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51% #1677: Texas Law SB 8

U.S. Supreme Court
U.S. Supreme Court

On this week’s 51%, we discuss Texas Law SB 8, a new law banning abortion in the state after six weeks of pregnancy – before many women know they are pregnant. The Supreme Court allowed the law to take effect September 1. What does this signal for the future of Roe v. Wade? We sit down with Chelly Hegan, the president and CEO of Upper Hudson Planned Parenthood, and Dr. Julie Novkov of the University at Albany.

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On September 1, Texas enacted a total of 666 new laws, among them Texas Law SB 8, the most restrictive abortion law in the country. The “Texas Heartbeat Act” effectively bans abortion at six weeks into pregnancy, the point at which an embryonic or fetal heartbeat can be detected.

Now, abortion rates are already at historically low levels in the U.S. According to the latest numbers from the Guttmacher Institute, in 2017 the country saw its lowest abortion rate since Roe v. Wade in 1973, at 13.5 abortions per 1,000 women ages 15 through 44. However, the Institute estimates that, as of 2019, 58 percent of reproductive-aged women live in states hostile to abortion rights. In 2021 alone, states have enacted at least 97 abortion restrictions — the green lights being the coronavirus pandemic and the growing conservative majority on the Supreme Court, which is expected to take up a Mississippi case that could overturn Roe v. Wade by the end of the year.

Again, Texas law SB 8 is even more restrictive than the Mississippi law in question, and it has its own elements that are making abortion providers very nervous. Planned Parenthood and other groups tried and failed to keep the law from going into effect by suing over the summer — during the suit, I spoke with Chelly Hegan, the president of Upper Hudson Planned Parenthood in New York.

Chelly Hegan
Chelly Hegan

This is far from the first abortion restriction from Texas to receive national attention. What makes Texas Law SB 8 different?

I mean, I’m an optimistic person generally, and I have been involved in the conversations around potential limitations on abortion rights for years — and I’ve never been so scared. Whatever happens — we’ve got this case, and then we have the case going to the Supreme Court all happening in the fall — there’s a very real possibility that by this time next year, we’re going to be looking at whole swaths of the country that have no access to abortion. What’s very different about SB 8, and why I think it’s causing such a chill in the abortion rights world, is that it includes what’s called a public cause of action. Typically, these laws come out, we get an injunction, they’re clearly unconstitutional under Roe, there’s no question about that. And they go away. But because of this public cause of action, there’s no one to sue. One article I read, an attorney in Texas said, essentially, [that] this law deputizes every Texan as an attorney general of their own. It’s a really slippery slope for the law, outside of abortion access. It’s a slippery slope to put the enforcement of a law completely in the public’s hands. And it is very widespread in terms of who it could affect.

So the general public is allowed to sue under the law, but who can they sue? And in what instances?

So what the law says, and I wrote this down so that I can remember: defendants can include anyone who is seen to aid or abet the access to abortion. So that can be doctors, nurses, receptionists at a health center, administrators for a health center. Parents who drive their child to a clinic, partners who bring their partner to a clinic, a friend who may loan them the money. And then it can go further. They can also sue attorneys who have defended abortion access.

And who can do the suing is somebody who’s standing outside of the health center as a protester, somebody who overhears a conversation between two people in a café talking about going to get an abortion, your boyfriend’s mom. And then this is where it gets really frightening for women, especially women who are in abusive situations: it could be their partner. And then what they can sue for is equally sort of staggering, inside the law, because it’s very structured. They can sue for $10,000 and their attorney fees, and that would be the responsibility of the defendant to pay. So it’s essentially a bounty. It’s like, “You get $10,000 if you do this.”

So let’s talk a little bit about how this law might affect Planned Parenthood in Texas or in general, I mean, how many abortion providers are there in Texas?

I don’t know the exact number, but I know that it is decreasing all the time. There have been bans in Texas, they banned abortion early in the pandemic — abortion was not considered essential services, and they were not allowed to provide abortion during COVID. Texas also has very extreme what they call trap laws, which are architectural requirements in order to provide abortion. So they have to essentially be built like mini operating suites. The standard is so far and beyond what is actually necessary for safe patient care, but it costs millions of dollars to build one of these centers. So there’s fewer and fewer providers in Texas all the time.

The chilling effect it’s having on them right now [is] their staff is scared to death. People who are working the receptionist desk at a health center, who maybe are making $15 an hour, they can’t afford to be sued for $10,000. They can’t afford the legal cost of even defending themselves should they win. They’re having to make the decision between a job they love, and this sort of looming risk that they could be sued at any time by anybody, which is just an untenable place to put staff members. So the clinic’s themselves are really suffering right now with a large amount of people leaving their jobs, and turnover, and also just real anxiety among the staff.

Now, this is a debate that’s been going on long before I was born. But I feel like I’m hearing it more and more now. I’m not sure if that’s because I’m consuming more news now, or if it’s something that’s really ramping up in the last decade or so. Are we seeing more and more of these restrictions recently?

Absolutely. Every year, there’s more and more in every state. We even have anti-choice legislation introduced in New York, it just doesn’t go anywhere. You know, it’s it’s almost like a red badge for people who want to appeal to the far right, that they have a list of these pieces of legislation that they’ve put forward, whether or not they win. It’s a real political tool, only real people are trapped in the middle of that. I totally agree with you. I feel like the debate has been ongoing. Of course, people are always going to have concerns about it. But there is definitely something different now.

When I first started 15 years ago at Upper Hudson, I got involved with the organization because — I was actually an artist at the time, and I knew so many people who really desperately needed health insurance and access to care — I saw Planned Parenthood there as a real place that anyone could get care that they needed, whenever they needed it. And so I just really wanted to get behind that mission. And for me, it was always just about health care access. In the 15 years that I’ve been there, it has just become increasingly attacks on basic access to abortion.

And I do think that it is true: some of the people who’ve been in this movement for a really long time would tell you that, right now, it’s about abortion, but really, it’s even about birth control, and ultimately, it’s about control. It’s about controlling women and their access to managing their own fertility. You see that now in places where the rhetoric around abortion has gotten more extreme — they’re now looping in various forms of birth control. So abortion is illegal, along with these forms of birth control, because they’re seen as “abortions,” which is completely foolish. Attacks on things like emergency contraception, because that’s seen as abortion — which it is not. And so we know that this fight is going to go for a while, because even if they’re successful in reducing access to abortion in close to 50 percent of the United States, that’s not going to be enough.

So the law is technically called the “Texas Heartbeat Act.” This isn’t the first time a state has passed a so called “heartbeat bill” restricting abortion at the six week mark, why that number and timeframe, what do you think is significant about the six week mark in a pregnancy?

Because that is frequently before someone knows they’re pregnant, so that would essentially stop all abortion. You wouldn’t know that you’re pregnant before five or six weeks, most people. Many people don’t really know for two months, you know, it takes a while for most people to notice, if they’re not actively monitoring. That short window creates a possibility that it’s not possible for someone to get an abortion. And then if you lay on top of that…you know, Upper Hudson has three health centers in Albany, Troy and Hudson, you can get to one of our health centers if you live in the Capital Region on the outside, like if you’re way out in the Helderbergs and you want to get to Hudson, maybe it’s an hour, and that’s typical across the state. It’s typical in places like California and Oregon and Washington state, Illinois. But in places where abortion has been under attack for all of these years, they have very limited access already. You know, Mississippi has one. That’s why the case that the Supreme Court is going to hear in the fall is one. Texas has very few, Minnesota has two or three, North Dakota has zero — there’s like no access in many parts of the country. By the time you find out, figure out if and how you can pay for it, and figure out how you’re going to get there, you’re not going to be able to access the abortion that you want.

Not to mention, if there’s very few providers, just even booking an appointment…who knows who what the wait time could be.

Exactly. I mean, for anybody who’s ever just tried to get an OB GYN, you know, just a regular exam, you sometimes have to book out six, eight months. Clearly, people treat abortion differently, they do put a rush on trying to get you in. But that still means a couple weeks — if you’re five weeks [pregnant], and you have a six-week ban, you have to really hustle to figure out where you’re going to be able to go, and how you’re going to get there. And then if you put on top of that, 24-hour waiting periods, and some of the other restrictions that require an education session with the same doctor that will perform your abortion — and then that doctor gets sick, or in some states, they fly out to provide the abortion, and can’t get there — then you have to start the whole process over again, because it has to be the same person, not just an education session. There’s just hurdle after hurdle after hurdle put in people’s way.

Could this law impact any other areas of women’s health?

Absolutely, that’s a fantastic question, Jesse. I just recently finished reading a book called The Turn Away Study. And I highly recommend it, and we are really excited because the author is going to be a speaker at an event of ours in the fall. But in The Turn Away Study, she follows 1,000 women over eight years that tried to access abortion and were turned away, and we’re unable to get an abortion, and those who did. And she looks at it from an economic point of view, from a health point of view, from a health of the child point of view, mental health point of view. You know, contrary to what so many people who are anti-abortion say, women who had some of the most difficulty were the ones who were turned away, not the ones who access their abortion, there is no long term depression related to abortion. There’s no long term physical health conditions related to abortion. However, women who are trying to space their pregnancies, which is many of our patients…most of them already have children, and they’re trying to time their children, they don’t want to have one baby on top of the other — that’s not healthy for someone, [and] that causes many concerns even around the delivery of the second child. People also want to time their children for the economic ability to support them all. All of that goes away if you don’t have access to abortion.

The physical effects of not having an abortion — delivery itself is a much riskier procedure, especially with all we know about health disparities in this country. People who are seeking an abortion because they know it’s the best thing for themselves and their family and are denied are then put in a position of all of the other concerns around disparities, especially among Black and brown women in this country. So accessing abortion should easily be in the hands of the person who’s accessing it, right? Because they know themselves, they know their lives, they know their bodies, they know their health, and putting roadblocks in the way like this puts so many people at risk.

And so if someone wanted to support their local Planned Parenthood, what are some ways they could do that?

We are always looking for people who are interested in writing letters to the editor and posting our stuff on their social media and that sort of thing, just to get more information out. And I also feel like if you’re a pro-choice person, in New York, it’s easy for us sometimes to not be super worried about things that are happening in Texas, because we passed the Reproductive Health Act in 2019. We have really strong laws in New York, there is a lot of protection. But there’s a false narrative that has grown up in this sort of super divisive time that we live in, that being pro-choice is somehow a minority opinion. But poll after poll after poll says that 75 percent, if not more people, believe that Roe v. Wade should be the law of the land. So you’re not alone. People need to be a little more comfortable sharing that opinion, because I think the more we hear it, the more it doesn’t seem fringe anymore.

What we’re putting forward is that women should have full access to how they want to live their lives and who they want to live them with, and when and if they want have children. We’re not saying everybody should have an abortion, and we’re not saying that people shouldn’t sit around their kitchen table, if they don’t believe abortion is right, and share that viewpoint with their kids. You know, encouraging their kids not to have abortions. Obviously people have every right to live their lives the way they want, including people who want to have an abortion.

As I mentioned earlier, the initial lawsuit by Planned Parenthood and several other groups failed to prevent the law from going into effect. The Supreme Court notably ignored an emergency appeal asking to shut down the law before September 1. It then voted 5-4 not to block the law, with Chief Justice John Roberts siding with the Court’s three liberal members in dissent.

So what does this signal for Roe v. Wade? Could it really be overturned?

To learn more, I spoke with Dr. Julie Novkov, the interim dean of the University at Albany’s Rockefeller College of Public Affairs and Policy. Novkov has long focused on how political groups use the law to achieve social change, and she says, while she’s concerned about Texas Law SB 8, she is hardly surprised.

novkov_0.jpg
Dr. Julie Novkov

What is your reaction to Texas Law SB 8?

Gender law experts have said for years that we are moving closer and closer to confrontation. But also, I want to acknowledge that a lot of what we thought we had with Roe has been undercut over the years already. As it’s framed, and as it’s been understood popularly, it’s been understood as granting women a fairly unqualified right to choose abortion prior to viability. But the ways that women have been able to exercise that right have been limited practically from the beginning. One of the first things that happened after Roe was decided was mobilization to ensure that public funds could not be used to support abortion rights. So that ban was put into effect on the federal level, and several states have followed suit to try to limit access to abortions that aren’t necessary to save women’s lives. And then you had in 1992, the Casey decision, which shifted the standard to the “undue burden” standard, enabling states to assert their interest in protecting fetal life much more strongly than what exists under Roe.

For those who don’t know, what is the definition of undue burden?

Undue burden is defined by the courts as any obstacle that makes it inappropriately difficult for a woman to exercise her right to choose abortion. When Casey itself was decided, it was trumpeted as a decision that upheld the principles of Roe v. Wade. But several of the specific restrictions that Pennsylvania had enacted that were challenged under Casey, the court chose to uphold. So over the years, the anti-abortion movement has been very effective in kind of looking for these points where they could exert pressure on Roe. They’ve pushed for constitutional standards that allow for parental notification, parental consent, as long as there’s a judicial bypass. Regulations that require doctors to have admitting privileges at hospitals before performing certain types of abortions have been upheld. If drafted properly, restrictions on particular methods of procuring abortion have made it through the courts. There have been a lot of ways.

One of the things that confuses me about the law is the fact that people can sue someone who they believe has aided or abetted an abortion, and then get $10,000 in damages. What harm are they trying to prove to get those damages?

Well, remember that rights are, in some regards, creatures of the state. They’re ideas that the state creates. So it’s not that someone having an abortion is a personal injury to me, but rather the state has created this incentive for people to go out identify individuals who they believe are in violation of this law, and then take action or punish the provider for violating the law. It is designed to make it more difficult for this law to be challenged in court, and to enable the law to go into effect, to have the precise chilling effect that we’re seeing.

Incentivizing the public to go out and enforce laws, has that been done before?

It’s a fairly rare tactic. A couple of scholars note that there was a previous immigration law, I believe in California, that had this kind of private enforcement mechanism, where people received an incentive for turning in individuals they believed to be in violation of immigration law. The other major law, we have to go back to the antebellum era and look to the Fugitive Slave Act, which had private incentives.

What does that signal for the future of Roe v. Wade?

You know, there will be a lot of talk about whether the court is finally going to overrule Roe v. Wade. I’m not sure that’s going to happen. I think it’s likely we’ll see further modification of Roe v. Wade. But the question for me is what what is actually going to be left of the concrete right to have an abortion once all of this has gone through. Right now, we are already seeing that many women struggle to access abortion rights. And this burden falls in a very unequal fashion on poor women, on women of color, on young women, on rural women. And this kind of development, regardless of whether or not the court decides to uphold some shell of Roe v. Wade, is going to simply continue that process of degradation.

In terms of the court itself, I worry more about the broader precedent, that rights are not secure, that we cannot depend on those rights once they articulated to remain in our possession, and that they can be rolled back at the political whim of a minority. What the pro-life movement has done really effectively, I think, is to play the political game at the state level. To get people of like mind into state legislatures, and to encourage them to pass legislation that’s going to restrict access to abortion. On the pro-choice side, the choice frame, you know, it made a lot of sense in the 1970s — because it’s not a really radical frame in a lot of ways, and it ties in with ideas about liberty and autonomy that were very much in circulation in the 1970s. The more radical position would have been something more along the lines of, “the right to have an abortion, not just the right to consult with your doctor and choose whether or not abortion is the proper path for you to take.” The right to control your own body, and to have an abortion, and to have access to abortion services. The choice rhetoric, I think, has been at this point deployed fairly cynically, across a range of issues. At some point, it becomes dispersed so broadly that it tends to lose its power and meaning.

Do you see the framing then changing over the next year or so, as this goes through the courts? How do you see both Texas Law SB 8 and the Supreme Court case that they’re taking later this year affecting politics?

That’s an interesting question, and I think it illustrates the disconnect between what’s going on in the realm of jurisprudence, and what is going on in the realm of politics. Now, obviously in Texas, women and people with uteruses who are being actively harmed by this legislation have no choice but to go to court, because the legislature is clearly not a place where they’re going to get much help. They could petition Congress to pass national legislation protecting abortion access and abortion rights, but that’s a long process, and women right now are suffering for lack of access. So there will be efforts to fight this in court, clearly, and those efforts will likely try to develop frames that they think would be attractive to the justices who aren’t going to be immediately inclined to continue to support Roe v. Wade. So they’ll target Justice Roberts, they’ll target Justice Kavanaugh, and basically try to preserve some sort of core.

But the other thing that should happen, and is happening, is a broader movement-based strategy. That, again, has been framing abortion and talking about abortion as but one piece of broader reproductive autonomy: women’s rights to contraception, women’s rights to abortion, women’s rights to adequate prenatal care, women’s rights to assistance after birth…a broader conception of recognizing the important role that women play in reproduction in childbearing and trying to protect and enhance how that works.

I don’t know if you’ve had the chance to look at Justice Sotomayor’s dissent, but there’s some wonderful language in there that I think we should all keep in mind. She notes that this Texas bill is not just an attack on reproductive rights. It’s not just an attack on abortion. It’s an attack on the Constitution and on the Court itself, because it is an overt effort to try to prevent the courts from having a path to intervene. So she says, at the end of her dissent, “the Court should not be so content to ignore its Constitutional obligations to protect not only the rights of women, but also the sanctity of its precedent, and of the rule of law.” Which I find tremendously compelling.

Earlier in the show, Chelly Hegan pointed out that the majority of Americans support abortion rights — and she’s right. According to the latest numbers by the Pew Research Center, 59 percent of Americans believe abortion should be legal in all or most cases, compared to 39 percent, who think it should be banned or mostly illegal. These numbers have been relatively stable for at least the past five years, but nonetheless it’s a divisive topic that has long driven party politics — even among women. 37 percent of women lean toward banning abortion, so there are, presumably, a good number of women pleased with Texas Law SB 8. And we shouldn’t forget that.

You know, just before we wrapped today’s episode, the Justice Department sued the state of Texas over the Heartbeat Act. Only time will tell whether the law will stand, whether similar ones will follow, and, if so, how they will be administered practically.

But this law changes the game in that it forces the abortion debate out of just the legislative and judicial realm and places it directly in the public’s hands — and considering our lives are becoming increasingly partisan and political on a number of fronts, that is concerning. For now, this is a very public and personal battle. In just the past couple weeks, we’ve seen activists on Tik Tok spamming Texas Right to Life with fake “whistleblower” tips. Companies like Lyft have pledged to cover all potential legal fees for their employees.

Meanwhile, other countries, like Mexico, are moving toward legalizing abortion. So it will be interesting to see how our government handles things moving forward — five decades after Roe.

Jesse King is the host of "51%" and a producer for WAMC's afternoon news programs. She also produces the WAMC podcast, "A New York Minute In History."