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Roe v. Wade Will Functionally Cease to Exist in Texas

Unless the Supreme Court steps in, the country’s most dangerous anti-abortion law will go into effect, banning abortions after six weeks and placing a cash bounty on providers.

By Elie Mystal for The Nation

August 31, 2021

An exam room at a Whole Woman's Health clinic.(Scott Olson / Getty Images)

I feel like people are waiting for the headline “Roe v. Wade Overturned” to appear in a giant font above the fold of The New York Times before they demand that Democrats do something to protect abortion rights. I feel like as long as Roe remains on the books, only women’s rights activists will talk about, or even notice, that the right to bodily autonomy is being functionally revoked in Republican-controlled state after Republican-controlled state. I feel like the battle for reproductive rights has already been lost, and Democrats never even showed up to fight.

Over the years, Republican-controlled states have come up with all kinds of insidious ways to whittle away at abortion rights. TRAP laws, for instance, preserve the essential right to an abortion while making it nearly impossible to access that right.

But conservatives are not satisfied with merely restricting abortion access—they seek to outlaw choice altogether. Toward that end, a number of red states have issued restrictions on abortions earlier and earlier in the gestation process. The earliest of these are called “fetal heartbeat” bans, and they outlaw abortions after a heartbeat can be detected, which is usually around six weeks after conception—before many women even know they’re pregnant. The heart is the first organ to develop. If the eyes or retina developed before the heart, I’m sure these states would be passing “fetal eyesight” bans in their endless attempts to anthropomorphize fetal cells and take away rights from actual human women.

The Texas-size version of this kind of ban goes into effect tomorrow, September 1. It was passed in May by the state legislature, and is a direct violation of Roe v. Wade. There is no nuance about it. Roe held that the government could not prohibit abortions before fetal viability, which occurs around 24 weeks of gestation. If Roe is the law, then the Texas ban is unconstitutional. If the Texas ban is legal, then Roe is no longer good law. It’s as simple as that.

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But there is another aspect of this Texas law that is extreme, even by conservatives’ forced-birth standards. The Texas law, known as SB 8, places a cash bounty on abortion providers and empowers any citizen to come collect.

The law stipulates that any US citizen can sue a Texas abortion provider, or sue a person suspected of “aiding or abetting” abortion services. The plaintiffs don’t even have to be residents of Texas to sue Texans suspected of helping people make private choices. Should the lawsuit prevail, the person who brought the suit will receive $10,000, plus attorney fees. Texas has created a cash incentive to haul not just doctors and nurses into court but also lawyers, reproductive rights counselors, and even receptionists.

This country hasn’t seen this kind of dystopian legal bullshit since Salem.

The bounty system is more than mere red meat thrown at a base always eager to control the actions of others. It’s also key to Texas’s entire plan of evading constitutional review. The bounty system puts enforcement of the law in the hands of private citizens, not state officials, creating what bad-faith conservatives think is a constitutional loophole by preventing abortion providers and others from filing lawsuits against the state for the government’s new abortion restriction. It’s as if Texas is saying, “We’re not violating due process. We’re just offering $10,000 to Batman for any jokers who end up in jail, no questions asked.”

It’s an intellectually dishonest argument, and the district court judge, Robert Pittman, didn’t fall for it. Abortion providers had filed a case, Whole Woman’s Health v. Jackson, and asked for a temporary injunction blocking the Texas law while the case proceeded. Judge Pittman temporarily enjoined the law last week, pending a full hearing, which was supposed to take place this past Monday, August 30.

But the Fifth Circuit, the most conservative circuit court in the country, rushed to support Texas’s constitutional trolling, and not only vacated Judge Pittman’s ruling, but canceled his hearing. Without Supreme Court intervention, a law functionally overturning Roe v. Wade will go into effect tomorrow.

In the meantime, the Supreme Court will hear a direct challenge to Roe this year, but likely not this one (although the Fifth Circuit’s ruling was immediately appealed to the Supreme Court). Dobbs v. Jackson Women’s Health Organization concerns a 15-week abortion ban imposed by the state of Mississippi. That law also restricts abortions well before the fetal viability line set in Roe. The Fifth Circuit already struck that law down, as it didn’t include the bounty system Texas now claims absolves it from following the Constitution.

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Nobody should have false hope about what the Supreme Court is going to do in Dobbs. Donald Trump promised to pick judges who opposed abortion rights, and there’s simply no reason to believe his justices or the other conservatives will stop their campaign against women now. But even if somehow the conservative Supreme Court manages to follow precedent and strike down the Mississippi law, Texas’s six-week ban will still stand, unless the court also explicitly rules against the bounty system.

These attacks on women’s rights would not be happening if Ruth Bader Ginsburg were still alive—or if the Democratic Party hadn’t ceded the courts to forced-birth proponents. Mississippi, Texas, and a dozen or so other states expect to get away with this stuff because the Supreme Court is controlled by conservatives who are on record as being against the rights of women. The fact that Democrats have shown neither the will, strength, nor courage to stop them has been a signal to these states to take their best, most creative shots at overturning abortion rights. Yet, by carefully avoiding writing “Roe is overturned,” these states—along with their legal enablers on the Fifth Circuit—know that the corporate media will miss what they’re doing.

Frankly, as long as conservatives control the courts, there is no way to stop Texas, Mississippi, or other states inclined to follow their lead. Moderates like to suggest that expanding the courts threatens both the legitimacy of the courts and the rule of law, but this is the kind of unconstitutional vigilantism that conservatives allow when they control the judicial branch.

If you want to protect a woman’s right to choose, the only solution is to expand the Supreme Court. That has been the only solution since reluctant abortion-allower Anthony Kennedy retired and ceded his seat to alleged attempted rapist Brett Kavanaugh. How many more rights, in how many more states, must be taken away before Democrats do the only thing they can do to stop these people?

Or is a future in which forced-birth advocates sue doctors for 10 grand just something we all have to accept? Are the rights of women to make their own reproductive choices the latest thing that must be sacrificed to Joe Manchin’s and Kyrsten Sinema’s love of the filibuster? A vocal minority of the country supports the barbarism of forcing women to give birth against their will. When will Democrats do what is necessary to stop them?

Elie MystalTwitterElie Mystal is The Nation’s justice correspondent—covering the courts, the criminal justice system, and politics—and the force behind the magazine’s monthly column “Objection!” He is also an Alfred Knobler Fellow at the Type Media Center. He can be followed @ElieNYC.


The NationTwitterFounded by abolitionists in 1865, The Nation has chronicled the breadth and depth of political and cultural life, from the debut of the telegraph to the rise of Twitter, serving as a critical, independent, and progressive voice in American journalism.


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