Timeline of abortion-related legal action since Texas passed nation's most restrictive law
The developing news of a leaked draft opinion from the United States Supreme Court suggesting it may overturn Roe v. Wade represents a boiling point of one of the most heated debates in America, a lot of which has taken place in the Lone Star State.
AUSTIN (Nexstar) — The developing news of a leaked draft opinion from the United States Supreme Court suggesting it may overturn Roe v. Wade represents a boiling point of one of the most heated debates in America, a lot of which has taken place in the Lone Star State.
On Tuesday, Chief Justice John Roberts confirmed the legitimacy of the draft opinion, first obtained and reported by POLITICO on Monday evening. Roberts ordered an investigation into what he called an “egregious breach of trust.”
In the high court’s first public comment since the draft was published late Tuesday, Roberts said “Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.”
If however, the Court's ultimate decision does overturn Roe v. Wade, Texas will be one of several states where almost all abortions are automatically banned within 30 days of the High Court's ruling.
Last year, the Legislature passed a "trigger law" that would make performing an abortion a felony. The law would only allow exceptions if it would save the life of a pregnant mother or if they risk “substantial impairment of major bodily function.” Doctors could face life in prison and fines up to $100,000 for giving abortions that violate this law.
But even prior to then, abortions in Texas have been drastically reduced since Texas passed Senate Bill 8 — one of the nation's strictest abortion laws that Republicans have referred to as "the Texas Heartbeat Act." Because of its unique language, legal experts say the law has been able to avoid traditional judicial review.
As long as Roe v. Wade still stands, states cannot ban abortions prior to fetal viability, which is generally considered to be around 23-24 weeks into pregnancy, but there is no universal consensus. This is why previous laws from states that ban abortions prior to that have been smacked down by the courts.
Texas law prohibits abortions once medical professionals can detect cardiac activity — usually around six weeks, before some women know they’re pregnant. But the law empowers private citizens, not the state, to enforce it — giving anyone the ability to sue providers or "anyone who aids and abets in an abortion" after fetal cardiac activity is detected.
It is that unique enforcement mechanism that has frustrated efforts to challenge it. Usually, the state would enforce the law and suing state officials would be the appropriate legal avenue.
A brief timeline of challenges to SB 8
There was a brief period of time when a lower federal judge blocked it. However, SB8 has been able to withstand the many legal challenges that have been thrown its way since before it even went into effect.
This has meant most women seeking abortions in Texas have been unable to get them unless they can travel out of state.
Two days before SB-8 went into effect, a group of state abortion providers asked the U.S. Supreme Court to enjoin the law, which would have prevented it from going into effect. The high court did not take any action on the emergency appeal by Texas providers.
No action from the U.S. Supreme Court meant Texas' law that bans abortions as early as six weeks was able to take effect on Sept. 1, 2021. Since then, there have been several other challenges to the law in both state and federal courts. Among the most notable, the U.S. Department of Justice sued Texas over Senate Bill 8, arguing the legislation is unconstitutional.
That DOJ challenge, along with a lawsuit from Whole Woman's Health, did make its way to the United States Supreme Court in late October. The high court was not considering the merits of the law itself, but whether it could stay in place and if abortion providers could continue to challenge it. In December, the high court ruled to keep Texas' ban on most abortions in place, sending it back to lower courts to further decide.
As it stands now, the Texas Supreme Court dealt a final blow to any challenges in the federal courts to SB 8. The March ruling by the all-Republican court slammed the door on what little path forward the U.S. Supreme Court had allowed Texas clinics after having twice declined to stop a ban on abortions after roughly six weeks of pregnancy.
Although Texas abortion clinics are not dropping the lawsuit, they now expect it will be dismissed in the coming weeks or months.
Any future hopes for abortion advocates hinged on how the U.S. Supreme Court would rule on Mississippi v. Dobbs, the case in which the leaked draft opinion is about. While justices could still change their opinion and the ultimate ruling, the news comes as a shock to anti-abortion and abortion advocates alike — many of which did not think an overall dismissal of a decades-long precedent under Roe v. Wade was imminent.
The Associated Press contributed to this report.