What U.S. Supreme Court’s Texas Abortion Punt Means For Mississippi’s Roe v. Wade Case

In addition to a 2018 ban on abortions after 15 weeks, Mississippi lawmakers passed a law in 2019 banning abortions once a heartbeat becomes detectable, which happens around six weeks gestation. Those bans are difference from Texas Senate Bill 8 because Mississippi's recent abortion bans require state officials to enforce them; the Texas law places the onus on citizens. Photo by Ashton Pittman

Abortion-rights activists are alarmed after the U.S. Supreme Court allowed a Texas law that bans almost all abortions to go into effect today, but caution that it does not necessarily foreshadow how the court will decide an upcoming Mississippi case that could determine the fate of Roe v. Wade.

The Lonestar State Law, Senate Bill 8, bans abortions after a fetal heartbeat becomes detectable, which usually happens around the sixth week of pregnancy. Texas Gov. Greg Abbott signed S.B. 8 into law in May. In July, abortion-rights groups sued to block the law, but the 5th U.S. Circuit Court of Appeals cancelled a lower court’s preliminary injunction.

On Aug. 30, S.B. 8 opponents filed an emergency request asking the U.S. Supreme Court to block the law by reinstating a preliminary injunction before its Sept. 1 effective date. The midnight deadline passed with no response from the Supreme Court, and the Texas abortion ban took effect today.

“Today’s silence from the Supreme Court greenlit Texas to implement their six-week ban and has made Roe v. Wade effectively issued a dead letter in Texas—without ever ruling on the constitutionality of the ban,” Center for Reproductive Rights Senior Staff Attorney Hillary Schneller told the Mississippi Free Press in a statement, “Texas’ ban is different than other abortion bans, including Mississippi’s bans, because it allows private individuals to enforce the ban rather than state officials.”

Schneller was referring to laws that Mississippi adopted in 2018 and 2019, including a 15-week abortion ban and Mississippi’s own version of a fetal heartbeat law that would effectively operate as a six-week ban. A federal judge and a three-judge 5th Circuit panel blocked both laws from taking effect, saying they were bound by the U.S. Supreme Court’s 1973 Roe v. Wade precedent.

‘A Bounty-Hunting Scheme’

The nation’s high court will hear a case on the 15-week ban during its new term that begins in October. That case, Dobbs v. Jackson Women’s Health Organization, will give the court’s nine justices an opportunity to reconsider Roe v. Wade’s central holding that women have the right to obtain an abortion before a fetus becomes viable outside the womb. In July court filings, the State of Mississippi asked the U.S. Supreme Court to overturn Roe v. Wade.

Mississippi’s 2018 law, known as the Gestational Age Act, includes fines and civil penalties, such as license revocation or suspension, for physicians who perform any abortion after the 15th week of pregnancy with no exceptions for rape or incest. The Magnolia State’s later 2019 fetal heartbeat law includes similar civil penalties. But the 2021 Texas ban uses a different enforcement mechanism.

“S.B. 8, the Texas law, added a new wrinkle to the so-called heartbeat laws that have become standard fare in conservative states,” Florida State University law professor Mary Ziegler, a Roe v. Wade expert, wrote in a SCOTUS Blog article today. “While most of these states criminalized abortion at the point at which physicians can detect fetal cardiac activity (usually around the sixth week of pregnancy), Texas stressed that no state official could enforce its ban. Instead, the state outsourced the job to private citizens—anyone in the state could sue an abortion provider who violated the ban, secure at least $10,000 in damages, and request a court order to stop the doctor from doing it again.

An abortion rights protester holds up a clothes hanger with the words, “Never Again” in front of the Mississippi Capitol Building during a May 2019 protest against Mississippi’s “fetal heartbeat” law, which bans abortion once a heartbeat becomes detectable, which typically happens around six weeks gestation. Photo by Ashton Pittman

“The goal was to evade court rulings blocking the law’s enforcement before it took effect (and to avoid the hefty attorneys’ fees that other states with heartbeat laws have forked out to defend against those pre-enforcement laws).”

The court’s lack of action on S.B. 8, Ziegler wrote, “does not as obviously contradict” the Roe v. Wade precedent as directly overturning it in the Mississippi case would, Ziegler explained in the post, adding that its “silence cannot tell us whether the court will reverse Roe openly (next) June or in a subsequent decision.” (June is when the U.S. Supreme Court traditionally releases opinions on cases after hearing them in the fall).

The American Civil Liberties Union estimates that about 85% to 90% of people who obtain abortions in Texas “are at least six weeks into pregnancy.”

“S.B. 8 bans abortions after six weeks into a pregnancy—before most people even know they’re pregnant—and creates a bounty-hunting scheme that encourages the general public to bring costly and harassing lawsuits against anyone who they believe violated the ban. … Anti-abortion groups in Texas have already set up online forms enlisting people to sue anyone they believe is violating the law and encouraging people to submit ‘anonymous tips’ on doctors, clinics and others who violate the law,” the ACLU said in an Aug. 30 statement.

With S.B. 8 now in effect, the distance that the average person seeking an abortion must drive has increased 20-fold, from about 12 miles to 20 miles, the Guttmacher Institute estimates.

In a statement today, President Joe Biden called the law “outrageous,” saying it “deputizes private citizens to bring lawsuits against anyone who they believe has helped another person get an abortion.”

In a separate statement, Vice President Kamala Harris said the law will “dramatically reduce access to reproductive care for women in Texas, particularly for women with low incomes and women of color.”

The League of Women Voters of Texas raised similar concerns about “racial and economic justice” in a statement today, saying laws like S.B. 8 are part of a system of “upholding and perpetuating income inequality an white supremacy.”

‘What Starts In Texas Doesn’t Stop There’

In a press release today, the Mississippi Abortion Access Coalition said the Texas law “opens a Pandora’s box of litigation, allowing anyone, anywhere, to sue anyone who assists a person accessing abortion care.”