Given all the effort lawmakers in Texas and other red states are pouring into making abortion illegal, you’d never know that the procedure, legal in this country for nearly 50 years, is becoming increasingly rare.
In Texas, two recently passed bills exemplify the extreme efforts. After 14 years of trying, the Legislature finally passed a so-called trigger law, which outlaws abortion immediately if the U.S. Supreme Court ever reverses itself and rules that the Constitution doesn’t guarantee women the right to abortion after all. Interestingly, a similar bill failed in 2007 after a fiscal note was added asserting that outlawing abortion could cost the state and federal governments $1 billion for all the new Medicaid births that would result over five years. Texas apparently got new accountants since then. This year’s fiscal note declares: “No significant fiscal implication to the State is anticipated.”
The other bill would keep abortion technically legal, but is aimed at preventing abortions after a fetal heartbeat can be detected, usually at around six weeks — before many women know they’re pregnant.
Courts have blocked similar “heartbeat” bills in other states, but supporters hope Texas’ version might avoid a similar fate due to a novel twist: the law empowers anyone to bring a suit against a provider or anyone else who enables someone to get an abortion, a threat the law’s supporters hope will act as a deterrent. Although the law seems to ignore a basic concept of jurisprudence — that a person can’t sue unless he or she has suffered some direct harm — it poses a formidable obstacle even if judges dismiss every lawsuit. The mere threat of litigation creates a chilling effect and the law itself may be hard for women’s rights groups to overturn because it’s not clear who they’d sue since the state of Texas isn’t actually carrying out the law.
The other encouraging development for abortion opponents lies outside Texas: They’re hoping that the Supreme Court’s decision to consider a case over Mississippi’s restrictive abortion law indicates a willingness of the court’s new conservative super-majority to upset the constitutional underpinnings of Roe v. Wade. The landmark 1973 case has been tweaked through the years but never substantially changed. Mississippi’s law, already declared flatly unconstitutional in federal court, would bar almost all abortions after 15 weeks.
Again, these assaults on abortion rights come even as fewer and fewer abortions are performed each year. In 2018, for instance, there were 55,000 abortions recorded in Texas, compared with a high of 110,000 in 1981. Nationwide, the share of all pregnancies that end in abortion fell from about 21 percent in 2011 to about 18 percent in 2017, and have continued to fall.
There are competing theories as to why. Some argue that increased restrictions on abortion providers in places such as Texas, where the number of clinics has fallen significantly, have helped drive that number down, but others note that pregnancies themselves have dropped nearly as much as abortions, and that basic attitudes about abortion have remained remarkably steady across the years.
We’d add a further fact: Texas abortions have plummeted, despite the state’s willful refusal to adopt a truly pro-life policy, one that would help low-income women avoid unintended pregnancies in the first place with consistent access to health care, and one that would support the born children so they aren’t routinely kicked off Medicaid or forced to face abuse and neglect in foster care.
Texas continues to tolerate the highest rate of uninsured children and adults in America. Lawmakers also seem to accept that more teenage girls become pregnant in Texas than any other state by far.
Those two dismal statistics should prompt outrage and compassion, respectively, but instead conservative leaders in Texas have sought time and again to erect new limits on the fundamental rights of women to make decisions about their bodies and childbearing, while leaving the babies who are born to endure a porous and unforgiving safety net.
Anti-abortion efforts in Texas and elsewhere have been largely blunted by federal courts, which have ruled repeatedly at all levels — in red states and blue — that women retain the legal right to decide for themselves, particularly up to the point of viability, whether to carry an embryo to term.
In 2016, the court struck down two restrictions Texas lawmakers had passed under the pretext of concern for mothers’ health. Balancing lawmakers’ stated aims against the burdens those changes would impose, the court again sided with women’s right to choose.
That should have put Texas and other red states on notice about the futility of unreasonable restrictions on abortion. But the opposite has happened. Of the five justices who ruled against Texas in 2016, two have been replaced by arch-conservatives and a third has been added to replace Antonin Scalia, who had died before the court issued its opinion.
The changing personnel has fueled a frenzy of cases seeking to overturn Roe outright or eviscerate it.
It’s impossible to know how the new court will rule in the Mississippi case. But one thing is sure: it will resolve nothing.