What The Supreme Court's Texas Order Means For Abortion Rights : Consider This from NPR The Supreme Court's conservative majority allowed a Texas law banning most abortions to go into effect. Almost immediately, abortion providers had to begin turning people away.

NPR's Nina Totenberg reports on the court's interpretation of the Texas law and its controversial enforcement provision, which allows any private citizen to sue someone who helps a person get an abortion — with the plaintiff due $10,000 in damages and court costs.

Kathryn Kolbert, co-founder of the Center for Reproductive Rights, explains how abortion rights activists are responding.

Additional reporting in this episode came from stories by NPR's Wade Goodwyn and Ashley Lopez of member station KUT.

In participating regions, you'll also hear a local news segment that will help you make sense of what's going on in your community.

Email us at considerthis@npr.org.

Did The Supreme Court Just Overturn Roe v. Wade?

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The court's order is stunning. That's from Justice Sonia Sotomayor. She wrote that in her dissent to an order by the Supreme Court's conservative majority this week. Now, that order allowed a new Texas law to go forward; a law that, in effect, bans abortion after about six weeks and allows private citizens to sue abortion providers and anyone who helps a person get the procedure.

KATHY KLEINFELD: The devastation is just immeasurable at this point, and it continues daily.

CORNISH: Kathy Kleinfeld is an administrator with Houston's Women's Reproductive Services.

KLEINFELD: Whether it's on the phone or email requests from desperate women trying to seek services, we're spending a lot of time counseling and trying to guide women on what their options might be if they're six weeks or beyond.

CORNISH: At Whole Woman's Health, another abortion provider in Texas, President Amy Hagstrom Miller described desperate scenes on Tuesday night in the hours before the law took effect.

AMY HAGSTROM MILLER: Our waiting rooms were filled with patients and their loved ones in all four of our clinics yesterday. We had a physician who has worked with us for decades in tears as he tried to complete the abortions for all the folks who were waiting.

CORNISH: Six weeks, of course, is earlier than most people know they're pregnant - Kathy Kleinfeld again.

KLEINFELD: That's the point. She would literally have just a matter of a few days to make her decision, schedule the appointment, come in. Texas law requires two visits. She has to wait 24 hours between those two visits before she can obtain the abortion, so the clock is really ticking. And the reality is that women don't realize this until right at that point.


CORNISH: CONSIDER THIS - the new Texas law is a near total ban on abortion. And while it will face legal challenges, the right to an abortion is on very shaky ground at the Supreme Court.

From NPR, I'm Audie Cornish. It's Friday, September 3.


CORNISH: It's CONSIDER THIS FROM NPR. The Supreme Court allowed the Texas law to take effect on September 1 at midnight. And in the final hours before that happened...

HAGSTROM MILLER: So there was a tremendous demand, saw at least twice as many patients as normal. And one of our clinics was open and saw its last patient just a few minutes before midnight.

CORNISH: That's Amy Hagstrom Miller again, the president of Whole Woman's Health. They operate clinics in four Texas cities. On Wednesday, the first day the new Texas law was in full effect, Hagstrom Miller told NPR that staff were already turning patients away at clinics.

HAGSTROM MILLER: And those patients are just filled with anguish. They're begging to be seen - you know, 50 patients on the schedule and maybe only five who are early enough in the pregnancy now to have an abortion in Texas under these new standards.

CORNISH: Those standards again - abortion is illegal in Texas after about six weeks of pregnancy, and so is helping someone get an abortion after that time.

HAGSTROM MILLER: So it's my experience that most of the patients who will be denied abortions in Texas will be forced to carry pregnancies against their will. We will see people choose to self-manage their abortion. And honestly, what option has the state left people? Access to safe abortion makes communities healthier, and I think we're going to see a public health emergency on our hands if we don't get some relief.


CORNISH: The Supreme Court's vote this week was 5-4. Chief Justice John Roberts sided with the court's three liberal justices. The majority included three justices appointed by former President Trump, and their decision didn't block future challenges to the law. But allowing it to go into effect in the meantime was something Roberts disagreed with. He called the Texas law unprecedented, not only because of its restrictive timeframe but the way it delegates enforcement powers to the general populace at large. In her dissent, Justice Sonia Sotomayor attacked that enforcement provision, which allows private citizens to sue abortion providers and anyone who helps a person get one, and that includes giving a person money or a ride to a clinic. What's more, private citizens who bring these suits need not show any connection to the people they're suing. And if they prevail, the law entitles them to a minimum of $10,000 in damages plus attorney fees. Sotomayor said the Texas law, quote, "deputize the state's citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors' medical procedures."

NPR legal affairs correspondent Nina Totenberg has more on the inner workings of the Texas law and how the Supreme Court interpreted it.

NINA TOTENBERG, BYLINE: For nearly a half-century since Roe v. Wade, the Supreme Court has consistently upheld the right to terminate a pregnancy prior to the fetus being able to survive outside the womb, generally 22 to 24 weeks. The court majority's decision to leave the Texas statute in place has provoked widespread criticism because the law was written to prevent review by the courts. Instead of placing enforcement in the hands of state officials, the law delegates to any individual the right to sue for money damages a clinic or any person who aids or abets an abortion after six weeks. Villanova University's Michael Moreland, who identifies himself as a pro-life law professor, notes that the law is not just bizarre, in his words, but broad.

MICHAEL MORELAND: There are all kinds of uncertainties in this statute. It even, at one point, has a provision that you can bring a claim if you know that someone intends to procure an abortion or aid or abet one.

TOTENBERG: Indeed, anti-abortion groups are already asking on their websites for tips about those who are aiding or abetting abortion in violation of the state law. Just how far the language of the statute may reach remains unclear, but it could possibly include family members or a receptionist at a clinic or someone who drives a patient to a clinic, even perhaps an out-of-state doctor who, via telemedicine, prescribes abortion pills. Cornell law professor Michael Dorf observes that the public enforcement provision of the law could have some ugly consequences.

MICHAEL DORF: The creation of a kind of Stasi or, you know, East-German-type society in which everybody is informing on everybody else.

TOTENBERG: And all of this comes in the context of a far more traditional attack on the court's abortion precedents - a showdown with the new conservative supermajority at the Supreme Court this year. In the next couple of months, the court is scheduled to hear a direct challenge to Roe v. Wade in a case testing the constitutionality of a Mississippi law banning abortions after 15 weeks. That law, like dozens of other similar laws restricting abortion rights, was blocked by the courts because it violated Roe and other Supreme Court precedents and because unlike the Texas law, the state enforcement regime was carried out by state officials. University of Texas law professor Stephen Vladeck maintains that by leaving the Texas law in place, the Supreme Court majority rewards cynicism.

STEPHEN VLADECK: It rewards states not just thumbing their nose at the Supreme Court substantively but using procedural tricks to make it hard for the Supreme Court to actually get to the unconstitutional substance of what the state's doing.

TOTENBERG: Stay tuned as the stakes this year get higher and higher.


CORNISH: NPR legal affairs correspondent Nina Totenberg. For abortion rights opponents, this week's decision by the Supreme Court was a milestone.

JOHN SEAGO: Yeah, I mean, this is a phenomenal victory for the movement.

CORNISH: John Seago is the legislative director for Texas Right to Life. He told NPR abortion rights opponents have been trying to pass so-called heartbeat bills for decades.

SEAGO: This is crossing a bridge that has been impossible up to this point.

CORNISH: Texas Right to Life is the state's largest organization of its kind. And Seago says that organization - they'll help people identify anyone they think could be sued under the new Texas law.

SEAGO: We have a network of pro-life attorneys and pro-life activists who even now give us tips and send us information that may lead one to believe that the law is being broken by the abortion industry.

CORNISH: A new tactic in an old fight - one that abortion opponents have been waging for decades. Now, those who support abortion rights are scrambling to come up with a new strategy.

KATHRYN KOLBERT: People don't understand what they can lose until often it's too late.

CORNISH: Kathryn Kolbert is a women's rights attorney and author of "Controlling Women: What We Must Do Now to Save Reproductive Freedom." She spoke to NPR's Ari Shapiro.

ARI SHAPIRO, BYLINE: You argued the Supreme Court case, Planned Parenthood v. Casey, in the early '90s. That's the case that upheld the basic tenets of Roe v. Wade. Now 20 years later, the Supreme Court is far more conservative than it has been at any time since Roe, so how does that shape your strategy?

KOLBERT: Well, Ari, I often say that arguing before the Supreme Court is a lot like Sesame Street. You have to learn to count in - the only number that actually matters is five.

SHAPIRO: Because five justices gets you to a majority.

KOLBERT: That's correct. And in 1992, when I argued the Casey case, we thought there were five justices at that time to overturn Roe. That didn't happen. Today we're not so lucky. There's at least five, if not six votes that could overturn Roe. And the latest vote count in Texas shows us that there are at least five votes there that are hell-bent on destroying the rights that are guaranteed in both Roe and Casey.

SHAPIRO: And so that being the case, do you just try to avoid the Supreme Court altogether? Or do you see any scenario where the Texas law could be overturned even by this very conservative court?

KOLBERT: I see very little opportunity to have that happen.

SHAPIRO: So what do you do?

KOLBERT: Well, when we wrote the book, our biggest advice was to not rely upon the courts. The federal courts in particular are not our friends, and we need to turn instead to the legislative process to restore the rights that will be taken away probably in the Mississippi case that will be heard sometime this fall.

SHAPIRO: You say abortion rights supporters need to turn to the legislative process, but abortion rights supporters have lost ground in state legislatures, which is what led to laws like the one in Texas and the one in Mississippi. It seems like if that's your strategy, things are going in the opposite direction of where you would like to see them go.

KOLBERT: Exactly. The anti-abortion movement had a 40-year strategy. We need to have a long-term one as well.

SHAPIRO: So if you're saying that the Supreme Court and federal courts are not friendly to abortion rights and many state legislatures are not friendly to abortion rights, is the only strategy here a 40-year one? Is there anything more immediate to challenge these very restrictive laws?

KOLBERT: There's absolutely shorter-term strategies in, what I call, the purple states. We've got to work to make them blue. The first thing you got to do is to make the governor blue and then work of changing the composition of the legislature. And do the hard work of winning elections because that's what our foes have done, and they are now reaping the benefits of that.


CORNISH: Kathryn Kolbert, co-founder of the Center for Reproductive Rights.

It's CONSIDER THIS FROM NPR. I'm Audie Cornish.

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