Texas’s new abortion law is an attack on medical practice and women’s rights, say doctors

Texas law Senate Bill 8 (SB 8) went into effect on 1 September, effectively banning abortions in the state. In a midnight ruling on 1 September, the US Supreme Court refused to block it despite appeals from reproductive rights organisations, civil rights organisations, and clinics.

Abortion until fetal viability has been constitutionally protected since the 1973 Supreme Court Roe v Wade decision. The court has allowed states to require restrictions such as waiting periods, counselling, and ultrasounds.

The Texas law bans abortions after six weeks of pregnancy if fetal cardiac activity is detected. That is before many women know they are pregnant. There is no exception for rape or incest, although abortion in medical emergencies is permitted if documented in writing.

The ruling was immediately condemned by President Joe Biden, Vice President Kamala Harris, and medical organisations, who described it a direct attack on medical practice and women’s rights.

The Supreme Court 5-4 decision reflected its newly conservative leaning because of appointments by former president Donald Trump. Chief Justice John Roberts and associate justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

In her dissent Associate Justice Sotomayor wrote, “This law is untenable. It cannot be the case that a state can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”1

The Supreme Court said that it was not ruling on the constitutionality of the Texas law but was allowing it to go ahead because of complex legal and procedural questions.

The law effectively bans at least 85% of abortions in Texas—a huge state with a population of 29 million. Texas abortion clinics have mostly stopped providing abortions and may close. The law also opens the door to legal threats against healthcare practitioners and others.

The law is unusual in that it will not be enforced by Texas authorities but by private citizens. Any person can file a lawsuit against anyone who provides an abortion in violation of the law or who “aids or abets” such an abortion. That might include a clinic receptionist, a friend who drives a woman to a hospital or clinic, a member of the clergy who counsels the woman, and many others. If the person who files the lawsuit wins the case, he or she is rewarded by $10 000 (£7000; €8000)2 paid by the defendant—the healthcare provider or anyone assisting the woman. The woman herself would not face a penalty.

Yesterday (2 September), Planned Parenthood asked Texas district court for a temporary restraining order against Texas Right to Life and its associates to stop them suing healthcare workers and abortion providers at its Texas health centers.3

President Biden called the Texas law “an unprecedented assault on a woman’s constitutional rights under Roe v Wade, which has been the law of the land for almost fifty years,” and which “unleashes unconstitutional chaos.” He said he was launching a “whole-of-government effort to respond to this decision,” especially asking the Department of Health and Human Services and the Department of Justice “to ensure that women in Texas have access to safe and legal abortions” and to insulate women and healthcare providers from “Texas’ bizarre scheme of outsourced enforcement to private parties.”4

Maureen Phipps, chief executive officer of the American College of Obstetricians and Gynecologists, and Eugene Toy, head of its Texas district, said, “Texas SB8 is a clear attack on the practice of medicine in our country and on decades of established legal precedent. By allowing third party lawsuits against clinicians, by virtually banning all abortions, and by curtailing the sharing of information and support related to access to vital women’s health care, Texas’ new law creates a coercive environment for patients and clinicians across the spectrum of care and from all corners of the state. This is a far larger concern than one area of medicine or an individual’s personal convictions. By creating a pathway for litigation to be used as intimidation, SB8 will dissuade clinicians in the state of Texas from providing patients with the medical care that they need, and will clearly violate the patient-physician relationship.”5

Gerald Harmon, president of the American Medical Association, said the association was “deeply disturbed by Texas SB8.” He said, “Opening the door to third party litigation against physicians severely compromises patient access to safe clinical care. The new law is a direct attack on the practice of medicine and patient reproductive outcomes.”6

Georges Benjamin, executive director of the American Public Health Association, said, “The Texas law is contrary to longstanding APHA policy supporting women’s fundamental right to a full range of reproductive health service, including abortion.” He noted that the law “disproportionately harms low income communities of colour.”7