Supreme Court lets Texas abortion ban stand, sets stage for Roe v. Wade fight nationwide

The U.S. Supreme Court stayed quiet Tuesday night as abortion advocates across the country nervously waited for the right-wing-majority court to act on an emergency appeal to block a strict Texas abortion ban, as it’s done for past laws. 

But the Supreme Court didn’t take action. The Texas law, Senate Bill 8, went into effect at midnight Wednesday, immediately banning most abortions in the state and setting a new precedent for other states to follow suit.

SB 8, the most restrictive abortion law in the U.S. to go into effect, bans abortions as early as six weeks with no exceptions for incest or rape. 

Additionally, the law allows private individuals to sue anyone who they believe is providing abortions or assisting someone in accessing an abortion, including health care workers, clergies and rideshare drivers. 

Not only does the law allow for citizens to sue, but it incentivizes it by awarding them at least $10,000 if they are successful. Because the law gives the power to enforce the ban to private individuals, it makes it difficult to challenge the law in court.

This law challenges the 1973 landmark Supreme Court decision in Roe v. Wade, which granted Americans the constitutional right to access a safe and legal abortion. 

But this decision has already been on shaky ground since May when the Supreme Court agreed to hear arguments on a Mississippi law banning abortions after 15 weeks, Dobbs v. Jackson Women’s Health Organization.

“Every day, I see patients who have decided to end their pregnancies. They decided days or even weeks ago,” said Sarah Wallett, Planned Parenthood of Michigan chief medical officer. “Abortion bans don’t stop them from deciding what they want for their bodies and their futures. Abortion bans, like the one in Texas, stop them from living the life they want by denying them the medical care they need.”

According to the abortion providers who asked the Supreme Court to block the law, SB 8 will bar care for at least 85% of Texas abortion patients, as many pregnant people do not know that they are pregnant until after six weeks. 

Michigan, on a much smaller scale, saw its own attempt at deputizing private individuals to report abortions. 

Hillsdale, a small city near the Ohio border best known as the home of conservative Hillsdale College, proposed an ordinance in early August to ban abortions in the city and allow private citizens to file civil lawsuits against anyone who they believe violated, or intended to violate, the ordinance.

The Hillsdale ordinance is not binding and does not prohibit abortions in the city due to protections by Roe v. Wade. 

What could this mean for Roe v. Wade and Michigan?

The Supreme Court’s inaction Tuesday night not only gives Republican states a green light to enact identical laws, but also gives a preview of how they will likely rule in Dobbs v. Jackson Women’s Health Organization.

At an April 2019 Planned Parenthood conference in Lansing, Democratic Attorney General Dana Nessel said, “It is, I think, at this point likely that we will see Roe v. Wade overturned by the United States Supreme Court. So … I will never prosecute a woman or her doctor for making the difficult decision to terminate a pregnancy.”

Michigan’s Republican-led Legislature could potentially introduce an identical bill to SB 8, but that would likely not make it past Democratic Gov. Gretchen Whitmer’s desk. 

Whitmer tweeted Wednesday morning: “Overturning Roe v. Wade would put lives at risk and limit access to care. I continue to stand with everyone who fights for reproductive rights, especially in the face of extreme laws. We must protect access to safe, legal abortion.”

University of Michigan Regent Jordan Acker noted on Twitter Wednesday morning that the more likely route in Michigan would be a petition drive to make abortion illegal, which wouldn’t be subject to the governor’s veto if the Legislature passes it. This is the successful technique the conservative Unlock Michigan group used to dismantle a law Whitmer relied on for many of her early COVID-19 restrictions.

Anti-abortion petition drives have been used in Michigan, but they have struggled to be successful in recent yeqars. 

Since 2019, two abortion restrictions have failed to get traction in Michigan, including Right to Life of Michigan’s petition drive to ban the rare dilation and evacuation (D&E) abortion procedure and the Michigan Heartbeat Coalition’s drive to ban abortions at the first sign of cardiac activity.

Right to Life of Michigan did not respond to a request for comment, but tweeted Tuesday afternoon in support of the Texas law, “Go Texas!”

Michigan has attempted to enact abortion restrictions in recent years and already has a 1931 abortion ban on the books that has been moot since the Roe v. Wade decision. 

“Reproductive health and rights all over the country have never been at greater risk – what’s happening in Texas makes that painfully clear,” Wallett said. “Here in Michigan, we face an especially dangerous threat.”

If the Supreme Court overturns Roe v. Wade, Michigan would fall back on the state’s 1931 law that could potentially felonize people for performing an abortion at any gestational period, unless it is to save the life of the pregnant person. 

Early pregnancy abortion bans have been enacted in at least 12 other states, but none have been successful prior to this Texas law. 

According to the Guttmacher Institute, a pro-choice think tank, more abortion restrictions have been enacted nationwide in the first six months of 2021 than in any year since Roe v. Wade, totaling 90 restrictions across the country.