Let’s start with a stunning fact: a Texas law that unconstitutionally bans 85-90% of pre-viability abortions has now been in effect for six weeks. The backstop that usually prevents this sort of thing—the courts—has utterly failed because the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court have decided to vote with their hands on a Bible rather than on the U.S. Constitution, only the latter of which they have sworn to uphold. This is the kind of abortion exceptionalism that defines the conservative wing of the Republican Party, even for members who have taken positions in the judiciary for which they have sworn to be neutral arbiters of the law.
The law in question is known as SB 8. It bans most abortions, including those obviously protected by the federal Constitution, and is the first pre-viability ban to take effect in this country since the Supreme Court held that women have constitutionally protected abortion rights. (More details on the precise terms of the law and its very odd features can be found here.)
Most people rightfully expected that this law would never take effect. After all, many states controlled by anti-abortion legislators have passed unconstitutional abortion bans in recent years. But not one—until SB 8—has been permitted to take effect. Federal courts with judges from across the political spectrum have all seen fit to block them because they do not have the power to overrule precedents of the U.S. Supreme Court, and those precedents make clear that people who become pregnant have the right to terminate a pregnancy before viability without undue burden from the government. (Even in the short time since this law took effect, federal courts in several other states have blocked enforcement of new, unconstitutional bans.)
The federal district court hearing a challenge by abortion providers was poised to block SB 8 from taking effect, when the Fifth Circuit reached down like the hand of god to snatch the case away and clear a path for its enforcement. The U.S. Supreme Court was the last hope; a group of providers who had filed a federal lawsuit challenging the constitutionality of the law pleaded for emergency relief before midnight on August 31, 2021, the last moment before the law was set to take effect per the terms of the bill. The Supreme Court did not even bother to weigh in before the deadline, and the law took effect on schedule. When the Court did weigh in late the next day, it denied relief to the providers.
The Second Challenge
This week, a federal district judge presiding over a different challenge to SB 8—this one brought by the U.S. Department of Justice—issued a ruling blocking enforcement of the law, which was supported by a 113-page judicial opinion. In this opinion, Judge Robert Pittman concluded first that the U.S. government has standing to sue the State of Texas for violating the federal constitutional rights of its citizens. The court also found that a preliminary injunction was warranted because the plaintiff was likely to succeed on the merits—in other words, a full review would almost certainly lead to the determination that the SB 8 violates federal constitutional law and therefore could not stand. Judge Pittman noted the credible declarations of providers that SB 8 has eliminated almost all abortion access in the state. Under the controlling federal precedents, a state law is unconstitutional if it places an undue burden on individuals seeking an abortion prior to viability. This law, which is much closer to a total ban than any other restrictive abortion regulation, does just that. Indeed, the U.S. Supreme Court has struck down Texas laws that are far less restrictive under the undue burden standard. The court was not fooled by the “clever” design of the statute, in which the state itself is barred from enforcing the law directly and every person in the world is deputized to enforce it themselves, regardless of whether they have any stake in the case. With incalculable risk, providers have opted to provide abortions only in compliance with SB 8. As the court noted, “these provisions operate—and were intended to operate—as an effective deterrent to provision of pre-viability abortion services in Texas, precluding the vast majority of individuals from accessing this constitutional right.” The court was not impressed by the State of Texas’s argument that abortion is still available because some providers will violate the law—particularly since the statement was supported by only one example, an abortion provided by Dr. Alan Braid for the purpose of testing the legality of the law. The court had no trouble finding that the law prevents a significant number of Texans from exercising their constitutional right to abortion—and that many will suffer irreparable harm if this law is allowed to continue in effect.
The State of Texas asked the court to stay the ruling pending appeal, but Judge Pittman refused. “The state,” he wrote, “has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right. From the moment SB 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution. That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of rights.”
Judge Pittman’s ruling was unquestionably right. The Fifth Circuit, not surprisingly, did find a way to avoid this conclusion. The same court that had inexplicably allowed the law to take effect on September 1 in the first instance put SB 8 back into effect by issuing an administrative stay that has the effect of temporarily nullifying the district court’s order. In other words (just 63 of them from the Fifth Circuit), we are now back to a world in which an unconstitutional pre-viability abortion ban can be enforced in the State of Texas.
There were about 48 hours in between the issuance of Judge Pittman’s ruling and the Fifth Circuit’s granting of an administrative stay. Some abortion providers were able to provide care during a precious 48-hour period, despite the risk that, due to an unusual feature of the law, they might later be sued even with the blessing of a federal court.
The federal government will now again seek relief from the U.S. Supreme Court, which has already revealed itself to be uninterested in enforcement of existing constitutional precedents. And the Fifth Circuit may revisit the question itself, having issued only an “administrative stay” at this point while it awaits further briefing from the State of Texas. There are also several lawsuits working their way through state courts that raise independent challenges to SB 8.
Some of the harms of this weighted game of ping pong are obvious; others require an understanding of the complex legal, social, and economic landscape against which abortion care in Texas is practiced.
Burdens on Texas Abortion-Seekers
Imagine being a pregnant woman who plans to seek abortion care. In addition to making the decision about whether to terminate the pregnancy, she must make the practical arrangements such as making an appointment, finding childcare (more than half of abortion patients have at least one child already), requesting time off work, arranging transportation, and so on. Under SB 8, she must also check with a lawyer (or at least Twitter) to see whether abortion is legal that day. It was legal for 48 years straight—from the Supreme Court’s decision in Roe v. Wade in 1973, which held Texas’s criminal ban on abortion unconstitutional, until September 1, 2021, when SB 8 first took effect. And then it was suddenly unavailable for all but the small proportion of abortion patients who were seeking care before the detection of embryonic cardiac activity, or about six weeks from the first day of their last menstrual period.
For some pregnant patients, September 1 fell in between the two appointments required by state law. Texas requires that an abortion patient must first receive counseling and a sonogram and then must return to the same provider no less than 24 hours later for the abortion procedure (a surgical abortion or the administration of the first of two pills necessary to complete a medication abortion). Those women, regardless of their stage of pregnancy, were deprived of the abortion they had already set in motion. The ultrasound, which was most likely an invasive vaginal procedure, was now for nothing. Those women were left to remain pregnant or to flee the state in search of the abortion they had already made preparations to receive.
Some of those patients likely chose to wait (or had no choice but to wait), in the hope that some court in one of the many lawsuits would decide to apply the controlling precedents and block further enforcement of SB 8. And when the federal district court did just that on October 6—holding that the law was patently unconstitutional and that the judge could not abide even “one more day” of its harmful and unwarranted existence—some of those abortion patients likely headed straight back to the clinic. At best, they were able to receive an abortion on one of the two days before the Fifth Circuit put the law back into effect, as many as six weeks more pregnant than they had been when they first sought abortion care (a perverse outcome for the anti-abortion legislatures who claim to be so concerned about the timing of abortion).
At worst, they were stymied again because they had not yet completed the counseling and sonogram appointment and were unable to squeeze in two appointments, separated by 24 hours, during a 2-day window. Or they were stymied because either they or their doctor was not available during those two days—and the same provider must conduct both appointments. Or they were stymied because while some abortion providers chose to operate during the short-lived window last week, others did not because SB 8 was written specifically to prevent them from operating in this circumstance (more on that later). And now the patients are back in limbo, waiting again, getting more pregnant each day, to see whether the State of Texas will permit them to exercise a fundamental right protected by the U.S. Constitution.
This state of limbo is wreaking havoc and harm across the board, as pregnant patients throughout the state try to navigate their increasingly constrained options. Abortion funds are getting inundated with requests for help paying for abortions that are now many times more expensive than they would have been in-state. (A recent Vox article explores some of the practical effects of SB 8.), and Fund Texas Choice has an unending list of requests for help with travel expenses. The cost of abortion care increases with gestational age. Also, medication abortion is authorized only through the tenth week of pregnancy and is cheaper than surgical abortion. But the real addition to costs is travel—transportation, hotels, and additional time off of work. According to data analyzed by the Guttmacher Institute, the average driving distance to an abortion provider increased from 17 to 247 miles each way since SB 8 took effect. (The State of Texas had the gall to suggest in one court pleading that the federal government could not use its power under the Commerce Clause to sue over the unconstitutionality of SB 8 because Texas legislators had actually stimulated interstate commerce by sending its pregnant citizens running for the borders.)
Abortion access is already disproportionately challenging for women with lower socioeconomic status, and the many hurdles Texas already imposes on abortion care disproportionately effect Black and Latina patients. SB 8 greatly exacerbates those existing (and inexcusable) disparities, returning us to the pre-Roe world in which the only people who can obtain a safe abortion are those with the money to travel. SB 8 has sent doctors, lawyers, advocates, social workers, clergy, funders, and others scrambling to figure out how to help pregnant women who seek out their advice, guidance, and help. (This site provides information on securing abortion care outside of the state, and this one provides resources about self-managed abortion.)
Pregnant minors are uniquely hard hit, as I explained both in a piece for the Washington Monthly and in less detail for an earlier column here. Minors are less likely to have predictable menstrual cycles and less likely to know they are pregnant within six weeks after the first day of their last period. But more importantly, they are also subjected to unique burdens in Texas due to the parental involvement law. Unless a minor can obtain parental consent, she can only consent to her own abortion care if she first goes to court to petition for a judicial bypass. That process, highly regulated by the State of Texas, requires several steps, including an in-person hearing, and takes on average 2 ½ weeks to complete. Thus even when the minor immediately detects pregnancy and immediately decides to terminate and immediately figures out how to navigate a system she has likely never even heard of prior to that moment, she will be unlikely to obtain a judicial bypass in time to receive an abortion under SB 8. And the more common scenario is that no matter how quickly she discovers the pregnancy, there will be delays all along the way—some caused by intentional interference, or simple slow-rolling, by hostile judges and court personnel. There are minors who have obtained judicial bypass orders in this state since September 1 who now have a court order that enables them to do absolutely nothing. The judicial process itself is what took them from pre- to post-six weeks, and they are now left without a remedy—and with an unwanted pregnancy that might derail their schooling, jeopardize their personal health, threaten the safety of their home environment, or ensure they are plunged into poverty.
Burdens on Texas Abortion Providers
Allowing a blatantly unconstitutional law to take effect, and the resulting likelihood of conflicting court rulings, also presents unique challenges for abortion providers. There may be future windows during which some abortion providers operate, depending on how the various state or federal lawsuits go. But a unique feature of SB 8 changes the calculus about court orders significantly. In any other context, people are entitled to rely on court orders or judgments that have been issued, as long as they have not been “stayed” (put on hold) by the court that issued the ruling or by a court above that court in the food chain. But if a ruling is not put on hold, then it takes effect immediately—even though it might ultimately be reversed by a higher court. It is thus possible sometimes for some kinds of conduct to be permissible after a trial court ruling and then impermissible if that ruling is reversed on appeal and then maybe permissible again if the U.S. or Texas Supreme Court reinstates the original ruling. Depending on the context, courts might stay a lower-court ruling pending appeal to avoid reliance on a court order that might ultimately be reversed. But as with everything else under SB 8, the normal rules don’t apply.
The GOP legislators put a provision in the bill that says that an abortion provider can be sued for providing abortions after the detection of embryonic cardiac activity even if they do so in reliance on a court order holding that SB 8 is invalid and cannot be enforced. If such a ruling is upheld on appeal, then the providers are safe because the law can never be enforced against them. (Recall that the enforcement scheme for SB 8 is private lawsuits brought by any random person, all of whom are deputized by the State of Texas to sue to collect damages for abortions that do not comply with SB 8.) But if such a ruling is reversed, then the providers and anyone who “abetted them” can be sued for non-compliant abortions provided during the window between the initial ruling and appeal. Now this raises a variety of concerns, particularly to the extent the State of Texas has tried to nullify the effect of a federal court order on the federal constitutionality of a state law. But, to be sure, doctors who performed abortions this past week after the federal district court’s ruling did so with the knowledge that they may have opened themselves up to lawsuits at some later point. But their commitment to providing care for their desperate patients outweighed their justifiable fear of lawsuits.
A world with this kind of uncertainty and unnecessary suffering would be cause for concern regardless, but the fact that it exists despite firm constitutional protection for the underlying right of abortion is a travesty.
