Texas women in May protesting the state’s then recently passed legislation. (Photo by Sergio Flores/Getty Images)
Ending Texas’s ban on abortions after the sixth week of pregnancy is now up to Congress, experts say, given the refusal of the conservative majority on the U.S. Supreme Court to block the controversial law, which relies on citizens, rather than the state, to sue anyone they believe may have assisted in the provision of an abortion after six weeks of gestational age.
“In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters,” Justice Sonia Sotomayor wrote in a scathing dissent Wednesday.
“Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” Sotomayor wrote.
President Joe Biden announced Thursday he’s taking a “whole-of-government approach,” to protect women and determine “what legal tools we have to insulate women and providers from the impact of Texas’s bizarre scheme of outsourced enforcement to private parties.”
“The Texas law to ban abortions after 6 weeks – before many women know they are pregnant – is unconstitutional, and SCOTUS’s refusal to block it from taking effect threatens women’s health,” U.S. Sen. Jacky Rosen of Nevada said in a tweet. “We must immediately pass legislation to protect reproductive rights nationwide.”
“Upon our return, the House will bring up Congresswoman Judy Chu’s Women’s Health Protection Act to enshrine into law reproductive health care for all women across America,” House Speaker Nancy Pelosi, D-CA, said Thursday in a statement.
“Federal protections for providers and patients are long overdue,” tweeted Rep. Dina Titus, D-NV, a co-sponsor of the measure.
“We’ve got to pass the Women’s Health Protection Act and protect access to abortion nationwide,” Sen. Catherine Cortez Masto said in a tweet.
But with Senate Republicans entrenched, it’s likely to go nowhere.
Other options available to Democrats include passing legislation to expand the Supreme Court or ending the filibuster, a procedural maneuver that allows the minority party to obstruct majority rule.
“Democrats can either abolish the filibuster and expand the court, or do nothing as millions of peoples’ bodies, rights, and lives are sacrificed for far-right minority rule,” Rep. Alexandria Ocasio Cortez, D-NY, tweeted.
Abolishing the filibuster would require changing the Senate’s cloture rule. The catch: rule changes require a two-thirds vote of members present.
“Absent a large, bipartisan Senate majority that favors curtailing the right to debate, a formal change in Rule 22 is extremely unlikely,” according to Brookings. That would leave the alternative of ending the filibuster rule through a “nuclear option” — changing Senate rules themselves by only a simple majority, as the Senate did twice in recent years to transform the process for approving judicial nominees.
Adding members to the U.S. Supreme Court would require legislation that would also likely be blocked by Senate Republicans under current Senate rules.
Annette Magnus, executive director of Battle Born Progress and a longtime advocate for women’s access to reproductive rights, calls the Texas law a “pivotal moment for women and our access to health care.”
Magnus envisions a brave new world of telemedicine instruction and self-administered abortion.
“The writing has been on the walls for years,” she says. “We look at this as an attack on women’s health. Abortion is health care. And abortion doesn’t end when you make it illegal.”
“Women need options. A lot of women will leave Texas and come to Nevada,” for an abortion, says Magnus. “But that’s not an option for everyone because of socioeconomic and racial barriers.”
In 1990, Nevada voters passed a ballot initiative ensuring that abortion rights cannot be amended or repealed without a direct vote of the people. The measure ensures abortion will remain legal in the state even if Roe v. Wade, the case that legalized abortion nationally, were struck down by the Supreme Court.
“Our foremothers knew what was coming and thankfully, thought ahead,” says Magnus. “They created a safe haven for the right to choose.”
But the price of a round-trip plane ticket between Austin, the capital of Texas, and Las Vegas, averages about $600.
“A lot of women are going to lose access to care because they don’t have the (financial) means,” Magnus says.
“Greater distance to abortion facilities is associated with greater out-of-pocket costs, emergency room follow-up care, negative mental health, and delayed care among U.S. abortion patients,” wrote the authors of a 2019 study on the distances women travel for an abortion.
“In 2014, 65% of abortion patients traveled less than 25 miles one-way, 17% traveled 25–49 miles, and 18% traveled more than 50 miles,” says the study.
Patients who were white, college educated, born in the U.S., more than 12 weeks pregnant, and lived outside metropolitan areas, were more likely to travel farther. Almost half of patients reported going to the nearest provider and a third chose it because it was closest.
In Texas, the abortion rate has declined since clinic closures in 2013, when abortions after 16 weeks became unavailalbe, and forced patients to travel farther, especially in counties where the distance to the nearest abortion provider increased by more than 100 miles, says the 2019 study.
Another study estimated abortions in Texas after 16 weeks declined 69% after 2013, and the average distance to the nearest provider increased by 219 miles.
The study suggests “that many women could not overcome the additional travel distance to farther facilities after their local providers closed.”
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