Emma Weiss is a staff writer for Brief Policy Perspectives and a first-year MPP student.
On September 1, 2021, a Texas state law, inaccurately referred to as a “heartbeat ban,” prohibiting abortion once fetal “cardiac motion” is detected, went into effect. Senate Bill 8 (SB 8), originally signed into law in May, does not allow for physicians to knowingly perform abortions if they have detected cardiac activity, which can happen approximately six weeks into a pregnancy. This legislation differs from other abortion restrictions because it allows private individuals to enforce the law, not the state. In addition to deputizing enforcement to citizens, it also grants them the power to sue anyone performing or aiding and abetting an abortion. Those who are successful in their suit can be awarded at least $10,000.
The Texas ban challenged the landmark Supreme Court case, Roe v. Wade (1973), which protects a woman’s right to an abortion and makes restrictive abortion legislation at the state level unconstitutional. There have been numerous challenges to Roe in the past; none have overturned the law, but collectively have narrowed its scope. Notable challenges include Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), a case in which the Supreme Court upheld Roe, but provided states with greater regulatory authority. Casey declared restrictions on abortions constitutional as long as they don’t place an “undue burden” on a woman. In Whole Woman’s Health v. Hellerstedt (2016), a recent victory for abortion rights, the Court used the “undue burden” standard to strike down provisions of a Texas state law that required all abortion clinics to meet the standards of a surgical center, and doctors who perform them to have admittance privileges at nearby hospitals.
Since it went into effect, SB 8 has had a drastic impact on abortion access in Texas as women who are uneligible for an abortion have sought out clinics in neighboring states. The month following the law’s enactment, the number of Texans seeking abortions in the states of Colorado, New Mexico, Wyoming, and Nevada was 12 times higher than usual. For women who do not have access to transportation, the ability to leave their family or job, or the funds to pay for an out-of-state trip, traveling out of state can be an additional, and sometimes unsurmountable, burden. Reproductive justice advocates also note that SB 8 has “invisible impacts” on women who are denied an abortion. These include higher unemployment and poverty rates; the inability to pay for basic necessities like housing, food, and transportation; and greater probability of staying in a domestic-abuse related situation.
Cases at the Supreme Court
On November 1, exactly two months after SB 8 came into effect, the Supreme Court heard oral arguments for two challenges to the law: Whole Woman’s Health v. Jackson and United States v. Texas. Whole Woman’s Health alleged the violation of Roe and Casey, claiming that SB 8 infringes on the constitutional right to privacy and liberty as well as the constitutional right to equal protection and free speech for anyone who “aids or abets” an abortion. More importantly, they asked the Court whether a state can protect itself from federal-court review of a law that prohibits the use of a constitutional right by delegating its enforcement power to the general public. On December 10, 2021, the Supreme Court ruled to dismiss a major part of the case, and the law was allowed to be enforced while the case is sent back to a lower federal court. In United States v. Texas, the Department of Justice is asking the Court to allow the United States to challenge SB by suing Texas in federal court.
Although neither Whole Woman’s Health v. Jackson or United States v. Texas directly challenged the constitutionality of Roe, on December 1, the court heard oral arguments for Dobbs v. Jackson Women’s Health, which could overturn the precedent Roe set. Mississippi asked the Court for the constitutional right to abortion to be overturned, and as an alternative, for the Court to remove viability as the point for when abortions can be banned. If the Court declines to overturn Roe but removes the viability standard, states could ban abortions after a much earlier point in pregnancy.
What could this mean for the future of Roe v. Wade?
The public now awaits rulings on United States v. Texas. Since the Court has not made a firm decision on either challenge to SB 8, more states have been encouraged to pass “copycat bills” of SB 8 — like those that have introduced in West Virginia, Ohio, Florida, Arkansas, Mississippi, South Dakota, and Indiana, and the one passed in Oklahoma this April. Ultimately, if the Texas law is allowed to stand,the protections provided by Roe would effectively end, functionally overturning Roe in all states with similar legislation.
If Roe were to be overturned in Dobbs, abortion access would be determined on a state-by-state basis. It would remain legal in the District of Columbia and the 15 states that have codified Roe. Twenty-six states would likely ban or severely curtail abortion access, including 12 states that have trigger laws to automatically outlaw abortion as soon as Roe is overturned.
The policies at the heart of these cases have already had a tremendous impact on abortion access at the state level. The Supreme Court is now faced with monumental decisions that have the potential to overturn a precedent set almost 50 years ago and dramatically affect reproductive health nationwide.