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What Are the Texas Child Emancipation Laws?

In Texas, emancipation laws allow minors to become emancipated if they are entering into marriage, if they are joining the military, or if a minor requests emancipation and a court grants the request. The legal age of majority in Texas is 18.

Regarding emancipation due to marriage, the legal age in Texas for an individual to marry is 18. However, with parental consent, someone who is at least 15 years old can get married. When parents allow their minor child to get married, the child is emancipated because the responsibility of the child lies with the spouse and no longer with the parent.

If a child wants to enter the military, he can do so at the age of 18, or he can do so if the parents grant permission for the child to enter the military. By entering the military, the child becomes independent of his parents and is legally emancipated.

Finally, a child can become emancipated at the minor’s request. The minor needs to prove to the court that he is able to fully support himself if he goes out on his own. This can be a difficult thing for a minor to do, so he needs to show substantiating proof that the court deems enough to grant emancipation. One of the reason’s why a child isn’t considered an adult until he reaches the age of 18 is because a child under the age of 18 cannot enter into contracts, which means he cannot obtain a car loan, sign a rental agreement, or open a bank account without a parent’s signature.


arguments against texas abortion law

At Supreme Court, Texas Scheme to Evade Review of Abortion Ban Raises Questions from Justices

Whole woman's health v. jackson, center presents oral arguments in whole woman’s health v. jackson, its case against texas law s.b. 8., share this page.

Center attorneys and client at Supreme Court for Texas abortion ban case

“S.B. 8 is an abortion prohibition, but the issues before this Court are far more sweeping,” said Marc Hearron, Senior Counsel of the Center for Reproductive Rights, during oral arguments at the U.S. Supreme Court November 1 in a case challenging a Texas abortion ban. “To allow Texas’s scheme to stand would provide a roadmap for other states to abrogate any decision of this Court with which they disagree. At issue here is nothing less than the supremacy of federal law,” he continued.

S.B. 8 bans abortion care after approximately six weeks of pregnancy, and since taking effect on September 1, it has ended most abortion access in the state.

But the law was also designed to skirt judicial review by incentivizing individuals—including anti-abortion activists—to bring costly and harassing lawsuits against anyone who provides abortion care or assists someone in obtaining an abortion in violation of the ban. The Texas scheme—not the right to abortion itself—was the issue before the Court on November 1 in the Center’s case, Whole Woman’s Health v. Jackson .

In the case, the Court will decide whether federal courts have the power to review Texas’s abortion ban, which prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition.

Because the Court decided to have briefing and oral arguments at an extremely fast pace—only 10 days—a decision could come quickly, or it may be issued later in the term.

Whole Woman’s Health v. Jackson was brought by the Center and its partners on behalf of Texas abortion providers led by Whole Woman’s Health and other independent abortion clinics, doctors, clinic staff, abortion funds, support networks, and clergy members.

Hearron presented the Center’s main arguments to the Court:

  • S.B. 8 nullifies a constitutional right and prevents state and federal court review of the state’s actions in doing so because of its unique procedural rules.
  • The Supreme Court needs to take prompt action because of the chilling effect of the potential lawsuits against everyone involved in abortion in any way and the demonstrated impact on people seeking abortions in Texas after six weeks.

Center attorney Marc Hearron at the Supreme Court

During oral arguments, the justices’ questions focused on interpretations and intricacies of applicable laws and past cases regarding federal and state review, the Texas law’s provisions to evade review, and the lack of options for relief available to those sued under the law.

In-depth discussion with the justices centered on:

  • The unique provisions of Texas S.B. 8, which make it impossible to get a final and fair judgment on the constitutional questions at issue in the state courts.
  • How S.B. 8’s modification of ordinary legal processes in Texas state courts weaponize the state court system against plaintiffs and make state court an inadequate forum for vindicating constitutional rights.
  • The risks and the ruinous penalties imposed by the law on all parties involved in the provision of each abortion, including the physician, nurse, staff member, security guard, and many others.

Highlights from the justices included:

  • Justice Amy Coney Barrett said the law was structured to prevent the providers from presenting a “full constitutional defense,” taking issue with the state’s assertion that providers could adequately challenge the law by violating it, getting sued and defending themselves by arguing that the law is unconstitutional.
  • Justice Elena Kagan said the procedural questions obscured the bottom line that, as Kavanaugh had noted, Texas officials were trying to exploit a loophole. “The fact that after all these many years, some geniuses came up with a way to evade the commands of” an important precedent, and “the even broader principle that states are not to nullify federal constitutional rights and to say, ‘Oh, we’ve never seen this before, so we can’t do anything about it’ — I guess I just don’t understand the argument.”
  • Chief Justice John Roberts questioned the state’s contention that abortion providers should be willing to risk a trip to court to prove the law unconstitutional. “Assume that the bounty is not $10,000 but a million dollars. Do you think in that case the chill on the conduct at issue here would be sufficient to allow federal court review prior to the end of the state court process?” Texas Solicitor General Judd Stone replied no.
  • Justice Brett Kavanaugh expressed concern that states could enact other laws structured like this Texas law, which could infringe on other constitutional rights, commenting, “The amicus brief of the Firearms Policy Coalition says, ‘This will easily become the model for suppression of other constitutional rights, with Second Amendment rights being the most likely targets.’ And it could be free speech rights. It could be free exercise of religion rights. It could be Second Amendment rights. If this position is accepted here, the theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights.”

After oral arguments, Hearron commented, “We of course can’t predict how the Court will rule in this case–but we are encouraged that the justices’ questions seemed to show they had real concerns about how destructive and unconstitutional the Texas law is and how it was designed specifically to evade court review and deny people their constitutional rights.” He continued, “We look forward to the Court’s decision and to continuing our fight against this extreme abortion ban so Texans can once again exercise their constitutional right to abortion.”

DOJ Case Challenging the Texas Law Also Argued at the Court

The Court also heard arguments on November 1 in United States v. Texas , a case brought by the U.S. Department of Justice (DOJ) that also challenges the Texas law. In that case, the Supreme Court will decide whether the United States government has the authority to bring this case against the State of Texas.

Next Up at the Supreme Court: The Center’s Case Challenging Mississippi’s Abortion Ban and Defending the Right to Abortion

On December 1, the Center will be back at the Supreme Court arguing its next case, Dobbs v. Jackson Women’s Health Organization . The case challenges a Mississippi abortion ban and marks the first time the Court will rule on the constitutionality of a pre-viability abortion ban since Roe v. Wade in 1973. The Court’s ruling in Roe recognized that the decision whether to continue a pregnancy or have an abortion, which impacts a person’s body, health, family and future, belongs to the individual, not the government. The Center’s client in the case, Jackson Women’s Health Organization, is the last remaining abortion clinic left in the state.

Read more about the Center’s case, Whole Woman’s Health v. Jackson , and access a replay of the oral arguments and the transcript here .

Read more about the DOJ case, United States v. Texas , and access a replay of the oral arguments and the transcript here.

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Lawsuit against Texas abortion ban ‘effectively over’

AUSTIN, Texas (AP) — Texas abortion providers on Friday conceded a final blow to their best hope of stopping the nation’s most restrictive abortion law after a new ruling ended what little path forward the U.S. Supreme Court had left for clinics.

The decision by the Texas Supreme Court, which is entirely controlled by Republicans, spelled the coming end to a federal lawsuit that abortion clinics filed even before the restrictions took effect in September, but were then rejected at nearly every turn afterward.

“There is nothing left, this case is effectively over with respect to our challenge to the abortion ban,” said Marc Hearron, attorney for the Center for Reproductive Rights, which led the challenge against the Texas law known as Senate Bill 8.

Although Texas abortion clinics are not dropping the lawsuit, they now expect it will be dismissed in the coming weeks or months.

READ MORE: With Roe in doubt, states act on abortion limits, expansions

The Texas law bans abortion after roughly six weeks of pregnancy and makes no exceptions in cases of rape or incest. Abortions in Texas have plummeted by more than 50 percent since the law took effect.

It is likely to further embolden other Republican-controlled states that are now pressing forward with similar laws, including neighboring Oklahoma, where many Texas women have crossed state lines to get an abortion for the past six months. The Republican-controlled Oklahoma Senate on Thursday approved a half-dozen anti-abortion measures, including a Texas-style ban.

The decision by the Texas Supreme Court turned on whether medical licensing officials had an enforcement role under the law known as Senate Bill 8, and therefore, could be sued by clinics that are reaching for any possible way to halt the restrictions.

But writing for the court, Justice Jeffrey Boyd said those state officials have no enforcement authority, “either directly or indirectly.”

Texas abortion providers had already acknowledged they were running out of options and that the law would stay in place for the foreseeable future.

The U.S. Supreme Court has signaled in a separate case out of Mississippi that it would roll back abortion rights, and possibly overturn its landmark Roe v. Wade decision, in a ruling that is expected later this year.

The number of monthly abortions in Texas fell by more than 50 percent in the two months after the law took effect, according to state health figures. But that data only tells part of the story, and researchers say the number of Texas women who are going online to get abortion pills by mail has risen sharply.

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arguments against texas abortion law

News Wrap: Florida joins states moving to ban abortions after 15 weeks of pregnancy

Nation Feb 17

'The law is quite clear': Anti-abortion doctor testifies in support of Texas' ban

Doctors testified as part of a hearing for a preliminary injunction on the bans.

On the second day of a hearing over a lawsuit filed against the state of Texas , an anti-abortion doctor who practices in the state testified Thursday in support of the ban, stating "the law is clear" and that if doctors believe they cannot provide proper care, it's because they misunderstand the law.

Meanwhile, two physicians who practice medicine outside the state testified for the plaintiffs, arguing that Texas' abortion laws are confusing and would make it difficult to provide necessary care to patients.

They were joined by a physician in Texas who was pregnant herself and delivered emotional testimony about having to go out of state to get an abortion.

The hearing is part of an ongoing lawsuit filed by the Center for Reproductive Rights on behalf of 15 women in the state of Texas alleging that the state's abortion laws put their lives in jeopardy.

The testimony was given during a court hearing that began Wednesday as part of plaintiffs' request for a temporary restraining order on abortion bans, permitting women to receive lifesaving emergency abortions.

MORE: 8 women join suit against Texas over abortion bans, claim their lives were put in danger

Lawyers are asking the court to provide a "remedy applied to patients whose life, health or fertility is at risk from an emergent medical condition," Molly Duane, a senior staff attorney at the Center for Reproductive Rights and lead attorney on the case, said during opening statements Wednesday.

Dr. Austin Dennard, a plaintiff in the lawsuit and an OB-GYN who had to travel out of state to receive abortion care for a nonviable pregnancy, took the stand Thursday. Dennard -- who is currently pregnant again -- testified that she and her husband made the "very difficult decision" to abort a pregnancy in 2017 after the fetus was diagnosed with a very rare genetic disorder.

PHOTO: Dr. Austin Dennard, an OB-GYN who had to travel out of state to receive abortion care for a nonviable pregnancy, arrives at the Travis County Courthouse on July 20, 2023, in Austin, Texas

In emotional testimony, Dennard testified that she found out she was pregnant in June 2022.

At her second ultrasound appointment, Dennard -- who was nervous because she had a miscarriage months before -- said she realized that her baby had acrania, a fatal condition in which a fetus does not have a skull, leaving brain tissue exposed to amniotic fluid, as soon as she saw the ultrasound.

"I immediately realized that there was something catastrophically wrong," Dennard said.

"I was devastated. We were trying so hard. I had been hoping and praying for another baby and just had envisioned having a third and realizing that this pregnancy was not going to end with another little toddler running around my house. That's hard," Dennard said.

At a second ultrasound, a maternal fetal medicine specialist then diagnosed the fetus with anencephaly -- but there was still a cardiac heartbeat.

"I think I was crying at that time. And she came over and just gave me a big hug and said, 'I'm so sorry. I'm so sorry you're going through this torture when you got the diagnosis of anencephaly,'" Dennard said.

PHOTO: Amanda Zurawski speaks during a press conference outside the Travis County Courthouse on July 19, 2023 in Austin, Texas.

Dennard testified that anencephaly is a fatal, severe defect for the fetus that poses a risk to the health of the mother as well.

"[The babies live] seconds, minutes, maybe a day. They essentially just gasp for air until they pass away," Dennard said.

Dennard said she made the decision to travel to get an abortion out of state and described what it felt like to not have access to care in Texas and be forced to carry a nonviable pregnancy.

"I felt like my pregnancy was not my own, that it belonged to the state because I no longer had a choice of what I could do. I felt abandoned. I couldn't believe that after spending my entire life in the state, being a sixth generation Texan, practicing medicine in the state, that the state had completely turned their back on me," Dennard said.

"And for them my only choice was to continue the pregnancy, putting my life at risk and my mental and emotional health at risk for a fetus that was never going to survive. So I had a lot of big feelings about it," Dennard said.

Dennard testified that her emotional recovery takes longer time than her physical recovery and said the grief of losing a child "never really goes away."

She said she considered going public with her story earlier but did not do so initially out of fear and because she was not ready.

In cross-examination, a representative for the state asked Dennard about her age and whether her pregnancy was higher risk because she was "over 35." She then asked Dennard if she would have been "considered geriatric" due to her age, to which Dennard responded, sarcastically, "Well that's a nice word," adding, "Geriatric is not a medical term."

Testimony from out of state physicians

The two physicians who testified Thursday practice medicine in Oregon and Massachusetts, but said they would find it difficult to practice medicine in Texas under the bans.

"My opinion is that the laws as they're currently written -- the medical exceptions -- they're confusing. And that confusion and lack of clarity is keeping physicians from being able to exercise their good faith judgment in the treatment of patients," said Dr. Ali Shahbizraja, an emergency medicine physician at Massachusetts General Hospital.

"It, also, is pretty evident that the fact is that the consequences of those laws are severe, personally, to the physicians themselves. And as a consequence of that, they are going to they're going to, in patients where there's a gray zone and there's a lack of clarity, they're going to err on the side of not treating," Shahbizraja said.

MORE: Texas abortion law means woman has to continue pregnancy despite fatal anomaly

Shahbizraja testified that this appeared to be the case when physicians were treating patients who are plaintiffs in this lawsuit.

"It's making it hard to determine when physicians can act and exercise that in good faith clinical judgment, and that's clear based on the patient's understanding of their discussions with their physicians in their affidavits," Shahbizraja said.

PHOTO: Samantha Casiano, who was forced to carry a nonviable pregnancy to term and give birth to a baby who died four hours after birth, stands outside the Travis County Courthouse, July 19, 2023, in Austin, Texas.

Another expert agreed and said wording of the laws would scare physicians.

"Given that physicians in Texas are practicing under the abortion ban -- where if they're prosecuted they carry risk of losing their license, their livelihood and time in jail -- they're going to practice the most conservatively as possible," Dr. Aaron Caughey, a maternal fetal medicine specialist at Oregon Health & Science University, testified in court Thursday.

MORE: Women suing Texas over abortion bans give emotional testimony

"It is hard to create a list that would delineate all the conditions that would meet a medical indication for abortion. I gave some examples above to give a sense of how you might think about it. But creating an exhaustive list, I believe, would be an impossible task," Caughey said.

Caughey also testified to the care the women who are plaintiffs in the lawsuit could have received in the absence of Texas' bans.

Texas OB-GYN testifies for the state

Dr. Ingrid Skop, a Texas OB-GYN, testified as an expert witness for the state Thursday, arguing that abortion care hadn't changed in Texas despite the state's ban on the procedure. Skop works for the Charlotte Lozier Institute, an anti-abortion group, and has shared her views on abortion publicly in the past.

She said many physicians in Texas are confused about the new abortion law and are misinterpreting it because they don't understand it, which has led to "suboptimal care."

"The law is quite clear," Skop said. "The fault lies with the physicians are not being given guidance by the organizations that usually will give them guidance -- the medical societies and the hospital societies.”

"They should have known they could intervene," she added in reference to reports of women who have been in life-threatening situations after not being able to get an abortion in Texas. "They should not have waited until women were on the verge of death and going to the ICU to intervene."

PHOTO: In this April 26, 2023, file photo, Dr. Ingrid Skop, vice president and director of medical affairs, Charlotte Lozier Institute, testifies during a Senate Judiciary Committee hearing in Washington, D.C.

Skop also argued that, in situations where a fetus cannot be saved, she believes induction is more appropriate than performing a procedure such as dilation and curettage.

"A much more holistic way to progress through the grieving process than to dismember your child and not have a way to grieve."

She added that palliative care and hospice care, including perinatal palliative care should be provided.

Skop added that life-threatening complications often occur close to viability, which she said is around 22 weeks gestation, and "the child is able to survive."

She said doctors can use their judgment in determining if the medical exception applies in a patient's case, but conceded the Texas Medical Board could clarify the law and help physicians understand when abortions are medically necessary.

Closing arguments

In closing arguments, the plaintiffs' attorneys argued that the bans are "dehumanizing" and are putting patients through "torture."

"Far from furthering life, Texas abortion bans harm the life of pregnant people and the lives of their children," Duane, the Center's attorney, said during closing.

Meanwhile, the state argued that the medical exception under the Texas abortion ban passed rational basis review, which is a judicial review to determine if a law is constitutional.

The state also said that because two plaintiffs who testified Wednesday -- Amanda Zurawski and Samantha Casiano -- had their fertility compromised and Dennard's current pregnancy is past viability, they don't risk being harmed by the ban.

District Judge Jessica Mangrum told the attorney in the case it would likely take her "several weeks" to rule, adding, "It will take some time because it's necessary to fully and fairly evaluate what you've put in front of this court."

In a press conference after the hearing, Duane said, "This is not about the right to an abortion. This is about basic human rights."

Wednesday's hearing

Thursday's testimony follows emotional testimony from three of the women filing the suit who detailed the harm they experienced due to the state's abortion ban. All three plaintiffs gave their testimony through tears, with one of the plaintiffs even getting sick on the stand when recalling continuing her pregnancy after not being offered care.

The plaintiffs who testified were Amanda Zurawski, who developed sepsis and nearly died after being refused an abortion when her water broke at 18 weeks; Ashley Brandt, who had to travel to Colorado for abortion care after one of the twins she was carrying was diagnosed with a fatal condition; and Samantha Casiano, who was not offered abortion care and had to carry a nonviable pregnancy to term and give birth to a baby who died four hours later.

MORE: Termination boards: How physicians are providing abortions within exceptions allowed by bans

A fourth plaintiff, Dr. Damla Karsan, an OB-GYN who practices in Texas, also testified Wednesday.

The suit alleges that Texas' abortion bans have denied the plaintiffs and countless other pregnant people necessary and potentially lifesaving medical care because physicians in the state fear liability, according to the suit.

PHOTO: Amanda Zurawski, second from left, and Samantha Casiano, second from right, stand with other plaintiffs and their attorneys outside the Travis County Courthouse, July 19, 2023, in Austin, Texas.

Texas has several abortion laws in place, prohibiting all abortions after six weeks of pregnancy, except in medical emergencies, which the laws do not define. One of the bans -- called SB 8 -- prohibits abortions after cardiac activity is detected, which kept several plaintiffs from accessing care despite their pregnancies being nonviable, according to the suit.

Under Texas' bans, it is a second-degree felony to perform or attempt an abortion, punishable by up to life in prison and a fine of up to $10,000. The law also allows private citizens to sue anyone who "aids or abets" an abortion.

MORE: Doctors face tough decision to leave states with abortion bans

The suit is the first to be filed by women impacted by the abortion bans since the U.S. Supreme Court overturned Roe v. Wade  last year, ending federal protections for abortion rights.

The lawsuit is filed against the state of Texas, Attorney General Ken Paxton -- who was recently impeached -- and the Texas Medical Board.

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The Unethical Texas Heartbeat Law

Casey michelle haining.

1 Centre for Health Equity, Melbourne School of Population and Global Health, University of Melbourne, Melbourne Victoria, Australia

Louise Anne Keogh

Julian savulescu.

2 Oxford Uehiro Centre for Practical Ethics, University of Oxford, Oxford UK

3 Murdoch Children's Research Institute, Melbourne Victoria, Australia

4 Melbourne Law School, University of Melbourne, Melbourne Victoria, Australia

Associated Data

What is already known?

  • The Texas Heartbeat Act, which has been in effect since September 2021, prohibits abortions once a ‘fetal heartbeat’ is detected, except in emergency situations.
  • The law significantly limits access to abortion services in Texas, by essentially prohibiting abortions post 6 weeks' gestation.
  • The law has been subjected to several legal challenges, none of which have been successful to date.

What does this article add?

  • This article provides an overview of some of the ethical concerns the law raises and identifies some of the problems the law creates for women, the health profession and society. The article ultimately argues that the law ought to be quashed.


The ‘Texas Heartbeat Act’ found in the Texas Health & Safety Code (§§ 171.201–171.212), hereafter referred to as ‘the Act’, prohibits abortions once a ‘fetal heartbeat’ is detected, except in emergency situations. Emergency situations are limited to “a life‐threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed” (§171.002). The law makes no exceptions for pregnancies resulting from rape or incest.

What makes the law unique is that it is enforced exclusively by the actions of private citizens bringing civil lawsuits rather than being directly enforced by the State. This means any person, other than an officer or employee of a state or local governmental entity, can bring a case against any person who “performs or induces an abortion” or any person who “aids or abets the performance or inducement of an abortion” once a ‘fetal heartbeat’ is detected (§171.208). While the woman seeking an abortion cannot be sued, the Act's framing is so broad it could potentially impact health professionals, reception staff at a healthcare clinic, family members and friends who counsel the woman, and Uber drivers who drive women to abortion clinics. Furthermore, the person suing does not need to show any connection to those they are suing, and if they are successful, they will receive a minimum of $10,000 (US dollars) and have their legal fees covered.


To date, 13 US states have enacted ‘heartbeat laws’. 1 Until now, all these laws have been struck down by state supreme courts and the US Supreme Court. 2 According to Evans and Narasimhan, US fetal heartbeat bills have increasingly become the anti‐abortion legislative measure of choice, since they were first introduced in 2011. 3 The legislative models adopted by other states were framed in a way which would allow individuals to sue state officials for enforcing an unconstitutional law because these laws directly challenged the federal protection under Roe v Wade , which recognizes the right of a woman to choose to have an abortion up to fetal viability as part of the constitutional right to privacy. 4 The Texas law, however, adopts a different framing. The ‘clever’ drafting of the Act and privatization of enforcement means that judicial review can be evaded 1 and state officials are shielded from being sued for violating the constitution, which arguably makes the law more durable and difficult to challenge. 5 , 6

The Law was passed in May 2021, and was signed by Texas Governor, Greg Abbott (Republican), who said:

“Our creator endowed us with the right to life and yet millions of children lose their right to life every year because of abortion. In Texas, we work to save those lives.” 7

The day before the ban came into effect many women raced against the clock to secure an abortion. One abortion clinic reportedly performed 67 abortions in 17 h to beat the new ban. 8 In a midnight ruling on 1 September, 2021, just prior to when the Act was due to come into force, the US Supreme Court refused to block the legislation, despite appeals from reproductive rights organizations, civil rights organizations, and abortion clinics. 9 The Supreme Court's 5‐4 decision reflected its newly conservative leaning shaped by former president Donald Trump. 9 The Supreme Court claimed that it was not ruling on the constitutionality of the Texas law, but was allowing it to go ahead because of complex legal and procedural questions. 9

The Act came into effect on 1 September, 2021. Following its introduction, there have been several legal challenges; however, no challenge has been successful to date. 10 In December 2021, the US Supreme Court left the door open for future challenges in lower courts on narrow grounds, which was subsequently shut down by the Texas Supreme Court in March 2022. 11


In the Act, fetal heartbeat is defined as “cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac” (§171.201). Such cardiac activity can be detected as early as 6 weeks. 1 At the core of the Act is the idea that as soon as a fetal heartbeat can be detected, the fetus should be considered a person and afforded rights and protections. 12 The sound of the heartbeat is thought to define humanity and therefore justifies a protection of rights. 12 These sentiments are echoed in the legislature findings of the Act:

§171.202 Legislative Findings.

The legislature finds, according to contemporary medical research, that:

  • (1) fetal heartbeat has become a key medical predictor that an unborn child will reach live birth;
  • (2) cardiac activity begins at a biologically identifiable moment in time, normally when the fetal heart is formed in the gestational sac;
  • (3) Texas has compelling interests from the outset of a woman's pregnancy in protecting the health of the woman and the life of the unborn child; and
  • (4) to make an informed choice about whether to continue her pregnancy, the pregnant woman has a compelling interest in knowing the likelihood of her unborn child surviving to full‐term birth based on the presence of cardiac activity.

However, the use of ‘heartbeat’ in the Act is contested and misleading. Medical and reproductive health experts argue that referring to a ‘heartbeat’ is medically inaccurate, as the embryo does not have a developed heart at 6 weeks' gestation. 13 The presence of cardiac activity is not equivalent to the presence of a functioning heart or heartbeat, which is defined as the pulsation of the heart. 3 According to Dr Jen Gunter (Canadian Gynecologist): 14

“An embryo does not have a heart – at least, not what we understand a human heart to be, with pumping tubes and ventricles. At six weeks, a human embryo throbs, but those tissues have not yet formed an organ, so the pulsing should not be confused with a heartbeat.”


Heartbeat laws have been argued to result in “unjustified asymmetry” as they fail to accommodate health professionals “who may find themselves deeply morally opposed to such legislation, believing that they cannot, in good conscience, deny providing an abortion to a woman who requests it, even after a heartbeat is detected”. 15 Such health professionals believe they have a positive obligation to provide abortions for conscience reasons. Indeed, this played out days after the law was introduced, with a Texas Doctor, Dr Alan Braid, publicly admitting in an op‐ed piece in the Washington Post that he violated the Texas law. 16 He wrote:

“[O]n the morning of Sept. 6, I provided an abortion to a woman who, though still in her first trimester, was beyond the state's new limit. I acted because I had a duty of care to this patient, as I do for all patients, and because she has a fundamental right to receive this care … I fully understood that there could be legal consequences — but I wanted to make sure that Texas didn't get away with its bid to prevent this blatantly unconstitutional law from being tested.”

Dr Braid was subsequently sued by two plaintiffs, neither of whom were anti‐abortion, but both decided to sue so the law’s legality could be tested. 17


In addition to the ethical concerns the Act raises, which is discussed in the next section, the Act is problematic for several other reasons including its ability to: undermine a woman's autonomy to decide whether to proceed with a pregnancy beyond a narrow gestational limit; deny access to an in‐demand and evidence‐based health service; increase the likelihood of self‐managed abortions; lead to intimidation through establishing a vigilante system; and undermine medical expertise.

5.1. Narrow gestational limits and undermining women's autonomy

The Act undermines women's autonomy and their right to make decisions about their own sexual and reproductive health, by denying them the ability to make a choice about whether to proceed with a pregnancy, which most women at 6 weeks' gestation are unlikely to be aware of. 1 Even if a woman is aware of the pregnancy, abortion appointments may not be available for several days or weeks at abortion clinics. 18 As such, even women who seek care early in pregnancy may not be able to obtain a lawful abortion within the permissible gestational limits due to inadvertent delays.

Six weeks' gestation also means that women are not able to undertake screening tests for fetal abnormalities and are therefore denied the opportunity to make informed medical decisions.

As indicated by a statement provided by the president of the American Society of Human Genetics:

“The law denies women and their families the ability to use health information stemming from human genetics research by prohibiting abortion after detection of a fetal heartbeat … Because many devasting diagnoses can only be determined later in fetal development … [the Texas law] will prevent women and families from using genetic information to inform reproductive decisions.” 19

While the use of prenatal screening and selective abortion is still viewed by some as being ethically contentious, it is more widely viewed as an essential part of reproductive or procreative autonomy or liberty. 20 Some commentators have argued that abortion can reduce potential harm to the unborn child, if the pregnancy would result in a child being born with severe structural defects or a severe genetic abnormality. In such cases, abortion is believed to prevent the unnecessary suffering of the child and its family, and is supported by the principle of non‐maleficence. 21 Gillam argues that in the special circumstance of fetal abnormality, consideration of the quality of life of the child‐to‐be could justify selective abortion when one accounts for the effects of the disability and compares the quality of life of the child‐to‐be with a non‐disabled child. 22 Similarly, Savulescu argues that there is a moral reason to have a child who is less likely to suffer a genetic condition predicted to reduce that child's health and wellbeing. 23

Women are also strongly in favor of access to genetic testing and selective abortion. Research carried out with women who underwent abortions due to fetal abnormality found that, although women have a choice in such cases, they typically felt like they had no choice. 24 The study reported that women would proceed with the abortion out of compassion, in order to spare a child of a life of suffering. 24 In relation to major fetal abnormalities, research has found that even women who consider themselves to be anti‐choice re‐evaluate their in‐principle opposition to abortion. 25

5.2. Curtailing safe access to an in‐demand evidence‐based health service

Not only does the Texas law undermine women's autonomy, it also limits access to medical care that is evidence‐based and inhibits the delivery of safe, timely and necessary comprehensive care. 26 As claimed by the President of the American Medical Association: 27

“This new law is a direct attack on the practice of medicine and patient reproductive health outcomes. As physicians and leaders in medicine, we urge our nation's highest court to take action immediately … [f]ailure to do so places physicians' clinical judgement and patient access to safe care in dire peril.”

Prior to the Act's introduction, an estimated 55,000 abortions were performed each year in Texas. 28 The number of abortions performed have greatly reduced since the Act's introduction. The first month in which the law was in force saw a 60% decline in abortions performed in Texas. 29 The impact of the Act is particularly profound for vulnerable and marginalized populations. Indeed, some commentators have argued that the law “disproportionately affects black, Hispanic, and women on low incomes, who already face obstacles to [health care].” 7 Such a claim is supported by empirical evidence which has found that patients obtaining second‐trimester abortions in Texas were more likely to be black, on low incomes, and required to travel long distances to obtain in‐clinic care. 30 Given the restrictive nature of the law, the only way women will now be able to access an abortion will be to travel out of Texas. Commentators have predicted that the closure of Texas abortion clinics will increase the average driving distance to a clinic from 19 to 399 km. 31 Due to financial constraints, many women will be unable to travel, and hence will be denied access to abortion services. Moreover, even if women can afford to travel, there is no guarantee they will be able to secure an abortion in other states. Indeed, neighboring states' reproductive health clinics have experienced a flooding of patients following the commencement of the Act, which has raised concerns that clinics in neighboring states will not be able to absorb all the new patients. 28

5.3. Increased likelihood of self‐managed abortion

The restrictive Texas law may also increase the likelihood of women seeking to self‐manage their abortion rather than seeking medical assistance, resulting in unsafe abortion procedures. The prevalence of unsafe abortion remains the highest in jurisdictions which have the most restrictive abortions laws and/or policies. 32 Making abortion legal, safe, and accessible does not appreciably increase abortion demand; it reduces clandestine and unsafe abortion procedures and results in legal and safe ones. 32 Unsafe abortion procedures may result in medical complications and abortion‐related mortality. 32

Importantly, not all self‐managed abortions will necessarily be unsafe. Contemporary reports of self‐management in the US found that a lot of the self‐managed abortions are not necessarily the product of the use of sharp objects or back‐alley providers, but rather medications such as mifepristone and misoprostol. 33 This is believed to parallel with the rise of the Internet being the ‘go‐to source for information and services’. 33 Previous research has found that medical abortion is quite common amongst the Texas population, partly due to the close proximity with the Mexican border, where medical abortion can more easily be obtained due to its large immigration population from Latin America (who tend to be familiar with self‐managed abortion and navigating restrictive abortion laws). 34

At the time of its introduction, it was predicted that the Texas law would increase the number of women seeking to self‐induce abortions using pills obtained by mail. 31 Due to such a threat, the Texas Governor signed a separate bill (SB4 bill) on September 17, 2021 which came into effect on December 2, 2021. 35 The new law narrows the window in which physicians are allowed to give an abortion‐inducing medication to 7 weeks, which also covers medication sent by courier, delivery or mail service. Violations of the law are punishable by up to 2 years in prison and a fine of up to $10,000 (US Dollars). 35

5.4. Establishment of a vigilante system that intimidates

Another issue with the Act is that by enabling private enforcement, it incentivizes strangers to spy on women 36 and encourages vigilante justice. 37 Some commentators have expressed concern that the Act could increase the legal risk for health professionals and expose them to frivolous lawsuits, 38 given the Act essentially creates a pathway for litigation that serves to intimidate and dissuade medical practitioners from providing patients with the medical care they need. 39 Such apprehension was reflected in a joint statement made by leading American physician groups:

“Physicians must be able to practice medicine that is informed by their years of medical education, training, experience, and the available evidence, freely and without threat of punishment, harassment, or retribution.” 26

5.5. Undermine medical expertise

The overhanging threat of litigation that results from the Act is also problematic as it may discourage health professionals from acting in accordance with clinical standards and undermine their medical expertise. For example, in clinical presentations such as cardiomyopathy, lupus and nephrotic syndrome, 40 where there is an increased risk of maternal morbidity or morality, but at the time of diagnosis the woman may not be considered to be in imminent danger, health professionals may be reluctant to terminate the pregnancy out of fear that such a decision could be scrutinized in court due to ambiguity around whether such a scenario would fall within the ambit of the medical emergency exception. 40 Similarly, it has been argued that the law ignores medical conditions that are common indications for termination such as fetal reduction for some cases of severe twin‐twin transfusion syndrome, or pre‐viable premature rupture of membranes when the decision to terminate the pregnancy before the woman is severely ill and at imminent risk of dying from sepsis could be subjected to a legal challenge. 40 Accordingly, the law's narrow framing, and the degree of ambiguity it creates, has the potential to impinge on clinical decision‐making and compromise the health professionals ability to act in the best interests of the woman.

According to one proponent, Senator Bryan Hughes:

“The heartbeat is the universal sign of life … [i]f a Texan's heartbeat is detected, his or her life will be protected.” 13

There are two kinds of termination of pregnancy: (1) medical; (2) social. Medical terminations of pregnancy are performed either to protect the medical interests of the woman or to prevent the fetus going on to live a life which is not in its interests, that is, a life not worth living because of a disorder which is severe. The law gives some consideration of the severe threat to maternal medical interests, but no consideration of termination in the case of severe fetal abnormality. While it is hard to draw the line at which life becomes no longer worth living, there is a general consensus that some fetal abnormalities such as anencephaly, severe epidermolysis bullosa or Lesch‐Nyhan syndrome may make life so devoid of positive experience as to be not worth living. 41

Social terminations are performed to respect the autonomy of the woman or promote her wider interests or well‐being. At the heart of this law is the vexed question of when a human organism acquires a right to life and special protection in law. The most rigorous analysis of the ethics of abortion is Jeff McMahan's ‘The Ethics of Killing: Problems at the Margins of Life’. 42 McMahan's view is that a human being does not acquire a moral status until some higher form of consciousness begins after birth. 42 This entails the permissibility of certain forms of infanticide. 43

Most liberal legal jurisdictions are based on the view that the fetus does not acquire moral status until birth, or at least the woman's interests and autonomy outweigh any moral status until that point. Such a view of moral status allows early and late abortion. We cannot settle the issue of fetal moral status or the ethics of abortion in this short commentary. What we aim to show in this section is that there is no plausible ethical account of moral status that supports the Texas law. We consider 3: (a) consciousness‐based accounts, (b) potentiality accounts; and (c) gradualist accounts.

  • (a) Consciousness‐based accounts of moral status

The law itself is careful to try to avoid this issue directly, by arguing that the presence of a fetal heartbeat indicates a high chance that the baby will go on to be born alive. But this begs the question around moral status: is being born alive what matters? An anencephalic baby can be born alive, only to die soon after birth. Even if the means were available to keep an anencephalic baby alive indefinitely, most people would argue that such a life should not be prolonged because of the total lack of consciousness, or anything of value in human life.

Modern technology can identify that an embryo is alive and developing. There are more and more predictors of the probability of normal development and birth, such as whole genome analysis and artificial intelligence assisted selection of embryos when in vitro fertilization is performed. 44 But it is not mere probability of survival that matters; it is something distinctive about human life that accords it special significance and rights.

One way to address when moral status begins is to ask when does it end? If we look to the other end of life – death – we gain one insight into what matters. 45 Over 50 years ago, most countries moved from a cardiorespiratory definition of death to a brain death definition. It is not the presence of a heartbeat that matters, but the presence of brain function. Indeed, some have even called for a move from whole brain or brainstem death to neocortical death – the complete lack of consciousness. While no country has adopted a neocortical definition of death, many jurisdictions allow the withholding or withdrawing of life‐prolonging medical treatment if a patient is permanently unconscious. As was reasoned in the landmark UK case of Airedale National Health Service Trust v Bland (which has been widely applied), prolonging life by administering treatment that is futile (such as when a person is unconscious with no chance of improving) cannot be in the patient's best interests, and withholding and withdrawing treatment in such cases would be lawful. 46

So, if our life, our biography as James Rachels put it, 47 ends when we become unconscious permanently, it begins when we become conscious. Consciousness depends on the activation of the cortex by thalamocortical connections around 24 weeks after conception. 48 Indeed, some philosophers such as Jeff McMahan, 42 Peter Singer 49 and Michael Tooley 50 have argued, it is not mere consciousness that matters, but high levels of consciousness such as self‐consciousness or rational/moral capacities, which do not commence until after birth. This would allow late abortion (and infanticide). 43

  • (b) Potentiality accounts of moral status

The main argument against such views of moral status which allow abortion is the argument that the embryo and fetus prior to consciousness have the capacity or potential to lead a full human life with self‐consciousness and advanced cognitive capacities. There are arguments for and against potentiality as a ground for moral status. 51 , 52 The most prominent argument against it is that a potential X does not have the same rights as an actual X: a potential King of England does not have the same rights as an actual King. But even if the potentiality argument were to succeed, it would not support the Texas law as the embryo from the moment of conception has the potential to be a person. Potentiality might justify a complete ban, but not a heartbeat law.

The approach taken in the legislation is to argue that the probability of personhood increases with the presence of a heartbeat. But the mere increase in chance of being born alive does not affect potentiality or moral status. We do not say that a person with terminal condition that cannot be treated has no right to life. They do have a right to life – we just cannot satisfy it. They have moral status because they are a person; the fetus does not yet have moral status because it is not yet a person.

  • (c) Gradualist accounts of moral status

The most popular view of moral status amongst the lay public is that the fetus gradually acquires increasing moral status during pregnancy, meaning that abortion at advanced gestations requires much stronger justification. This account will not support the Texas law. Even if one does accord some (or even full) moral status to the early fetus, this must be weighed against the interests and autonomy of the pregnant woman. 53 As we have argued, the law represents a severe threat to both the health and autonomy of women.

The Texas law is a bare faced attempt to introduce anti‐abortion laws with a flimsy, or actually non‐existent, argument that will harm women, the health profession and society. It is problematic and unethical, and ought to be quashed.


Julian Savulescu is a Partner Investigator on an Australian Research Council grant LP190100841 which involves industry partnership from Illumina. He does not personally receive any funds from Illumina. Julian Savulescu is a Bioethics Committee consultant for Bayer.


This research was funded in whole, or in part, by the Wellcome Trust [Grant number WT203132/Z/16/Z]. For the purpose of open access, the author has applied a CC BY public copyright license to any Author Accepted Manuscript version arising from this submission. Julian Savulescu, through his involvement with the Murdoch Children's Research Institute, received funding from the Victorian State Government through the Operational Infrastructure Support Program. Julian Savulescu and Louise Anne Keogh also received funding from an Australian Research Council Discovery Grant (Grant number DP210102916).


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EXPLAINER: Texas abortion law gets Supreme Court arguments

In this Oct. 4, 2021 photo, the Supreme Court is seen on the first day of the new term, in Washington. Abortion already is dominating the Supreme Court’s new term, months before the justices will decide whether to reverse decisions reaching back nearly 50 years. Not only is there Mississippi’s call to overrule Roe v. Wade, but the court also soon will be asked again to weigh in on the Texas law banning abortion at roughly six weeks. (AP Photo/J. Scott Applewhite)

The Supreme Court is seen on the first day of the new term as activists opposed to abortion demonstrate on the plaza, in Washington, Monday, Oct. 4, 2021. Arguments are planned for December challenging Roe v. Wade and Planned Parenthood v. Casey, the Supreme Court’s major decisions over the last half-century that guarantee a woman’s right to an abortion nationwide. (AP Photo/J. Scott Applewhite)

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WASHINGTON (AP) — The Supreme Court on Friday allowed a Texas law that bans most abortions to remain in effect for now. But in an unusual move the justices said they want to hear arguments in the case at the soonest opportunity.

Those arguments at the high court on Nov. 1 will help the justices decide whether the law, the most restrictive abortion law in the nation, should be blocked while legal challenges continue.

The law, known as Senate Bill 8, has been the subject of a series of legal challenges since before it went into effect in September, and it made one previous trip to the high court. Except for a brief window when a lower court judge blocked it , however, it has remained in place. That has meant that most women in Texas seeking abortions have been unable to get them unless they travel out of state.

Here are some questions and answers about the law, its path through the courts and what happens next.

This is a locator map for Iran with its capital, Tehran. (AP Photo)


The challenges to Texas’ law now before the Supreme Court were brought by abortion providers and the Biden administration .

Texas law prohibits abortions once medical professionals can detect cardiac activity — usually around six weeks, before some women know they’re pregnant. That conflicts with Supreme Court precedent, which says states are prohibited from banning abortion before viability, the point at which a fetus can survive outside the womb, around 24 weeks of pregnancy.

The Supreme Court could reconsider those precedents in a case it’s hearing in December , but it hasn’t yet.

As far as the Texas law goes, the way it is written has so far made it unusually difficult to challenge in courts. The question the justices are considering is whether the Justice Department and abortion providers can challenge the law in federal court. Even if the justices decide that either or both can sue, they still must vote on whether to allow the law to remain in effect while the legal challenges continue.


The court is moving at a really rapid pace. Normally there are months between when the court agrees to hear a case and arguments in a courtroom. This time the court has put the parties on an extraordinarily compressed time table to file briefs and prepare for arguments in a little over a week. That suggests the justices plan to make a decision quickly.

In addition, usually the high court only agrees to hear arguments in cases where lower federal courts have decided an issue in conflicting ways. That’s not the case here.


The law differs from similar efforts to restrict abortions in other states by leaving enforcement to private citizens, who can sue doctors or anyone who helps a woman get an abortion. That unique enforcement mechanism has frustrated efforts to challenge it. Usually the state would enforce the law and suing state officials would be the appropriate legal avenue.


Yes. Abortion providers brought their challenge before the law went into effect and sought to have the Supreme Court step in to stop it. The court declined in a 5-4 ruling. The justices in the majority said “serious questions” had been raised about the law. But they cited a host of issues, including the law’s novel enforcement mechanism and the fact that no one had yet actually attempted to sue someone under the law for helping a woman get an abortion, as among the reasons they declined to intervene. The majority stressed it was not making any conclusions about the constitutionality of the law.

Liberal justices and Chief Justice John Roberts dissented. Justice Sonia Sotomayor called her conservative colleagues’ decision “stunning.” Justice Elena Kagan wrote that the law was “patently unconstitutional,” and Justice Stephen Breyer said a “woman has a federal constitutional right to obtain an abortion during” the first stage of pregnancy.


The four justices who would have blocked the law in the first place all have raised questions about its unusual structure. It’s not clear if one or more of the conservatives who initially voted to let the law take effect will be persuaded by the administration’s arguments and now vote to halt the law’s enforcement.


Since the law took effect in early September, providers say 80% or more of abortions previously provided in the state are now prohibited. Texas women have sought out abortion clinics in neighboring states , some driving hours through the middle of the night and including patients as young as 12 years old. The law makes no exception in cases of rape or incest.

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The Supreme Court heard arguments in Texas abortion law case

Nina Totenberg at NPR headquarters in Washington, D.C., May 21, 2019. (photo by Allison Shelley)

Nina Totenberg

The Supreme Court heard arguments in a case involving a controversial Texas law that in effect bars abortions after six weeks of pregnancy, well before most women know they are pregnant.


The U.S. Supreme Court heard nearly three hours of argument today focused on the Texas law that has effectively shut down abortions in the state. SB 8 bans abortions after about six weeks, and that's before many women know they're pregnant. The law is designed to avoid review by the federal courts because it targets private individuals. They can be sued for damages for helping someone get an abortion. NPR Legal Affairs Correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: This is the second time the novel Texas law has come before the court. Two months ago to the day, a conservative court majority in a midnight ruling refused to block the law from going into effect. The result was that abortion in the state came to a virtual halt, prompting a national firestorm. Today, the court heard arguments from not just abortion providers, but from the federal government, which intervened in the case, contending that part of its job is to ensure that state laws do not nullify the Supreme Court's constitutional rulings. The Biden administration's new solicitor general, Elizabeth Prelogar, summarized the case this way.


ELIZABETH PRELOGAR: There has never been a law exactly like this one. No state has ever sought to challenge the supremacy of federal law and keep the courts out of the equation in quite the same way.

TOTENBERG: But the justices, both liberal and conservative, saw her argument as potentially giving the federal government unprecedented power to intervene in state policies. Chief Justice Roberts.

JOHN ROBERTS: You say this case is very narrow, it's rare, it's particularly problematic, but the authority you assert to respond to it is as broad as can be.

TOTENBERG: Part of the problem in the case is what Justice Kagan referred to as the procedural morass that the court has gotten itself into. Here, for example, is Justice Breyer, one of the court's liberals.

STEPHEN BREYER: There are 4 billion court suits in the United States, OK? And probably in 3 billion of them, somebody thinks something's unconstitutional, all right? So can they all sue the judge?

UNIDENTIFIED PERSON #1: And everybody goes in to federal court.

BREYER: Sues the judge and the state court - all right, what's the difference between this case where you think he's an enforcer and 4 billion other cases? You've read their briefs. All right. You understand their argument. What's your response to it?

TOTENBERG: And why, asked Justice Alito, one of the court's conservatives, shouldn't these cases be litigated in the states' courts first?

SAMUEL ALITO: It's unprecedented, and it is contrary to our system of federalism to enjoin a state judge even from hearing a case. So your answer is one federal judge can't enjoin another federal judge, but a federal judge can enjoin state judges because they're lower creatures. That's the answer?

TOTENBERG: But as much as the conservative members of the court appeared hostile to the federal government's intervention, three of them - Kavanaugh and Barrett, both Trump appointees, and Chief Justice Roberts - indicated real doubts about the Texas law. Kavanaugh asked Texas Solicitor General Judd Stone whether if the court were to in the future invalidate some of its abortion precedents, the clinics in Texas would be liable for abortions that took place in the past.

BRETT KAVANAUGH: Are you saying that the state could then reach back and retroactively or allow suits that would reach back and retroactively impose liability on entities that were committing lawful acts as of the time?

TOTENBERG: Yes, replied Solicitor General Stone. Kavanaugh looked incredulous.

KAVANAUGH: Millions and millions retroactively imposed, even though the activity was perfectly lawful under all court orders and precedent at the time it was undertaken, right?

UNIDENTIFIED PERSON #2: Undoubtedly, Your Honor.

TOTENBERG: Justice Barrett also expressed skepticism about the breadth of the law and the way it was designed to prevent review by the federal courts. Prodded by all the justices, the Texas solicitor general said that neither the federal government nor the abortion providers can seek review of the state law now. Rather, he maintained, the cases must first be litigated by the state courts. Justice Kagan responded that if there's no immediate recourse when a state enacts a patently unconstitutional law...

ELENA KAGAN: Essentially, we would be inviting states - all 50 of them - with respect to their own preferred constitutional rights, to try to nullify the law that this court has laid down as to the content of those rights. There's nothing the Supreme Court can do about it. Guns, same-sex marriage, religious rights, whatever you don't like - go ahead.

TOTENBERG: A decision in the case is expected by summer.

Nina Totenberg, NPR News, Washington.


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Supreme Court Allows Texas Abortion Law to Stand, But Says Abortion Providers Can Challenge It

Abortion rights advocates and anti-abortion demonstrators rally outside the Supreme Court on Nov. 1, in Washington, D.C. as the Supreme Court heard arguments in a challenge to the controversial Texas abortion law which bans abortions after about six weeks. (Drew Angerer—Getty Images)

T he Supreme Court will once again allow Texas’ law that bans most abortions after about six weeks to stay in effect, it said Friday, but it will allow a group of abortion providers to challenge the law.

In a 5-4 decision, the justices said that while the providers’ lawsuit could move forward against some state licensing officials, they would not allow the providers to sue other defendants. In a separate decision, the Court dismissed the U.S. Department of Justice’s challenge to the Texas law and rejected the government’s request to reinstate a federal district court order blocking the law.

The decisions brought both hope and disappointment to abortion rights advocates. This marks the third time the high court has declined to halt the controversial Texas abortion law since it went into effect Sept. 1. The law will now continue to be in effect in Texas as the abortion providers’ case makes its way through the courts.

Justice Neil Gorsuch, who was appointed by President Donald Trump, wrote the majority opinion in the abortion providers’ case. Most of his conservative colleagues joined that opinion, but the justices’ opinions were split over details of the case.

Many of the justices wrote their own opinions. Conservative Justice Clarence Thomas dissented from the majority in part, writing that he would not have allowed the providers’ lawsuit to go forward at all. Chief Justice John Roberts filed his own opinion, too, joined by the high court’s three liberal justices, concurring in part and dissenting in part. Justice Sonia Sotomayor, joined by her two liberal colleagues Stephen Breyer and Elena Kagan, also filed a separate opinion dissenting in part and concurring in part.

Abortion rights before the Supreme Court

The high court’s decision comes at a critical moment for abortion rights in the United States. On Dec. 1, the Supreme Court heard oral arguments in another abortion case, Dobbs v. Jackson Women’s Health Organization , which presents the most direct challenge to Roe v. Wade since that case established the constitutional right to abortion in 1973. While Dobbs likely won’t be decided until the end of the Court’s term next June, the justices’ questions seemed to signal they are open to completely overturning Roe v. Wade .

Read More: Inside Mississippi’s Last Abortion Clinic—And the Biggest Fight for Abortion Rights in a Generation

The Texas law directly contradicts Roe , which said that states cannot ban abortion before fetal viability, which occurs around 24 weeks into pregnancy. In the Texas cases, the Supreme Court justices did not directly consider the constitutionality of the state’s law, known as Senate Bill 8 (SB 8). Instead, they weighed complicated procedural questions about the law’s enforcement mechanism, which had previously allowed it to avoid federal judicial review.

The law imposes the country’s most stringent abortion restrictions, prohibiting nearly all abortions after roughly six weeks, before many people know they are pregnant—with no exceptions for pregnancies resulting from rape or incest. SB 8 bars state officials from enforcing it and instead empowers private citizens to sue anyone who provides an abortion, or aids someone in obtaining one. The law also offers at least $10,000 to anyone who files a complaint.

This vigilante-style enforcement mechanism has made it difficult for those challenging the law to know who to sue. But for now, the abortion providers’ suit against some licensing officials in Texas will be allowed to return to lower courts and proceed from there.

An unusual case

During oral arguments over the two cases on Nov. 1, many of the justices seemed more interested in allowing the providers’ lawsuit to move forward than in the questions raised by the Department of Justice. Justices Brett Kavanaugh and Amy Coney Barrett appeared especially open to the challengers’ arguments that the law’s novel structure should not be allowed to insulate it from judicial review.

The Court’s decision came much more quickly than usual after the Justice Department and abortion providers each filed emergency appeals asking the high court to step in while the cases were making their ways through the lower courts.

Still, SB 8 has been in effect for more than three months, and it will remain that way unless another court rules against it.

While the Supreme Court is allowing the abortion clinics to move forward with their suit, it also limited the paths they can take to challenge the law. The conservative majority said that the abortion providers could sue several state officials but not state court judges or clerks, which would have allowed the providers to try to block the law more directly by targeting the people who accept SB 8 enforcement lawsuits. In his opinion, Gorsuch quoted a previous decision and said allowing those officials to be sued would be “a violation of the whole scheme of our Government.” In addition to the abortion providers’ narrowed suit, the justices noted that state courts could still block the law.

Sotomayor strongly disagreed with Gorsuch and her conservative colleagues’ reasoning, arguing that by rejecting the lawsuits against Texas state court officials, the high court is essentially encouraging other laws similar to the one in Texas. If the justices had said none of the challenges against the Texas law could move forward, legal scholars warned that the enforcement mechanism of private citizen lawsuits could be used to target other civil rights regardless of ideology, including gun ownership or same-sex marriage—something Sotomayor warned could still happen.

“By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government,“ she wrote.

Abortion is likely to remain severely restricted in Texas for some time. The risk of expensive and time consuming lawsuits has so far prevented most doctors from performing abortions that would violate the law, effectively stopping most abortion services in the state. This has meant that many Texans have traveled out of state to seek abortions over the last three months, while others have been forced to continue pregnancies they did not want, and abortion clinics have struggled to retain staff and keep their doors open under the restrictive law.

Read More: Inside The Small Group of Doctors Who Risked Everything to Provide Abortions in Texas

Now that the abortion providers’ lawsuit challenging SB 8 will return to federal court, their case can focus directly on whether the law is unconstitutional, and the dispute could ultimately end up back at the Supreme Court.

In the meantime, other states are already following Texas’ lead. Conservatives in at least half a dozen states have said they want to introduce legislation modeled after the Texas law, and Florida, Ohio and Arkansas have already done so.

Advocates on both sides of the abortion debate are also preparing for the Supreme Court’s decision in the Dobbs case, which centers on a Mississippi law that bans abortion after 15 weeks. If the Court ultimately upholds that law, it would also encourage other states to revisit previous laws or pursue new bills banning abortion early in pregnancy.

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arguments against texas abortion law


Supreme court arguments on texas abortion law supreme court appears open to letting providers challenge texas abortion law.

The Supreme Court heard two challenges on Monday to the law, which bars most abortions in Texas after about six weeks of pregnancy. The first was brought by abortion providers in Texas, and the second was brought by the Justice Department.

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Adam Liptak

Adam Liptak

The Supreme Court hints that it may allow a challenge to the Texas abortion law.

After almost three hours of lively arguments, a majority of the justices seemed inclined to allow abortion providers — but perhaps not the Biden administration — to pursue a challenge to a Texas law that has sharply curtailed abortions in the state .

That would represent an important shift from a 5-to-4 ruling in September that allowed the law to go into effect. Justices Brett M. Kavanaugh and Amy Coney Barrett, who were in the majority in that ruling, asked questions suggesting that they thought the novel structure of the Texas law justified allowing the providers to challenge it.

Justice Kavanaugh said that might amount to closing a loophole. Justice Barrett said the law was structured to prevent the providers from presenting a “full constitutional defense.”

Such a decision would not conclude the case or address whether the law itself is constitutional. Instead, it would return the case to lower courts for further proceedings. It was, moreover, not clear whether the court would temporarily block the law while the case moved forward if it allowed either the providers or the administration to sue.

The law, which went into effect on Sept. 1, was drafted to evade review in federal court, a goal the state has so far achieved. The law, which bans most abortions after about six weeks and includes no exceptions for pregnancies resulting from rape or incest, has caused clinics in the state to turn away many women seeking the procedure.

Charlie Savage

Charlie Savage

Top lawyers dueled over Texas’ novel anti-abortion law.

The United States solicitor general and a lawyer for Texas abortion providers urged the Supreme Court on Monday to block enforcement of the state’s anti-abortion law, while a top lawyer for Texas told the justices they had no power to do so.

Over about three hours of arguments that sometimes delved into highly technical matters, the Supreme Court wrestled with whether it could or should issue an injunction barring Texas state courts from hearing suits filed under the law, known as Senate Bill 8.

The law, which bars most abortions after about six weeks, has raised novel issues because it is not clear whom a court could order not to carry it out. It relies not on government officials but on private citizens to enforce it, with $10,000 bounties for successful lawsuits.

Arguing that the Texas law was blatantly unconstitutional and was chilling people’s exercise of their rights, Marc A. Hearron, a lawyer with the Center for Reproductive Rights, which represents the providers, said the Supreme Court should enjoin clerks of Texas state courts from accepting such lawsuits.

But Texas’ solicitor general, Judd Stone II, argued that it would be unconstitutional for the federal judiciary to enjoin a state court or state judge from hearing such lawsuits. He cited a 1908 case called Ex parte Young, which said state officials could be sued in federal court to block enforcement of unconstitutional state laws but also said that this mechanism could not be used to “restrain the state court from acting in any case brought before it.”

The federal solicitor general, Elizabeth Prelogar, argued that the principle laid out in the 1908 case did not apply to the situation raised by the Texas state law, which she said was written to evade judicial review and thwart the supremacy of federal law.

“I recognize that this seems like a novel case, and that’s because this is a novel law,” Ms. Prelogar said. “But we do not think that a recognition here that the United States can intervene to try to protect the supremacy of federal law would open the floodgates” in ordinary state court proceedings.

arguments against texas abortion law

Aishvarya Kavi

Demonstrators gather outside of the court.

Protesters gather as court hears arguments on texas abortion law, abortion rights demonstrators and opponents of abortion rights rallied outside the supreme court as justices heard challenges to a texas law that bans most abortion after about six weeks with no exceptions for pregnancies resulting from rape or incest..

“We have to continue to speak out.” “Abortion saves lives.” “[Unclear] know best — we know what our capacity is.” “[unclear] for my Black people.” [cheering] “[unclear] so much to listen to me.” “Hey hey, ho ho, Roe v. Wade has got to go. Hey hey, ho ho —” “Abortion hurts women.” [unclear] “Pro-life, pro-woman.”

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Dozens of protesters gathered in front of the Supreme Court during arguments on Monday, as the justices heard challenges to the Texas law that prohibits abortions after about six weeks of pregnancy.

Demonstrators from around the country gathered at the foot of the steps, most carrying signs supporting abortion rights and marking the sidewalks in chalk as the arguments, which were streamed live, played from speakers.

“It’s really sad to think about what women across my state are going through at the moment,” said Abby Springs, a senior at the University of Texas, Austin, who is studying in Washington for a semester. “As we speak, right now, women are having to drive hours and hours and hours across state lines just to be able to access an abortion.”

Valerie Reyes-Jimenez, a community organizer from New York City, said she arrived on a bus this morning with demonstrators from Housing Works, a nonprofit that supports efforts to end AIDS and homelessness. She said she thought the Texas law was especially harmful to women’s health because of the six-week timeline.

“I had an abortion when I was 13, and I have no regrets about it,” she said, adding that she had been about 10 weeks pregnant at the time. “I am a mother and a grandmother today, but I knew that was the right decision for me.”

Tens of anti-abortion demonstrators were also gathered before the Supreme Court, many dressed in red and carrying red heart-shaped balloons to show their support for the Texas law, which is known as the “heartbeat act” because it bans abortion after cardiac activity is detected. Many were organized to attend by the Texas attorney general’s office and declined to speak with reporters.

Christopher Palmer, 20, said he came to Washington from New Jersey with students from Rider University’s students for life organization to show that the Texas abortion law had support from young people.

“I think the Supreme Court should allow the State of Texas to make a decision,” adding that he and his organization wanted to see the court enable “ending abortion in America, starting with Texas and going state by state.”

Many of the abortion-rights demonstrators said they were planning to be back at the court on Dec. 1, when the court is scheduled to hear a case on Mississippi’s ban on abortions after 15 weeks of pregnancy .

Katie Benner

Katie Benner

Justice Sotomayor asked Mitchell why those who sue abortion providers under S.B. 8 are not agents of the state. He argued that there was no agency relationship “because the state is statutorily forbidden” from enforcing the law and therefore cannot act with private citizens who may feel moved to file a private lawsuit.

Justice Kagan also seemed to reject Stone’s assertion that the United States is overstepping its boundaries in bringing its suit. If the Supreme Court upholds S.B. 8, “any state can effectively nullify any federal constitutional law,” she said.

J. David Goodman

J. David Goodman

Jonathan Mitchell, a former solicitor general for Texas, is now speaking. He was a main architect of the unique structure of the Texas abortion law, which has been at the heart of the debate today.

Justice Elena Kagan says most cases claiming a chilling effect are speculative. Here, she says, “we know exactly what has happened,” referring to the sharp curtailment of abortions in the state. Here is some data behind that .

Justice Kagan engaged in a heated exchange with Stone, pushing back on his assertions that it was still a hypothetical that S.B. 8 had all but ended abortion in Texas. “The provisions in this law have prevented every woman in Texas from exercising a constitutional right, as declared by this court,” she said. “That’s not a hypothetical. That’s an actual.”

Justice Stephen Breyer and the ‘virtually irreconcilable’ abortion debate.

Justice Stephen G. Breyer, who is 83 and is the senior member of the court’s liberal wing, has written opinions striking down laws that restrict abortions in Nebraska, Texas and Louisiana. In the Nebraska opinion in 2000, Justice Breyer wrote that the debate over abortion involved “virtually irreconcilable points of view.”

“Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it,” he wrote. “Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”

In September, when the Supreme Court refused to block the Texas law, Justice Breyer dissented.

“Texas’ law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy,” he wrote. “But a woman has a federal constitutional right to obtain an abortion during that first stage.”

He acknowledged some of the procedural difficulties in the case, but he said the court had the power to act and should not hesitate to be creative. “It should prove possible to apply procedures adequate to that task here,” he wrote.

Ruth Graham

Whatever happens to S.B. 8, the anti-abortion movement has been successful at curtailing practical access to the procedure in Texas. There are about 24 abortion clinics in the state, compared to more than 200 “crisis pregnancy centers” aligned with anti-abortion organizations. And patients must receive an ultrasound at least 24 hours before obtaining an abortion, requiring two trips to a facility.

Justice Sonia Sotomayor is a fierce critic of the Texas law.

Four justices issued dissents when the Supreme Court refused to block the Texas law, but Justice Sonia Sotomayor’s opinion was by many measures the most striking.

“The court’s order is stunning,” she wrote. “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.”

“Because the court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas,” she wrote, “I dissent.”

Almost two months later, the court again refused to take immediate action against the law and instead agreed to fast-track appeals from abortion providers in the state and the Justice Department, giving rise to Monday’s arguments. Justice Sotomayor was the only member of the court to issue a dissent from its refusal to block the law in the meantime.

“For the second time, the court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas,” she wrote . “For the second time, the court declines to act immediately to protect these women from grave and irreparable harm.”

What is Ex Parte Young, much-discussed in the Texas abortion case?

As the Supreme Court struggled on Monday with whether it could or should block Texas courts from hearing lawsuits by private citizens against abortion providers under the state’s novel anti-abortion law, a 1908 case called Ex Parte Young kept coming up.

That case involved a dispute over a Minnesota law on railroad rates and a federal lawsuit against the state’s attorney general, Edward Young. The Supreme Court held that state officials could be sued in federal court to prevent them from trying to enforce unconstitutional laws.

However, the court’s majority decision, written by Justice Rufus W. Peckham, said that this mechanism could not be used to “restrain the state court from acting in any case brought before it either of a civil or criminal nature.”

He added: “An injunction by a federal court against a state court would violate the whole scheme of this government, and it does not follow that, because an individual may be enjoined from doing certain things, a court may be similarly enjoined.”

The twist raised by the Texas anti-abortion case is that state officials are forbidden to enforce the law, which conflicts with the Supreme Court’s current abortion rights rulings. Instead, the law is enforced by private citizens’ filing lawsuits against abortion providers, or against people who assist them or women seeking abortions.

The plaintiffs — the Justice Department and abortion providers in Texas — have sought to address that twist by seeking an injunction barring state courts from hearing such cases.

Anti-abortion activists see a glimpse of ‘post-Roe Texas.’

For anti-abortion activists in Texas, this fall has been a taste of the future they have long dreamed about.

“This is really a glimpse of what a post-Roe Texas is going to look like,” said John Seago, legislative director for Texas Right to Life, the state’s largest anti-abortion group. “The last two months have been a victory for the pro-life movement.”

On Monday the Supreme Court will take up challenges to Texas’ new anti-abortion law, the most restrictive in the nation, exactly two months after it took effect.

The law, which in effect banned abortion after about six weeks of pregnancy, had an immediate impact on the availability and practice of the procedure in the state, where access to the procedure had already been declining for years. Texas has about 24 abortion facilities, down from 40 less than a decade ago. When the new law, known as Senate Bill 8, went into effect, those clinics said they would immediately comply, with many pausing all abortion services while they sorted out the legal implications of the law. The number of abortions in the state dropped 50 percent in September 2021 compared to the same month in 2020, according to an analysis released on Friday by researchers at the University of Texas at Austin.

Texas has been the center of the abortion debate since Norma McCorvey, also known as Jane Roe, sought an abortion in Dallas in 1969. She wasn’t able to procure the procedure, but her attempt led to the landmark 1973 Roe v. Wade Supreme Court case, which legalized most abortions.

Mr. Seago planned to be in Washington on Monday for the Supreme Court oral arguments. He said his organization was optimistic about the outcome, based in part on the fact that the court had declined to pause the law while the justices considered its validity.

Not all activists were as confident. Joe Pojman, the executive director for Texas Alliance for Life, said he foresaw a possible defeat in the fact that the court had agreed to hear the case so quickly. He planned to tune into the hearing from his office in Austin.

“We have not known each day when the sun rises if the courts will change,” he said. “But each day we consider a victory.”

Sabrina Tavernise

Sabrina Tavernise

Many Texas women are now traveling out of state for abortions.

When the new Texas abortion law took effect in September, the impact was swift. With abortions largely prohibited in the state after about six weeks, Texans with unwanted pregnancies were forced to make decisions quickly. Many opted to travel out of state for the procedure.

As a result, clinics in Oklahoma and beyond quickly filled up with appointments from Texans.

“We had every line lit up for eight hours straight,” said Jennifer Reince, who works the front desk phones at a clinic in Oklahoma City, describing the first week the measure was in force.

And as clinics in surrounding states filled up, appointments were being scheduled for later and later dates, making the procedures more costly. Abortions at the Trust Women Oklahoma City clinic range in cost from $650 for earlier stages to $2,350 for later stages. Financial assistance is also available.

In the weeks immediately after the Texas law got underway, about half the patients at the Hope Medical Group for Women in Shreveport, La., were from Texas, up from about a fifth before the law. At Little Rock Family Planning Services, in Arkansas, Texas patients made up 19 percent of the caseload, compared with less than 2 percent in August. Oklahoma does not require two trips to a clinic to get an abortion in most cases, so it became a common choice. At Trust Women, patients came from as far away as Galveston and Corpus Christi.

Other women are having to carry their pregnancies to term.

Marva Sadler, senior director of clinic services at Whole Woman’s Health, which operates four clinics in Texas, said she believed that many patients were not able to arrange child care or take time off work without losing their jobs to travel to other states.

“I think a majority of women are being sentenced to being parents,” she said.

Michael S. Schmidt

Michael S. Schmidt

Jonathan Mitchell developed the legal approach behind the Texas law that has flummoxed the courts.

Jonathan F. Mitchell represents a new iteration of the anti-abortion campaign.

Instead of focusing on stacking the courts with anti-abortion judges, trying to change public opinion or pass largely symbolic bills in state legislatures, Mr. Mitchell, 45, has spent the last seven years honing a largely below-the-radar strategy of writing laws deliberately devised to make it much more difficult for the judicial system — particularly the Supreme Court — to thwart them, according to interviews.

Never an especially prominent, popular or financially successful figure in the conservative legal world — he was best-known for litigation seeking to limit the power of unions — Mr. Mitchell is only now emerging as a pivotal player in one of the most high-profile examples yet of the erosion of the right to abortion.

The oldest of seven brothers, he was raised in a religious Christian home in Pennsylvania. He attended Wheaton College, a small school in Illinois that “prepares students to make an impact for Christ,” according to its website. Friends refrain from calling him on Sundays, as they know he spends at least several hours at church.

As his role has started to become more widely known, he has drawn intense criticism from abortion rights supporters not just for restricting access to the procedure but also for what they see as gaming the judicial system through a legislative gimmick they say will not withstand scrutiny.

But Mr. Mitchell, a onetime clerk to Justice Antonin Scalia who has already seen one anti-abortion law that he worked on gutted by the Supreme Court, vowed that if he ever had the chance to help develop another restricting measure, he would ensure that it survived the high court’s review.

The audacious legislative structure that he conceived of — built around deputizing ordinary citizens to enforce it rather than the state — has flummoxed lower courts and sent the Biden administration and other supporters of abortion rights scrambling for some way to stop it.

Prelogar: “I recognize that this seems like a novel case, and that’s because this is a novel law. But we do not think that a recognition here that the United States can intervene to try to protect the supremacy of federal law would open the floodgates” in ordinary state court proceedings.

Justice Samuel Alito has a career-long history of opposing abortion rights.

As a government lawyer, as an appeals court judge and on the Supreme Court, Justice Samuel A. Alito Jr. has consistently opposed legal protections for abortion. He was in the majority in September when the court refused to block the Texas law.

Applying for a promotion as a young lawyer in the Reagan administration in 1985, he wrote that he was proud to have helped advance “legal positions in which I personally believe very strongly.” One of those positions, he said, was that “the Constitution does not protect a right to an abortion.”

As an appeals court judge, he voted in 1991 to uphold a Pennsylvania law that required women seeking abortions to notify their husbands. “Pennsylvania has a legitimate interest in furthering the husband’s interest in the fate of the fetus,” he wrote. The U.S. Supreme Court rejected his position the next year in Planned Parenthood v. Casey.

In a combative speech at Notre Dame in September, he defended the Supreme Court’s decision not to block the Texas law, saying it turned on procedural issues and had nothing to do with the fate of Roe v. Wade.

Chief Justice John Roberts has said that the court should not lightly overrule its precedents.

When the Supreme Court refused to block the Texas abortion law in September, Chief Justice John G. Roberts Jr. voted with the court’s three liberal members in dissent. That was in one sense a surprise: There is no reason to believe that the chief justice, a conservative appointed by President George W. Bush, is a committed supporter of abortion rights.

But he does view himself as the custodian of the court’s prestige and authority, and he has said that the court should not lightly overrule its precedents. Last year, he voted with what was then the court’s four-member liberal wing to strike down a restrictive Louisiana abortion law, saying a recent precedent — one from which he had dissented — required the result.

In his dissent in September, Chief Justice Roberts wrote that he would have blocked the Texas law while appeals moved forward.

“The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”

These arguments, which may be the first ones many Americans have heard, are a good look at how the justices handle the most public part of their work. Their questions are varied, probing and sophisticated. And they are in large part talking to each other. 

“We don’t talk about cases before the argument,” Chief Justice Roberts once said. “When we get out on the bench, it’s really the first time we start to get some clues about what our colleagues think. So we often are using questions to bring out points that we think our colleagues ought to know about.”

The main sponsors of the Texas abortion law, State Senator Bryan Hughes and State Representative Shelby Slawson, both Republicans, are in Washington and are expected to speak outside the Supreme Court after the arguments conclude, along with the Texas attorney general, Ken Paxton.

Why was there discussion of New York Times v. Sullivan, the landmark libel case? The point was that The Times faced crippling liability in state courts in Southern states during the civil rights era. But the Sullivan case followed the usual pattern: The paper was sued in state court, lost and then appealed, winning in the Supreme Court. A lawyer for Texas said that was also the right way to challenge the Texas law — not by suing in federal court beforehand.

Justice Clarence Thomas is a committed opponent of abortion rights.

At his confirmation hearings in 1991, Justice Clarence Thomas said, to the astonishment of many, that he had never discussed Roe v. Wade , the 1973 decision that established a constitutional right to abortion, even though it was issued while he was a student at Yale Law School.

The next year, he dissented in Planned Parenthood v. Casey, in which the majority reaffirmed the core of the Roe decision. Justice Thomas joined opinions saying Roe was “plainly wrong” and “should be overruled.”

In his memoir, he reconciled his 1992 vote with his statements at his confirmation hearings the year before. “By then,” he wrote, “I’d had ample time to study Roe in detail, and concluded that it was wrongly decided and should now be overruled.”

Justice Thomas, the longest serving member of the current Supreme Court, has in the intervening decades frequently voiced opposition to constitutional protection for abortion.

“Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother,” he wrote in a 2000 dissent. “Although a state may permit abortion, nothing in the Constitution dictates that a state must do so.”

He was in the majority in September when the court refused to block the Texas law.

Prelogar tells Justice Thomas that the Justice Department is not suing because Texas enacted an unconstitutional law, but because Texas deliberately structured the law to prevent federal courts from doing anything about the fact that it violates the Constitution. It’s a key distinction that Prelogar could use to show how other states could pass similar laws that undermine other constitutional rights.

Maggie Astor

Maggie Astor

A reversed burden of proof, and other provisions of the Texas abortion law.

The basic contours of the Texas abortion law, S.B. 8, are well known: It bans abortions after cardiac activity is detectable, usually around six weeks’ gestation, and delegates enforcement responsibility to private citizens. But it contains many significant, and in some cases highly unusual, provisions beyond those basics.

I read the law in its entirety last month and consulted with two professors who have expertise in abortion jurisprudence: Mary Ziegler of Florida State University and Melissa Murray of New York University. Here are a few takeaways , though Professor Murray cautioned that parts of the law were written so vaguely that they “could reasonably be subject to a wide range of interpretations.”

The burden of proof is reversed. Normally, the person making an allegation — the prosecution in a criminal trial or the plaintiff in a civil trial — must prove it is true. The defendant doesn’t have to prove it is false: innocent until proven guilty. Not so under S.B. 8, which says those accused of performing or abetting abortions have “the burden of proving an affirmative defense.”

The law’s exception for medical emergencies is vague. Some health situations aren’t clear-cut, like a cancer patient who can’t receive chemotherapy while pregnant and whose disease could become untreatable within a few months. Doctors must decide whether their patient qualifies, knowing they could be sued by anyone who disagrees.

People can be sued for intent even if they never act. The law doesn’t specify what counts as intent, leaving open the possibility that a person could be sued for, say, researching the locations of abortion clinics or viewing an advocacy group’s donation page.

There are no geographic limitations. Residents of other states can sue someone who helps a Texan get an abortion (in fact, the first lawsuits filed under S.B. 8 were from out-of-state residents), and they can also be sued for helping a Texan get an abortion.

The law puts financial burdens on defendants. A defendant who loses will have to reimburse the plaintiff’s legal fees. But courts are forbidden to order reimbursement of the defendant’s legal fees, meaning a person falsely accused would still be on the hook for the cost of their defense.

How suits under Texas’ law differ from typical tort suits.

Justice Stephen G. Breyer read back a list of six reasons that Marc A. Hearron, a lawyer with the Center for Reproductive Rights, which represents the providers, gave for why private lawsuits brought under S.B. 8 are unlike typical tort suits:

Anybody can sue. (A reason that Justice Breyer called “debatable.”)

Anyone can sue anywhere in Texas, a large state.

A lawsuit brought under S.B. 8 does not stop other plaintiffs from suing the same defendant.

The legal fees are serious.

The $10,000 paid to successful plaintiffs is serious.

Defendants have only a limited ability to argue that a lawsuit presents an undue burden.

Mr. Hearron agreed with the justice’s summary and added two more reasons:

Damages awarded in successful lawsuits are not tied to the amount of the harm, as is the case in most tort suits.

S.B. 8 provides for a mandatory injunction to prevent further violations of the law, rather than to prevent more harm to the plaintiff.

Elizabeth Prelogar, the nation’s newly confirmed solicitor general, is now presenting arguments before the Supreme Court.

Previewing the Justice Department’s argument.

The Biden administration’s newly confirmed solicitor general, Elizabeth B. Prelogar, is expected to argue that the Texas law conflicts with Supreme Court precedent and to urge the justices not to be deterred from saying so by the way it was drafted to avoid judicial review.

In the federal government’s brief submitted to the court, the acting solicitor general at the time, Brian H. Fletcher, wrote that “S.B. 8 was designed to nullify this court’s precedents and to shield that nullification from judicial review. So far, it has worked: The threat of a flood of S.B. 8 suits has effectively eliminated abortion in Texas at a point before many women even realize they are pregnant, denying a constitutional right the court has recognized for half a century.”

“Yet Texas insists,” Mr. Fletcher added, “that the court must tolerate the state’s brazen attack on the supremacy of federal law because S.B. 8’s unprecedented structure leaves the federal judiciary powerless to intervene.”

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The Justice Department will argue against Texas’ abortion law Friday. Here’s what you need to know

The U.S. sued Texas after the Biden administration vowed to oppose Texas’ new near-total abortion ban. The lawsuit joins several legal challenges already in progress.

arguments against texas abortion law

Texas' near-total ban on abortions became law Sept. 1 and quickly became the target of several lawsuits aiming to stop its enforcement.

But as those legal battles continue — with one case the subject of a federal court hearing Friday — Senate Bill 8 still stands.

Abortion providers, doctors, women's rights groups and even the U.S. government are battling to overturn the law, which bans the procedure after approximately six weeks of pregnancy — before many know they're pregnant. The nation's highest court has taken up the law once — though it didn't weigh in on its constitutionality — and multiple lawsuits are pending. A federal lawsuit filed by the Biden administration will hold a hearing Friday in a U.S. District Court.

Abortion remains a constitutional right under Supreme Court precedent. But the structure of SB 8 allows it to skirt precedent by offloading the enforcement of the statute from government and law officials to private citizens.

By empowering anyone in the nation to file lawsuits against a provider or person who aids someone in getting an abortion and barring state enforcement, SB 8 makes it difficult to name the right defendants in the lawsuits that would block enforcement of the law.

In a 5-4 vote, the Supreme Court decided to not block the law on the day it went into effect. The court cited procedural difficulties and tossed that legal case back to the 5th U.S. Circuit Court of Appeals, where it currently sits. But justices stressed that the court was not ruling on the statute's constitutionality, namely not overruling Roe v. Wade.

Here are where the various challenges to the law stand.


The Department of Justice sued Texas on Sept. 9 in an attempt to block the law's enforcement after the Biden administration vowed to take action. Federal and state attorneys will present arguments on Friday.

The case is being overseen by U.S. District Judge Robert L. Pitman, a 2014 Obama nominee, in the U.S. District Court for the Western District of Texas.

The Justice Department says the law was deliberately constructed to flout constitutional rights by making it difficult to challenge in court.

"It is settled constitutional law that ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,'" U.S. attorneys stated in the lawsuit. "But Texas has done just that."

But the state responded that just because the law is difficult to challenge judicially doesn't mean it should be overturned.

"If the Department of Justice wants to expand its authority, it should direct its requests to Congress, not this Court," Texas' filing states.

Josh Blackman, a constitutional law professor at South Texas College of Law Houston, says that while the federal lawsuit has distinct differences from other legal challenges to the abortion law, it's unlikely to block the near-total ban.

The Justice Department can sue states without regard to sovereign immunity, which grants protections for state agencies against lawsuits. A separate lawsuit filed by abortion providers named a judge as a defendant, which can draw questions of sovereign immunity.

The Justice Department's lawsuit claims the state law interferes with the federal government's ability to carry out its duties in some circumstances. Blackman said it would be an uphill climb to demonstrate that in court and even if it did, it wouldn't likely justify blocking the entire law.

Still, Blackman said Pitman likely would rule in favor of the Justice Department. But Pitman's ruling would almost certainly not be the final word on the matter. The state would likely appeal and send the case to the 5th U.S. Circuit Court of Appeals, where a suit filed by abortion providers case currently sits. The 5th Circuit is arguably the nation's most conservative appeals court .

At that point, the Supreme Court could also be asked to step in on this suit, but Blackman said he believes the justices will make a similar ruling to the one it made earlier and not decide the law's constitutionality.

Legal experts have varied forecasts for how the case will play out — if they'll make a prediction at all.

Because Blackman doesn't think the Supreme Court will eventually deem the law unconstitutional, he thinks it is here to stay.

"This law is not killable," he said. "It's like a hydra, you can't kill it — you chop off one head and two heads grow in its place."

However, Javier Oliva, a practicing law professor at The University of Texas at San Antonio, said he believes the law will be overturned as a result of the Justice Department lawsuit.

He thinks the law could be proven to put an undue burden on women who cannot get timely treatment or those who have to travel across state lines — and he thinks those arguments could be used to block the law's enforcement until its constitutionality is decided.

John Seago, legislative director for the prominent anti-abortion group Texas Right to Life, which helped draft SB 8, has called the Justice Department lawsuit "the most credible threat at this point" to the abortion law.

​Lauren Stiller Rikleen, a board member of Lawyers Defending American Democracy, said the Supreme Court's decision to not block the law temporarily while the courts considered its constitutionality shocked her and other law experts.

Now, she's unsure what to expect.

"No one would have thought that the Supreme Court would have allowed this law to stand while all these appeals were being undertaken," she said. "I think you have to give up predicting on the statute after the Supreme Court's ruling on Sept. 1."


At least two lawsuits have been filed against Dr. Alan Braid , a San Antonio OB/GYN who admitted in a Washington Post column that he performed an abortion illegal under the state's new statute.

The lawsuits could test the law in state courts. If appealed to the Texas Supreme Court, the justices could determine the law's constitutionality or even block people from filing lawsuits who can't demonstrate how they are injured by someone else getting an abortion. But many are dubious of how the all-Republican court would rule if a case were brought to them.

It's also unclear if the individual lawsuits filed will ever be heard. Some legal experts speculate that because the two plaintiffs — both out-of-state, disbarred attorneys — cite testing the law or wanting to overturn it as reasons for the suits, they could be thrown out altogether.

The Center for Reproductive Rights, which represents Braid, did not comment on the lawsuits.

Blackman said cases brought on by private citizens could also potentially make their way to the Texas Supreme Court — which so far has not been tapped to weigh in on the law. Texas' high court could then potentially rule that the plaintiffs empowered by SB 8 to file lawsuits are not actually injured and therefore that the lawsuits should be dismissed — or the court could block enforcement of the law altogether, he said.


Abortion providers, including Planned Parenthood and Whole Woman's Health Alliance, filed a lawsuit on July 13 aiming to block the abortion restrictions after Gov. Greg Abbott signed it into law.

Pitman is also overseeing this case. But proceedings were halted after defendants appealed to the 5th Circuit Court of Appeals — leading to a scheduled hearing being canceled just before the law came into effect.

The lawsuit sits with the 5th Circuit, which has not ended its stay. The appeals court will not hold arguments earlier than December, according to court filings from abortion providers.

The providers asked the Supreme Court to take over the case and fast-track proceedings in a rarely used procedure called "certiorari before judgment." But Blackman says it is highly unlikely that the Supreme Court will grant this request.

He said the case likely will continue to be handled by the 5th Circuit, at least for now.


At least 14 lawsuits have been filed in Travis County District Court against Texas’ abortion law, but a panel of judges indefinitely paused them on Sept. 23 upon a request from Texas Right to Life, a prominent anti-abortion group.

Planned Parenthood, a plaintiff in one of the cases, asked the all-Republican Texas Supreme Court on Wednesday to step in and resume the cases. The organization was granted a request to temporarily block Texas Right to Life from suing them over the new abortion law and a hearing had been scheduled for Oct. 8 before the suit was paused.


The U.S. House last week passed a reproductive rights bill that would nullify Texas' controversial near-total abortion ban by codifying the right to an abortion into federal law. The legislation is unlikely to pass in the Senate, and therefore, unlikely to become law.


Many eyes are on another abortion-related case in front of the Supreme Court, which is set to hear arguments on Dec. 1. A new law in Mississippi aiming to ban most abortions after 15 weeks was temporarily blocked by a district court in 2018, which the 5th Circuit upheld the following year.

Through this case, justices could overturn Roe v. Wade, the 1973 decision that established the constitutional right to an abortion. If the precedent is overturned, 11 states , including Texas and Mississippi, have "trigger laws" that would automatically go into effect to ban abortions in their communities.

Disclosure: Planned Parenthood and University of Texas at San Antonio have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here .

The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Reese Oxner, The Texas Tribune

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  1. Citizens, Not the State, Will Enforce New Abortion Law in Texas

    arguments against texas abortion law

  2. Lawsuit Takes Aim at Citizen-Enforced Texas Abortion Law

    arguments against texas abortion law

  3. Out-of-State Clinic Is Central in Texas Abortion Law Fight

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  4. Supreme Court strikes down Texas abortion law

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  5. Opinion

    arguments against texas abortion law

  6. Opinion

    arguments against texas abortion law


  1. What Is Texas Law Regarding Auto Repossession?

    Texas law states that a vehicle may be repossessed if the payment is late, without notice, and that the financier does not need to appear in court to order a repossession. Although it appears the financier has more rights than the debtor, t...

  2. What Are the Tattoo Laws in Texas?

    Texas laws governing tattoos and tattoo studios specify that minors under the age of 18 may not be tattooed except under very specific circumstances. Tattoo artists may not tattoo anyone who is under the influence of drugs or alcohol or has...

  3. What Are the Texas Child Emancipation Laws?

    In Texas, emancipation laws allow minors to become emancipated if they are entering into marriage, if they are joining the military, or if a minor requests emancipation and a court grants the request. The legal age of majority in Texas is 1...

  4. Texas abortion law argued before state Supreme Court

    Abortion providers are trying to find a legal avenue that will allow them to directly challenge new restrictions that have effectively

  5. Texas abortion law: U.S. Supreme Court says legal challenge can

    The court allowed the suit to continue on an 8-1 decision. Abortion providers will resume seeking to block the law as it progresses through

  6. At Supreme Court, Texas Scheme to Evade Review of Abortion Ban

    The Center presents oral arguments in Whole Woman's Health v. Jackson, its case against the Texas abortion ban.

  7. Lawsuit against Texas abortion ban 'effectively over'

    Texas abortion providers say their best hope of stopping the nation's most restrictive abortion law is all but over.

  8. Anti-abortion doctor testifies in support of Texas' ban

    Doctors testified about Texas' abortion bans at a hearing for an injunction on Thursday, as part of a suit filed by 15 women who say their

  9. The Unethical Texas Heartbeat Law

    The Texas Heartbeat Act, which has been in effect since September 2021, prohibits abortions once a 'fetal heartbeat' is detected, except in emergency situations

  10. Texas abortion law gets Supreme Court arguments

    The Supreme Court has allowed a Texas law that bans most abortions to remain in effect for now. But in an unusual move the justices said

  11. The Supreme Court heard arguments in Texas abortion law case

    The Supreme Court heard arguments in a case involving a controversial Texas law that in effect bars abortions after six weeks of pregnancy

  12. Supreme Court: Texas Abortion Law Stands, Can Be Challenged

    Supreme Court ruled Friday that SB 8, the Texas abortion law, can stand but that abortion providers can challenge it in lower courts.

  13. Supreme Court Arguments on Texas Abortion ...

    The Supreme Court heard two challenges on Monday to the law, which bars most abortions in Texas after about six weeks of pregnancy.

  14. The Justice Department will argue against Texas' abortion law

    The U.S. sued Texas after the Biden administration vowed to oppose Texas' new near-total abortion ban. The lawsuit joins several legal