Texas law opens door for other states to pursue abortion restrictions

The Supreme Court’s refusal to block the Texas “fetal heartbeat” law, the most restrictive abortion legislation in the U.S. to date, is expected to inspire more Republican-led states to follow in the Lone Star State’s footsteps.

Politicians in Arkansas, South Dakota and Florida, including Florida Gov. Ron DeSantisRon DeSantisOvernight Health Care — Presented by Carequest — Key CDC panel backs Moderna, J&J boosters GOP senators call on Biden to back down from vaccine mandates DeSantis to call special session of legislature to fight vaccine mandates MORE (R), have already committed to at least looking into implementing a version of the Texas six-week abortion ban in their states.

The court’s 5-4 decision not to intervene in the Texas law that went into effect Wednesday did not determine whether the law is constitutional, while courts have ruled previous six-week bans unconstitutional.

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“What they did in Texas was interesting, but I haven't really been able to look at enough about it,” DeSantis told reporters on Thursday. “They've basically done this through private right of action. So, it's a little bit different than how a lot of these debates have gone. So we'll have to look, I'm gonna look more significantly at it.”

Similarly, Florida Senate President Wilton Simpson (R) said the state’s lawmakers will consider mimicking Texas’s law, saying in a statement to The Hill that the legislation “represents a new approach,” and the Supreme Court’s decision not to intervene is “encouraging.”

“As an adoptive child myself, it’s important to me that we do everything we can to promote adoption and prevent abortion; therefore, I think it’s worthwhile to take a look at the Texas law and see if there is more we can do here in Florida,” he said.

The court officially declined to block Texas’s “fetal heartbeat” bill in a late Wednesday decision, with Chief Justice John Roberts dissenting along with the three liberal justices. But the majority emphasized that it was not ruling on the constitutionality of the law, meaning the Supreme Court can still strike it down later in the legal process. 

This leaves state legislatures to decide whether to act sooner based on the Lone Star State’s legislation or wait for the court to rule on a Mississippi law that directly challenges the 1973 Roe v. Wade decision and bans abortion after 15 weeks.

Arkansas Sen. Jason Rapert (R), who sponsored the first “fetal heartbeat” bill passed in the country, tweeted that he ordered a law that mirrors Texas’s ban to be filed in his state.

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“I look forward to working with my fellow legislators adding cosponsors and [Arkansas Gov. Asa HutchinsonAsa HutchinsonThe Hill's Morning Report - Presented by Uber - Build Back Better items on chopping block Sunday shows - Buttigieg warns supply chain issues could stretch to next year Arkansas governor backs employer vaccine mandates MORE] to pass this important legislation before we adjourn the legislative session,” Rapert, who is running for lieutenant governor, said.

In South Dakota, Gov. Kristi NoemKristi Lynn NoemSouth Dakota GOP lawmakers summon two employees for Noem inquiry Republicans' mantra should have been 'Stop the Spread' Biden presses companies to get ahead of vaccine mandate MORE (R) — who, like DeSantis, is a possible 2024 White House candidate — declared on social media that she instructed her office's so-called unborn child advocate to “immediately review the new TX law and current South Dakota laws to make sure we have the strongest pro life laws on the books.”

Noem spokesperson Ian Fury told The Hill in a statement that the governor’s unborn child advocate has begun his review but “it’s too soon in the process to comment on it.”

South Dakota has already passed a trigger law that would outlaw abortion if Roe v. Wade is overturned, but until then, "Governor Noem and her Unborn Child Advocate will continue working to implement the strongest pro-life laws possible in South Dakota," Fury said.

The momentum for red states to pursue abortion restrictions picked up this year after the Supreme Court officially reached a 6-3 conservative majority with Justice Amy Coney BarrettAmy Coney BarrettA politicized Supreme Court? That was the point Solid majority believes Supreme Court rulings based more on politics than law  Locked and Loaded: Supreme Court is ready for a showdown on the Second Amendment MORE’s confirmation late last year. 

The conservative advantage in the highest court motivated state legislatures to enact more than 90 abortion restrictions, prompting the Guttmacher Insittue to name this 2021 as “the worst legislative year ever” for abortion rights in the country.

Elizabeth Nash, a state policy analyst at the Guttmacher Institute, said she expects states in the South, the Plains and the Midwest, where the “lion’s share of abortion restrictions” are, to try to pass laws similar to Texas's.

“If the door is opened around weakening abortion rights, whether it's a Texas-style ban or another kind of restriction, then yes, states will pursue many types of restrictions to limit access to abortion,” she said. “I think they're hoping the courts are at their back and that they will just move ahead with some of these bans now."

Still, many state legislatures are not in session at this point in the year, leaving these legislators to wait until next year to try to pass a Texas-style law; however, a few states are still in legislative session, like Ohio, which has a Republican supermajority that may make it easier for such a law to pass. 

The Pro-Life Action League’s Executive Director Eric Scheidler said state legislators might take a more cautious approach and wait to see what comes out of the Mississippi Supreme Court case.

“That's the case that is either going to open up the door to a whole host of new types of regulations akin to the 15 week ban and accident in Mississippi, rather than trying to move on this very sort of unusual Texas law,” he said.

Texas Gov. Greg Abbott signed the “fetal heartbeat” bill into law in May, which prohibits abortions after fetal cardiac activity is detected, which can happen as early as six weeks, before some people know they’re pregnant.

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However, the legislation is considered unique because it’s intended to be enforced by private citizens instead of state authorities. Private residents who successfully sue anyone who provides or aids and abets in an abortion can earn at least $10,000.

Scheidler said he wouldn’t be surprised if the Supreme Court “ultimately” strikes down the Texas law. But he expects some “particularly zealous state legislators … in very red states,” such as Oklahoma and Alabama, to move forward with a Texas-style law to halt abortions in their states. 

Several states have expressed interest, with Rebecca Parma, the senior legislative associate at Texas Right to Life, saying her advocacy group has seen an uptick in curiosity about the legislation after it went into effect this week. 

When asked whether her group would recommend taking immediate action or waiting for the ruling in the Mississippi Dobbs v Jackson case, she said, “We would recommend [to] go ahead just like we did.”

“Certainly what happened with our law … that's an encouragement that indicates positively about how the Supreme Court might rule in the Dobbs case, but we can't know for sure,” she added. “And so in the meantime, it's great to pass legislation that can start saving lives immediately.”

The Supreme Court is slated to review the Mississippi case next term, with a decision expected by next summer, just months before the midterm elections.

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Rose Mimms, the executive director of Arkansas Right to Life, said the Texas law “certainly gives us a new angle in trying to save the lives of unborn babies.”

“We're going to be looking at this law to see if we can pass it in Arkansas,” she said. “I don't think there's any problem. We have a pro-life general assembly. We have a pro-life governor. We have pro-life attorney general, and we have millions of pro-life citizens that ... want to save lives.”