The history of abortion in Texas is complicated, to say the least. For many of us, we can hardly remember a time or frankly have never lived in a time when there wasn’t access to abortion. Abortion has been considered a personal and private medical decision for 48 years. We are on the political cusp of what could be a huge social shift that will change access to abortion, and change the way women and people move through the world. Whether you personally agree or disagree with abortion, you will likely be affected in some way. Today, we’re outlining the history, from the origins of Roe v. Wade to the new abortion law in Texas today, and what it means for the health and safety of people obtaining abortions in the future. We believe it’s important to understand what’s happening and above all, to know your rights, not only in Texas but throughout the nation.
No matter your opinion, if you’re having sex, this 100% applies to you.
Let’s jump in—we’ll start 48 years ago…
Understanding the precedent of the 1973 Roe v. Wade case
In 1973 having an abortion was illegal throughout the United States, while ”decriminalized in some states,” most people had very poor access to safe choices. Since abortion was illegal, but women wanted choices, many people went to extreme measures to obtain illegal and unsafe abortions. Estimates of the number of illegal abortions in the 1950s and 1960s ranged from 200,000 to 1.2 million per year. One analysis extrapolating from data from North Carolina concluded that an estimated 829,000 illegal or self-induced abortions occurred in 1967.
In the midst of all of this, a woman named Norma McCorvey (then referred to as “Jane Roe” as a protective pseudonym in the court system), desired to have an abortion legally, and brought a case against the district attorney, Henry Wade, alleging the Texas law was unconstitutional. After winning her case in the district court of North Texas, the state of Texas appealed the ruling and the case was moved to be heard in the supreme court. As the case ended, the supreme court set forth a landmark precedent by ruling in favor of Jane Roe, 7-2 essentially stating that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction, based on her right to privacy as protected by the 14th amendment.
This law has been generally upheld in the United States for the last 48 years. However, in recent years smaller cases challenging different parts of the law and slowly creating more restrictions to abortion have been brought to the courts and some have succeeded. So, while abortion is still technically legal dependent on the state that you live in, the timing of, and accessibility to the procedure may have drastically changed over time. This idea of challenging and obstructing access to abortion in incremental laws over time is what brings us to the Texas “Heartbeat” Bill.
Why people have abortions
Most people choosing abortion are confronted with the decision to end a pregnancy from progressing for many reasons that impact their life and long term stability, their access to a better future, or their ability to give their current children the love, attention, and financial stability they feel they deserve.
According to the Guttmacher institute, common reasons for U.S. women and people desiring abortion include, “interfering with education, or their availability to work or care for other children, the inability to afford a baby, and the fact that they don’t want to be a single parent, or are having relationship problems.” Another very common and medically necessary reason is that women also need abortions when their pregnancies develop unexpected complications that may impact the mother’s health, or may not be consistent with life after birth—most of which aren’t diagnosed until five or six months of pregnancy due to the limitations of genetic testing and early ultrasound.
This all of course, is an incomplete list, women need and choose abortion for many reasons. As a healthcare provider, the fact of the matter is, this topic is far from straightforward.
What exactly is the Texas “Heartbeat” Bill?
The Texas “heartbeat” bill is an act of the Texas Legislature that began to take shape in the spring of 2021. Signed into effect by Governor, Greg Abott on May 19, 2021, the law came into effect on September 1, 2021. This is the first six-week ban on abortion in the United States. The bill states that any abortion after six weeks is illegal in the State of Texas. There are also some unique components of the bill that make it especially concerning for women’s access to safe medical care.
The writing of the bill was composed specifically to be difficult to challenge, according to the Texas Tribune: “Proponents of the new law hope to get around the legal challenges that have tied up abortion restrictions in the courts in the past. While abortion providers typically sue the state to stop a restrictive abortion law from taking effect, there’s no state official enforcing Senate Bill 8, so there’s no one to sue.”
Instead, this law encourages private citizens to sue abortion providers or anyone who helps facilitate an abortion for a minimum of 10,000 U.S. dollars in statutory damages. This leaves clinics and providers open to as many court cases as the general public chooses to bring to suit and if successful will keep doctors, nurses, and clinics having to actively defend themselves against an endless multitude of small cases, slowly totaling to significant amounts of money or potentially causing clinics to have to close their doors.
The act does not however allow any of the women seeking abortions to be named as a defendant in the case. The act only includes exceptions in the case of a medical emergency, and there are no exceptions for rape or incest. When Governor Greg Abbott was challenged on the matter of rape, he stated that the state of Texas would “eliminate all rapists from the streets of Texas,” as his idea of a viable solution to this issue. Now that we understand the details of this act, you may be wondering how—if the Supreme Court had already established a precedent that abortion is a private and legal option for a woman—this law could come to be. That question and the Texas legislatures and Supreme Courts choice to ignore this constitutional right is extremely controversial.
What is the Shadow Docket and how is it related?
You may have heard the term Shadow Docket in regards to the recent “heartbeat” act and wondered what it means, how it works, and how it came into play in this case. The mysterious-sounding name did have a somewhat nuanced and hushed presence in the Supreme Court until fairly recently as it’s being used more often, and is gaining momentum and attention. The New York Times in a recent article described the Shadow Docket well: “A process intended to help the court deal with emergency petitions and routine matters has grown into a backdoor way of making major policy decisions.”
The Shadow Docket is a legal term used to describe how emergency orders and summary decisions may be used by the Supreme Court without the opportunity for oral argument. In other words, cases that come in for review via a Shadow Docket as opposed to the normal Merrit Docket aren’t afforded the exhaustive review that most cases are.
Traditionally, in order to get a decision from the Supreme Court via the Merrit Docket (if it’s even chosen for review as the majority of cases are thrown out) it may take many months of deliberation through the form of exhaustive written briefs, oral arguments, and signed opinions. This process is purposefully exhaustive, as the Supreme Court is dealing with many high profile cases that may have sweeping effects on the entire nation based on the outcome. They are intended to be very carefully reviewed. Instead of using this intended process, there has been a recent increase in how the courts handle high-profile issues more quickly and without the usual debate and attention.
Prior to 2017, only eight cases were brought to the court via the shadow docket by the two prior administrations, which was typical. Since 2017 the use of the Shadow Docket has increased dramatically. According to The Economist, bringing large issues to decision with the Supreme Court via the shadow docket creates a “deficit of transparency and accountability.” William Baude of The University of Chicago Law School stated that the Shadow Docket makes it “hard for the public to know what is going on” and “hard for the public to trust that the court is doing its best work”. The misuse of this docket is changing the legal landscape with major decisions such as those regarding immigration, evictions, voting rules, and of course abortion not being given the appropriate amount of effort and time in review.
The Shadow Docket is like using a fire escape as a main entrance, although the fire escape was never intended to be used as such.
The abortion case, estimated to affect over 7 million Texas women, and indefinitely many more families and children through time, spent a mere three days up for review in the Supreme Court after coming through the Shadow Docket. There were no oral arguments, and the majority opinion was unsigned and one paragraph long. Law scholars are hurriedly and anxiously debating this concerning issue. Steven Vladeck a lawyer and professor at The University of Texas Law School as well as a longtime contributor to CNN was quoted during testimony before the Supreme Court prior to the abortion decision in regards to the Shadow Docket: “If they are going to issue rulings that profoundly change the law, I think they have an obligation to write and to explain why they are doing it… They have an obligation to the lower courts, to the other parties in the case, and to other public officials who need guidance.”
Can Roe v. Wade be overturned?
The answer to this question is anxiously up in the air. While some analysts formerly believed that overturning Roe v. Wade may not be possible, that thought stood on much more solid ground prior to the recent passing of the Texas “heartbeat” act. The six-week ban on abortion signaled that if the right case made its way to the Supreme Court, there are five justices who very well may not be in favor of upholding the longstanding precedent of legal abortion. This is in part due to Trump’s appointed Justice, Brett Kavanaugh. Between 2003 and 2017 Brett Kavanaugh has flip-flopped, stating Roe v. Wade could and may be overturned, while also later stating he would not ignore the precedent set by Roe v. Wade and would uphold the right to abortion. In the recent “heartbeat” bill the latter statement did not hold. It’s not uncommon for judges to juggle ideals and sides during landmark cases hence there is no way to predict what the future will hold.
If Roe v. Wade is overturned the legality of abortion will be left to the states to decide and currently, about one-half of the states are poised to immediately enact anti-abortion “trigger laws.” This means the moment Roe v. Wade is overturned, it immediately becomes illegal in those states to obtain an abortion. Many states are poised and ready to limit access. The state of Mississippi has a case challenging the legality of abortion currently in route on the Merritt Docket. The upcoming State of Mississippi’s decision will be closely followed by pro-life and pro-choice activists. With the Supreme Court term beginning in October, there hasn’t been a date set for the Mississippi case to begin oral argument. A decision is expected by June 2022. If the Supreme Court casts a similar 5-4 vote in favor of abortion being illegal, the country will look very different, very quickly.
How does it affect women? What are my rights?
This law immediately creates a great deal of uncertainty for women and medical professionals. Abortion providers say the legislation will restrict 85% of abortion procedures in Texas. Let’s talk more about the complicated effects this will have on Texan women, people and couples, with the likelihood of this affecting most Americans in upcoming years as well.
An extremely early ban
An immediate concern is how early in pregnancy this Texas ban on abortion takes place. The dating of a pregnancy is historically somewhat confusing. The medical field dates pregnancy from the first day of your last menstrual period. This is confusing as the fertilization of an egg, and implantation typically occurs somewhere between two and four weeks after the first day of your last period, and a positive pregnancy test doesn’t read positive for many women until four to six weeks of pregnancy, depending on their cycles. This essentially means that the likelihood of a woman knowing she is pregnant by the time there is detectible cardiac activity is low for many women.
In a perfect world where every woman’s menstrual cycle was exactly four weeks long, and every woman paid close attention to the day they are supposed to begin their period, and no one had irregular, missed, or abnormal periods (such as with common conditions like PCOS or hypothyroidism), there is a slightly higher chance women would be able to detect they’re pregnant around four weeks of pregnancy. If that was the case and a woman desired an abortion, getting scheduled, obtaining money for the procedure, time off of work, and getting an appointment in an overloaded and already stressed system will likely be extremely difficult.
Likely outcomes for women
This will likely lead to more women moving forward along a few different routes:
- Attempting illegal and unsafe home abortions by obtaining medication online or going to illegal or bunk providers who practice unsafely.
- Driving to states where abortion is legal, which for many women will mean loss in pay, time, and stability.
- Staying pregnant, which will invariably be more common for women from low socioeconomic status areas, those with less education, or for younger women. Additionally women who have poor support systems and resources may have a difficult time gaining knowledge regarding how quickly they may need to act and how costly abortion is, and find it’s too late.
What can I do now? Especially for those of us in Texas.
- Women in Texas still have access to birth control. If not having access to abortion in the future as an option is concerning for you or you’re not using a reliable form of birth control this may be a very good time to employ the use of an IUD or long-acting intrauterine device. Here’s an article about IUDs, or other birth control methods if you’re curious.
- Be sure the form of birth control you’re using is as effective as you’re comfortable with. Condoms, diaphragms, and other barrier methods are much less effective than IUDs or the birth control pill. Take a look at this chart to be sure the form of birth control you’re using feels comfortable for you.
- Already had unprotected sex? Understand how using the Plan B medication works, how you can access it if needed, and what timing is necessary for it to work. If you’ve had unprotected sex, contact your gynecologic care provider and request an emergency IUD. Copper IUD’s and Mirena IUD’s have been approved as a form of emergency birth control as of this year. Both Plan B type medications and IUDs will interrupt the process of pregnancy from occurring after unprotected or non-consensual sex, this interruption happens prior to implantation of an egg.
- Be sure to take a pregnancy test as soon as you have symptoms of pregnancy if you’re concerned and are not planning pregnancy. Sore nipples, constipation, light cramping or spotting, nausea, vomiting, and of course, a missed period may be signs of pregnancy. Do not wait.
- Track your period closely so you are able to test for pregnancy immediately after a missed period or a day or so before. Using an app like clue is a good way to do this. Pregnancy typically occurs 14 days prior to when your period starts. Here’s more information about how to track.
What have leaders proposed to do about the law?
As for now, The Biden Administration is suing the state of Texas, calling the law an “unprecedented assault on women’s rights.” The Department of Justice has filed a civil lawsuit challenging the law. The filing states, “It takes little imagination to discern Texas’s goal—to make it too risky for an abortion clinic to operate in the State, thereby preventing women throughout Texas from exercising their constitutional rights, while simultaneously thwarting judicial review.”
The justice department has also said they will protect any clinics, physicians, and patients from any federal prosecution for performing abortions or obtaining an abortion. This Monday, U.S. Attorney, General Merrick Garland stated, “We will not tolerate violence against those seeking to obtain or provide reproductive health services, physical obstruction or property damage in violation of the FACE Act.” The FACE act (freedom to access clinic entrances) took effect in 1994 and protects individuals who are entering reproductive health clinics from violent threats or intimidating behavior.
The American College of Obstetricians and Gynecologists, The United Nations, The Texas Medical Association, and The Biden Administration have all condemned the recent bill.
If you want more information on the new law or more information on how to support women and people in Texas please visit the links below:
