The Supreme Court’s refusal to block an unusual new abortion law in Texas from taking effect Sept. 1 has galvanized an impassioned new debate on abortion rights. Even many abortion opponents decry the law as rife with potential for abuse, and it probably won’t survive eventual legal challenges. But the general landscape of abortion law is still likely to change in the near future, and pro-choice activists would be well advised to pick their battles.
The Texas law is unusual both for its stringency — it prohibits abortion once a fetal heartbeat can be detected, i.e., at about six weeks after conception, with no exception for rape — and for its bizarre enforcement mechanism. Any private citizen or organization can sue anyone who performs or facilitates an illegal abortion and collect up to $10,000 plus legal costs. The reliance on private suits was intended to circumvent Roe v. Wade’s prohibition on early abortion bans. The Supreme Court declined by a 5-4 vote to stop the act from going into effect until its constitutionality could be reviewed, based on the position that no one has yet been sued under the new law and no one has standing to challenge it.
Right now, the situation in Texas is chaotic, with many clinics turning patients away to other states to avoid breaking the law. It seems neither side is pushing for a Supreme Court test case. Meanwhile, a state judge has blocked at least one potential anti-abortion plaintiff from suing.
The Texas law is bad news for many reasons. Reproductive rights aside, it sets a dangerous precedent for evading constitutional protections by relying on private lawsuits with no need to show harm to the persons bringing the claim. Conservatives who cheer this strategy should consider that it could also be used, for instance, against gun sellers or owners.
Ultimately, the Texas controversy may turn out to be a distraction; the real battleground could be a Mississippi law the Supreme Court is set to hear in the fall. That law restricts abortion after 15 weeks, well before fetal viability. Upholding it would undermine, if not reverse, Roe and the line of cases stemming from it, and abortion rights supporters fear the court’s new conservative majority will do exactly that.
Yet in this case, public opinion might be largely on the restrictive side. Polls consistently show that most Americans don’t fall neatly into the pro-life vs. pro-choice binary. In a 2018 Gallup Poll, 60% of U.S. adults said that abortion should generally be legal in the first trimester — but only 28% said the same of the second trimester. However, that polling could change if the possibility is no longer hypothetical.
Regardless of when personhood begins, the protection of developing human life is a concern that cannot be dismissed — but one that must be balanced against women’s bodily autonomy. To some extent, the Roe "viability" framework is now antiquated because of ultrasound technology that gives a much more tangible reality to fetal life but also allows far earlier pregnancy detection. Nonsurgical abortions, via pharmaceuticals, are becoming common.
Giving states more leeway to restrict second-trimester abortions — and thus allow the pro-life base some democratic outlet for its concerns — could be a solution that defuses the abortion wars while preserving reproductive rights and safeguarding the vast majority of abortions. But for that to happen, both sides in these wars would need to trade absolutism for compromise.
Opinions expressed by Cathy Young, a contributing editor at Reason magazine, are her own.