‘Roe v Wade is a husk’: anguish and anger in Texas after abortion ruling

Their apparent hope is to make an appointment for an illegal abortion, catch out the clinic and sue for a $10,000 reward, the bounty Texas lawmakers have placed on the heads of anyone – from cab drivers to clergy – who dare aid a woman in obtaining an abortion past six weeks gestation, before most know they are pregnant.

For clinic workers, as well as so many other people, a climate of fear has now descended on Texas. “The staff are directly experiencing people’s anguish and fear and anger about the law that’s coming from all the patients,” said Hagstrom Miller, founder and CEO of Whole Woman’s Health. “It’s been really, really rough.”

Before the stunning order, women nationally in the US had a constitutional right to abortion until the point a fetus can survive outside the womb, generally understood to be 24 weeks. The right was secured by the landmark 1973 supreme court case Roe v Wade.

Congress never secured the right in statute, and relied on a supreme court precedent for nearly five decades. Social conservatives took a different tack, and over the same period passed more than 1,300 abortion restrictions, challenging Roe again and again and again.

Then, on Wednesday, conservatives were granted an extraordinary victory. The court refused to block one of their patently unconstitutional laws. As quickly as a court decision had granted a constitutional right to abortion in 1973, it excised Texas women from its protections and allowed a six-week abortion ban to be imposed on 6 million women of reproductive age as the case winds through courts, ending access to abortion for most pregnant people in the state now and for the foreseeable future.

In handing down the order, the court also laid out a roadmap for severe restrictions in dozens of states hostile to abortion rights, almost certainly emboldened anti-abortion extremists globally and broke with a decades-long global movement to liberalize abortion laws.

Crucially, it also revealed one of Donald Trump’s greatest successes – confirming three supreme court justices on a bench of nine and more than 200 federal court judges. Now, the decades-long rightwing project to appoint conservative jurists appears to have one of its greatest prizes nearly in its reach – the end of abortion in America and the gutting of Roe v Wade.

“Roe v Wade is a husk, a desiccated dry husk of a ruling at this point,” said Anu Kumar, the CEO of Ipas, a US-based reproductive rights organization whose work focuses on helping women internationally obtain access to abortion. “If this Texas law did not trigger the supreme court to intervene, then we all need to be very concerned about what will.”

Since May, a coalition of abortion providers and activists have fought to stop Texas’s law, called SB8, which makes abortion illegal after embryonic cardiac activity can be detected, about six weeks.

But, unlike abortion bans passed by states before, all universally blocked by courts, Texas tried a long-shot legal strategy to evade federal court scrutiny. The state banned officials from enforcing the law, and gave private citizens a right to sue one another should they suspect someone – anyone – helped a woman obtain an abortion past this early point in pregnancy.

A citizen’s prize for a successful suit would be $10,000 and attorneys’ fees. Defendants would not be able to recoup any such losses. Lawmakers also rewrote the rules of civil litigation to favor these new bounty hunters, allowing anyone anywhere to sue. In doing so, legislators tossed into the fire the foundational principles of “standing” (you actually need to be involved to sue) and venue (one of the parties must live or work where the suit is filed).

“It is obvious to anyone who has taken first-year constitutional law that this Texas law is unconstitutional,” said Melissa Murray, the Frederick I and Grace Stokes professor of law at New York University, and an expert on reproductive rights law. “That is an incredibly stunning development in terms of how cases are litigated and how constitutional rights are protected in this country.”

Increasingly frantic attorneys for a coalition of reproductive rights groups worked until the 11th hour to stop the law from going into effect. They were blocked by an appeals court, then petitioned to the supreme court. They were met by 23 hours of supreme court silence after the law went into effect.

That silence from a court known to act swiftly in emergencies was followed by what is called a “shadow docket” decision, in which an order is issued without public argument or trial. In the order, a five-four majority said the court would let the law stand because of “complex antecedent procedural questions” – in other words, the very byzantine enforcement structure the state itself had crafted.

“The court silently acquiesced in a state’s enactment of a law that flouts nearly 50 years of federal precedents,” wrote Justice Sonia Sotomayer, considered part of the court’s liberal wing.

Even Chief Justice John Roberts, a conservative skeptic of abortion rights, joined liberal justices in dissent, arguing the law should be blocked as it winds through courts.

“A law like this upheld in a fashion like this is corrosive of community and of the rule of law and does a disservice to any principle it could possibly hope to vindicate,” said Reva Siegel, the Nicholas deB Katzenbach professor of Law at Yale Law School. Its complex enforcement mechanism was little more than a “fig leaf” for the state, she said.

The state’s largest anti-abortion lobbying organization quickly embraced its new role as enablers of enforcement. The organization has published a website for “whistleblower” investigations, and encouraged citizens to compile dossiers on those suspected of “aiding and abetting” those seeking abortions.

Hagstrom Miller, whose clinics are high-profile because she has challenged unconstitutional Texas laws in the past, said she is already being targeted. “We can tell the anti-abortion folks are calling, we can tell they’re booking appointments,” she said. “Our staff are on alert and trying to be as warm and comforting of our patients, while also being on watch for these vigilantes – both.”

In the hours preceding the ban, Hagstrom Miller’s staff in Forth Worth worked until midnight the day the ban went into effect to help as many women as possible, performing 67 abortions in 17 hours, according to the news outlet the 19th.

All this comes in the context of upcoming hearings in another abortion case from Mississippi, Dobbs v Jackson Women’s Health Organization, in which the supreme court was slated to consider a 15-week ban on abortion. That case now also appears likely to further strangle the rights provided in Roe v Wade. However, few expected the court to so clearly signal it is “utterly hostile to the prospect of reproductive rights”, in Murray’s words, so early, and in such a fashion.

“It’s been gut-wrenching for the staff to really be agents of the state and tell people they can no longer have an abortion,” said Hagstrom Miller.

Hagstrom Miller has already turned away every single woman who sought an abortion at her Rio Grande Valley location on the Texas-Mexico border in McAllen. They were all past six weeks gestation.

The decision has immediately opened whole categories of questions.

Most immediately, what will happen to pregnant people seeking abortions in Texas? Most will now simply be unable to travel out of state for abortions, and these people will disproportionately be the poor, people of color and the young. Illegal abortion does not, after all, end abortion. It only ends safe, legal abortion.

What will happen to the abortion clinics of Texas? The longer the law stands, the more will shutter, eroding rights permanently no matter what twists and turns the legal and political fight now takes. How many states will move to follow Texas’s lead? Many, perhaps half of US states. Lawmakers in Florida have already signaled their intent to do so.

Will Congress amend its nearly five-decade failure to enshrine the right to abortion in law? And where does this new law place the US, which holds itself up as the beacon of freedom, in the global landscape? With this policy, the US joins Brazil, Egypt, El Salvador, Nicaragua, Iraq and Mauritania, according to Kumar, and clearly violates international human rights frameworks.

What is clear is while there is much shock, there is less surprise. The Texas court decision was the obvious end of a nearly five decade-long campaign waged by social conservatives to end the right to abortion in the US – a campaign at which they have been succeeding, particularly in the last decade.

This is the “new Texas”, as Hagstrom Miller said, a state the conservative movement has chosen as a proving ground for restrictions on both voting and reproductive rights, both of which are emblematic of the post-Trump conservative movement’s rejection of broader democratic principles.

“Vigilantism is the key in this law, this is why this is so incredibly scary,” said Kumar. “And so close to fascism.”