File this under civil law, new federalism, and policy diffusion.
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Texas' new law prohibiting most abortions is unprecedented — and so is the legal standoff currently keeping the restrictions in place.
In a late-night, 5-4 decision last week, the U.S. Supreme Court declined to strike down Texas’ new ban on abortions once fetal cardiac activity is detected — which can occur as early as six weeks, before many people know they’re pregnant. The court did so without ruling whether it’s constitutional for Texas’ Senate Bill 8 to allow anyone to sue providers, doctors or even Uber drivers who “aid and abet” someone getting an abortion past that threshold.
That means the large majority of the abortions previously performed in the state — experts estimate over 85% — are now outlawed through a mechanism that makes providers and those who help people get abortions subject to lawsuits. Some providers have stopped providing abortions altogether, even before fetal cardiac activity is detected, for fear that litigation could cause financial ruin, despite there being no known lawsuits filed since the law went into effect Sept. 1.
“No, the court did not formally declare Roe overruled, but the practical effect of the decision is to basically make Texas feel as though it is pre-Roe or in a post-Roe world,” said Melissa Murray, a professor at the New York University School of Law.
The U.S. Department of Justice sued Texas on Thursday in an effort to overturn the law and block its enforcement. Before the lawsuit was filed, legal experts expressed doubts as to how it might succeed in ways that pending litigation so far hasn’t. The law’s construction has caused experts to be dubious about how the legal saga will play out in courts.
Trying to exactly predict the federal lawsuit’s fate is “a little bit like looking at a crystal ball,” Dallas attorney Michelle Simpson Tuegel said.
