Texas abortion law

AUSTIN, Texas — The U.S. Supreme Court is set to hear oral arguments in a Mississippi abortion case that presents the first direct challenge to Roe v. Wade in decades and justices' decision could reshape abortion rights nationwide.

The Mississippi's Gestational Age Act, passed in 2018 but blocked by two federal courts, allows abortion after 15 weeks "only in medical emergencies or for severe fetal abnormality" and has no exception for rape or incest. Doctors who perform abortions outside the law's parameters may also have their licenses suspended or revoked as well as be subject to other penalties or fines.

The case, Dobbs v. Jackson Women's Health Organization, is the first direct challenge to Roe v. Wade — the 1973 Supreme Court decision that established a constitutional right on an abortion prior to fetus viability between 22 and 24 weeks — in decades.

The court upheld Roe v. Wade in 1992 in its ruling in Planned Parenthood v. Casey.

The Mississippi case first sought to prohibit abortions after 15 weeks. But with the court's shift to a conservative supermajority with the appointment of Justice Amy Coney Barrett in 2020, the Dobbs case became a window to overturn Roe v. Wade in its entirety, said Kimberly Kelly, an associate professor and gender studies program director at Mississippi State University.

Justices are set to hear oral arguments in the case Dec. 1.

Kelly said if justices rule to end Roe v. Wade, it will have rippling effects across the country, including a near immediate impact in Texas -- a state where lawmakers recently enacted sweeping changes to laws regulating abortions.

During the last state legislative session, Texas lawmakers passed House Bill 1280, a trigger legislation that bans all abortions in the state should the Supreme Court issue a decision that would allow a wholesale ban.

Texas is one of 12 states with similar laws on the books, according to the Guttmacher Institute, a research and policy organization focused on sexual and reproductive health and rights. It would go into effect 30 days after an applicable ruling.

A statewide ban would me Texas women who seek an abortion who now drive an average of 17 miles one-way to receive a safe procedure would travel 542 miles one-way, Guttmacher Institute data showed.

“You can only ban safe abortion and affluent women who can travel will still have safe abortions, but it is poor, marginalized women who are already struggling, they’re going to have to access illegal abortions and some of those will not be safe,” Kelly said.

In the legislative session, Texas also allotted approximately $100 million — a 25% increase — over two years to its Alternatives to Abortions program which provides counseling, material assistance and social services, among others, for up to three years after birth. The state budget accounts for helping about 150,000 women each year. The money is guaranteed regardless of court rulings.

In 2020, about 55,000 abortions took place in Texas, according to Texas Health and Human Services data. Executive Director for Texas Alliance for Life Joe Pojam said the money allotted more than covers all the women who could seek an abortion.

“I think that kind of puts things in perspective from the point of view of Texas legislature's goals to protect unborn babies from abortion and provide tremendous resources for women with unplanned pregnancies,” Pojman said.

Kristen Day, executive director for Democrats for Life of America, said her organization would like to see the end to all abortions and instead focus on helping mothers through social programs like Alternatives to Abortions.

Day said the biggest issues she sees in the anti-abortion movement is the lack of support for moms leading them to choose abortion because they do not see another option. Instead there needs to be a greater emphasis on removing health care and support barriers that help women reach full term pregnancies, she said.

She added that making abortions illegal will do no good without establishing safety nets such as pregnancy and adoption support programs, paid maternity leave and affordable childcare to help women through their pregnancies and beyond.

“In reality most people don't want abortion if they're given the support to have the child,” Day said. “Most women would prefer that option rather than ending the life of their child.”

WHAT THIS MEANS FOR TEXAS U.S. SUPREME COURT CASES

Texas also has two of its own cases before the Supreme Court stemming from its controversial Senate Bill 8.

The bill bans nearly all abortions after six weeks and avoids review by the federal courts because it targets private individuals.

In oral arguments heard by justices on Nov. 1, the court appeared to lean toward allowing the cases to move forward. In these cases, the court only will address procedural questions and is not set to offer a ruling on the constitutionalty of abortion access.

But David Cohen, a professor of law at Drexel University, said while the cases being allowed to moved forward may be seen as a small victory for abortion providers, it would likely just lead to further delays in reaching a decision.

Cohen added that the justices could issue a stay on S.B. 8 until it is resolved in the court system, but the court's prior decision to allow the law to take effect in September coupled with the court's slower than expected ruling, highlights that a pause in the law is very unlikely.

“[The justices] took the [S.B. 8] case on an expedited basis. They gave the lawyers 10 days to brief the case and argue it, so they acted like they were going to decide the case very quickly, but here we are 17 days later, and we haven't had a ruling from the court,” Cohen said on Nov. 18. “It does make me question whether they understand the gravity of the situation since they're taking so long.”

By Friday, the court had not yet issued its decision in the case.

Nonetheless, Cohen said he believes justices likely will issue an opinion on S.B. 8 long before Dobbs — which he predicts will come at the end of the term in June.

And if the court overturns Roe V. Wade, which Cohen believes is likely, the Texas S.B. 8 cases will no longer matter. 

“This is a very conservative court with justices who were put on the bench for this specific reason — to overturn Roe. They have the case to do that,” he said. “Maybe they get cold feet, I think it is still a possibility, but right now I'm betting on them overturning Roe.”

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