by Glenna Li
What You Can Do
- Learn more about S.B. 8: https://www.vox.com/2021/11/1/22757180/supreme-court-abortion-sb8-texas-whole-womans-health-jackson-united-states
- Listen to the Supreme Court’s oral arguments on the Texas abortion cases: https://www.supremecourt.gov/oral_arguments/audio/2021/21-588
- Donate to the Texas Equal Access Fund, which provides abortion funds to low-income women in North Texas: https://secure.everyaction.com/ztEh8Qeh80-k2k1Yuo5gTw2
On May 19, 2021, Texas Governer Greg Abbott signed S.B. 8 into law, which bans abortions after six weeks of pregnancy . The law interferes with the Supreme Court’s decision in Roe v. Wade (1973), which established a constitutional right to abortion by prohibiting the government from restricting abortions before fetus viability, when the fetus can individually sustain life at around 24 weeks of pregnancy. Despite legal challenges, the 5th Circuit Court of Appeals allowed the law to come into effect on September 1st. Nonetheless, the Department of Justice and abortion providers are currently challenging the law in the Supreme Court. As S.B.8 only creates exceptions for women facing the vaguely-defined “medical emergencies,” a Supreme Court decision holding S.B. 8 constitutional and overturning Roe will severely curtail women’s bodily autonomy and create far-reaching consequences for women across the country, particularly for low-income women who cannot access out-of-state abortions.
S.B. 8’s peculiar legal construction gives private individuals the ability to sue anyone who aids or abets an abortion . This enables private citizens to sue doctors, clinics—and even those who drive pregant women to abortion appointments—for violating the law. Furthermore, S.B. 8 awards plaintiffs with a “bounty” of at least at least $10,000 (paid for by the defendant) for bringing their cases to court. This case questions whether states can abrogate a constitutional right by placing legal enforcement responsibilities on private citizens, rather than government officials . Doing so enables the government to evade federal court challenges for carrying out an unconstitutional law.
The case brought by abortion providers, Whole Woman’s Health v. Jackson, asserts that providers should be allowed to file a lawsuit in federal court targeting Texas state officials, state court judges, and private parties responsible for implementing S.B. 8, because state legislators cannot enact laws shielded from judicial review . The case brought by the Justice Department, United States v. Texas, cites the Supremacy clause, Equal Protection Clause, and Supreme Court precedent as justifications for the federal government to sue the state of Texas for passing an unconstitutional law . It also asserts that the federal government is obligated to step in for S.B. 8’s lack of judicial review.
Of the conservative justices, Kavanaugh and Barrett have expressed the heaviest qualms regarding S.B. 8. Of particular concern is the “chilling effect,” which involves whether S.B. 8 will give rise to other laws crafted to infringe on constitutional rights . For example, if S.B. 8 enables private citizens to sue an Uber driver who drove a pregnant woman to her abortion appointment, who is to say that private citizens cannot sue someone for wielding a gun in public, or officiating a same-sex wedding? S.B. 8 could open the floodgates for state legislatures to disregard federal mandates to achieve political ambitions, pitting citizen against citizen in the process.
S.B. 8 has proven effective. In Texas, abortions in September were half of those a year before, and neighboring states have become so inundated with abortion appointments that Texas women have been forced to seek abortions outside neighboring states . These circumstances demonstrate how S.B. 8 has created an undue burden for women seeking to fulfill their health needs. Deciding on whether to carry a child within one’s body should be a choice made by the owner of that body, yet Texas legislators view women with such low esteem that they do not believe women can make sound decisions for themselves. Instead, they have placed their faith in individuals not personally involved in the childbearing process or concerned with the well-being of the woman, fetus, or subject they turn in, but a potential “bounty.”
No woman should remain pregnant against her own will. Some women may not even realize they are pregnant at six weeks, yet S.B. 8 demands that women make the life-altering decision of whether to carry, and potentially raise, a child within this timeframe. The consequences of this are vast, especially for low-income, underage, and non-white women who do not have the time or funds to seek safe abortions outside Texas . Half of all women who got abortions in 2014 lived in poverty . Getting an abortion has enabled low-income women to exercise agency over their own futures. However, this law stifles marginalized women’s advancement opportunities, potentially forcing them to drop out of high school, quit their jobs, or remain in abusive households for economic reasons, and further exacerbates the cycle of poverty low-income women are stuck in because they have to accommodate for an additional human being. Furthermore, children should not be raised in households where they are unwanted and where they will inevitably be prone to hostile upbringings. In a country lacking supportive contraceptive, prenatal, and maternal infrastructure, women deserve to establish their own life trajectories before being pushed into motherhood.
Moreover, the social construction of women who receive abortions as reckless, facecious minors could not be further from the truth. In fact, over 60% of women who had an abortion in 2008 already had a child . This shows how restrictive abortion laws serve to regulate women’s bodies and hamper already economically-burdened families, not promote family values as they claim to do. Having an abortion is a deliberate decision made after a woman weighs the multifarious factors that go into carrying a child. Oftentimes, women who choose to have abortions do so for the betterment of the family they already have. A single mother who has an abortion because she cannot afford to raise another child does so out of selflessness, not individual expediency. Furthermore, without exceptions for rape or incest, S.B. 8 shirks moral justifications for abortion and deprives women of the opportunity to move on from their traumas.
Even if S.B. 8 is kept in place, the Court has other cases on this year’s docket that could overrule Roe, including Dobbs v. Jackson Women’s Health Organization, which challenges a Mississippi law banning abortions after fifteen weeks . Unlike the two S.B. 8 cases, which would overturn S.B. 8 on procedural grounds for its enforcement mechanism, Dobbs questions the substance of Mississippi’s abortion law, putting it in direct conflict Roe’s viability standard. With a conservative 6-3 majority, this year presents an opportunity for the Supreme Court to create a new standard for abortion laws and enable numerous states to impede on women’s privacy rights by passing laws banning abortions before viability. Nonetheless, women should have the ability to pursue their goals without state intervention on their bodily autonomy. A fetus does not live, but a woman does.