The announcement by the US supreme court that Texas’s new law banning abortions after six weeks would be allowed to stand, until it hears the federal government’s case against it on 1 November, was a blow to anyone hoping that the court might block attempts to remove women’s constitutional right to abortion. The 1973 decision that established this right, Roe v Wade, is a landmark in the history of the court.
The challenge brought by the Biden administration aims to overturn the Texas law on grounds that the state has violated the court’s authority. By outsourcing enforcement of its abortion ban to private citizens, who since September have been allowed to sue anyone who helps a woman obtain an abortion, Texas legislators have sought “to evade the traditional mechanisms for judicial review”, the suit states. The justice department argues that this is a dangerous precedent with the potential to undermine other supreme court decisions. While some employers are offering to relocate staff to other states, the women most likely to be harmed by the ban are the poorest and least mobile, who in Texas are disproportionately women of colour.
The court should rule in the administration’s favour, and should have taken the opportunity to block the law in the interim. By framing their ban as they did, Texas legislators have brazenly gamed the system. Unlike in other countries that restrict abortion, there are no exemptions for pregnancies that result from rape or incest, or for teenage girls. Nor is there any special provision for foetal anomalies, although the limit of six weeks after conception – before many women know that they are pregnant – is in any case so early as to make such diagnoses impossible. The current situation in Texas, with vigilantes able to seek bounties of $10,000 if they bring lawsuits, makes the state one of the most oppressive jurisdictions for women’s reproductive rights in the world.
Whatever happens next month, the stage is already set for a further confrontation. In December, the supreme court will hear another abortion case, Dobbs v Jackson Women’s Health Organization. This challenges a ban on abortions after 15 weeks imposed in Mississippi in 2018, but subsequently blocked. The case is a crucial test and the court’s conservative majority, with its three Trump appointees, is widely expected to side with the state.
Roe v Wade enshrined a woman’s right to terminate a pregnancy until the point that a foetus can survive outside the womb, currently around 24 weeks’ gestation. For decades, states that oppose abortion have worked to undermine this right, with poor and black women far more likely to be caught in legislative traps designed to punish women whose pregnancies do not result in live births. Astonishingly cruel and unjust outcomes have included the imprisonment of women who have had miscarriages claimed by prosecutors to be linked to drug use.
American women were in the forefront of feminist activism in the 1960s and 1970s. Increased reproductive freedoms, including access to contraception as well as abortion, were one of that movement’s great gains. Internationally, the trend remains towards rather than away from a woman’s right to choose, with Argentina and Ireland among countries that have liberalised laws. But the US wields vast influence and already restricts overseas aid to abortion providers. The threat to women posed by the US supreme court stretches far beyond Texas and Mississippi.