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Texas SB8 and the future of abortion care
Texas Senate Bill 8 (SB8) is the most extreme antiabortion legislation currently in effect in the United States. SB8 was introduced by the Texas legislature on March 11, 2021, and signed into law by Governor Greg Abbott on May 19, 2021.1 The law went into effect on September 1, 2021, despite an appeal to the US Supreme Court to block the law until the courts could weigh in on its constitutionality. The bill prohibits all abortion care in the state of Texas after cardiac activity has been identified, typically at 6 weeks’ gestational age. The majority of pregnant people may be unaware at that point that they are pregnant, particularly if their menstrual cycles are irregular.2 An estimated 85% of abortions in Texas occur after the 6-week mark, leaving millions of Texans without the constitutionally protected rights assured to them in Roe v Wade.3,4 This has and will disproportionately impact communities of color and low-income people seeking abortion care.
SB8 does not contain exceptions in case of a pregnancy that results from rape, sexual assault, or incest, but it does contain an exemption for abortion care because of a medical emergency, as approved by a physician. The physician is required to note the medical emergency in the patient’s chart, stating that the “medical emergency necessitated the abortion” and “prevented compliance” with SB8.5 In practice, this exception is so vague as to leave clinicians concerned that routine management of medical conditions and complications, as in ectopic pregnancy, places them at risk of legal action against them and their colleagues should they authorize abortion care.
In Texas, abortion restrictions are nothing new. Texas patients are already subject to a 2-trip requirement: Since 2011 they have been required to have a mandatory ultrasound in one visit and schedule a second visit, 24 hours later, for the procedure.6 As of 2003, Texas law also mandates that providers discuss with patients the medical risks, adoption alternatives, and developmental stages of the pregnancy.6 There are no medical indications for either of these laws, and their impact is to delay patient care. Unfortunately, laws such as these have been increasingly common in the past decade, with 106 abortion restrictions enacted in 2021 alone.7,8
What is different about SB8?
SB8 is unique in that it deputizes private citizens to enforce the law. This represents a major change in the antichoice movement’s tactics, as previous bills have made violations a criminal offense. SB8 allows a citizen to sue anyone associated with abortion care, with a minimum penalty of $10,000. In practice, a citizen of another state, who has no connection to the patient receiving care, can sue under this Texas law.9 Anyone “aiding and abetting a violation” can be found liable for up to 4 years after the date of care, including, for example, a ride-hailing driver called to ferry the patient to the appointment, the health care team providing abortion care, or insurance companies covering the costs of care. In addition, anyone found guilty of “aiding and abetting” a violation of the bill is responsible for all costs and attorney fees associated with the civil case.5,10
Furthermore, SB8 outlines defenses that cannot be used to preempt a finding of civil liability, including “ignorance or mistake of the law,” “belief of the law’s unconstitutionality,” and “consent of the [patient] to the abortion.”5 This additional layer of restriction makes it difficult to appeal the bill and convolutes an individual’s ability to challenge the law. The law also forbids the state (Texas), a state official, a court, or a district attorney from intervening on behalf of the law—upending typical courses of appeal. This legislation also complicates both federal and state intervention regarding SB8’s constitutionality, as the state has no role in enforcing the law as it is written.5
Continue to: What has been the response?...
What has been the response?
As expected, abortion foes reacted positively to SB8, while abortion advocates expressed outrage that the law went into effect. Many were additionally confused that the Supreme Court chose not to intervene to stay the law while the courts adjudicate its constitutionality, as is typical in other cases concerning abortion restrictions.11
In a 5-4 ruling, the US Supreme Court allowed SB8 to take effect on September 1, issuing its decision on the “Shadow Docket.” As such, a decision was handed down on an expedited timeline in response to an emergency appeal without any oral arguments or a lengthy opinion explaining the ruling.11,12 The majority delivered a brief, one-paragraph order summarizing their decision, explaining that their refusal to grant the injunction was not a commentary on the law’s constitutionality. The High Court stated that they could not initially comment on the law’s constitutionality before it went into effect, citing that per the law, the state had no role in enforcement, and at the time, no private actions had yet been brought under the law. Justice Sonia Sotomayor dissented, stating, “The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”13
Following the Supreme Court’s refusal to act, US Attorney General Merrick Garland commented that “the Justice Department was evaluating all options to protect the constitutional rights of women and other persons.” Just one week later, the US Department of Justice filed a lawsuit against the State of Texas, arguing that SB8 was unconstitutional under the Supremacy Clause (federal law takes precedence over state law) and the Fourteenth Amendment.14,15
On October 6, in response to the Department of Justice’s challenge, District Judge Robert Pitman issued an injunction to prevent enforcement of SB8. In a 113-page ruling, Judge Pitman explained that “a person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established.” Judge Pittman held SB8 unconstitutional, stating, “Women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution... Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”16
Just 48 hours after the injunction issued by Judge Pitman, the Fifth Circuit Court of Appeals overturned the injunction, and SB8 went back into effect while litigation on its constitutionality proceeded.2,17 The Fifth Circuit Court of Appeals is widely considered to be one of the most conservative courts in the country.18
On October 15, 2021, the Department of Justice appealed the Fifth Circuit Court’s decision and asked the US Supreme Court to intervene, requesting that the Court issue an emergency halt to the law.19,20 On October 22, 2021, the Court declined to halt the law but scheduled oral arguments on the case for November 1, 2021. This is a stunningly fast briefing schedule for a case of such constitutional importance.
Given the legal back-and-forth, many clinicians are not providing abortion care in Texas as the litigation unfolds. SB8 permits retroactive enforcement, mandating that those “aiding and abetting” of abortion care may be civilly liable for up to 4 years after providing the care.5
Continue to: Potential outcomes, and what comes next...
Potential outcomes, and what comes next
Since the ascension of Justice Amy Coney Barrett to the High Court, there has been a nationwide increase in antiabortion legislation. Between January and July 2021, more than 90 abortion restrictions were passed, more restrictions in any single year since Roe v Wade was decided in 1973.8 In the past decade, more than 500 laws that restrict abortion have been passed across the United States, and studies indicate that 87% to 90% of American counties today are without a single abortion provider.21,22 Abortion supporters are particularly concerned about the future of Roe v Wade, with a conservative Supreme Court set to hear the challenge to SB8 on November 1, 2021, followed by a second case from Mississippi challenging the constitutionality of a 15-week ban on abortion in Dobbs v Jackson Women’s Health Organization (read about this case in “Supreme Court Case: Dobbs v Jackson Women’s Health Organization: What you need to know,” at https://www.mdedge.com/obgyn/article/245853/practice-management/supreme-court-case-dobbs-v-jackson-womens-health).23,24
At the time of this article writing, we do not know how the Supreme Court will rule on the variety of challenges to the right to privacy. That said, advocates believe it is safe to assume that the landscape of abortion access is likely to change dramatically in the coming year.
Action items: What can you do?
It is important to remember that not only does SB8 severely limit access to safe and legal abortion but also it makes pregnancy dangerous for all pregnant people in Texas and places doubt in providers’ minds on how to manage medical care for their patients.
On the federal level, many advocates are focusing on codifying the right to choose and protecting abortion care from medically unnecessary restrictions. The Women’s Health Protection Act of 2021 (WHPA) was introduced in the House of Representatives by Rep. Judy Chu (D-CA), Lois Frankel (D-FL), Ayanna Pressley (D-MA), and Veronica Escobar (D-TX), and it passed in the US House of Representatives in a 218-211 vote.25 WHPA now awaits a vote in a deeply divided US Senate. Although WHPA has wide popular support—an estimated 61% of Americans support the legislation—its future is unclear in the Senate.26 Currently, WHPA has 48 supporters, all Democrats. You can contact your legislators via the links below to encourage them to pass WHPA. If you have friends and colleagues in states in which the Senator does not support WHPA, forward these links and encourage them to sign on:
- Equal Access to Abortion, Everywhere: https://actforwomen.org/take-action/
- Physicians for Reproductive Rights: https://secure.everyaction.com/p/MOuAyW7F3Ua-FmaGtGD4Kw2
- Center for Reproductive Rights: https://reproductiverights.org/whpa-take-action/
Many also are organizing a crowdfunding campaign to support abortion providers as well as legislative resources. Additional groups to donate specifically to SB8 efforts include27:
- Equal Access to Abortion, Everywhere: https://actforwomen.org/whpa-faqs/
- Planned Parenthood of Greater Texas, Inc: https://www.plannedparenthood.org/planned-parenthood-greater-texas/senate-bill-8
- Texas Equal Access Fund: https://secure.everyaction.com/ztEh8Qeh80-k2k1Yuo5gTw2
- ActBlue Charities: https://secure.actblue.com/donate/txfunds
Furthermore, it is more important than ever to support work within states to support abortion rights. State-specific abortion advocacy groups and their efforts include:
- Avow Foundation for Abortion Access: https://avowtexas.org/support/
- Planned Parenthood of Greater Texas, Inc: https://www.plannedparenthood.org/planned-parenthood-greater-texas
- NARAL Pro-Choice Texas: https://prochoicetexas.org/
- Texas Abortion Access Network: https://txabortionaccessnetwork.org/
- ACLU Texas. Abortion in Texas. Updated October 9, 2021. Accessed November 8, 2021. https://www.aclutx.org/en/know-your-rights/abortion-texas.
- Rummler O. The 19th explains: what to know about Texas’ abortion law. The 19th. September 1, 2021; updated October 12, 2021. Accessed November 8, 2021. https://19thnews.org/2021/09/texas-new-abortion-law-what-you-need-know/.
- Kaye J, Hearron M. Even people who oppose abortion should fear Texas’s new ban. July 19, 2021. The Washington Post. Accessed November 12, 2021. https://www.washingtonpost.com/outlook/2021/07/19/texas-sb8-abortion-lawsuits/.
- Centers for Disease Control and Prevention. CDCs abortion surveillance system FAQs. November 25, 2020. Accessed November 8, 2021. https://www.cdc.gov/reproductivehealth/data_stats/abortion.htm.
- Texas Senate Bill 8. LegiScan. Accessed November 8, 2021. https://legiscan.com/TX/text/SB8/id/2395961.
- Texas abortion laws and policies. Planned Parenthood of Greater Texas, Inc. Accessed November 8, 2021. https://www.plannedparenthood.org/planned-parenthood-greater-texas/patient-resources/texas-laws-policies.
- Nash E. For the first time ever, US states enacted more than 100 abortion restrictions in a single year. October 4, 2012. Guttmacher Institute. Accessed November 12, 2021. https://www.guttmacher.org/article/2021/10/first-time-ever-us-states-enacted-more-100-abortion-restrictions-single-year.
- Nash E, Naide S. State policy trends at midyear 2021: already the worst legislative year ever for US abortion rights. July 2021. Guttmacher Institute. Accessed November 8, 2021. https://www.guttmacher.org/article/2021/07/state-policy-trends-midyear-2021-already-worst-legislative-year-ever-us-abortion.
- ACLU. Whole Women’s Health v Jackson. Updated October 7, 2021. Accessed November 8, 2021. https://www.aclu.org/cases/whole-womans-health-v-jacksonH
- Holley P, Solomon D. Your questions about Texas’s new abortion law, answered. Texas Monthly. October 7, 2021. Accessed November 8, 2021. https://www.texasmonthly.com/news-politics/texas-abortion-law-explained/.
- Millhiser I. The staggering implications of the Supreme Court’s Texas anti-abortion ruling. Vox. September 2, 2021. Accessed November 8, 2021. https://www.vox.com/22653779/supreme-court-abortion-texas-sb8-whole-womans-health-jackson-roe-wade.
- Carter S. ACLU of Texas asks US Supreme Court to stop new abortion law. Dallas Observer. August 31, 2021. Accessed November 8, 2021. https://www.dallasobserver.com/news/aclu-of-texas-asks-us-supreme-court-to-block-new-anti-abortion-law-sb-8-12314274.
- Supreme Court of the United States. Whole Women’s Health et al v Austin Reeve Jackson, Judge, et al: On application of injunction relief. September 1, 2021. Accessed November 8, 2021. https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf.
- Lucas R. A US judge blocks enforcement of Texas’ controversial new abortion law. NPR. October 6, 2021. Accessed November 8, 2021. https://www.npr.org/2021/10/06/1040221171/a-u-s-judge-blocks-enforcement-of-texas-controversial-new-abortion-law.
- US Department of Justice. Attorney General Merrick B. Garland delivers remarks announcing lawsuit against the state of Texas to stop unconstitutional Senate Bill 8. September 8, 2021. Accessed November 8, 2021. https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-announcing-lawsuit-against-state-0.
- Barnhart T. Texas abortion law suspended by district judge hearing Biden administration challenge. Newsweek. October 6, 2021. Accessed November 8, 2021. https://www.newsweek.com/district-court-judge-issues-injunction-texas-law-banning-abortions-after-6-weeks-1636411.
- Oxner R. Appeals court allows Texas abortion law to resume, stopping federal judge’s order to block enforcement. The Texas Tribune. October 8, 2021. Accessed November 8, 2021. https://www.texastribune.org/2021/10/08/texas-abortion-appeal/.
- Oxner R. Texas’ near-total abortion ban will remain in effect as federal appeals court agrees to hear legal challenges. The Texas Tribune. October 14, 2021. Accessed November 8, 2021. https://www.texastribune.org/2021/10/14/texas-abortion-restrictions-appeal/.
- The United States District Court for the Western District of Texas, Austin Division. September 9, 2021. Accessed November 8, 2021. https://www.justsecurity.org/wp-content/uploads/2021/09/lawsuit-doj.pdf.
- Barnes R, Marimow AE. Justice Department will ask Supreme Court to block Texas abortion law while legal fights play out. Washington Post. October 15, 2021. Accessed November 8, 2021. https://www.washingtonpost.com/politics/courts_law/doj-texas-abortion-ban-supreme-court/2021/10/15/bd5762e6-2dcc-11ec-8ef6-3ca8fe943a92_story.html.
- Nash E, Bearak J, Li N, et al. Impact of Texas’ abortion ban: a 14-fold increase in driving distance to get an abortion. Guttmacher Institute. August 4, 2021; updated September 15, 2021. Accessed November 8, 2021. https://www.guttmacher.org/article/2021/08/impact-texas-abortion-ban-14-fold-increase-driving-distance-get-abortion.
- Jones RK, Jerman J. Abortion incidence and service availability in the United States, 2014. Perspect Sex Reprod Health. 2017;49:17-27. https://doi.org/10.1363/psrh.12015. Accessed November 12, 2021.
- Center for Reproductive Rights. Jackson Women’s Health Organization v Dobbs. March 19, 2018. Accessed November 8, 2021. https://reproductiverights.org/case/jackson-womens-health-organization-v-dobbs/.
- Chung A. US Supreme Court takes up Texas abortion case, lets ban remain. Oct 22, 2021. Reuters. Accessed November 8, 2021. https://www.reuters.com/world/us/us-supreme-court-hear-challenge-texas-abortion-ban-2021-10-22/.
- Equal Access to Abortion, Everywhere. Frequently asked questions. Accessed November 8, 2021. https://actforwomen.org/whpa-faqs/.
- Center for Reproductive Rights. New poll: a solid majority of voters support the Women’s Health Protection Act (WHPA). Accessed November 8, 2021. https://reproductiverights.org/wp-content/uploads/2021/06/ME-CRR_WHPA-Release-14001-June-1.pdf.
- Pardilla A, Avila A. 20 organizations fighting the Texas abortion ban. New York Magazine. September 2, 2021. Accessed November 8, 2021. https://nymag.com/strategist/2021/09/texas-abortion-ban-2021-where-to-donate.html.
Texas Senate Bill 8 (SB8) is the most extreme antiabortion legislation currently in effect in the United States. SB8 was introduced by the Texas legislature on March 11, 2021, and signed into law by Governor Greg Abbott on May 19, 2021.1 The law went into effect on September 1, 2021, despite an appeal to the US Supreme Court to block the law until the courts could weigh in on its constitutionality. The bill prohibits all abortion care in the state of Texas after cardiac activity has been identified, typically at 6 weeks’ gestational age. The majority of pregnant people may be unaware at that point that they are pregnant, particularly if their menstrual cycles are irregular.2 An estimated 85% of abortions in Texas occur after the 6-week mark, leaving millions of Texans without the constitutionally protected rights assured to them in Roe v Wade.3,4 This has and will disproportionately impact communities of color and low-income people seeking abortion care.
SB8 does not contain exceptions in case of a pregnancy that results from rape, sexual assault, or incest, but it does contain an exemption for abortion care because of a medical emergency, as approved by a physician. The physician is required to note the medical emergency in the patient’s chart, stating that the “medical emergency necessitated the abortion” and “prevented compliance” with SB8.5 In practice, this exception is so vague as to leave clinicians concerned that routine management of medical conditions and complications, as in ectopic pregnancy, places them at risk of legal action against them and their colleagues should they authorize abortion care.
In Texas, abortion restrictions are nothing new. Texas patients are already subject to a 2-trip requirement: Since 2011 they have been required to have a mandatory ultrasound in one visit and schedule a second visit, 24 hours later, for the procedure.6 As of 2003, Texas law also mandates that providers discuss with patients the medical risks, adoption alternatives, and developmental stages of the pregnancy.6 There are no medical indications for either of these laws, and their impact is to delay patient care. Unfortunately, laws such as these have been increasingly common in the past decade, with 106 abortion restrictions enacted in 2021 alone.7,8
What is different about SB8?
SB8 is unique in that it deputizes private citizens to enforce the law. This represents a major change in the antichoice movement’s tactics, as previous bills have made violations a criminal offense. SB8 allows a citizen to sue anyone associated with abortion care, with a minimum penalty of $10,000. In practice, a citizen of another state, who has no connection to the patient receiving care, can sue under this Texas law.9 Anyone “aiding and abetting a violation” can be found liable for up to 4 years after the date of care, including, for example, a ride-hailing driver called to ferry the patient to the appointment, the health care team providing abortion care, or insurance companies covering the costs of care. In addition, anyone found guilty of “aiding and abetting” a violation of the bill is responsible for all costs and attorney fees associated with the civil case.5,10
Furthermore, SB8 outlines defenses that cannot be used to preempt a finding of civil liability, including “ignorance or mistake of the law,” “belief of the law’s unconstitutionality,” and “consent of the [patient] to the abortion.”5 This additional layer of restriction makes it difficult to appeal the bill and convolutes an individual’s ability to challenge the law. The law also forbids the state (Texas), a state official, a court, or a district attorney from intervening on behalf of the law—upending typical courses of appeal. This legislation also complicates both federal and state intervention regarding SB8’s constitutionality, as the state has no role in enforcing the law as it is written.5
Continue to: What has been the response?...
What has been the response?
As expected, abortion foes reacted positively to SB8, while abortion advocates expressed outrage that the law went into effect. Many were additionally confused that the Supreme Court chose not to intervene to stay the law while the courts adjudicate its constitutionality, as is typical in other cases concerning abortion restrictions.11
In a 5-4 ruling, the US Supreme Court allowed SB8 to take effect on September 1, issuing its decision on the “Shadow Docket.” As such, a decision was handed down on an expedited timeline in response to an emergency appeal without any oral arguments or a lengthy opinion explaining the ruling.11,12 The majority delivered a brief, one-paragraph order summarizing their decision, explaining that their refusal to grant the injunction was not a commentary on the law’s constitutionality. The High Court stated that they could not initially comment on the law’s constitutionality before it went into effect, citing that per the law, the state had no role in enforcement, and at the time, no private actions had yet been brought under the law. Justice Sonia Sotomayor dissented, stating, “The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”13
Following the Supreme Court’s refusal to act, US Attorney General Merrick Garland commented that “the Justice Department was evaluating all options to protect the constitutional rights of women and other persons.” Just one week later, the US Department of Justice filed a lawsuit against the State of Texas, arguing that SB8 was unconstitutional under the Supremacy Clause (federal law takes precedence over state law) and the Fourteenth Amendment.14,15
On October 6, in response to the Department of Justice’s challenge, District Judge Robert Pitman issued an injunction to prevent enforcement of SB8. In a 113-page ruling, Judge Pitman explained that “a person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established.” Judge Pittman held SB8 unconstitutional, stating, “Women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution... Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”16
Just 48 hours after the injunction issued by Judge Pitman, the Fifth Circuit Court of Appeals overturned the injunction, and SB8 went back into effect while litigation on its constitutionality proceeded.2,17 The Fifth Circuit Court of Appeals is widely considered to be one of the most conservative courts in the country.18
On October 15, 2021, the Department of Justice appealed the Fifth Circuit Court’s decision and asked the US Supreme Court to intervene, requesting that the Court issue an emergency halt to the law.19,20 On October 22, 2021, the Court declined to halt the law but scheduled oral arguments on the case for November 1, 2021. This is a stunningly fast briefing schedule for a case of such constitutional importance.
Given the legal back-and-forth, many clinicians are not providing abortion care in Texas as the litigation unfolds. SB8 permits retroactive enforcement, mandating that those “aiding and abetting” of abortion care may be civilly liable for up to 4 years after providing the care.5
Continue to: Potential outcomes, and what comes next...
Potential outcomes, and what comes next
Since the ascension of Justice Amy Coney Barrett to the High Court, there has been a nationwide increase in antiabortion legislation. Between January and July 2021, more than 90 abortion restrictions were passed, more restrictions in any single year since Roe v Wade was decided in 1973.8 In the past decade, more than 500 laws that restrict abortion have been passed across the United States, and studies indicate that 87% to 90% of American counties today are without a single abortion provider.21,22 Abortion supporters are particularly concerned about the future of Roe v Wade, with a conservative Supreme Court set to hear the challenge to SB8 on November 1, 2021, followed by a second case from Mississippi challenging the constitutionality of a 15-week ban on abortion in Dobbs v Jackson Women’s Health Organization (read about this case in “Supreme Court Case: Dobbs v Jackson Women’s Health Organization: What you need to know,” at https://www.mdedge.com/obgyn/article/245853/practice-management/supreme-court-case-dobbs-v-jackson-womens-health).23,24
At the time of this article writing, we do not know how the Supreme Court will rule on the variety of challenges to the right to privacy. That said, advocates believe it is safe to assume that the landscape of abortion access is likely to change dramatically in the coming year.
Action items: What can you do?
It is important to remember that not only does SB8 severely limit access to safe and legal abortion but also it makes pregnancy dangerous for all pregnant people in Texas and places doubt in providers’ minds on how to manage medical care for their patients.
On the federal level, many advocates are focusing on codifying the right to choose and protecting abortion care from medically unnecessary restrictions. The Women’s Health Protection Act of 2021 (WHPA) was introduced in the House of Representatives by Rep. Judy Chu (D-CA), Lois Frankel (D-FL), Ayanna Pressley (D-MA), and Veronica Escobar (D-TX), and it passed in the US House of Representatives in a 218-211 vote.25 WHPA now awaits a vote in a deeply divided US Senate. Although WHPA has wide popular support—an estimated 61% of Americans support the legislation—its future is unclear in the Senate.26 Currently, WHPA has 48 supporters, all Democrats. You can contact your legislators via the links below to encourage them to pass WHPA. If you have friends and colleagues in states in which the Senator does not support WHPA, forward these links and encourage them to sign on:
- Equal Access to Abortion, Everywhere: https://actforwomen.org/take-action/
- Physicians for Reproductive Rights: https://secure.everyaction.com/p/MOuAyW7F3Ua-FmaGtGD4Kw2
- Center for Reproductive Rights: https://reproductiverights.org/whpa-take-action/
Many also are organizing a crowdfunding campaign to support abortion providers as well as legislative resources. Additional groups to donate specifically to SB8 efforts include27:
- Equal Access to Abortion, Everywhere: https://actforwomen.org/whpa-faqs/
- Planned Parenthood of Greater Texas, Inc: https://www.plannedparenthood.org/planned-parenthood-greater-texas/senate-bill-8
- Texas Equal Access Fund: https://secure.everyaction.com/ztEh8Qeh80-k2k1Yuo5gTw2
- ActBlue Charities: https://secure.actblue.com/donate/txfunds
Furthermore, it is more important than ever to support work within states to support abortion rights. State-specific abortion advocacy groups and their efforts include:
- Avow Foundation for Abortion Access: https://avowtexas.org/support/
- Planned Parenthood of Greater Texas, Inc: https://www.plannedparenthood.org/planned-parenthood-greater-texas
- NARAL Pro-Choice Texas: https://prochoicetexas.org/
- Texas Abortion Access Network: https://txabortionaccessnetwork.org/
Texas Senate Bill 8 (SB8) is the most extreme antiabortion legislation currently in effect in the United States. SB8 was introduced by the Texas legislature on March 11, 2021, and signed into law by Governor Greg Abbott on May 19, 2021.1 The law went into effect on September 1, 2021, despite an appeal to the US Supreme Court to block the law until the courts could weigh in on its constitutionality. The bill prohibits all abortion care in the state of Texas after cardiac activity has been identified, typically at 6 weeks’ gestational age. The majority of pregnant people may be unaware at that point that they are pregnant, particularly if their menstrual cycles are irregular.2 An estimated 85% of abortions in Texas occur after the 6-week mark, leaving millions of Texans without the constitutionally protected rights assured to them in Roe v Wade.3,4 This has and will disproportionately impact communities of color and low-income people seeking abortion care.
SB8 does not contain exceptions in case of a pregnancy that results from rape, sexual assault, or incest, but it does contain an exemption for abortion care because of a medical emergency, as approved by a physician. The physician is required to note the medical emergency in the patient’s chart, stating that the “medical emergency necessitated the abortion” and “prevented compliance” with SB8.5 In practice, this exception is so vague as to leave clinicians concerned that routine management of medical conditions and complications, as in ectopic pregnancy, places them at risk of legal action against them and their colleagues should they authorize abortion care.
In Texas, abortion restrictions are nothing new. Texas patients are already subject to a 2-trip requirement: Since 2011 they have been required to have a mandatory ultrasound in one visit and schedule a second visit, 24 hours later, for the procedure.6 As of 2003, Texas law also mandates that providers discuss with patients the medical risks, adoption alternatives, and developmental stages of the pregnancy.6 There are no medical indications for either of these laws, and their impact is to delay patient care. Unfortunately, laws such as these have been increasingly common in the past decade, with 106 abortion restrictions enacted in 2021 alone.7,8
What is different about SB8?
SB8 is unique in that it deputizes private citizens to enforce the law. This represents a major change in the antichoice movement’s tactics, as previous bills have made violations a criminal offense. SB8 allows a citizen to sue anyone associated with abortion care, with a minimum penalty of $10,000. In practice, a citizen of another state, who has no connection to the patient receiving care, can sue under this Texas law.9 Anyone “aiding and abetting a violation” can be found liable for up to 4 years after the date of care, including, for example, a ride-hailing driver called to ferry the patient to the appointment, the health care team providing abortion care, or insurance companies covering the costs of care. In addition, anyone found guilty of “aiding and abetting” a violation of the bill is responsible for all costs and attorney fees associated with the civil case.5,10
Furthermore, SB8 outlines defenses that cannot be used to preempt a finding of civil liability, including “ignorance or mistake of the law,” “belief of the law’s unconstitutionality,” and “consent of the [patient] to the abortion.”5 This additional layer of restriction makes it difficult to appeal the bill and convolutes an individual’s ability to challenge the law. The law also forbids the state (Texas), a state official, a court, or a district attorney from intervening on behalf of the law—upending typical courses of appeal. This legislation also complicates both federal and state intervention regarding SB8’s constitutionality, as the state has no role in enforcing the law as it is written.5
Continue to: What has been the response?...
What has been the response?
As expected, abortion foes reacted positively to SB8, while abortion advocates expressed outrage that the law went into effect. Many were additionally confused that the Supreme Court chose not to intervene to stay the law while the courts adjudicate its constitutionality, as is typical in other cases concerning abortion restrictions.11
In a 5-4 ruling, the US Supreme Court allowed SB8 to take effect on September 1, issuing its decision on the “Shadow Docket.” As such, a decision was handed down on an expedited timeline in response to an emergency appeal without any oral arguments or a lengthy opinion explaining the ruling.11,12 The majority delivered a brief, one-paragraph order summarizing their decision, explaining that their refusal to grant the injunction was not a commentary on the law’s constitutionality. The High Court stated that they could not initially comment on the law’s constitutionality before it went into effect, citing that per the law, the state had no role in enforcement, and at the time, no private actions had yet been brought under the law. Justice Sonia Sotomayor dissented, stating, “The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”13
Following the Supreme Court’s refusal to act, US Attorney General Merrick Garland commented that “the Justice Department was evaluating all options to protect the constitutional rights of women and other persons.” Just one week later, the US Department of Justice filed a lawsuit against the State of Texas, arguing that SB8 was unconstitutional under the Supremacy Clause (federal law takes precedence over state law) and the Fourteenth Amendment.14,15
On October 6, in response to the Department of Justice’s challenge, District Judge Robert Pitman issued an injunction to prevent enforcement of SB8. In a 113-page ruling, Judge Pitman explained that “a person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established.” Judge Pittman held SB8 unconstitutional, stating, “Women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution... Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”16
Just 48 hours after the injunction issued by Judge Pitman, the Fifth Circuit Court of Appeals overturned the injunction, and SB8 went back into effect while litigation on its constitutionality proceeded.2,17 The Fifth Circuit Court of Appeals is widely considered to be one of the most conservative courts in the country.18
On October 15, 2021, the Department of Justice appealed the Fifth Circuit Court’s decision and asked the US Supreme Court to intervene, requesting that the Court issue an emergency halt to the law.19,20 On October 22, 2021, the Court declined to halt the law but scheduled oral arguments on the case for November 1, 2021. This is a stunningly fast briefing schedule for a case of such constitutional importance.
Given the legal back-and-forth, many clinicians are not providing abortion care in Texas as the litigation unfolds. SB8 permits retroactive enforcement, mandating that those “aiding and abetting” of abortion care may be civilly liable for up to 4 years after providing the care.5
Continue to: Potential outcomes, and what comes next...
Potential outcomes, and what comes next
Since the ascension of Justice Amy Coney Barrett to the High Court, there has been a nationwide increase in antiabortion legislation. Between January and July 2021, more than 90 abortion restrictions were passed, more restrictions in any single year since Roe v Wade was decided in 1973.8 In the past decade, more than 500 laws that restrict abortion have been passed across the United States, and studies indicate that 87% to 90% of American counties today are without a single abortion provider.21,22 Abortion supporters are particularly concerned about the future of Roe v Wade, with a conservative Supreme Court set to hear the challenge to SB8 on November 1, 2021, followed by a second case from Mississippi challenging the constitutionality of a 15-week ban on abortion in Dobbs v Jackson Women’s Health Organization (read about this case in “Supreme Court Case: Dobbs v Jackson Women’s Health Organization: What you need to know,” at https://www.mdedge.com/obgyn/article/245853/practice-management/supreme-court-case-dobbs-v-jackson-womens-health).23,24
At the time of this article writing, we do not know how the Supreme Court will rule on the variety of challenges to the right to privacy. That said, advocates believe it is safe to assume that the landscape of abortion access is likely to change dramatically in the coming year.
Action items: What can you do?
It is important to remember that not only does SB8 severely limit access to safe and legal abortion but also it makes pregnancy dangerous for all pregnant people in Texas and places doubt in providers’ minds on how to manage medical care for their patients.
On the federal level, many advocates are focusing on codifying the right to choose and protecting abortion care from medically unnecessary restrictions. The Women’s Health Protection Act of 2021 (WHPA) was introduced in the House of Representatives by Rep. Judy Chu (D-CA), Lois Frankel (D-FL), Ayanna Pressley (D-MA), and Veronica Escobar (D-TX), and it passed in the US House of Representatives in a 218-211 vote.25 WHPA now awaits a vote in a deeply divided US Senate. Although WHPA has wide popular support—an estimated 61% of Americans support the legislation—its future is unclear in the Senate.26 Currently, WHPA has 48 supporters, all Democrats. You can contact your legislators via the links below to encourage them to pass WHPA. If you have friends and colleagues in states in which the Senator does not support WHPA, forward these links and encourage them to sign on:
- Equal Access to Abortion, Everywhere: https://actforwomen.org/take-action/
- Physicians for Reproductive Rights: https://secure.everyaction.com/p/MOuAyW7F3Ua-FmaGtGD4Kw2
- Center for Reproductive Rights: https://reproductiverights.org/whpa-take-action/
Many also are organizing a crowdfunding campaign to support abortion providers as well as legislative resources. Additional groups to donate specifically to SB8 efforts include27:
- Equal Access to Abortion, Everywhere: https://actforwomen.org/whpa-faqs/
- Planned Parenthood of Greater Texas, Inc: https://www.plannedparenthood.org/planned-parenthood-greater-texas/senate-bill-8
- Texas Equal Access Fund: https://secure.everyaction.com/ztEh8Qeh80-k2k1Yuo5gTw2
- ActBlue Charities: https://secure.actblue.com/donate/txfunds
Furthermore, it is more important than ever to support work within states to support abortion rights. State-specific abortion advocacy groups and their efforts include:
- Avow Foundation for Abortion Access: https://avowtexas.org/support/
- Planned Parenthood of Greater Texas, Inc: https://www.plannedparenthood.org/planned-parenthood-greater-texas
- NARAL Pro-Choice Texas: https://prochoicetexas.org/
- Texas Abortion Access Network: https://txabortionaccessnetwork.org/
- ACLU Texas. Abortion in Texas. Updated October 9, 2021. Accessed November 8, 2021. https://www.aclutx.org/en/know-your-rights/abortion-texas.
- Rummler O. The 19th explains: what to know about Texas’ abortion law. The 19th. September 1, 2021; updated October 12, 2021. Accessed November 8, 2021. https://19thnews.org/2021/09/texas-new-abortion-law-what-you-need-know/.
- Kaye J, Hearron M. Even people who oppose abortion should fear Texas’s new ban. July 19, 2021. The Washington Post. Accessed November 12, 2021. https://www.washingtonpost.com/outlook/2021/07/19/texas-sb8-abortion-lawsuits/.
- Centers for Disease Control and Prevention. CDCs abortion surveillance system FAQs. November 25, 2020. Accessed November 8, 2021. https://www.cdc.gov/reproductivehealth/data_stats/abortion.htm.
- Texas Senate Bill 8. LegiScan. Accessed November 8, 2021. https://legiscan.com/TX/text/SB8/id/2395961.
- Texas abortion laws and policies. Planned Parenthood of Greater Texas, Inc. Accessed November 8, 2021. https://www.plannedparenthood.org/planned-parenthood-greater-texas/patient-resources/texas-laws-policies.
- Nash E. For the first time ever, US states enacted more than 100 abortion restrictions in a single year. October 4, 2012. Guttmacher Institute. Accessed November 12, 2021. https://www.guttmacher.org/article/2021/10/first-time-ever-us-states-enacted-more-100-abortion-restrictions-single-year.
- Nash E, Naide S. State policy trends at midyear 2021: already the worst legislative year ever for US abortion rights. July 2021. Guttmacher Institute. Accessed November 8, 2021. https://www.guttmacher.org/article/2021/07/state-policy-trends-midyear-2021-already-worst-legislative-year-ever-us-abortion.
- ACLU. Whole Women’s Health v Jackson. Updated October 7, 2021. Accessed November 8, 2021. https://www.aclu.org/cases/whole-womans-health-v-jacksonH
- Holley P, Solomon D. Your questions about Texas’s new abortion law, answered. Texas Monthly. October 7, 2021. Accessed November 8, 2021. https://www.texasmonthly.com/news-politics/texas-abortion-law-explained/.
- Millhiser I. The staggering implications of the Supreme Court’s Texas anti-abortion ruling. Vox. September 2, 2021. Accessed November 8, 2021. https://www.vox.com/22653779/supreme-court-abortion-texas-sb8-whole-womans-health-jackson-roe-wade.
- Carter S. ACLU of Texas asks US Supreme Court to stop new abortion law. Dallas Observer. August 31, 2021. Accessed November 8, 2021. https://www.dallasobserver.com/news/aclu-of-texas-asks-us-supreme-court-to-block-new-anti-abortion-law-sb-8-12314274.
- Supreme Court of the United States. Whole Women’s Health et al v Austin Reeve Jackson, Judge, et al: On application of injunction relief. September 1, 2021. Accessed November 8, 2021. https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf.
- Lucas R. A US judge blocks enforcement of Texas’ controversial new abortion law. NPR. October 6, 2021. Accessed November 8, 2021. https://www.npr.org/2021/10/06/1040221171/a-u-s-judge-blocks-enforcement-of-texas-controversial-new-abortion-law.
- US Department of Justice. Attorney General Merrick B. Garland delivers remarks announcing lawsuit against the state of Texas to stop unconstitutional Senate Bill 8. September 8, 2021. Accessed November 8, 2021. https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-announcing-lawsuit-against-state-0.
- Barnhart T. Texas abortion law suspended by district judge hearing Biden administration challenge. Newsweek. October 6, 2021. Accessed November 8, 2021. https://www.newsweek.com/district-court-judge-issues-injunction-texas-law-banning-abortions-after-6-weeks-1636411.
- Oxner R. Appeals court allows Texas abortion law to resume, stopping federal judge’s order to block enforcement. The Texas Tribune. October 8, 2021. Accessed November 8, 2021. https://www.texastribune.org/2021/10/08/texas-abortion-appeal/.
- Oxner R. Texas’ near-total abortion ban will remain in effect as federal appeals court agrees to hear legal challenges. The Texas Tribune. October 14, 2021. Accessed November 8, 2021. https://www.texastribune.org/2021/10/14/texas-abortion-restrictions-appeal/.
- The United States District Court for the Western District of Texas, Austin Division. September 9, 2021. Accessed November 8, 2021. https://www.justsecurity.org/wp-content/uploads/2021/09/lawsuit-doj.pdf.
- Barnes R, Marimow AE. Justice Department will ask Supreme Court to block Texas abortion law while legal fights play out. Washington Post. October 15, 2021. Accessed November 8, 2021. https://www.washingtonpost.com/politics/courts_law/doj-texas-abortion-ban-supreme-court/2021/10/15/bd5762e6-2dcc-11ec-8ef6-3ca8fe943a92_story.html.
- Nash E, Bearak J, Li N, et al. Impact of Texas’ abortion ban: a 14-fold increase in driving distance to get an abortion. Guttmacher Institute. August 4, 2021; updated September 15, 2021. Accessed November 8, 2021. https://www.guttmacher.org/article/2021/08/impact-texas-abortion-ban-14-fold-increase-driving-distance-get-abortion.
- Jones RK, Jerman J. Abortion incidence and service availability in the United States, 2014. Perspect Sex Reprod Health. 2017;49:17-27. https://doi.org/10.1363/psrh.12015. Accessed November 12, 2021.
- Center for Reproductive Rights. Jackson Women’s Health Organization v Dobbs. March 19, 2018. Accessed November 8, 2021. https://reproductiverights.org/case/jackson-womens-health-organization-v-dobbs/.
- Chung A. US Supreme Court takes up Texas abortion case, lets ban remain. Oct 22, 2021. Reuters. Accessed November 8, 2021. https://www.reuters.com/world/us/us-supreme-court-hear-challenge-texas-abortion-ban-2021-10-22/.
- Equal Access to Abortion, Everywhere. Frequently asked questions. Accessed November 8, 2021. https://actforwomen.org/whpa-faqs/.
- Center for Reproductive Rights. New poll: a solid majority of voters support the Women’s Health Protection Act (WHPA). Accessed November 8, 2021. https://reproductiverights.org/wp-content/uploads/2021/06/ME-CRR_WHPA-Release-14001-June-1.pdf.
- Pardilla A, Avila A. 20 organizations fighting the Texas abortion ban. New York Magazine. September 2, 2021. Accessed November 8, 2021. https://nymag.com/strategist/2021/09/texas-abortion-ban-2021-where-to-donate.html.
- ACLU Texas. Abortion in Texas. Updated October 9, 2021. Accessed November 8, 2021. https://www.aclutx.org/en/know-your-rights/abortion-texas.
- Rummler O. The 19th explains: what to know about Texas’ abortion law. The 19th. September 1, 2021; updated October 12, 2021. Accessed November 8, 2021. https://19thnews.org/2021/09/texas-new-abortion-law-what-you-need-know/.
- Kaye J, Hearron M. Even people who oppose abortion should fear Texas’s new ban. July 19, 2021. The Washington Post. Accessed November 12, 2021. https://www.washingtonpost.com/outlook/2021/07/19/texas-sb8-abortion-lawsuits/.
- Centers for Disease Control and Prevention. CDCs abortion surveillance system FAQs. November 25, 2020. Accessed November 8, 2021. https://www.cdc.gov/reproductivehealth/data_stats/abortion.htm.
- Texas Senate Bill 8. LegiScan. Accessed November 8, 2021. https://legiscan.com/TX/text/SB8/id/2395961.
- Texas abortion laws and policies. Planned Parenthood of Greater Texas, Inc. Accessed November 8, 2021. https://www.plannedparenthood.org/planned-parenthood-greater-texas/patient-resources/texas-laws-policies.
- Nash E. For the first time ever, US states enacted more than 100 abortion restrictions in a single year. October 4, 2012. Guttmacher Institute. Accessed November 12, 2021. https://www.guttmacher.org/article/2021/10/first-time-ever-us-states-enacted-more-100-abortion-restrictions-single-year.
- Nash E, Naide S. State policy trends at midyear 2021: already the worst legislative year ever for US abortion rights. July 2021. Guttmacher Institute. Accessed November 8, 2021. https://www.guttmacher.org/article/2021/07/state-policy-trends-midyear-2021-already-worst-legislative-year-ever-us-abortion.
- ACLU. Whole Women’s Health v Jackson. Updated October 7, 2021. Accessed November 8, 2021. https://www.aclu.org/cases/whole-womans-health-v-jacksonH
- Holley P, Solomon D. Your questions about Texas’s new abortion law, answered. Texas Monthly. October 7, 2021. Accessed November 8, 2021. https://www.texasmonthly.com/news-politics/texas-abortion-law-explained/.
- Millhiser I. The staggering implications of the Supreme Court’s Texas anti-abortion ruling. Vox. September 2, 2021. Accessed November 8, 2021. https://www.vox.com/22653779/supreme-court-abortion-texas-sb8-whole-womans-health-jackson-roe-wade.
- Carter S. ACLU of Texas asks US Supreme Court to stop new abortion law. Dallas Observer. August 31, 2021. Accessed November 8, 2021. https://www.dallasobserver.com/news/aclu-of-texas-asks-us-supreme-court-to-block-new-anti-abortion-law-sb-8-12314274.
- Supreme Court of the United States. Whole Women’s Health et al v Austin Reeve Jackson, Judge, et al: On application of injunction relief. September 1, 2021. Accessed November 8, 2021. https://www.supremecourt.gov/opinions/20pdf/21a24_8759.pdf.
- Lucas R. A US judge blocks enforcement of Texas’ controversial new abortion law. NPR. October 6, 2021. Accessed November 8, 2021. https://www.npr.org/2021/10/06/1040221171/a-u-s-judge-blocks-enforcement-of-texas-controversial-new-abortion-law.
- US Department of Justice. Attorney General Merrick B. Garland delivers remarks announcing lawsuit against the state of Texas to stop unconstitutional Senate Bill 8. September 8, 2021. Accessed November 8, 2021. https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-announcing-lawsuit-against-state-0.
- Barnhart T. Texas abortion law suspended by district judge hearing Biden administration challenge. Newsweek. October 6, 2021. Accessed November 8, 2021. https://www.newsweek.com/district-court-judge-issues-injunction-texas-law-banning-abortions-after-6-weeks-1636411.
- Oxner R. Appeals court allows Texas abortion law to resume, stopping federal judge’s order to block enforcement. The Texas Tribune. October 8, 2021. Accessed November 8, 2021. https://www.texastribune.org/2021/10/08/texas-abortion-appeal/.
- Oxner R. Texas’ near-total abortion ban will remain in effect as federal appeals court agrees to hear legal challenges. The Texas Tribune. October 14, 2021. Accessed November 8, 2021. https://www.texastribune.org/2021/10/14/texas-abortion-restrictions-appeal/.
- The United States District Court for the Western District of Texas, Austin Division. September 9, 2021. Accessed November 8, 2021. https://www.justsecurity.org/wp-content/uploads/2021/09/lawsuit-doj.pdf.
- Barnes R, Marimow AE. Justice Department will ask Supreme Court to block Texas abortion law while legal fights play out. Washington Post. October 15, 2021. Accessed November 8, 2021. https://www.washingtonpost.com/politics/courts_law/doj-texas-abortion-ban-supreme-court/2021/10/15/bd5762e6-2dcc-11ec-8ef6-3ca8fe943a92_story.html.
- Nash E, Bearak J, Li N, et al. Impact of Texas’ abortion ban: a 14-fold increase in driving distance to get an abortion. Guttmacher Institute. August 4, 2021; updated September 15, 2021. Accessed November 8, 2021. https://www.guttmacher.org/article/2021/08/impact-texas-abortion-ban-14-fold-increase-driving-distance-get-abortion.
- Jones RK, Jerman J. Abortion incidence and service availability in the United States, 2014. Perspect Sex Reprod Health. 2017;49:17-27. https://doi.org/10.1363/psrh.12015. Accessed November 12, 2021.
- Center for Reproductive Rights. Jackson Women’s Health Organization v Dobbs. March 19, 2018. Accessed November 8, 2021. https://reproductiverights.org/case/jackson-womens-health-organization-v-dobbs/.
- Chung A. US Supreme Court takes up Texas abortion case, lets ban remain. Oct 22, 2021. Reuters. Accessed November 8, 2021. https://www.reuters.com/world/us/us-supreme-court-hear-challenge-texas-abortion-ban-2021-10-22/.
- Equal Access to Abortion, Everywhere. Frequently asked questions. Accessed November 8, 2021. https://actforwomen.org/whpa-faqs/.
- Center for Reproductive Rights. New poll: a solid majority of voters support the Women’s Health Protection Act (WHPA). Accessed November 8, 2021. https://reproductiverights.org/wp-content/uploads/2021/06/ME-CRR_WHPA-Release-14001-June-1.pdf.
- Pardilla A, Avila A. 20 organizations fighting the Texas abortion ban. New York Magazine. September 2, 2021. Accessed November 8, 2021. https://nymag.com/strategist/2021/09/texas-abortion-ban-2021-where-to-donate.html.