Texas Just Outlawed Abortion as We Knew It

By Molly Jong-Fast, The Daily Beast

01 September 21

Conservatives are hell-bent on reasserting control over women’s bodies—and a fresh hell starts today with what women in the Lone Star State are waking up to.

he Supreme Court declined to act and let Texas’ insane new abortion law stand, for now, in what looks to be the day Roe v. Wade began to die.

As of today, SB8, which Gov. Greg Abbott signed into law, bans abortions at six weeks, with no exception for rape or incest, while targeting anyone who “aids or abets” another person’s abortion. The idea is to make anyone who helps a woman get an abortion a legal target, even her Uber driver, with any citizen able to collect a bounty on abortion providers.

The six-week gestation period comes from the crazy far-right “heartbeat bills,” which originated in Ohio with a fringe group called faith2action and have since been all the rage among Republican lawmakers. I would like to point out that a six-week-old fetus looks like a tadpole and is one-eighth to a quarter of an inch long, but this bill isn’t about saving the “life” of someone the size of a quarter; this bill is about changing the standards of viability to effectively make it impossible for a woman to end a pregnancy.

“About 90 percent of women who come to Whole Woman’s Health clinics are more than six weeks into their pregnancy,” Amy Hagstrom Miller, the head of Whole Woman’s Health, an abortion provider with four clinics in Texas, told the Texas Tribune. Most people don’t even know they’re pregnant after six weeks; that’s one missed menstrual period.

The Supreme Court’s own precedents have barred states from banning abortion before about 22 weeks, when a fetus could be viable outside of the womb. Letting a six-week law stand is a sign that things have changed, dramatically, with the court’s new 6-3 conservative majority.

There’s a lot of legal posturing here, as Republicans made their insane new law complicated by design in the hopes of sneaking it through—to the point that abortion providers had to turn to the Supreme Court, with its new majority just itching to do away with Roe, as their last best hope. And on Tuesday night, the Supreme Court did nothing, and thus let SB8 stand for now, with an emergency request to block the now-in-effect rule still pending.

“Fuuuuuuuuuuuuck,” said Imani Gandy, the senior editor of law and policy at the Rewire News group who tweets as AngryBlackLady, when I circled back with her Wednesday morning, after the court chose not to act.

She’d told me on Tuesday that “Texas Republicans know that the six-week ban is unconstitutional. They also know that no court in the country has ever upheld [an early week ban] as constitutional. So, to get around that pesky problem, they have gamed the system so that clinics, abortion funds—and because the law deputizes anyone to enforce the law—abortion providers and ‘abettors’ are too scared to do anything abortion-related out of fear that some anti-choice zealot from God-knows-where is going to file a lawsuit against them. Texas Republicans have also made it virtually impossible for attorneys to challenge these abortion laws due to some procedural jiggery pokery that could result in bankrupting any lawyer who claims in court that these laws are unconstitutional.

“It’s a really outrageous law and it is set to go into effect on Wednesday. Whether SB8 goes into effect depends on what the Supreme Court decides to do today. If it does nothing and the law goes into effect, then that ends abortion in Texas. The court will have effectively overruled Casey and Roe on the court’s ‘shadow docket,’ meaning there will have been no argument or hearing at the Supreme Court. It would be a huge deal. And it’s not out of the realm of possibility.”

Indeed, that’s exactly what happened. On Wednesday, having seen that, she said “the only thing people should be asking themselves right now is what they are willing to do when abortion gets banned in their state. Are they willing to break the law? Because that’s what it’s going to take. It’s gonna to take a nation of lawbreakers to make sure pregnant people don’t die from unsafe abortion care.”

As ugly and awful as the court’s silence was on Tuesday, things will surely get much worse when it speaks following its hearing in October on Dobbs v. Jackson Women’s Health Organization, a case that there’s every indication they agreed to hear to chip away at Roe, if not do away with it altogether, while kicking the abortion question back to the states.

If that happens, poor women in red states will have to drive hundreds of miles and miss work to get legal abortions in towns they don’t know with doctors they’ve never met, or they’ll get illegal abortions and start dying the way they did before Roe.

Whatever path conservatives and the court take to get there, it’s clear where they’re headed. They are hell-bent on reasserting their power over women’s bodies.

Gov. Abbott is so “pro-life” he’s suing San Antonio to try to prevent its mask mandate. The same people who think wearing a mask impedes their freedom want to control what happens in women’s uteruses because this was never about life in the first place, but about control.