This month, in the shadows of its docket, five U.S. Supreme Court justices—a majority of whom are President Trump appointees—allowed a blatantly unconstitutional abortion ban to virtually end abortion access in Texas.
The court ultimately chose to take away people’s fundamental, constitutional rights, and approve a system of lawless vigilantism, designed to skirt judicial review. While the Department of Justice has filed a lawsuit to block the law, its future remains unknown.
The law, S.B. 8, bans abortion care around six weeks in pregnancy, a time when most people don’t even know they are pregnant. Because 85% to 90% of Texans who obtain abortions are at least six weeks into pregnancy, the law virtually ends access in the state. By one estimate, only 16% of Texans seeking abortion will be able to access it in-state, and as many of 46% of people seeking abortions in Texans will carry their pregnancies to term against their will.
The average one-way travel distance to an abortion clinic for Texans has now increased from 12 miles to 248 miles, a 20-fold increase, or 2,000%. For the Texans who are forced to travel out of state, they will be burdened with the cost of traveling hundreds of miles, taking time off work, and—for the more than half of women seeking abortion that are already mothers— arranging child care.
S.B. 8 will most impact people in Texas who already face barriers accessing health care—people of color, people with low incomes, those living in rural areas, and immigrants without documentation.
In Texas, the poverty rate for Black and Latinx women is disproportionately high, meaning they will be least able to bear the financial burden of traveling hundreds of miles to an out-of-state abortion provider. And immigrants without documentation will likely be unable to cross their state’s border to access abortion.
Law Was Written to Evade Judicial Review
Not only does the law essentially outlaw abortion, but it was also written to strategically evade judicial review. In past years, the only thing stopping anti-abortion lawmakers from introducing or passing a pre-viability abortion ban was the likelihood it would be struck down by the courts. Eight other states have passed abortion bans around six weeks in pregnancy—the difference is that they have all been blocked from taking effect.
S.B. 8 creates a workaround to the legal right to abortion under Roe v. Wade by shifting the enforcement of the law to the public. It encourages anyone who disapproves of someone’s abortion—from an abusive partner to an anti-abortion extremist vigilante—to enforce the ban by suing providers and anyone who helps a person obtain an abortion, like an abortion fund or even a Lyft driver. Those who are successful in their lawsuits collect $10,000.
As Justice Sonia Sotomayor wrote in her dissent, it “deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”
Similar Bans Expected in Other States
While we should all be scared for Texans, what’s more is that we’re about to see similar bans all over the country. Nearly 600 abortion restrictions have been enacted in the last decade, all with the intent to block abortion access and control pregnant people. Even with that history of virulent anti-abortion action in state legislatures, we saw an increase in 2021: a record 90 restrictions enacted in just the first half of this year.
And now, with the Supreme Court’s blessing, lawmakers are already promising copycat laws before the end of this year. For example, in Florida, Sen. Wilton Simpson (R) promised, “it’s something we’re already working on.” Sen. Jason Rapert (R) said Arkansas will introduce a bill that mirrors S.B. 8 and shared a template of a six-week ban, encouraging other anti-abortion lawmakers to do the same. And South Dakota’s governor directed a top legal advisor in her office to review state law to find areas to create more restrictions to mimic or go beyond the Texas ban.
It also seems likely that states that have passed unconstitutional pre-viability abortion bans, only to have them blocked by the courts—Alabama, Georgia, Iowa, Louisiana, Kentucky, Mississippi, Missouri, North Dakota, Ohio, South Carolina, Tennessee, Utah—will seek to pass a law similar to S.B. 8.
One such pre-viability ban is currently before the Supreme Court in Dobbs v. Jackson Women’s Health, in which the sole remaining abortion clinic in Mississippi challenged their state’s 15-week ban on abortion. The court could formally gut or overturn the right to abortion in their decision in that case, as has effectively happened in Texas already, further encouraging state lawmakers to pass pre-viability bans on abortion and courts to uphold them.
Abortion providers and reproductive rights, health, and justice advocates have been shouting from the rooftops for years about the dire state of abortion access and the risk to the right to abortion—but now the crisis is unavoidable. Abortion is effectively banned in Texas and people will suffer from S.B. 8: one study shows that pregnancy-related mortality would increase 33% for Black women in the first year of a total abortion ban.
But S.B. 8 isn’t only about abortion.
Functioning democracies require consistent application of the rule of law, not the overnight decimation of fundamental rights. Abortion bans like S.B. 8 are a result of attacks on voting rights and the conservative takeover of our courts. It’s no accident that the same states striving to suppress the vote take that power and ban abortion.
Pay close attention to the fate of S.B. 8 and the attacks on abortion—both those loudly debated in state capitol hearings and those quietly advanced in the cover of night. Your rights depend on it.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Heather Shumaker is director of state abortion access at the National Women’s Law Center. She works to advance state laws and policies that protect reproductive rights and promote access to comprehensive health care. Previously, she was the state policy director at the National Abortion Federation and the senior public affairs director for Planned Parenthood Keystone.