Texas’ six-week abortion ban comes into effect after Supreme Court votes against blocking it

Dissenting judges call law ‘patently unconstitutional’ as ground shifts under foundations of Roe v Wade

Gustaf Kilander
Washington, DC
,Jon Sharman
Thursday 02 September 2021 09:21
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Related video: Jen Psaki shuts down reporter’s abortion question

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A ban on abortions after six weeks of pregnancy in Texas came into effect on Wednesday after the US Supreme Court voted down an emergency request to block it.

The court, which has a 6-3 conservative majority including three justices nominated by former president Donald Trump, voted five to four against blocking the country’s most radical abortion law.

The legislation amounts to a near-total ban on abortions and gives any private citizen the ability to sue a provider who breaks it, prompting fears that activists will be able to force most Texas clinics to close.

It bans terminations once fetal cardiac activity is detectable, which occurs at about six weeks’ gestation and before most women know they are pregnant. It allows a medical exemption but has no provision for victims of rape or incest.

Republicans around the US have been pushing ever more restrictive abortion laws in an attempt to overturn the 1973 Roe v Wade decision that guarantees women’s right to an abortion.

Texas’ heartbeat bill is the first that has not been slapped down immediately by the courts, and a dissenting opinion to the Supreme Court's decision suggests the Roe v Wade safeguard may now be crumbling.

Calling her colleagues' decision “stunning”, judge Sonia Sotomayor wrote: “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.

“Last night, the court silently acquiesced in a state’s enactment of a law that flouts nearly 50 years of federal precedents.”

Texas’ abortion ban differs from those promoted by other states in that it takes the pressure of enforcement off government, by allowing anyone in the US to sue an abortion provider or anyone who “aids and abets” someone seeking a termination. Victorious litigiants are eligible for a $10,000 (£7,300) damages payout in civil court.

Aiding and abetting could include driving a patient to an appointment, helping pay for the abortion procedure or providing information on how to access it. Removing government from the process makes legal challenges to the law more difficult.

Supreme court justice Elena Kagan, who joined judges Sotomayor and Stephen Breyer in dissent, called the legislation “patently unconstitutional”.

Chief justice John Roberts also went agains the majority decision. In his dissenting opinion he took pains to stress that although the court had denied the emergency appeal, its decision did not amount to a ruling that Texas’ ban was constitutional.

Abortion providers say the law “immediately and catastrophically reduces abortion access in Texas” and that they have already begun turning patients away for fear of “bounty hunters”.

Dr Ghazaleh Moayedi, an abortion provider, told The Guardian: “We are all going to comply with the law even though it is unethical, inhumane and unjust.

“It threatens my livelihood and I fully expect to be sued. But my biggest fear is making sure the most vulnerable in my community, the black and Latinx patients I see who are already most at risk from logistical and financial barriers, get the care they need.”

The Guttmacher Institute, a pro-choice think-tank, claimed women's one-way drive to their nearest clinic would increase from 12 miles to 248 under the new rules, meaning money and work commitments will complicate their cases even more than they currently do.

Anti-abortion activists have welcomed the ban. Chelsey Youman, the legislative director of Human Coalition Action Texas, said it would “protect the most vulnerable among us, preborn children”.

The White House has now asked congress to pass a nationwide law guaranteeing access to terminations. Joe Biden’s press secretary, Jen Psaki, said on Wednesday that codifying Roe v Wade was within representatives’ power and that the president would keep pushing them to do so.

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