What does the Texas abortion ban mean for other states?

Posted at 5:51 PM, Sep 13, 2021

Texas passed a law that bans abortions after a heartbeat can be detected, usually around six weeks of pregnancy.

“This law is different. For the most, part it tries to adopt relatively strict or restrictive approach to abortion policy,” said Robert Preuhs, a professor and the chair of political science at Metropolitan State University of Denver.

The law also allows any person to sue anyone who helps a woman get an abortion after that time — from the provider to the driver who brought her there.

“The key difference here among the Texas bill as opposed to other laws is instead of the enforcement mechanism being the state, now you allow citizens to actually sue in civil court to prevent that abortion,” Preuhs said.

He said when states have pushed further restrictions on abortion in the past, the biggest blockage has been the Supreme Court because the abortion seeker or provider can sue the state. However, with this law, that’s not the case.

"This new law from Texas has a unique way of approaching enforcement, and so therefore it’s still up in the air exactly how far the Supreme Court will let this stand. So far, it has,” Preuhs said.

“We’ve seen other abortion statutes that authorize private individuals to sue, but we’ve never seen anything that allows quite literally anyone to sue,” said Mary Ziegler, a professor at Florida State University College of Law.

Ziegler has authored multiple books on abortion.

“It does seem the federal government has limited options to change what's going on on the ground in Texas,” Zeigler said.

The Texas law is more difficult to challenge, according to Zeigler.

“There's no state actor you can sue, and to bring a Constitutional challenge you can't sue a private citizen because the Constitution only gives you rights against the government. So, then it creates a catch 22,” she said.

Constitutional law expert Ernest Young said those fighting the Texas law will have to find a different way. The Department of Justice’s lawsuit is one possibility.

“Once the law is actually challenged in a posture where the court can rule on the merits, that would raise as one of the issues whether the court is going to continue to follow Roe v. Wade,” said Ernest Young, a professor at Duke Law School.

Roe v. Wade currently gives pregnant women the choice to have an abortion without excessive government restriction.

“The most interesting things are likely to happen in those state court lawsuits as they progress,” Young said.

Preuhs said what happens in Texas will be a big indicator of what we could see elsewhere.

“If this law does stand the Constitution test, then you will see Republican-held governments, state governments, adopting further restrictions and probably modeling those restrictions on something similar to Texas,” he said.

The Supreme Court hasn’t allowed a law like this since the ruling on Roe v. Wade, but later this year, the high court is also expected to hear a case from Mississippi on a law that would ban abortion at 15 weeks. That decision could also affect abortion laws across the country.

“If the Supreme Court wanted to hear this case, that would require the court to either say Roe v. Wade is gone, or part of Roe v. Wade is gone which is to say you can ban at least some abortions before viability and that’s why its such a major event. Because there’s no way for the court to uphold this law without either undoing or rewriting what it means to choose to have an abortion,” Ziegler said.

“We don’t really know how this is going to play out,” Preuhs said.