law to avoid the cost of a possible onslaught of legal challenges.
Citizens filing their own lawsuits have long been an integral part of environmental and disability law, said Travis Brandon, associate professor at Belmont University College of Law. Environmental groups, for example, help file lawsuits against companies accused of violating federal environmental permits.
In California, Proposition 65 allows people who may have been exposed to potentially carcinogenic materials to both file their own lawsuits and collect some sort of “bounty” if they win. However, those laws differ in that people generally need to show that they have been directly affected by a violation of the law, a feature missing from the new Texan measure, Brandon said.
David A. Lieb reported from Jefferson City, Missouri. Associate Press Clerk Andrew DeMillo in Little Rock, Arkansas; Heather Hollingsworth in Mission, Kansas; Emily Wagster Pettus in Jackson, Mississippi; and Lindsay Whitehurst in Salt Lake City contributed to this report.
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