Is Abortion Illegal in Texas?
Many people have asked whether Senate Bill 8 has now made abortion illegal in Texas. The short answer is “no,” since the Supreme Court has not yet directly overturned Roe v. Wade, the landmark 1973 case establishing the right to choose nationwide. However, the new bill does allow private citizens to sue for damages, making the law decidedly civil, not criminal. The fact that the Supreme Court has allowed the law to stand—making abortion past six weeks inaccessible to women in Texas—is a clear premonition of things to come.
History of Abortion in Texas and the United States
Texas first outlawed abortion in 1854, later affirming the ban in the 1961 Texas Penal Statutes. Abortion was punishable by 2-5 years in prison. Other states also outlawed the procedure, while some others still allowed abortion to be legal.
In 1973, the Supreme Court handed down Roe v. Wade, establishing a constitutional right to abortion. The Court established a trimester framework: in the first trimester, no State could outlaw abortion; in the second trimester of pregnancy, the government could require reasonable health regulations; and in the third trimester, abortion could be prohibited so long as it did not interfere with the health of the mother. The decision was extremely contentious and was not accepted by many who felt deep convictions that abortion is tantamount to infanticide.
In 1992 the Court updated Roe in Planned Parenthood v. Casey, which eschewed the trimester framework in favor of a viability analysis, and walked back the strict scrutiny standard to an undue burden test. New abortion laws such as spousal notification, waiting periods, and parental consent were judged according to whether they placed an undue burden in the path of a woman seeking an abortion. Although abortion advocates had won another victory with the high Court, four justices would have overruled Roe, up from only two against Roe in the original 1973 opinion.
Roe and Planned Parenthood spawned a generation of “single issue voters,” who sided with the Republican Party simply because they wanted to see abortion outlawed and Roe overturned. Large segments of society refused to accept the law as a matter of stare decisis, or “established law.” They organized efforts around testing the limits of abortion laws, and many voted for Donald Trump on the promise of appointing justices to the Supreme Court who would overturn Roe, Planned Parenthood, and allow abortion to be outlawed once again.
Senate Bill 8
A new approach came at the right time when the Texas legislature passed Senate Bill 8 in 2021, which allowed private citizens to sue anyone who helped a woman get an abortion. The law got little coverage in the spring, but made major headlines in the fall when the Supreme Court made the shocking decision to allow the law to stand in direct violation of almost 50 years of established jurisprudence on the constitutionality of abortion. Overnight, abortion services past the six week mark disappeared in Texas, forcing women to look outside the State or carry unwanted pregnancies to term.
A Preview of Things to Come
Why would the Court allow abortion services to disappear in Texas? If the Court were committed to upholding the constitutionality of abortion, then surely it would have not allowed the Texas law to go into effect. More likely, the Court is previewing a future holding overturning Roe and Casey by upholding the Texas law and allowing abortion services to close under the Texas law.
A Legacy of Single Issue Voters
Gay marriage was legalized for the first time in the world in 2001, and by 2015 it was the law of the land in the United States. Although decidedly un-traditional, this development in the law has largely been accepted by society. By contrast, abortion continues to stir strong emotions in large segments of the public, with many vowing to vote for or against abortion as “single issue voters.” These voters believe for or against abortion so strongly that they cast their vote for one party of another on that one issue, and with that vote a host of other domestic policy, foreign policy, economic, and social issues. Is it sustainable for a Court, and not the Legislature, to rule on the legality of an issue that so many Americans abhor? Should economic policy by decided by voters who only care about abortion, and vote to support or reject it?
The Supreme Court may recognize this fault line in seeking to walk back Roe’s protections. If local communities can decide abortion laws for themselves, then the result may be a system of government that is more representative in the long run. If gay marriage was settled in five years (or less) but abortion could not be settled in 50, then perhaps it never could be.
