--- title: What Texas' Abortion Ban Means for Future of Abortion Rights description: Even if the ban is ultimately blocked, it will provide a roadmap for other conservative states to enact similar abortion restrictions. canonical: https://time.com/6093905/texas-abortion-ban-abortion-rights/ author: Abigail Abrams article:opinion: false article:content_tier: free article:published_time: 2021-09-01T14:58:07.000Z article:modified_time: 2026-08-04T08:03:10.823Z article:section: Politics og:title: How Texas' Abortion Ban Marks a New Legal Strategy for Abortion Restrictions og:description: It is now the most restrictive abortion law in the nation. og:url: https://time.com/6093905/texas-abortion-ban-abortion-rights/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt1f93caba9bc601fa/698a1c71b21a9c24bb5051c6/texas-abortion-ban.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 og:image:width: 2400 og:image:height: 1350 og:image:alt: Protestors Rally Against Restrictive New Texas Abortion Law In Austin og:type: article twitter:card: summary_large_image twitter:title: How Texas' Abortion Ban Marks a New Legal Strategy for Abortion Restrictions twitter:description: It is now the most restrictive abortion law in the nation. twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt1f93caba9bc601fa/698a1c71b21a9c24bb5051c6/texas-abortion-ban.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 ---  # How Texas' Abortion Ban Marks a New Legal Strategy for Abortion Restrictions > Sponsored content. 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It explains the politics, personalities and power dynamics behind the headlines, three times a week. #### Where can I get analysis of Washington politics by email? D.C. Brief is TIME's free Washington politics newsletter, available at time.com/newsletters. It is written by a TIME senior correspondent who covers the capital full time. #### Who writes TIME's D.C. Brief? Philip Elliott, a senior correspondent at TIME, writes D.C. Brief. #### Is D.C. Brief free? Yes. D.C. Brief is free at time.com/newsletters. ## Video: True Stories, Hard Choices: Part 1 [Watch (HLS stream): True Stories, Hard Choices: Part 1](https://cdn.jwplayer.com/manifests/fF6xepgj.m3u8) (12:23)  _Published 2016-09-28. Filmmaker Dawn Porter looks at the racial politics of abortion in America today._ by [Abigail Abrams](https://time.com/author/abigail-abrams/) ## Abigail Abrams Sep 1, 2021 2:58 PM UTC  Protesters hold up signs as they march down Congress Ave at a protest outside the Texas state capitol in Austin on May 29, 2021. Protesters hold up signs as they march down Congress Ave at a protest outside the Texas state capitol in Austin on May 29, 2021. Sergio Flores—Getty Images by [Abigail Abrams](https://time.com/author/abigail-abrams/) ## Abigail Abrams Sep 1, 2021 2:58 PM UTC A Texas law that bans abortion as early as six weeks into pregnancy took effect at midnight on Wednesday after the Supreme Court failed to act on emergency requests from abortion providers. Nearly 24 hours later, the court said late Wednesday night it split 5-4 and denied the providers’ emergency request to block the law. The unsigned order, issued by the Supreme Court’s conservative majority, said their decision focused on procedural issues and did not amount to a ruling on the constitutionality of the law, and that other appeals could be pursued. However, even if the ban is ultimately blocked, it will have a lasting impact on Texas and provide a roadmap for other conservative states to enact similar abortion restrictions. --- ### More from TIME --- Senate Bill 8, signed by Republican Gov. Greg Abbott in May, bars abortions once a doctor can detect fetal cardiac activity, which is often before many people know they are pregnant. The ban would prevent at least 85% of abortions sought in Texas, according to abortion rights advocates and providers. It is now the most restrictive abortion law in the nation; at least 12 other states have passed six-week abortion bans, but all have been blocked from going into effect. “Texas politicians will have effectively overturned _Roe v. Wade_,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said shortly before the law went into effect, referring to the landmark 1973 decision that established the constitutionally protected right to abortion before a fetus is viable. The Texas law uses a different tactic than many of the other abortion restrictions passed by Republican state legislatures in recent years—which is precisely what has made it difficult for courts to block it. The law signals a new frontier in the national fight over abortion and could mark a critical new legal strategy for conservative legislatures in how they write restrictive abortion laws in the future. John Seago, legislative director for Texas Right to Life, which helped write the legislation, says he has already heard from other states that are interested in copying this approach and the group is drafting legislation for some of them already. “This promises an alternative to that typical path that pro-life laws go down,” he says. “This is a valid public policy tool and we’re excited to see how it works.” Instead of allowing government officials to enforce the abortion ban as they do with most laws, this law says that private citizens can step in by suing abortion providers and anyone who “aids and abets” a patient obtaining an abortion after six weeks. That means clinics and their staffs could be sued, as well as patients’ family members, or anyone who drives someone to a clinic, provides financial assistance, offers religious or genetic counseling or even “intends” to do any of those actions. The plaintiffs do not need to have any connection to the person they suspect of violating the law, and if they win, the law says they are entitled to damages of at least $10,000 plus legal fees. Because so many people can now legally bring these abortion lawsuits in Texas, courts could theoretically be overwhelmed with cases. “It does open the floodgates to lawsuits, and even frivolous lawsuits, just to harass abortion providers,” says Brigitte Amiri, deputy director of the Reproductive Freedom Project at the ACLU, which is part of the coalition of abortion providers and advocates challenging the law. But the way the law is written also makes it difficult to challenge. Usually, when a state passes a new law restricting abortion access, abortion rights groups and providers sue state officials alleging they are violating people’s constitutionally protected rights. In this case, there is no specific individual tasked with enforcing the law, so there was no obvious entity for the providers to sue. The ACLU, the Center for Reproductive Rights and a collection of other groups and abortion providers filed suit this summer against a slew of officials they said would be responsible for enforcing the law, but a series of complex procedural developments left them asking the Supreme Court for a last-minute intervention. “The Constitution, including _Roe v. Wade_, only applies against the government, it doesn’t apply against private individuals,” says Laurence Tribe, a leading constitutional law expert at Harvard. “That’s what makes this really dangerous. It’s a kind of vigilante justice, circumventing all of the mechanisms we have for making sure that the law is enforced fairly, and that it’s not enforced in a way that violates people’s rights.” Even if the courts temporarily block the law, complications remain. The law includes a provision that says providers could still be sued for violating the law if a court decision is eventually reversed and the law goes back into effect, meaning providers could be sued over an action that was technically legal at the time. For now the law stands in Texas. Texas Right to Life has set up a website to solicit tips about people who allegedly violate the law and collect information from those who want to help the group enforce it. The website has been flooded with fake information from those who support abortion rights, but Seago says that has not hampered the group’s efforts. “We’ve set up the tip line, we’ve built the networks, we’ve been working with pro-life attorneys and activists around the state, so that if \[providers\] decide that they’re going to try to commit illegal abortions anyway, we will be prepared to do what the law authorizes us to do, which is to bring private lawsuits holding them accountable,” Seago says. On Tuesday, a state court issued temporary restraining orders preventing Seago and his group from enforcing the law against two attorneys and one abortion fund, but Texas Right to Life said this did not change its plans to enforce the law. ## **Impact on patients and providers** Abortion providers and patients in Texas are already feeling the consequences of the new law on its first full day in effect. The law will “immediately and catastrophically reduce abortion access in Texas,” the group of providers said in its [emergency filing](https://www.supremecourt.gov/DocketPDF/21/21A24/189841/20210830120232143%5FWWH%20v%20Jackson%20-%20emergency%20application%20with%20appendix.pdf) to the Supreme Court on Monday. “Patients who can scrape together resources will be forced to attempt to leave the state to obtain an abortion, and many will be delayed until later in pregnancy. The remaining Texans who need an abortion will be forced to remain pregnant against their will or to attempt to end their pregnancies without medical supervision.” The Supreme Court’s five most reliably conservative justices voted to reject the emergency filing. Chief Justice John Roberts joined the three liberal justices in dissent. Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan each wrote separate opinions saying they would have blocked the law because it is an unconstitutional ban on abortion. Abortion providers and abortion rights advocates say the law will disproportionately impact low-income patients who already often struggle to access health care. The average distance a Texas patient will have to travel to obtain an abortion will now rise from 12 to 248 miles, a 20-fold increase, according to the [Guttmacher Institute](https://www.guttmacher.org/article/2021/08/impact-texas-abortion-ban-20-fold-increase-driving-distance-get-abortion), a research group that supports abortion rights. Abortion clinics in the state say they plan to comply with the law, but providers often [operate on thin margins](https://time.com/5916746/abortion-clinics-covid-19/) and these changes could force many to close their doors. They can now only provide abortions for people up to six weeks of pregnancy, which will dramatically limit their services and patient volume. Abortion funds, which help patients afford and otherwise access the procedure, could also face prosecution under the law, so may have to limit their work helping patients pay clinics. Clinics also need to hire lawyers to defend their physicians, nurses and other staff members from the lawsuits they expect to face. If they lose a lawsuit, they not only have to pay damages and their opponent’s legal fees, but the state can shut the clinic down. And if they win, the law prevents clinics and others accused of helping facilitate an abortion from recovering their own legal fees. The threat of clinic closures is not theoretical in Texas. In 2013 when the state passed its HB 2 law, which required all abortion providers to have admitting privileges at local hospitals and clinics to be equipped with hospital-level surgical centers, the state lost [almost half its abortion providers](https://www.texastribune.org/2016/06/28/texas-abortion-clinics-have-closed-hb2-passed-2013/). Even after the Supreme Court ruled that law unconstitutional in 2016, few ever reopened. This new law has already affected clinics across Texas. Planned Parenthood clinics in the state have [stopped scheduling](https://19thnews.org/2021/08/texas-planned-parenthoods-abortion-law-turning-away-patients/) visits related to abortions that would take place after six weeks, and Whole Woman’s Health, which runs four clinics in Texas, said it will only schedule abortions for people who are at seven weeks of pregnancy or fewer. On Tuesday night, Whole Woman’s Health tweeted that it was providing abortions up until the last minute before the law took effect. > [](https://twitter.com/WholeWomans/status/1432895683363807242) While the clinics promised they would continue operating for now, Whole Woman’s Health has also lost staff due to the law, says Amy Hagstrom Miller, the organization’s president and CEO. “We’ve been through HB 2; we kept all our clinics open during the COVID pandemic in Texas; these people walk through protesters screaming at them. And they’re so scared of being sued, having this uncertainty of will the clinic be open, will I still have a job,” she says. “The chilling effect has been huge.” Two clinic managers have left because of the uncertainty, Hagstrom Miller says. The law is particularly perilous for physicians, because even if a lawsuit is dismissed as frivolous, the physician will have to declare that they have been sued any time they apply for a license to practice in a different state or for new hospital privileges. Only one of the 17 physicians who work in the Whole Woman’s Health clinics in the state has agreed unconditionally to continue practicing under Texas’ new law. Four or five others have said they will continue providing care as long as the clinics can make changes to their schedules, documentation and legal representation to try to protect them from the expected lawsuits as much as possible. The rest didn’t feel they could take the risk. Texas is far from the only state advancing controversial new abortion laws. Its ban comes at a crucial moment as the Supreme Court will hear another major abortion case this fall, when the justices review a Mississippi ban on abortion after 15 weeks of pregnancy. A decision in that case won’t come until 2022. ## Transcript [ MUSIC ] My mother grew up in New York City, in Harlem in the 1950's. Her father was a physician and a surgeon at Harlem Hospital. I only knew a little bit about this part of my mother's life, so I asked her to tell me more about it. [ MUSIC ] Well as you know my family was the first family to move into our building. [ MUSIC ] I was I think about two years, [ UNKNOWN ] And that was my world. [ MUSIC ] My grandfather had a cousin who was a doctor living in North Carolina. Cousin Albert had more work than he could handle and he asked my grandfather comes South to help out. So my grandfather moved his family to Sleepy Wadesboro, North Carolina. Where he worked as local country doctor. My time in Wadesboro was very different than my time in New York. Most of his clients were very poor. People paid him in corn. And put your hugs and so we have lots of food. My bedroom faced over a highway up on a hill and one night all of the sudden I see like The on highway, all these cars like a row, and there is a trail of white sheets. I didn't know what the Coolock clan was, but i knew that everybody in the house was afraid. And one night The sheriff came, Albert poured drinks, they sat around chatting for a while and then they took him away. He was arrested. He was arrested because a white woman reported that he had performed an abortion for her. I never knew about this part of my family history. I knew that the issue of abortion in America has always been racially charged, but until I started making Trapped, my feature documentary about abortion, I never really considered how the experience of having an abortion might be different for black women. My friends it is a baby. It is a child. According to the Center for Disease Control, black women have abortions at five times the rate of white women. Certainly the reasons are complicated. But experts point to barriers like a lack of access to education, reproductive health care, and income disparity. [ BLANK_AUDIO ] You pretend to be a When are you going to come back to Christ? Dr. Parker, much like my grandfather did, travels across the south providing women access to medical care, including abortion. He's become a well- known advocate for access to abortion care. If you're trying to wipe out the black race. Since you noticed, they're trained to wipe them out. I was prepared for protesters, but it was still shocking to hear the protesters call Dr. Parker a filthy negro abortionist. They were even disgusted with me, for my position, while making this film. Are you pro- choice? I am pro- choice, yes. It's easy to be pro- choice because you're not the one being killed. That's all I have to say. That's right, amen, yeah, what do you got to say about that? That's all I have to say. Hey, were you pro- choice about slavery, too? Cuz that was a privacy issue back in the 1800s. Were you pro- choice about that? You think slavery and abortion [ INAUDIBLE ] Pro choice about slavery, Dred Scott all that. i don; t understand your point. Good job. Is it pro choice about slavery? [ LAUGH ] I don't know why you keep bringing race into the conversation. You know because we like black babies, black babies matter to us but apparently not to you. And you don't care one bit because you're pro choice. You stand beside those Folks, good job! Good job! You're a disgrace to your race! It was absolutely surreal to hear older white men lecture me about the impact of abortion on the lives of black women. Meanwhile I was interviewing real women inside the clinics hearing their painful stories and how hard their choices were. It made me realize just how infrequently black women's stories are really ever told. [ BLANK_AUDIO ] [ MUSIC ] All right, put today's date in this blank. You're gonna sign and date here. Nobody's forcing you to have this done. You do have 48 hours to change your mind. We did an ultrasound to find out how far along you are. You are less than 19 weeks pregnant. Do you know what your blood type is? No. Okay. Questions? No. All right, is there a reason why you didn't give me an emergency contact? Really don't have family here. Okay. Anybody? Friend? Church member? Boyfriend? Nobody Okay! On the other procedure, you gotta have to give me someone and it doesn't have to be someone in this vicinity. But if something happens to you here in the clinic, I need to be able to notify someone, okay? So whether it be your mom and she lives in another state, that's fine. But I still need an emergency contact okay? Now what are you going to do as far as the drive on the day of the procedure? A cab maybe. Okay. You're gonna have to have someone with you I can't put you in a cab sedated with someone you don't know and I don't know. What we can do is talk to the volunteers maybe. Sometimes they will Assist if you don't have a driver, because I'm not comfortable sending you with someone I don't know. [ BLANK_AUDIO ] I am 20. What do you do? As a far as work? Yeah. I'm a cashier at Walmart. I make $ 9 in hour. Being a single parent is not easy. I'm starting to become a paramedic. I just feel like with another child then what I'm trying to do right now. I don't feel like I can do it. So I'm just trying to pursue my dreams so I can just had better for my son. How old is your kid? My son is 19 months. he's a great kid and I just want to take care of him. I don't really think I can do a second child, not by myself. How do you feel about your decision? Like a bad person. Say more about that. Why do you feel bad? Are you a religious person? I try to be. What does your religious understanding say to you about abortion? I know that God don't want this for me, but I did pray on it. I just want him to understand it. I feel like I should go through with it. Mm- hm. I just want him to understand. I don't want him to be upset with me, because if I do it, [ SOUND ] Continuous in that what I would want for you is that you'd be able say, you know what that was a jacked up situation, but if I had to do it all over again, I'd make the same decision because I made the best decision I could make. And that way you don't have to second guess yourself and nobody who's walking in your shoes can question you because they're not in your shoes. [ BLANK_AUDIO ] I'm not a good person at all. I just feel like a bad person, a bad female. Okay, the only rule I'm gonna give you is you may not say I'm not a good person any more, cuz that is not the case. An unintended pregnancy is an unintended An unintended pregnancy is an unintended pregnancy. That's all it is. That's all it is. So, no more. Okay. Okay? I'm not kidding. As crazy as it sounds I said I would rather an abortion than to give the baby up to a family I don't know. Because if I wanna hold it in, that's love. And I don't wanna, [ SOUND ]. Sorry. [ SOUND ] And I can give that love away. [ SOUND ] [ BLANK_AUDIO ] [ MUSIC ] Deciding to have an abortion is never easy, but in many places it's also incredibly logistically difficult. Especially for black women. [ BLANK_AUDIO ] In June of 2016 the United States Supreme Court determined that so- called Trap Laws, which have resulted in the closure of so many abortion clinics are illegal, but there is still only one abortion clinic in the entire state of Mississippi. Luckily there's also one woman there who always listens. [ MUSIC ]. I live in Jackson Mississippi and I work at Jackson Women's Health, the abortion clinic. Getting ready to walk through those doors is the hardest part. And she's probably torn so many different directions. By the time she gets to me, she's barely sure of what she needs to do for herself. A lot of the private counseling that I do I hear interesting stories and most of them is about being torn one way or another. My name is Betty. Everyone around here calls me Ms. Betty, and what I do is I am available to you to talk to you about whatever's going on with you. What we usually do is do a group counseling where I tell you what to expect on surgery day. For me, being a mother is everything. Not only am I a mother to my two boys, I am a mother to the rest of the women in this clinic. [ MUSIC ] I think the protesters think that these women just get up in the morning and decide to go have an abortion. When they have put their heart and souls into their decisions and have to walk through that gauntlet out there to even come in and discuss with us the process. [ MUSIC ] I hate to think about what would happen to the women of Mississippi if this clinic closes. [ MUSIC ] It's tough for women right now. [ MUSIC ] [ MUSIC ]. Ms. Betty is like a mother to her patients. But over and over in the three years of making the film trapped, I heard so many women tell me about their shame In how they felt they were letting their own family down, particularly their mothers. And even though I was making a documentary about abortion and interviewing so many women. I'd realized I've never asked my own mother if abortion had impacted her life. 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