One of the most extreme abortion laws in the US went into effect on 1 September in the state of Texas. The law bans abortion once cardiac activity in the embryo can be detected via ultrasound. This usually occurs around six weeks into a pregnancy, before many even realise they are pregnant.
The law, known as Texas Senate Bill 8 (), doesn’t make exceptions for pregnancies resulting from rape or incest, though it does have an exemption for “medical emergencies”.
While similar laws have previously passed in Georgia, Alabama, Ohio, Mississippi, Kentucky and South Carolina, they have been quickly struck down by state supreme courts and the US Supreme Court. Texas is the first state in which such a strict abortion law has become enforceable.
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The difference is in how SB 8 is written. In every other state, people could sue state officials for enforcing an unconstitutional law – that is, laws that directly challenge the federal protection under the Roe v Wade ruling, which allows abortion up to 24 weeks “without excessive government restriction”.
But SB 8 was written to avoid such a legal challenge. Under it, Texas citizens are charged with enforcement, not state officials, and allowed under the law to sue any individual for “aiding and abetting” someone seeking an abortion once cardiac activity is detectable, typically past the six-week mark.
As part of the legislation, doctors and clinic staff, as well as those driving someone to an appointment or helping pay for the procedure, are liable. Private citizens with no connection to the person getting an abortion can sue and recover damages of $10,000 plus legal fees.
“This cruel and dangerous law is among the most extreme in the entire nation — and tragically par for the course here in Texas, where it’s already prohibitively difficult for people to access sexual and reproductive health care,” says Bhavik Kumar at Planned Parenthood Center for Choice in Houston, Texas.
According to , 61 per cent of people in the US think abortion should be legal and 38 per cent think it should be illegal.
The US Supreme Court had a chance to block SB 8 before it went into effect but didn’t. In the 5-4 decision, “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.”
Legal challenges to the law are under way, but this type of legislation could be passed in other states.
“The Supreme Court’s failure to block Texas’s draconian ban on abortion is already having a ripple effect in other states with legislatures controlled by anti-choice lawmakers. In just a few short days, we have seen the anti-choice movement and anti-choice lawmakers rush to export Texas’s SB 8 to other states across the country,” says at abortion rights organisation NARAL Pro-Choice America.
“So far, we’ve seen lawmakers in six states – Florida, Arkansas, Indiana, Mississippi, North Dakota and South Dakota – announce that they are considering or planning to attempt to ban abortion using copycat legislation,” says Ford.
SB 8 makes getting an abortion in Texas an almost insurmountable obstacle for most people. Many aren’t even aware they have missed a period and will never have an opportunity to consider their options, says Kumar. often don’t realise they are pregnant until past the six-week mark. The poorest people may be most affected because those who fall below the US federal poverty level are two to three times more likely to have an unintended pregnancy.
“My patients deserve better. They deserve to make their own health care decisions in consultation with their provider, without political interference, and without the threat of frivolous lawsuits. Instead, the people of Texas are being robbed of their bodily autonomy and politicians are jeopardising the health and safety of pregnant people,” says Kumar.
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