Legal Expert: In Banning Most Abortions, Texas Now ‘A Constitution-Free Zone’

The court did not take up an appeal against the law that bans abortions as early as five or six weeks.

By Jill Ament & Caroline CovingtonSeptember 2, 2021 12:18 pm, ,

One of the strictest abortion laws in the country went into effect in Texas on Wednesday. On the same day, the U.S. Supreme Court announced its decision not to stop Texas from enforcing that law.

Elizabeth Sepper is a law professor at the University of Texas at Austin, specializing in religious liberty and health law. She says the 5-4 decision effectively puts Texas in a “constitution-free zone,” despite Roe v. Wade and almost 50 years of case law upholding that 1973 Supreme Court decision legalizing abortion.

At the heart of the court’s decision not to take up an appeal by abortion advocates is the complexity of Texas’ law. Sepper says it was designed to “avoid judicial review,” mainly because average Texans can enforce it.

“I think they didn’t acknowledge it because of this private enforcement mechanism where bounty hunters can come after those who aid and abet abortions,” Sepper said.

Anyone can file a lawsuit in civil court against someone they suspect of getting an abortion after the five- or six-week mark, or anyone who helps them get that abortion.

RELATED: Texas Now Has A Ban On Abortions As Early As Five Weeks. Anti-Abortion Groups Are Prepared To Enforce It.

Sepper says in her dissenting opinion, Associate Justice Sonia Sotomayor argued her colleagues with the majority opinion “opted to bury their heads in the sand” by  deciding “not to decide.” Sepper says such a decision is contrary to how the court normally operates when the constitutionality of a law is questioned.

“Normally, courts should keep the status quo in place when constitutional rights are at stake, and can work through to consider the merits, not decide before we have full briefing and argument and development of the case,” she said.

Sepper says a consequence of the law could be closures of women’s health clinics in Texas. So far, about 24 clinics in the state perform abortions, but that could shrink. That’s because under the law, abortions are illegal after the detection of fetal cardiac activity – about five or six weeks into a pregnancy.

“Approximately 90% of abortions are blocked [now],” she said.

The Texas law stands for now, until the Supreme Court decides on a similar case in Mississippi it will hear in October.

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