A Texas law banning most abortions in the state went into effect on Wednesday, after a midnight deadline for the U.S. Supreme Court to intervene passed without action.
The law is one of the most restrictive in the nation, and prohibits abortion once a fetal heartbeat can be detected — often before most women know they are pregnant. It does not include exceptions for pregnancies resulting from rape or incest and allows private citizens to sue abortion providers for violations.
The court could still act to block the law, responding to an emergency application from abortion providers, who say that it creates an undue burden on women seeking abortions and infringes on the legal right to an abortion established by Roe v. Wade, a 1973 landmark Supreme Court case.
“If permitted to take effect, (the law) would immediately and catastrophically reduce abortion access in Texas, barring care for at least 85% of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics ultimately to close,” reads the emergency application filed with the court.
Abortion opponents who pushed for the legislation hoped it would end up at the Supreme Court and be a vehicle for the court to reconsider its landmark ruling legalizing abortion. Abortion providers have asked the high court to block the law from going into effect while lower courts in Texas weigh its constitutionality.
The proposal was drafted to be difficult to challenge in court, as it prevents public officials from enforcing the law and instead leaves it up to private citizens to sue violators.
Abortion rights proponents have raised concerns that these lawsuits could bury providers with court cases and legal fees, making it difficult for them to stay open — even if they haven’t violated the law.
Legal experts have also expressed concern about the cause of action created under the law, and a group of roughly 400 lawyers wrote to lawmakers earlier this year to warn that the language used in the ban is “exceptionally broad” and “subverts the foundations of our judicial system.”
The court filing from abortion providers said their case boils down to one question: “At bottom, the question in this case is whether — by outsourcing to private individuals the authority to enforce an unconstitutional prohibition — Texas can adopt a law that allows it to” do what the Constitution forbids.
Texas is not the first state to adopt an abortion law restricting the procedure once a fetal heartbeat can be detected.
At least 10 other states have adopted similar laws, but none have gone into effect. In eight cases, the laws have been permanently or temporarily blocked by courts and two others are scheduled to go into effect later this year, according to an analysis from the Guttmacher Institute.
Fetal heartbeats can be detected as early as six weeks gestation, or six weeks from a woman’s last menstrual period, according to the American Congress of Obstetricians and Gynecologists.
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