Live Updates: Texas Abortion Law Cases at the Supreme Court


Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 11:32 a.m. ET

Katie Benner

covers the Justice Department

Elizabeth Prelogar, the nation’s newly confirmed solicitor general, is now presenting arguments before the Supreme Court.

Previewing the Justice Department’s argument.

Elizabeth Prelogar, the Biden administration’s newly confirmed solicitor general, will make arguments in the case on Monday.Credit...Shutterstock

The Biden administration’s newly confirmed solicitor general, Elizabeth B. Prelogar, is expected to argue that the Texas law conflicts with Supreme Court precedent and to urge the justices not to be deterred from saying so by the way it was drafted to avoid judicial review.

In the federal government’s brief submitted to the court, the acting solicitor general at the time, Brian H. Fletcher, wrote that “S.B. 8 was designed to nullify this court’s precedents and to shield that nullification from judicial review. So far, it has worked: The threat of a flood of S.B. 8 suits has effectively eliminated abortion in Texas at a point before many women even realize they are pregnant, denying a constitutional right the court has recognized for half a century.”

“Yet Texas insists,” Mr. Fletcher added, “that the court must tolerate the state’s brazen attack on the supremacy of federal law because S.B. 8’s unprecedented structure leaves the federal judiciary powerless to intervene.”

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 11:29 a.m. ET

Adam Liptak

covers the Supreme Court

 The first argument, just concluded, was wide-ranging and pursued many themes, a lot of them quite technical. But there was some reason to think that Justices Brett Kavanaugh and Amy Coney Barrett have doubts about the way the Texas law was drafted – to avoid review in federal court. Both justices were part of the 5-to-4 majority that refused to block the law in September. If either one switches sides, the result could be different.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 11:26 a.m. ET

J. David Goodman

Houston bureau chief, covering Texas

Opinion among Texans of the restrictive new abortion law has been split. A survey from the University of Houston, conducted last month, found 55 percent of Texans who had an opinion of the law supported the legislation, while 45 percent did not.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 11:15 a.m. ET

Ruth Graham

covers religion, faith and values

Anti-abortion groups are watching today’s hearing closely, even as they look ahead to Dec. 1, when the court hears arguments in Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law that would undercut Roe v. Wade more directly. Students for Life of America said they had at least 30 demonstrators stationed outside the court today, with many holding signs reading “LET THEIR HEARTS BEAT.”

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 11:15 a.m. ET

In response to a question from Chief Justice Roberts, the Texas solicitor general says Texas courts and state officers will faithfully apply any decisions of the Supreme Court.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 11:15 a.m. ET

Justice Sotomayor was dwelling on an unusual tort-law wrinkle: Under the enforcement mechanism of the Texas law, citizens are entitled to bounties — $10,000 judgments — just for filing a successful lawsuit, even if they are not personally harmed by anything the defendant has done.

Will Justice Brett Kavanaugh change his position?

Justice Brett M. Kavanaugh at the State of the Union address in 2020.Credit...T.J. Kirkpatrick for The New York Times

Justice Brett M. Kavanaugh, who voted with the majority in September to allow the Texas law to come into effect, may be the member of the court most open to switching sides on the issue. Though his voting record in abortion cases has consistently supported abortion restrictions, he has made occasional comments staking out more moderate positions than those of his colleagues.

In 2019, for instance, when the court temporarily blocked a Louisiana law restricting abortions, Justice Kavanaugh issued a dissent, taking a middle position that acknowledged the key precedent and that said he would have preferred to have more information on the precise effect of the law.

In 2017, when he was still a federal appeals court judge, he dissented from a decision allowing an undocumented teenager in federal custody to obtain an abortion, writing that the majority’s reasoning was “based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand.” He said he would have given the government more time to find a sponsor for the teenager.

But Judge Kavanaugh did not join a separate dissent from Judge Karen LeCraft Henderson, who wrote that the teenager had no right to an abortion because she was not a citizen and had entered the country unlawfully.

Continue reading the main story
Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 11:12 a.m. ET

Adam Liptak

covers the Supreme Court

Justice Kavanaugh asks whether states could enact similar laws limiting other constitutional rights, like gun rights under the Second Amendment and free speech rights under the First Amendment. Stone responds that such laws could not be challenged in federal court, either.

In the first round of arguments, Texas abortion providers focus on the role of private lawsuits.

Abortion rights supporters outside the Supreme Court on Monday as the justices heard arguments on the Texas abortion law.Credit...Tom Brenner for The New York Times

In the first stage of the arguments, Marc Hearron, a lawyer for the Center for Reproductive Rights, argued for about 40 minutes on behalf of abortion providers. Mr. Hearron argued that the Supreme Court should issue an injunction against Texas state court clerks, forbidding them from accepting lawsuits against abortion providers and those who aid and abet them.

He listed a litany of harms from the Texas law, which delegates to private parties the ability to enforce the law by filing lawsuits. He said that structure raised the prospect that it will chill a constitutional right by encouraging repetitive lawsuits that would put defendants at risk of $10,000 judgments plus attorney fees. The justices grappled with whether ordering clerks to bar such suits would be a proper use of the Supreme Court’s authority.

Justice Samuel Alito probed whether people can file lawsuits against abortion providers, and those who aid people seeking or carrying out abortions, even if the plaintiffs have not personally suffered any harm. There was a lot of discussion of Ex Parte Young, a 1908 case. It made an exception to sovereign immunity, permitting cases in federal court against state officials who are acting unconstitutionally.

But the Supreme Court also said this mechanism could not be used to “restrain the state court from acting in any case brought before it either of a civil or criminal nature.”

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 11:02 a.m. ET

Adam Liptak

covers the Supreme Court

Justice Brett Kavanaugh wonders whether the court should take action to close what he called a loophole in current doctrine that seems to forbid the abortion providers’ challenge.

Judd Stone II, the Texas solicitor general, makes his Supreme Court debut.

Judd Stone II, a former clerk to the conservative Supreme Court Justice Antonin Scalia, was named solicitor general of Texas earlier this year. On Monday, he will take on his most high-profile challenge to date: arguing before the Supreme Court on behalf of the state in two challenges to its new anti-abortion law.

Mr. Stone, who took his post in February, joined the state solicitor general’s office in 2020. He was appointed by Ken Paxton, the state attorney general. His predecessor, Kyle Hawkins, called Mr. Stone’s appellate advocacy skills “unmatched.” He oversees an office of attorneys who supervise and approve all appellate litigation for the state.

Before joining the office of the solicitor general, Mr. Stone was chief counsel for Senator Ted Cruz of Texas, himself a former Texas solicitor general.

Mr. Stone practiced law in Washington, D.C., at the Supreme Court and Appellate Practice Group for Morgan, Lewis, and Bockius, and the Kellogg, Hansen, Todd, Figel, and Frederick law firm. He was also an Olin-Searle-Smith fellow at Harvard Law School.

Before his career in private practice, Mr. Stone clerked for Mr. Scalia, for Judge Edith Jones on the U.S. Court of Appeals for the Fifth Circuit, and for Justice Daniel Winfree on the Alaska Supreme Court. He graduated from the University of Texas at Dallas and from Northwestern University Law School.

Mr. Hawkins, the previous solicitor general, announced his resignation in January. Notably, he had declined to join Mr. Paxton’s efforts to overturn the results of the 2020 presidential election.

Continue reading the main story
Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:50 a.m. ET

Adam Liptak

covers the Supreme Court

Chief Justice Roberts asks whether the law could be challenged if the bounty it offered were $1 million, not $10,000. Stone says that would still not allow a challenge in federal court.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:48 a.m. ET

Adam Liptak

covers the Supreme Court

Justice Thomas once went a decade without asking a question from the bench. These days, he is an active participant in arguments.

Previewing Texas’ arguments.

The steps of the Supreme Court.Credit...Stefani Reynolds for The New York Times

Judd E. Stone II, the solicitor general of Texas, is expected to argue that neither the federal government nor abortion providers are entitled to sue at this point to block the law. Instead, he will say, what should happen is that everyone should wait for a case in which somebody has sued an abortion clinic in state court, and then use that lawsuit to adjudicate whether the law is valid.

“The Constitution does not guarantee pre-enforcement review of state (or federal) laws in federal court,” Mr. Stone and other Texas officials argued in an earlier brief, adding: “A time will come — and no doubt soon — for the state courts to rule on the constitutionality of S.B. 8, and this court will, in turn, retain the last word on the correctness of their adjudication of federal law. But the United States does not get a free pass around long-settled federal-courts doctrines because it would prefer to litigate in a federal forum just a bit faster.”

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:45 a.m. ET

Hearron is wrapping up following about 40 minutes of arguments in which he urged the Supreme Court to bar Texas state clerks from docketing any lawsuits under the antiabortion law. The justices asked questions probing the unusual nature of the law, which delegates enforcement to private parties. Now up is the solicitor general of Texas, Judd Stone, who will argue that any action by the Supreme Court blocking this law at this stage would be improper.

Justice Neil Gorsuch on assisted suicide, euthanasia — and abortion.

Justice Neil Gorsuch speaks at the Federalists Society's National Lawyers Convention in 2019.Credit...Samuel Corum for The New York Times

Justice Neil M. Gorsuch, who was appointed by President Donald J. Trump, was in the majority when the court refused to block the Texas law, and he dissented last year from a Supreme Court decision striking down a restrictive Louisiana abortion law.

But he has not written or said much publicly about whether the Constitution protects a right to abortion. There is good reason, though, to think he has given the topic a good deal of thought.

He is the author of a 2006 book called “The Future of Assisted Suicide and Euthanasia,” which explored those issues and glancingly addressed abortion.

“Human life is fundamentally and inherently valuable,” he wrote, adding that “the intentional taking of human life by private persons is always wrong.” This led him to support existing laws barring assisted suicide and euthanasia.

But that broad statement did not answer the question of whether a fetus is a human life in the sense that Justice Gorsuch meant, or where he stands on Roe v. Wade.

“Under Roe’s express holding,” Justice Gorsuch wrote, “a fetus does not qualify as a person.”

In a footnote, he described a contrary view from a 1986 dissent. Notably, it came from Justice Byron R. White, for whom Justice Gorsuch worked as a law clerk in 1993 and 1994. “The right to terminate a pregnancy differs from the right to use contraceptives because the former involves the death of a person while the latter does not,” Justice Gorsuch wrote, describing his old boss’s views.

Continue reading the main story
Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:40 a.m. ET

Justice Gorsuch compares the Texas antiabortion law to other laws that potentially chill the exercise of constitutional rights: defamation laws, gun control laws, and public health restrictions during the pandemic that affect the ability to attend a religious gathering.

Justice Elena Kagan has criticized the court’s ‘shadow docket.’

Associate Justice Elena Kagan in the House Chamber in 2019.Credit...Doug Mills/The New York Times

Justice Elena Kagan, who had voted to strike down restrictive abortion laws in earlier cases, pulled no punches in her dissent in September when the Supreme Court let the Texas law go into effect.

“Without full briefing or argument, and after less than 72 hours’ thought, this court greenlights the operation of Texas’s patently unconstitutional law banning most abortions,” she wrote. “The court thus rewards Texas’ scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the state’s behalf.”

“Because of this court’s ruling,” she wrote, “Texas law prohibits abortions for the vast majority of women who seek them — in clear, and indeed undisputed, conflict with Roe and Casey.”

In addition to criticizing the law, Justice Kagan had harsh words for the court’s willingness to decide momentous issues without full briefing and argument.

“Today’s ruling illustrates just how far the court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process,” she wrote.

“It has reviewed only the most cursory party submissions, and then only hastily,” she wrote. “And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

That critique doubtless played a role in the court’s decision to call for Monday’s arguments.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:31 a.m. ET

Adam Liptak

covers the Supreme Court

We’ve now entered a round of one-by-one questions from the justices, in order of seniority.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:31 a.m. ET

There’s a lot of discussion of Ex Parte Young, a 1908 case. It made an exception to sovereign immunity, permitting cases in federal court against state officials who are acting unconstitutionally. But the Supreme Court also said this mechanism could not be used to “restrain the state court from acting in any case brought before it either of a civil or criminal nature.”

Here’s a look at Justice Amy Coney Barrett’s history of opposing abortion.

Justice Amy Coney Barrett with Chief Justice John G. Roberts Jr. last month.Credit...Stefani Reynolds for The New York Times

President Donald J. Trump vowed to put justices on the Supreme Court who would overturn Roe v. Wade. Opponents of abortion rights were pleased with all three of his appointments — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — but they were particularly enthusiastic about Justice Barrett.

Justice Barrett, who was part of the majority that let the Texas law go into effect in September, replaced Justice Ruth Bader Ginsburg, who died last year and was a strong supporter of abortion rights. Justice Barrett, by contrast, signed a 2006 newspaper advertisement opposing “abortion on demand.”

In remarks to students at Notre Dame in 2013, as reported in a student newspaper, Judge Barrett said the core right to abortion established in Roe appeared secure.

“I think it is very unlikely at this point that the court is going to overturn Roe,” she said. “The fundamental element, that the woman has a right to choose abortion, will probably stand.”

In a law review article published that same year, she wrote that Roe may be entitled to less respect than some other precedents. “The public response to controversial cases like Roe,” she wrote, “reflects public rejection of the proposition that stare decisis” — Latin for “to stand by things decided” — “can declare a permanent victor in a divisive constitutional struggle.”

Continue reading the main story

Marc Hearron, attorney for abortion providers, has deep Texas ties.

Marc Hearron, senior counsel for the Center for Reproductive Rights , is representing abortion clinics and providers challenging the Texas anti-abortion law.Credit...Dayna Smith/Center for Reproductive Rights

Abortion clinics and providers challenging the Texas anti-abortion law will be represented before the Supreme Court on Monday by Marc Hearron, senior counsel for the Center for Reproductive Rights.

Mr. Hearron was previously senior counsel for Senator Dianne Feinstein, Democrat of California, on the Senate Judiciary Committee. He has ties to Texas, where he went to law school at Southern Methodist University in Dallas and clerked for Judge Carolyn Dineen King on the U.S. Court of Appeals for the Fifth Circuit and for Judge Sidney Fitzwater on the U.S. District Court for the Northern District of Texas.

He has also been a partner at the law firm Morrison & Foerster, where he worked on pro bono cases involving reproductive rights and L.G.B.T.Q. rights. The firm is one of the groups involved in the suit.

“This law has now been in effect for two months, denying people across Texas the right to exercise a constitutional right the Supreme Court has recognized for almost 50 years, and forcing them to travel hundreds of miles out of state, delaying their abortion care, which is a time-sensitive medical procedure,” Mr. Hearron said by phone on Sunday. He emphasized the effects of the law on lower-income women and women of color.

Mr. Hearron added that he did not expect the case he is bringing to focus on the right to abortion itself, but more on procedural and jurisdictional questions.

A unique issue in the Texas law, which effectively prohibits abortions after about six weeks of pregnancy, is its enforcement by the general public rather than state officials and law enforcement.

“It’s well past time for this law to be blocked,” Mr. Hearron said.

The Center for Reproductive Rights has offices around the world and in several U.S. cities, and is working with the A.C.L.U., Planned Parenthood, the Lawyering Project and Morrison & Foerster.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:24 a.m. ET

Adam Liptak

covers the Supreme Court

The Supreme Court has said that courts can enjoin people, not laws. The tricky question, given the Texas law’s novel structure, is whom to enjoin. Hearron’s answer: court clerks.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:21 a.m. ET

Justice Brett Kavanaugh emphasizes the novel issue the Supreme Court is grappling with: private enforcement in state courts.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:17 a.m. ET

Justice Amy Coney Barrett is now talking. Her appointment by then-President Trump just over a year ago, days before he lost the election, has transformed the court.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:14 a.m. ET

Chief Justice Roberts jumps in.

The Texas law conflicts with Supreme Court precedent on abortion.

Norma McCorvey, Jane Roe in the 1973 court case, left, and her attorney Gloria Allred hold hands as they leave the Supreme Court building after sitting in while the court listened to arguments in a Missouri abortion case in 1989.Credit...J. Scott Applewhite/Associated Press

The Texas law conflicts with major Supreme Court precedents on abortion rights, which bar states from banning abortion before a fetus is viable, meaning able to survive outside of the womb. That’s generally considered to be about 23 weeks.

The Supreme Court’s expanded conservative majority will soon revisit those rulings, having scheduled arguments in December in a case challenging a Mississippi law that bans most abortions after 15 weeks. But there is no dispute that the Texas law’s ban on most abortions after six weeks is incompatible with the constitutional rulings in place for now.

Specifically, in 1973’s landmark Roe v. Wade decision, the Supreme Court struck down most anti-abortion laws in the country, saying the Constitution included a right to privacy that encompassed a woman’s right to choose to have an abortion.

In 1992’s Planned Parenthood v. Casey, the court reaffirmed this holding while overhauling the standard for analyzing whether a state restriction on the procedure went too far: It must not impose an “undue burden” on a woman’s ability to get an abortion, meaning a restriction whose “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”

Continue reading the main story
Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:13 a.m. ET

Justice Samuel Alito probes whether people can file lawsuits against abortion providers/aiders and abetters even if the plaintiffs haven’t personally suffered any harm.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:11 a.m. ET

Justice Sonia Sotomayor jumps in, asking Hearron to enumerate the harms the law causes.

Why is it so hard to challenge the Texas law?

A patient is escorted into a clinic in Houston.Credit...Evelyn Hockstein/Reuters

It is hard to challenge the Texas law because it was written in a novel way: It effectively deputizes private citizens to enforce it, and bans the state government from doing so.

The law empowers private citizens to file lawsuits against both abortion providers and anyone who “aids and abets” abortions, which could include clinic staff members or even people who drive women to clinics. If such a lawsuit succeeds, the plaintiff can win a $10,000 judgment plus legal fees, and the judge can impose an injunction barring the defendant from performing or aiding any additional abortions. If the lawsuit fails, the plaintiff does not have to pay the legal costs of the defendant.

This structure means there is no obvious and specific person who can be the defendant in a case challenging the law on its face. Typically, a legislature that wants to restrict abortion in some way writes a law that the state would enforce, such as by prosecuting doctors or rescinding their medical licenses. Abortion rights supporters can then challenge such laws by suing the officials who would be responsible for enforcing them, seeking court injunctions ordering those defendants not to enforce those laws.

With the Texas law, however, there is no obvious defendant or target of an injunction. In the parallel cases before the Supreme Court, a group of abortion providers and the Justice Department have tried instead to sue Texas judges, clerks and other state officials. The central question for the Supreme Court on Monday is the technical legal issue of the legitimacy of that approach.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:08 a.m. ET

This is Marc Hearron, a lawyer for the Center for Reproductive Rights, arguing first on behalf of abortion providers. Here’s a bio.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:07 a.m. ET

Adam Liptak

covers the Supreme Court

Justice Clarence Thomas asked the first question. That has been his practice in almost every argument so far this term.

Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:05 a.m. ET

Adam Liptak

covers the Supreme Court

Marc A. Hearron, a lawyer for the abortion providers challenging the Texas law, is up first. Under the court’s procedures, he will have two minutes to speak without interruption from the justices. Then he will face questions for 30 minutes or more.

A new solicitor general, Elizabeth Prelogar, will argue the government’s case.

Elizabeth B. Prelogar will be the nations second Senate-confirmed woman to argue before the court as Solicitor General.Credit...Samuel Corum for The New York Times

Elizabeth B. Prelogar, who was sworn in Friday as the nation’s 48th solicitor general, will represent the Justice Department in oral arguments on Senate Bill 8.

Confirmed by the Senate in a 53-to-36 vote, she is only the second Senate-confirmed woman to serve in the role after Justice Elana Kagan, for whom she clerked and who served as solicitor general in 2009 and 2010.

Ms. Prelogar, 41, earned a bachelor’s degree in English and Russian at Emory University, a master's degree in creative writing at the University of St. Andrews in Scotland and a law degree at Harvard University. She was also a Fulbright scholar in St. Petersburg, Russia.

After law school she clerked for Attorney General Merrick B. Garland when he served as a federal appeals court judge, and for Justice Ruth Bader Ginsberg as well as for Justice Kagan.

Ms. Prelogar worked as a partner at the white shoe law firm Cooley LLP and as an assistant to the solicitor general during the Obama and Trump administrations. During that time, she worked for the special counsel, Robert S. Mueller III, as part of the team investigating Russian interference in the 2016 election.

She has argued before the Supreme Court nine times, including twice last year.

Continue reading the main story
Live Updates: Texas Abortion Law Cases at the Supreme Court
Nov. 1, 2021, 10:03 a.m. ET

I’m Charlie Savage, a legal policy reporter for The Times. We’re going to be covering the Supreme Court arguments in the novel Texas abortion statute case, which are now beginning.

Here’s what the Texas law prohibits.

An ultrasound machine and exam table inside a procedure room at Whole Woman's Health in Fort Worth, Texas.Credit...Ilana Panich-Linsman for The New York Times

The Texas law, known as Senate Bill 8, bars abortions once “cardiac activity” can be detected in an embryo. Such activity consists of electrical pulses that can be picked up on ultrasound but are not yet true heartbeats, since heart valves form later in the process of embryonic development.

Cardiac activity is detectable about six weeks after conception. Critics say this law amounts to a near total ban on abortion in part because many women do not realize they are pregnant yet at that point. By the time women miss their periods, they are already about four weeks pregnant, and some women have irregular cycles or do not track their periods carefully enough to know the exact date their last ones started.

The law contains an exception, permitting abortions after cardiac activity is detected in cases of a medical emergency. But it makes no exceptions for cases of rape or incest.

The practical effect of the law has been a sharp drop in legal abortions in Texas — though figures for September do not show as sharp a drop as many experts had predicted.

Texas’ novel anti-abortion law drew little attention — at first.

State Senator Bryan Hughes speaks in favor of Senate Bill 8 in the Capitol in Austin, Texas.Credit...Jay Janner/Austin American-Statesman, via Associated Press

Texas’ restrictive new abortion law was one of two proposals passed by the legislature earlier this year during what was among the most conservative sessions in the state’s history.

One proposal was a more common style of law promoted by anti-abortion activists — a so-called trigger law — that would ban all abortions but only go into effect if the Supreme Court overturned Roe v. Wade.

The other, known variously as Senate Bill 8 or the “heartbeat act,” is what the Supreme Court is considering on Monday. It bans abortion once cardiac activity is detected in the fetus, generally around six weeks, a threshold that runs afoul of the legal timetable laid out in Roe.

But the law was designed by a former solicitor general of Texas, Jonathan Mitchell, and sponsored by a conservative state senator, Bryan Hughes, to evade judicial review by relying only on private citizens for enforcement, a novel approach.

The approach was strongly backed by Texas Right to Life, an ultraconservative group that lobbied for the bill. The group saw the mechanism as a clever way to avoid oversight by courts that had stymied past anti-abortion legislation. “The enforcement mechanism will not be subject to judicial challenge or judicial concoctions,” Elizabeth Graham, the organization’s vice president, said in an interview in September. “Someone legislating from the bench can’t hold up the law from being enacted or taking effect.”

Even as abortion providers and many Texas lawyers raised concern about the measure’s unique structure, it did not attract much attention as it was debated earlier this year and passed into law. Six-week bans on abortion had failed in other states.

It came as a shock in Texas — as it did around the country — when the Supreme Court declined to intervene and stop the law from going into effect on Sept. 1.

Immediately, providers in Texas stopped providing abortions, forcing many women to seek procedures out of state. Data released on Friday shows that abortions in Texas have declined by half. The law did not eliminate abortion in the state, but has drastically reduced its availability.

The threat of legal action under the law — which allows for civil penalties of at least $10,000 in each case and provides no means for defendants to collect legal fees if they win — has been enough to curtail the procedure in the state.

While the law allows anyone in the country to sue, few have.

The first two suits known to have been filed against an abortion provider under the law came from out-of-state lawyers — one in Arkansas, the other in Illinois — who identified themselves as pro-choice.

Continue reading the main story

Legal abortions fell by half after Texas’ law took effect.

In September, after Texas enacted the most restrictive abortion law in the nation, the number of legal abortions performed there dropped 50 percent from the same month in 2020, according to data released Friday by researchers at the University of Texas at Austin.

No prior Texas abortion restriction has been followed by a drop so steep.

But the decline has also been smaller than many experts predicted. The law bans abortions after cardiac activity can be detected, which is generally around six weeks — and before the ban, 84 percent of people seeking abortions in Texas were more than six weeks pregnant at their appointment, according to previous research from the same group, the Texas Policy Evaluation Project.

The decline in the number of legal abortions performed in Texas in September was 12 percentage points steeper than the decline in spring 2020, at the beginning of the pandemic, when Gov. Greg Abbott effectively banned most abortions for a month by postponing all procedures deemed not medically necessary. Clinic directors and outside scholars say the number will probably keep falling as long as the law remains in effect.

But a few factors seem to have led to more abortions than expected. Providers have more availability to see patients quickly because they are not providing abortions past about six weeks of pregnancy, and they have been working longer hours to try to care for as many patients as possible. Also, women who feared being unable to get an abortion might have sought care earlier than they otherwise would have.