Texas-style abortion bans proliferate as court battle looms
State legislators who oppose abortion rights are preparing legislation to mirror a Texas law passed last year that would allow residents to sue doctors who perform abortions, as the U.S. Supreme Court considers striking down or undermining the half-century-old decision that established a right to choose.
Bills with language similar or identical to the Texas law have been introduced in Alabama, Florida, Missouri and Ohio so far this year. In Oklahoma, state Rep. Sean Roberts (R) said this week he would file his own version.
“The pro-life citizens of Oklahoma should have the ability to help hold these doctors accountable,” Roberts said in a statement announcing his bill. “Individual citizens are an extremely important part of making sure that we are protecting the lives of the unborn. This legislation puts principle into action and I am going to fight extremely hard to get it passed during the upcoming session.”
Most of the measures allow plaintiffs to seek monetary damages against abortion providers or those who “aid and abet” an abortion that takes place more than six weeks after conception. The Ohio version would outlaw virtually all abortions.
That provision, a novel approach first used in the Texas bill, is meant to get around the 1973 decision in Roe v. Wade, which bars a state from unduly restricting a woman’s access to an abortion. Giving residents the standing to sue an abortion provider would circumvent that restriction, according to the bill’s backers.
“States like Missouri that have done everything in our power to make abortion not just illegal but unthinkable are seeing another potential tool to try to be able to do that,” Missouri state Rep. Mary Elizabeth Coleman (R) told The Hill last year. “I think this is really an interesting idea that is really an expansion of tort laws.”
Coleman has proposed a similar style bill likely to be considered in Jefferson City this year.
The Texas law, passed last year, had a profound effect on the number of abortion procedures that took place there. But while women in Texas sought fewer abortions, many of them traveled across state lines to Oklahoma, Arkansas, Louisiana and New Mexico, all of which border Texas.
“These bills are exceedingly dangerous, and if they are enacted and allowed to take effect, they would deny access to most abortions,” said Elizabeth Nash, who directs state policy at the pro-abortion rights Guttmacher Institute. “People who recognize a pregnancy before six weeks would only have, at most, two weeks to decide about an abortion, make arrangements and get care. This is very difficult as there are legal, financial and logistical barriers, including pulling together hundreds of dollars to pay for the abortion, taking time away from work and home and arranging transportation.”
Abortion clinics in 11 other states and the District of Columbia reported to the Guttmacher Institute that they had performed abortions on Texas residents since the law took effect.
“The burden of these early bans fall on those who already face the most barriers to health care, including Black and Brown patients, young people, low-income individuals and LGBTQ individuals,” she said.
The U.S. Supreme Court in August declined to block the Texas measure from taking effect. In December, the high court allowed one challenge to the law to move forward. Last week, a three-judge panel from the 5th Circuit Court of Appeals suggested they might send the law to the Texas Supreme Court for review.
Supporters of abortion rights say the new measures would bar the vast majority of procedures that take place, because most women do not recognize they are pregnant before the six-week threshold.
Both supporters and opponents of abortion rights and the Texas bill would prefer the lawsuit challenging its constitutionality stay on the federal docket. Abortion rights backers see little chance of making headway before a conservative Texas Supreme Court, and abortion rights opponents believe arguments before the U.S. Supreme Court would result in a decision undermining or overturning the Roe precedent.
The Supreme Court is also considering another case, Dobbs v. Jackson Women’s Health Organization, that imposes a ban on abortions after 15 weeks. Oral arguments in that case, which stems from a Mississippi law, took place on Dec. 1.
The number of abortions performed in the United States has fallen dramatically in the last two decades. Federal data show about 862,000 abortions took place in 2017, the last full year for which data is available, and down from 1.29 million abortions that took place in 2001.