US Supreme Court allows Texas to ban most abortions

Washington DC: A deeply divided Supreme Court is allowing a Texas law that bans most abortions to remain in force, stripping most women of the right to an abortion in the second-largest state in the US.

The court voted 5-4 just before midnight Wednesday (Thursday AEST) to deny an emergency appeal from abortion providers and others that sought to block enforcement of the law.

The Texas law, signed by Republican Governor Greg Abbott in May, prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before most women know they’re pregnant.

Jillian Dworin participates in a protest against the six-week abortion ban in Texas.Credit: AP

It is the strictest law against abortion rights in the United States since the high court’s landmark Roe versus Wade decision in 1973 and part of a broader push by Republicans across the country to impose new restrictions on abortion. At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect.

The high court’s order declining to halt the Texas law did not block further challenges.

“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” the unsigned order said.

The judges denying the appeal against the law were all Republican appointees. Chief Justice John Roberts dissented along with the court’s three liberal justices: Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Elena Kagan. Each of the four dissenting justices wrote separate statements underscoring their disagreement with the majority.

Texas lawmakers wrote the law to evade federal court review by allowing private citizens to bring civil lawsuits in state court against anyone involved in an abortion, other than the patient. Other abortion laws are enforced by state and local officials, with criminal sanctions possible.

After a federal appeals court refused to allow a prompt review of the law before it took effect, the measure’s opponents sought Supreme Court review.

In a statement after the law took effect, President Joe Biden said it “blatantly violates the constitutional right established under Roe versus Wade and upheld as precedent for nearly half a century.” And he said the law “outrageously” gives private citizens the power “to bring lawsuits against anyone who they believe has helped another person get an abortion”.

In a phone call with reporters early Wednesday, Marc Hearron, a lawyer for the Centre for Reproductive Rights, said that “as of now, most abortion is banned in Texas”.

The clinics have said the law would rule out 85 per cent of abortions in Texas and force many clinics to close. Planned Parenthood is among the abortion providers that have stopped scheduling abortions beyond six weeks from conception.

Texan women participate in a protest against the six-week abortion ban at the Capitol in Austin, Texas.Credit: AP

Abortion rights advocates say the Texas law will force many women to travel out of state for abortions, if they can afford to do so and also navigate issues including childcare and taking time off work. It is also expected to increase the number of women seeking to self-induce abortions using pills obtained by mail.

At least 12 other states have enacted bans on abortion early in pregnancy, but all have been blocked from going into effect.

What makes the Texas law different is its unusual enforcement scheme. Rather than have officials responsible for enforcing the law, private citizens are authorised to sue abortion providers and anyone involved in facilitating abortions.

That would include anyone who drives a woman to a clinic to get an abortion. Under the law, anyone who successfully sues another person would be entitled to at least $US10,000.

Abortion opponents who wrote the law also made it difficult to challenge the law in court, in part because it’s hard to know whom to sue.

Late into the night Tuesday before the ban took effect clinics were filled with patients, said Amy Hagstrom Miller, CEO of Whole Women’s Health, which has four abortion clinics in Texas.

Twenty-seven women were still in the waiting room after 10pm at one clinic, leaving doctors crying and scrambling over whether they would see all of them in time, she said. The last abortion at one of her clinics finished at 11:56pm in Fort Worth, where Hagstrom Miller said anti-abortion activists outside shined bright lights in the parking lot after dark looking for wrongdoing, and twice called police.

“This morning I woke up feeling deep sadness. I’m worried. I’m numb,” she said.

Republican state Representative Shelby Slawson wrote on Facebook after the ban took effect that it was “with great sadness that I relate to you that late into the night, some in Texas were scrambling to end as many unborn lives as they could before the clock struck midnight.” Her colleague, Republican state Representative Jeff Leach wrote on Twitter after the ban went into effect that “LIFE is winning in America ... and Texas is leading the way!”

The law is part of a hard-right agenda that Texas Republicans muscled through the statehouse this year ahead of the 2022 midterm elections, when Abbott is up for a third term as governor.

In May, Texas state representatives stand in the Texas House Chamber as they oppose a bill introduced that would allow private citizens to enforce an anti-abortion law through civil lawsuits.Credit: AP

Even before the Texas case arrived at the high court the justices had planned to tackle the issue of abortion rights in a major case that will be heard after the court begins hearing arguments again in the Autumn.

That case involves the state of Mississippi, which is asking to be allowed to enforce an abortion ban after 15 weeks of pregnancy.

AP

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