With a new law on the books, abortions in Texas dropped roughly 50 percent in September, according to a new report.
Research from the Texas Policy Evaluation Project compiled from 19 of Texas’ 24 abortion clinics said that there were 2,164 abortions performed in Texas clinics in September. In September 2020, there were 4,313 abortions performed, the report said.
“The decrease in the number of abortions provided in Texas during the first 30 days that SB8 was in effect was considerably larger than previously documented decreases that followed the implementation of other restrictions, which created widespread disruptions to abortion service delivery in Texas,” the authors of the report concluded.
“This large decline indicates that SB8’s very narrow criteria for providing in-state abortion care have excluded many pregnant people from obtaining abortions at Texas facilities.”
SB 8 is the legal shorthand for the Texas “heartbeat” law that makes it illegal to perform an abortion after a baby’s heartbeat is detected, which is usually around the sixth week of pregnancy.
Although heartbeat laws in other states have been swatted aside by the courts, Texas used an unprecedented enforcement mechanism. Individuals can file suit against anyone who has broken the law and collect $10,000 if they win.
The Supreme Court reviewed the law before it took effect and rejected efforts to prevent it from taking effect on Sept. 1. At that time, the court said its decision was based upon procedural grounds and was not a full-fledged decision on the constitutionality of the Texas law.
The court also has refused to block the law from remaining in effect as the Biden administration joins with abortion supporters in trying to do so. The law faces a challenge before the Supreme Court on Monday.
“S.B. 8 was designed to nullify this court’s precedents and to shield that nullification from judicial review,” the federal government’s argument to the Supreme Court claimed.
“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,” the Biden administration argued.
“Yet Texas insists 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.”
The Biden administration’s effort to block the law is “a striking power-grab with no basis in precedent,” Texas argued in its brief.
“The Constitution does not guarantee pre-enforcement review of state (or federal) laws in federal court,” attorneys for the state wrote. “And there is nothing unprecedented about vindicating constitutional rights as a state-court defendant. To the contrary, that is the normal path by which constitutional issues come to this court.”
Texas said it is not trying to get a pass on the usual system of testing a law only to have its laws treated fairly.
“A time will come — and no doubt soon — for the state courts to rule on the constitutionality of SB 8, and this court will, in turn, retain the last word on the correctness of their adjudication of federal law,” Texas wrote. “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.”
Jonathan F. Mitchell, a lawyer who helped draft the law, said in a friend-of-the-court brief that the federal attempt to block the law has no merit, The New York Times reported.
“The constitutionality of the statute must be determined in the lawsuits between private parties,” he wrote, “not in a pre-emptive lawsuit brought against the sovereign government, which is not ‘enforcing’ the statute but merely allowing its courts to hear lawsuits arising under the disputed statutory enactment.”
In their brief filed to support Texas, 20 Republican-led states noted that a district court ruling that had sided with the Biden administration but was later overturned “threatens to expose every State in the Union to a suit by the federal Executive Branch whenever the U.S. Attorney General deems a state law to violate some constitutional right of someone, somewhere,” according to CNN.
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