By Eleanor Klibanoff, The Texas Tribune
The U.S. Supreme Court on Friday delivered a lukewarm victory for abortion providers in Texas, allowing them to challenge the state’s restriction on abortions after about six weeks of pregnancy.
But because the court did not strip the law’s enforcement mechanism, the ruling does little to settle the question of abortion rights in Texas.
In fact, providers and opponents say, it reinvigorates the fight on both sides as the case returns to a lower court.
“I never thought I’d have a Supreme Court case the first time, much less that we’d have another one so fast,” said Amy Hagstrom Miller, the president and CEO of Whole Woman’s Health, an abortion provider that runs four clinics in Texas.
The group is a named plaintiff in the lawsuit the Supreme Court just ruled on, as well as one that concluded in 2016. Hagstrom Miller said in a November interview that the legal battles are wearying — she didn’t get into abortion care to be an activist.
“I like to sit with somebody and help them make a big decision for their life and give them accurate information and comfort and kindness,” she said. “This shouldn’t be some giant fight on the political front line.”
But in Texas, abortion has long been a fight — from Roe v. Wade, the 1973 Supreme Court case that created the constitutional protection for abortion, to the cases filed since challenging that decision. And the only clear conclusion from this week’s ruling is this: there’s much more fight left to be fought.
“If you’re new around here, here’s something to know about Whole Woman’s Health,” Hagstrom Miller’s group tweeted Friday. “We don’t back down. Just not how we roll. We’ve won what seemed like impossible cases before and we know we’ll do it again.”
Roe v. Wade
The 1973 Supreme Court case that decided abortion — and set the stage for decades of challenges — was born in Texas, when three young women decided to challenge the state’s abortion ban.
A 22-year-old named Norma McCorvey wanted to end her pregnancy. She was poor, unable to reliably make ends meet, and had suffered from abuse during various periods of her life. And she already had one child who was being raised by her mother.
McCorvey’s lawyer introduced her to Linda Coffee and Sarah Weddington, two recent law school graduates who believed Texas’ law banning abortions was vaguely written and violated a woman’s right to privacy.
They filed a lawsuit on McCorvey’s behalf, identifying her only as Jane Roe, against Henry Wade, the Dallas County district attorney at the time. Wade was not personally an anti-abortion crusader — he was just the person who would, theoretically, bring charges against someone who violated the law.
The case went all the way to the U.S. Supreme Court, where Weddington argued it twice. Finally, in 1973, Justice Harry Blackmun authored a stunning 7-2 ruling that created a constitutional right to abortion. This ruling overturned state laws restricting the procedure, including the one in Texas, but did not guarantee women unfettered access to the procedure.
As a patient’s pregnancy proceeds further, Blackmun ruled that her right to privacy, as protected by the 14th Amendment, must be balanced against the government’s interest in protecting the “potentiality of human life.” The ruling determined that viability — the point at which a fetus may survive outside the womb, generally around 24 weeks — is the line before which states cannot ban abortions.
It is this balancing act — between a woman’s right to privacy and a state’s interest in protecting potential life — that has formed the basis of so many challenges to Roe v. Wade since 1973. And so many of the most high-profile challenges have come from the birthplace of Roe v. Wade itself.
Texas’s attempts to restrict Roe
The anti-abortion movement in America looked a lot different in the immediate aftermath of Roe than it does today.
“If you were thinking of the early right-to-life movement, you definitely wouldn’t think of Texas,” said Mary Ziegler, a professor studying the history of reproductive law at Florida State University. “Opposition to abortion was predominantly Catholic. White evangelicals in Texas were not particularly vocal.”
Even the Southern Baptist Convention took a mild stance on abortion through the 1970s, affirming their “conviction about the limited role of government in dealing with matters relating to abortion.”
But over the next few decades, as evangelicals began to politically mobilize, abortion became a central plank of a new and swiftly growing movement: the religious right.
“Abortion was at the epicenter of it,” explained Ziegler. “It was also about LGBT rights and about equality for women, but abortion was definitely a big part of it.”
As Republicans grew in power across the South, the crux of the anti-abortion movement shifted away from the Northeast and Midwest. National anti-abortion groups who were writing model legislation began to see Texas as a place where these bills were likely to gain traction.
And they did.
“We’ve had a lot of progress just since 2000,” said Joe Pojman, the executive director of Texas Alliance for Life. “Texas has been playing its usual outsized role on this issue. We’ve been on the vanguard of advancing pro-life laws that have challenged the precedents in federal courts.”
Whole Woman’s Health opened in 2003, and back then, Hagstrom Miller said, the abortion landscape looked totally different in Texas.
“There were over 70 clinics in Texas,” she said. “But they’ve passed restrictions, at least one, if not a whole handful, every time the legislature meets.”
In 2003, Texas lawmakers passed the “Women’s Right to Know Act,” which created a 24-hour waiting period, among other things. In 2005, they banned abortions after 24 weeks and started providing state funds to crisis pregnancy centers.
In 2011, Texas began requiring women to get a sonogram — and requiring the doctor to show them the sonogram, describe the sonogram and play the audio so they can hear if there is a heartbeat.
These laws all chipped away at the edges of the constitutional right to an abortion. But in 2013, the state made its first major challenge to the crux of the law with an omnibus bill that was seen at that time as among the strictest abortion laws in the nation.
The 2013 bill aimed to ban abortions after 20 weeks, require abortion clinics to meet the same standards as ambulatory surgical centers, and require doctors who perform abortions to have admitting privileges at a nearby hospital.
Texas’ abortion laws captured the nation’s attention when Sen. Wendy Davis managed to defeat the legislation with a 13-hour filibuster.
Despite the filibuster, the measure eventually passed during a special legislative session. Abortion opponents argued these restrictions were done in the name of women’s health; abortion providers disputed that and said they would not be able to stay open under the threat of these additional requirements.
The providers sued the state, and the case eventually went to the U.S. Supreme Court as Whole Woman’s Health v. Hellerstedt. In 2016, the court ruled in favor of the abortion providers, saying the legislation’s purported health benefits did not outweigh the burdens they would place on a woman seeking an abortion.
U.S. Supreme Court Justice Stephen Breyer wrote that the court “found nothing” that shows the new law “advanced Texas’ legitimate interest in protecting women’s health.”
But by the time the case had been fully litigated, the damage had been done. Texas had more than 40 abortions clinics before the 2013 law was passed. When the Supreme Court ruled, there were less than half as many.
“Whole Woman’s Health won one of the most significant wins in the Supreme Court in a generation,” said Hagstrom Miller. “But here we are and we still only have 20 clinics providing abortion services in Texas.”
Mississippi and Texas before the Supreme Court
The current fight that has put Texas in the spotlight is over a new law that attempts to limit abortions after cardiac activity is detected, usually around six weeks of pregnancy. The law empowers private citizens to sue anyone who “aids or abets” in an abortion after that point.
This law is unprecedented in so many ways, creating what U.S. Supreme Court Justice Elena Kagan called a “procedural morass.” In addition to the private enforcement mechanism, the law has no exception for abortions in cases of rape or incest and bans abortions at a point so early in pregnancy many women wouldn’t even know they were pregnant.
This law, originally styled as Senate Bill 8, shows how the most extreme arms of the anti-abortion movement have penetrated the Texas legislature, said Ziegler, the reproductive law history professor.
“Those folks are more vocal and mobilized in Texas than they are almost anywhere,” she said.
This leaves Republican lawmakers in a bind, she said. They want to be identified as “pro-life,” but they also want to avoid “getting their butts sued and having to pay millions of dollars to the Center for Reproductive Rights, like they did in 2016.”
This year’s Senate Bill 8 even divided the anti-abortion movement in Texas, with prominent groups like Texas Alliance for Life not endorsing the legislation.
But John Seago, legislative director for Texas Right to Life, which lobbied for the bill, said it’s incumbent on Texas to lead the way with this sort of legislation.
“All of these cases are important factors in the overall movement,” he said. “But [this law] is really important because it provides more tools to enforce these restrictions on abortion, even after Roe v. Wade is overturned.”
That reality — a world without Roe — may be closer than ever before.
The U.S. Supreme Court has taken up a 15-week abortion ban out of Mississippi and has said it will consider whether any pre-viability bans can be constitutional. During oral arguments Dec. 1, a majority of the justices seemed inclined to roll back protections for abortion, if not do away with Roe altogether.
Texas has already passed a so-called trigger law, which will make abortions illegal in the state if Roe is overturned.
But with Mississippi bringing the case that may signal the end of Roe v. Wade, many say it’s no surprise that Texas managed to shoulder its way onto the Supreme Court’s docket this session.
“I think Texas tried to get in front of the court faster than Mississippi,” said Hagstrom Miller. “Because good Lord, we know Texas doesn’t want to be out done.”
Editor’s note: This article originally appeared in The Texas Tribune.