the law

What’s Next in the Legal Fight Against Texas’s Extreme Abortion Ban

Outside the Supreme Court on September 9. Photo: KENNY HOLSTON/KENNY HOLSTON/The New York Times

It is the image of abortion bounty hunters that commands terror in Texas’s abortion law, now in effect for two weeks thanks to the Supreme Court. To anyone numbed to the unending anti-abortion laws being passed in red states, there’s the shocking prospect of totalitarian tattletales spying on uteruses, turning in anyone suspected to be complicit in an abortion after six weeks in exchange for cash.

All this is indeed in the law, yet as of this moment, there are no bounty hunters because, so far, there is no one for them to terrorize. Abortion providers in Texas are reluctantly complying with the law known as SB8 and are not performing procedures outside of the infinitesimal window — days, really — that it provides. That’s the point, explains Michele Goodwin, a law professor at the University of California, Irvine. “It’s meant to so deeply chill action that it paralyzes this constitutional right altogether.”

Says University of Texas law professor Steve Vladeck, “This is where the public narrative and the intent of the law are at odds. The story is not the bounty hunters.” Instead, he argues, the story is that not only has Texas succeeded in banning almost all abortions but it has laid a tangled trap that will make the law almost impossible to undo in court.

For now, abortion is banned in Texas for anyone who, practically speaking, has an irregular period and doesn’t know if they’re pregnant in time, who makes their decision anytime after six weeks, or who is a minor who has to navigate the Texas court system to beg for an abortion without their guardians’ permission. “You effectively have cut off abortion care for minors in a state where we have one of the highest teen birth rates in the country, where you can’t get birth control without a parent’s consent,” says SMU law professor Joanna Grossman.

So how, if at all, given the Supreme Court’s acquiescence, can such a law be stopped?

More challenges are under way. The most high-profile so far has been brought by the Justice Department, which argues that Texas has overstepped its rights in passing SB8 and that the federal government’s interests are harmed when states block citizens’ constitutional rights and the ability to fight for them in court. But this lawsuit also faces the same procedural knots that were used against the clinics’ attempt to stop the law on September 1. Mary Ziegler, a historian of abortion who teaches law at Florida State, says Texas will respond that none of the bounty-hunter lawsuits are happening yet, “so this is a speculative injury.” With faint praise, Vladeck calls the DOJ’s suit “a noble attempt.” “I think the odds are good that it will succeed at least in part,” he adds. “The problem is that it needs to succeed in full for providers to reopen.” He argues that because anyone in Texas can sue under the law, “if all the federal government gets is a declaratory judgment that it’s unconstitutional and an injunction against a small number of court clerks, that’s not enough.”

Like the earlier suit brought by the clinics and advocates in Texas, the DOJ challenge faces an ever-hostile set of judges thanks to the Trump appointees and their ideological forebears already on the bench. “On the law, as properly interpreted by judges or justices who aren’t hell-bent on overruling Roe, I do think that DOJ has some good arguments in their arsenal,” says University of Michigan law professor Leah Litman. “Do I think this Supreme Court is going to rule for DOJ? I would put that at less than 50 percent. I don’t think that makes the lawsuit not worth bringing. Part of this is forcing the justices to show their hands. If they’re going to show themselves as partisan hacks, have them come out and do it.”

The suit’s very existence is notable because, according to Ziegler, it’s the first time anyone can remember the feds suing a state over an abortion restriction. It has resonance as a statement of values. Says Goodwin, “It reminds me of federal efforts to dislodge the Jim Crow–era laws that provided for separate but equal. I think the battle is on now.”

There’s another way that advocates for abortion rights in Texas can try to puncture SB8. The historian David Garrow, writing in the Houston Chronicle, argued that abortion providers should willfully break the law by openly providing an abortion after six weeks to return the ban to the Supreme Court on a more solid footing. This civil-disobedience approach follows in the footsteps of the 1960s reproductive-rights activists who defied Connecticut’s birth-control bans by distributing contraception in New Haven. As intended, the defendants’ appeal landed at the Supreme Court, where a landmark right-to-privacy ruling laid the groundwork for Roe v. Wade. 

Why does Garrow have faith that this same strategy would work today? He pointed to Chief Justice John Roberts’s language in his dissent, that “although the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented.” Garrow wrote, “The chief justice’s prescription is clear: If a Texas abortion provider steps forward to purposefully violate SB8 and welcome a state civil suit from any motivated Texan, that defendant doctor could immediately file suit in federal court against whichever state-court judge is assigned to handle the case against them,” without the Supreme Court being able to claim, as it did in the first challenge to the law, that it was all too procedurally confusing to stop.

Grossman thinks this may happen soon: “My expectation is that there will be a test case arising from a provider who agrees to perform an abortion past the six-week cutoff and then is sued,” perhaps even by a sympathetic plaintiff who is playing along to force the law back into court. But this is a hazardous road. “The potential damages under the law could be so ruinous you’re not seeing a lot of abortion providers step up to the challenge,” says Ziegler. And even if they did, there’s no guarantee the courts would agree that such a case would allow them to strike down the law entirely, as opposed to just in that instance. (None of Roberts’s Republican colleagues joined that dissent.) “Part of the gamble is that if they lose one of these cases, the plaintiff could get an injunction to shut them down,” says Litman.

Grossman is more optimistic in the short term about the state-court challenges that are already underway, several of which seek to block anti-abortion activists who have promised to take full advantage of the law. She says the Texas Supreme Court could object to SB8 on multiple grounds — including the concern that the constitutional rights it likes, such as gun ownership, could be zeroed out if a law were written cleverly enough. “There’s a pretty good argument that the legislature in Texas has exceeded its power by granting standing to people who haven’t suffered any injury,” Grossman says. “That’s the weird thing about this law is that anybody can sue. That is inconsistent in the fundamental principles of the Texas constitution.”

But that won’t be much comfort to abortion patients in Texas, Grossman says, because SB8’s creative abortion ban could soon be replaced by a very straightforward one blessed by the U.S. Supreme Court if it upholds Mississippi’s 15-week abortion ban in a case it has on its calendar this fall. For half a century, the Supreme Court has forbidden states to ban abortion before viability, and if that goes out the window, Texas’s six-week ban is fair game. I don’t think there is any scenario in which a majority of the justices uphold the core right to abortion, given the composition of the Court and what they just did,” Grossman says. “At that point, we end up with an abortion map that looks like the political map.”

Ziegler disagrees: “This doesn’t feel like a Court that wants to overrule Roe immediately or is ready for the kind of blowback that would entail. This reads more like a Court that wants to avoid backlash and wants to obfuscate to manage political reaction.” Either way, the country will find out by the spring, when the Court hands down its decision.

That political reaction, and any action that may come from it, could be the bright spot in a deeply bleak picture. Witness the Florida governor backing off a similar bounty-hunter law after initially promising to follow Texas, with a spokesperson telling BuzzFeed, “Governor DeSantis doesn’t want to turn private citizens against each other.”

Vladeck believes that only federal legislation, like the Women’s Health Protection Act that House Speaker Nancy Pelosi plans to bring to a vote, can restore abortion rights in Texas and other red states. “A properly calibrated statute would be very hard for even this Court to strike down,” he says. “That’s not to say they wouldn’t try.” The trouble is, like most items on the progressive wishlist, the law doesn’t have a filibusterproof majority in the Senate. But as intractable as the politics are on that, lifelong judicial appointments are even more inflexible.

Politicians who are sympathetic to abortion rights have long depended on the Supreme Court to do what they so far have been reluctant to do, which is to spend political capital on making sure people can actually get abortions. That could change. “It might depend on how long the backlash continues,” says Litman. “Or whether it fades.”

What’s Next in the Fight Against Texas’s Abortion Ban