On September 1, an unprecedented Texas law went into effect banning abortions after six weeks of pregnancy, effectively ending most abortions in the state. At midnight on August 31, abortion clinics stopped providing abortions to comply with the law. Late on September 2, in a five-to-four unsigned opinion, the Supreme Court refused to block the law temporarily. For now, Texas has found a way to evade the requirements of the United States Constitution through a novel enforcement scheme — and put the health of pregnant people at risk while doing so.

The Texas Abortion Prohibition

The Texas law, S.B. 8, makes it illegal to provide an abortion in Texas without determining if a “fetal heartbeat” is present. If it is, abortion is prohibited. A “fetal heartbeat” is usually detectable at six weeks of pregnancy (about four months before fetal viability). (Although a heart has not in fact developed by this stage, advanced ultrasounds can detect subtle electrical signals from the embryo.)

Yet many people are not aware they are pregnant at this point. Even if they are, there are significant barriers — from meeting other requirements of Texas’ abortion laws to securing a medical appointment and making travel arrangements — that often delay services beyond six weeks into a pregnancy. An estimated 85 percent to 90 percent of abortions that would otherwise have taken place are now illegal. The law makes no exceptions for rape, incest, or for fetal health conditions incompatible with sustained life after birth, although there is a narrow exception for “emergencies,” if stringent requirements are met.

It is well established under Supreme Court precedents that states may not impose an “undue burden” on, or totally prohibit, abortions before fetal viability (although the current Supreme Court may change this in a case likely to be decided next year). That has not stopped some states from trying to restrict abortion services.

S.B. 8’s Enforcement Scheme Relies on Vigilante Justice

Patently unconstitutional abortion laws are usually blocked in court under long-standing precedent that permits suits to stop state officials from enforcing unconstitutional laws. S.B. 8 evades this possibility, however, by relying on enforcement of the ban by private individuals —whether family, neighbors, or strangers — rather than state officials. S.B. 8 does not authorize suits against people who get abortions. Instead, it allows suits against those who perform abortions and anyone who knowingly “aids and abets” an abortion. The latter could be a family member who helps pay for an abortion, someone who drives a person to an appointment, or the receptionist at a clinic. Lawsuits may be filed anywhere in Texas, perhaps hundreds of miles away from the person sued. Few defenses to the lawsuits are allowed.

The penalties under S.B. 8 are significant. Any person who sues may receive a court order to prevent the abortion (or related activity) and $10,000 plus attorney’s fees. S.B. 8 is designed to have a chilling effect: even if few lawsuits are ever brought, those who might otherwise help someone seeking an abortion may be far less likely to do so, given the severe financial and legal consequences.

The Lawsuit to Block S.B. 8

In July, several abortion providers and advocates sued in federal court seeking to block state lawsuits filed under S.B. 8. They sued all Texas state civil judges and court clerks, the Texas attorney general, several licensure bodies (which could revoke the licenses of professionals or providers who had provided abortions prohibited by the law) and an officer of a Texas antiabortion group. The defendants asked the court to dismiss the lawsuit, claiming they could not be sued since they did not directly enforce the law.

The district court denied this motion to dismiss, but the defendants immediately appealed the rejection to the Fifth Circuit Court of Appeals. The Fifth Circuit, one of the most conservative in the country, stopped the district court from proceeding on the case and refused to block the law from going into effect while it heard the appeal or to speed up the appeal. The abortion providers and advocates asked the U.S. Supreme Court to temporarily block the law from going into effect while the complex procedural and constitutional issues could be fully considered. On September 2, the Court refused in an unsigned opinion without oral argument or more than minimal briefing.

Given the Court’s decision, access to abortion services in Texas is now severely limited. Those who can afford to can travel to receive an abortion out of state, while some may be able to secure medications for abortion if shipped from out of state. But many — especially low-income people and people of color — will be forced to go without this vital health care.

What Happens Next?

All federal court proceedings are on hold until the Fifth Circuit decides whether the defendants can be sued. This could take months. If the Fifth Circuit decides for the plaintiffs on these issues, the case will be sent back to the lower court for another round of litigation on the constitutional issues in the case. Also, whoever loses at the Fifth Circuit could ask the Supreme Court to review its decision. In the meantime, Texas state courts have blocked certain antiabortion groups from bringing lawsuits.

Individuals who are sued under S.B. 8 can defend themselves by asserting that the law is clearly unconstitutional under current Supreme Court precedent. But it will be some time before any court, let alone the Supreme Court, judges the constitutionality of S.B. 8.

The Biden administration is considering alternatives the federal government could pursue. But use of at least one of the legal options cited by the administration — a federal law that prohibits threats of force or physical obstruction to intimidate or interfere with people who want reproductive health services — may be ineffective since S.B. 8’s threats are legal rather than physical. A more effective option might be criminal prosecutions under laws that make it a federal crime to intentionally “under color of state law” deprive someone of their constitutional rights or to conspire to do so.

Texas’ attempt to evade the Constitution should concern not only those who believe in abortion rights, however. Other states could adopt, and the courts could bless, laws, for example, allowing individuals to sue people who criticize certain political leaders or belong to particular religious groups. The Texas law and abdication by the Supreme Court should be of concern to anyone who values the rights protected by the United States Constitution.